R v Jethwa [2012] NZHC 2440 (20 September 2012)

Last Updated: 10 October 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-003439 [2012] NZHC 2440

THE QUEEN

v

CHETAN VIRAJ JETHWA

Charges: Importing a Class C controlled drug x2;

selling a Class C controlled drug x2;

possession for supply of a Class C controlled drug x2;

importing prescription medicines without reasonable excuse x3; possession of prescription medicines without reasonable excuse x2; manufacturing medicines without a licence x1

Plea: Guilty

Appearances: S Cameron for Crown

P J Morgan QC for Prisoner

Sentenced: 20 September 2012

Importing Class C controlled drug, selling the Class C controlled drug and possession and supply of the Class C controlled drug – 12 months home detention;

importing prescription medicines, possession of prescription medicines and manufacturing of prescription medicines – one month home detention concurrent

300 hours of community work

_{SENTENCING NOTES OF VENNING J}

Solicitors: Crown Solicitor, Hamilton

Copy to: P Morgan QC, Hamilton

R V JETHWA HC HAM CRI-2012-019-003439 [20 September 2012]

[1] Chetan Viraj Jethwa, you have pleaded guilty to and are for sentence in this Court on two counts of importing a Class C controlled drug, two counts of selling a Class C controlled drug, two counts of possession for supply of a Class C controlled drug, three counts of importing prescription medicines without reasonable excuse, two counts of possession of prescription medicines without reasonable excuse and one count of manufacturing medicines without a licence. The maximum penalty for the most serious offending in relation to the class C drug is eight years’ imprisonment.

[2] Stated briefly the offending is that in December 2011 you imported a small single punch tablet press and then from January 2012 you began importing 4-methyl- N-ethylcathinone, also known as 4-MEC and Methylenedioxypyrovalerone, more commonly known as MDPV. Both are Class C controlled drugs. You sourced the 4- MEC and MDPV through several overseas suppliers and used the express mail service to import the illegal drugs into New Zealand. You sourced them through drug supply websites, paying approximately US$2,000 a kilogram for the 4-MEC and MDPV.

[3] Between 5 April 2012 and 16 May 2012 New Zealand Customs intercepted nine packages that you had imported into New Zealand. The packages were imported using false identities. All of this arose because of your relationship with a Mr Musson. You and Mr Musson assumed code names and false identities. You and Mr Musson formulated a business structure that covered the importation, preparation of the pills, supply to customers and incidental storage. Once you had made the pills using the press you sent bulk quantities of them to Mr Musson, who was based in Christchurch. The pills were then on-sold to customers. For each kilogram of 4- MEC sourced you made a profit of approximately $24,000. At the peak of the operation you and Mr Musson were selling $55,000 worth of pills a week.

[4] On 22 May 2012 the Police and New Zealand Customs executed search warrants at your home, the storage unit you used in Hamilton and your car. The police located a large amount of cash at your home, vials of anabolic steroids and pills. Courier packages and four or five cell phones were also located at the address. At the storage unit there were large quantities of powders, the pill press itself, scales

and binding agents. When you were spoken to you stated that the cash located in the house was the proceeds of your drug dealing. You admitted the use and distribution of steroids. You fully co-operated with the Police and frankly conceded your involvement in the operation.

[5] In relation to the medicine offences Mr Musson, who you met in about 2009, had supplied you with anabolic steroids and other related prescription medicines.

[6] As your relationship with him developed between March and May 2012 you and he imported prescription medicines from Hong Kong and in one instance China. Mr Musson ordered and paid for the medicines and requested the parcels containing the medicines to be addressed under false names, which you would then collect. You then forwarded those parcels on to Mr Musson.

[7] In relation to possession of prescription medicines that charge arises out of the prescription medicines found at your home and the storage unit when the search warrant was executed. The manufacturing of medicines arises out of your manufacturing some dbol tablets. Dbol is a common abbreviation for dianabol, which contains another prescription medicine. You manufactured that at Mr Musson’s request. You accept and admit you made somewhere between 3,000 and

4,000 tablets which you sent to Mr Musson.

[8] The pre-sentence report records that you are 24 years old. You have no previous convictions. You are assessed as having a low risk of re-offending. You have acknowledged the seriousness of your offending and expressed your absolute regret at having let down everybody who has been a positive influence in your life. Your motivation to address your offending is assessed as high.

[9] The probation officer notes you appear to have a very supportive family. Family members have expressed their shock at your behaviour. You understand that your offending has been a significant fall from grace and has caused them embarrassment and concern. Your offending has obviously badly affected your wife, who remains supportive of you. The probation officer notes that you did not attempt

to minimise your culpability or blame other external influences and accepted your responsibility and consequences of your actions.

[10] The probation officer notes, however, that your friends and associates, mostly Mr Musson, were identified as a factor in your offending because of his relationship to you.

[11] You told the probation officer you want to give back to the community and be a positive and productive member of society. The probation officer surprisingly, given the seriousness of the offending, recommends home detention.

[12] I have been supplied through your counsel with a number of references and letters of support from members of your family and from members of standing in the community. They speak highly of you and confirm what I take from the probation officer’s report that this offending is totally out of character for you.

[13] In sentencing you I am required to take account of the purposes and principles of the Sentencing Act. In relation to the purposes the sentence must hold you accountable for the harm that you have done to the community by offending of this nature. Your offending has put drugs into the community. The sentence should also promote in you a sense of responsibility for and acknowledgement of that harm. I take from the pre-sentence report that objective has to a large degree been achieved by the process you have been through already.

[14] The sentence should also denounce your conduct and deter you and others from committing similar offending. The sentence must also, however, consider your rehabilitation and re-integration into the community.

[15] In terms of the principles of the Sentencing Act I am required to have regard to the seriousness of the offending, which is in large part reflected by the maximum sentence of eight years that Parliament has prescribed and your culpability, your degree of responsibility for this offending.

[16] As you have heard the Crown submit that I should take a starting point for sentencing you of between five and six years’ imprisonment. Mr Morgan has argued for a starting point of four years’ imprisonment. Both counsel refer to and accept that the most applicable sentencing decision is R v Terewi.[1] In that case the Court of Appeal identified a number of bands for sentencing of drug offending in relation to Class C drugs.

[17] Category 3 is the most serious class of such offending. It involves large scale commercial drug dealing, in that case growing, or in this case importing and selling, usually with a considerable degree of sophistication and organisation. The Court of Appeal said the starting point will generally be four years or more.

[18] In this case the scale of the offending is substantial. Although it only lasted for a short number of months, a substantial amount of money was obtained by you as a result of your offending. In total $178,655 cash was seized from your address, which was your half share of the profits from the importation and sale of MDMA.

[19] Apart from Terewi I also have regard to the other cases referred to by counsel for the Crown: R v Wallace[2] and R v Fatu.[3] I have also considered the decision of R v Vigneau[4] referred to by your counsel, Mr Morgan.

[20] For offending of this nature and extent I consider the appropriate starting point to be five years’ imprisonment. There are no personal aggravating factors. I am then required to consider mitigating factors.

[21] In relation to that I do consider the background to your offending to be relevant. I accept that your offending seems to have come about as a consequence of your relationship with this Mr Musson. You became involved in body building. You were successful in body building competitions and from about 20 began to take performance enhancement drugs to advance your progress in the sport of body

_{building. There are of course legal performance enhancing drugs. In about 2010}

some other body builders put you in touch with Mr Musson. I am advised by Mr Morgan that you and Mr Musson have never met apparently but Mr Musson was a contact you were given. It was from that contact the offending that you have become involved in originated. Initially you ordered performance enhancing drugs from Mr Musson.

[22] Mr Morgan submits that at around this time you were considering also opening a legitimate supplements store. Mr Musson encouraged you to do that and suggested you import the pill press. From January this year you and Mr Musson then carried out the offending which has led to your being before the Court today. I note Mr Musson is a much older man and for present purposes I accept that while you were involved in the preparation and manufacture of these pills you were doing so in large part at his direction. I accept the submissions made on your behalf that he advised you about the importation of the pill press, how to import the various drugs you imported and that he provided you with false identities. I also accept the submission made on your behalf that Mr Musson supplied the dyes, the colouring, the binding agents and instructions on how to work the pill press.

[23] You have pleaded guilty and have had the advantage of the Court being able to accept those submissions on your behalf. They are particularly relevant in my view to assess your personal culpability and explain your offending.

[24] I also take into account the fact that you are a young man at the age of 24, that you have no previous convictions, but more than that, you are otherwise of good character as has been testified. You have also lost a good job as a consequence of your offending. For those factors I reduce the starting point by eight months.

[25] You have pleaded guilty and are entitled to a full credit for that. Also in accordance with the Supreme Court decision of R v Hessell[5] I accept that this case is one where you are genuinely remorseful for your offending so that a full and separate credit for that remorse should also be applied. Approximately 30 per cent

_{reduction for the guilty plea and the remorse would be appropriate.}

[26] I also take into account your full and frank admissions to the Police and co- operation with them when you were arrested.

[27] All of that enables the Court to reach an end sentence for you of two years’

imprisonment.

[28] I am then directed to consider home detention. Normally home detention would not be an appropriate sentence for a person facing charges of this nature and for an operation of this extent. However, I consider the deterrent aspect is sufficiently taken account of in this case by the starting point of five years. It is only in the very particular circumstances of your case that the Court has been able to arrive at a sentence of two years’ imprisonment which opens the door for home detention.

[29] I also consider an overriding factor, which supports home detention in your case, is your rehabilitation and re-integration into the community. You are a young man and there is no reason for you to be back before this Court again.

[30] In terms of the need for you to make your reparation to the community I consider that can be addressed by a term of community work to be served in addition to and at the same time you are serving your sentence of home detention. That will have the benefit that you can give something back to the community for your offending and will give you something to do during your home detention sentence.

[31] Please stand Mr Jethwa. On the charges of importing the Class C controlled drug, selling the Class C controlled drug and possession and supply of the Class C controlled drug you are sentenced to home detention for 12 months. You are also to serve 300 hours of community work. On the charges of importing prescription medicines, possession of prescription medicines and manufacturing of prescription medicines, you are sentenced to home detention for one month, that is concurrent with the sentence of 12 months. The sentence is 12 months’ home detention.

[32] The address for the home detention will be 28 Holly Place. You are to travel directly to 28 Holly Place, Hamilton and await the arrival of the probation officer

and the monitoring company representative. You are to reside at that place or another address approved by the probation officer for the duration of your home detention sentence. You are to abstain from the possession and consumption of alcohol and illicit drugs for the duration of your home detention sentence. You are to notify your probation officer prior to starting, terminating or changing your position or place of employment. You are to undertake any assessment, counselling or treatment to address your offending factors as directed by the probation officer.

[33] As I have said you are also to carry out 300 hours of community work.

[34] There will be also an order forfeiting all drug related paraphernalia, including and extending to the cell phones located at the property.

[35] In addition there will be an order for forfeiture to the Crown of the cash found at your home.

[36] Mr Jethwa, I am sure you will appreciate that only by the narrowness of margins you have avoided going to prison for your offending. You are a young man. You have a full future and life ahead of you. You are being given a chance by this Court. It is a chance which I encourage you to take with the support of your family. As I have said there is no reason for you to be back before this Court ever again but if you are you can be sure that you will not be treated so leniently in the future. That

_{is all, stand down.}

Venning J

---

[1] _{R v Terewi [1999] 3 NZLR 62.}
[2] _{R v Wallace [1999] 2 NZLR 159.}
[3] _{R v Terewi [2006] 2 NZLR 72.}

[4] R v Vigneau HC Wellington CRI 2011-085-4047, 7 December 2011.

[5] R v Hessell [2010] NZSC 135.