R v Lockie [2013] NZHC 1625 (26 June 2013)

Last Updated: 25 July 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2011-009-014648 [2013] NZHC 1625

REGINA

v

CAMERON JOHN LOCKIE

Hearing: 26 June 2013

Counsel: K B Bell and S J Jamieson for Crown

PHB Hall QC and K H Cook for Prisoner

Judgment: 26 June 2013

_{SENTENCING REMARKS OF WHATA J}

Plea

[1] Mr Lockie you have pleaded guilty to one count of possessing cocaine for supply. The maximum sentence for such offending is life imprisonment.

[2] I turn then to the summary of facts to which you have pleaded guilty. I have in effect adopted the full narrative of the police to put your offending in its proper context.

Summary of facts

[3] A Mr David Nevarez flew into New Zealand from LA on 13 December 2011. A search of his suitcase located 2.985 kilograms of the Class A controlled drug

_{cocaine. It was 80% pure.}

REGINA v LOCKIE [2013] NZHC 1625 [26 June 2013]

[4] At this time cocaine had a current potential ‘street value’ to end users of the drug of between $250 and $400 dollars per gram. Therefore the total amount of cocaine would have had a street value of between $746,250 and $1,194,000.

[5] Mr Nevarez agreed to assist the police with their enquiries. Mr Nevarez stated that he was under instructions to email a JJ once he had checked in to a motor lodge. He did this, and began an MSN Messenger conversation with a male who called himself Raoul.

[6] Between 13 and 16 December 2011 Mr Nevarez exchanged messages using email and was advised that someone would be coming to his room. During the exchanges Mr Nevarez advised Raoul of his room number.

[7] On Thursday 14 December 2011 you rang Daniel McGannan, who at this time resided in London, England, and conversed for about 24 minutes. During this conversation, the fact that the cocaine was present in New Zealand was discussed. You in turn discussed this with a Mr Brendan Clarke, who expressed an interest in receiving the cocaine.

[8] On the same night, you sent a text message to Mr McGannan which stated

“Let’s talk, call when ya walk up, I’ve got funding”.

[9] As a favour to Mr McGannan, you proceeded to facilitate the transaction acting as a contact between Mr McGannan and Mr Clarke. Following this there were numerous telephone calls and text messages between Mr McGannan and you which were about arranging the sale of the cocaine.

[10] In the early hours of 16 December, Mr McGannan contacted Samantha Gemmell, who was a long time friend, and asked if she could do him a big favour because “someone had shit on” him. Arrangements were made for her to meet up with Mr Nevarez. On 16 December 2011, police covert surveillance observed Samantha Gemmell arrive at Mr Nevarez’s motor lodge. She spoke to Mr Nevarez and was together with him for approximately 44 minutes.

[11] Their conversation was monitored by police and during the conversation, Ms Gemmell told him she was there to collect a sample saying “just a few grams”. She said she had been asked to collect a sample to take it to someone, and then if the sample was acceptable they would collect the remainder.

[12] Mr Nevarez told her he was not prepared to provide a sample without authority from “his people” in Mexico, and due to time differences between New Zealand and Mexico it would take him 12 hours before he could get authority to provide a sample.

[13] Ms Gemmell was taking instructions from Mr McGannan whom she spoke with on the telephone whilst discussing the issue of a sample being provided. Mr McGannan also spoke to Mr Nevarez, and after consultation with Mr McGannan, the conversation concluded with an agreement that Ms Gemmell would return on the morning of Saturday 17 December 2011 to receive a sample.

[14] She then did meet with Mr Nevarez and once she obtained the cocaine returned to her vehicle. Police covertly followed her back to her home address in Glendowie, Auckland.

[15] Prior to the meeting with Mr Nevarez Mr McGannan had told Ms Gemmell to take all of the cocaine and he would arrange a courier to uplift the suitcase from her and deliver it to Wellington. He reassured her that everything would be okay and confirmed with her that she was using a pre-pay cellphone. Ms Gemmell went as far as to ask Mr McGannan, in a joking fashion, if her mother would be visiting her in jail. He again reassured her that everything would be fine.

[16] As I have said the police were covertly surveilling Ms Gemmell at the time that she uplifted the cocaine, and followed her to her home address. They spoke to her about the suitcase and the cocaine.

[17] Ms Gemmell confirmed that she was acting on behalf of her friend

Mr McGannan. She told police that he had contacted her and arranged for her to

uplift the suitcase containing cocaine and to store it at her house, and he would arrange a courier to deliver it to Wellington.

[18] At about 2 pm that afternoon, Mr McGannan contacted a Mr Adrian Kemp. Mr Kemp is another long time friend of McGannan’s. Mr McGannan asked Mr Kemp to uplift the suitcase from Ms Gemmell, who was a mutual friend of both of them. Ms Gemmell agreed to help police with their enquiries and was willing to continue with the pending meeting with the courier who was to deliver it to Wellington.

[19] Whilst in the presence of the police, Ms Gemmell received a text message from Mr Kemp. He advised her that he had been contacted by “Poodle” who had asked him to collect a bag from her. “Poodle” is the nickname Mr McGannan is known by in his circle of friends.

[20] Mr Kemp met Ms Gemmell at a prearranged location. Mr Kemp transferred the suitcase from Ms Gemmell’s car to his own vehicle. After the exchange, police covertly followed Mr Kemp to his home address in Northcote Point, Auckland. On arriving at his home address Mr Kemp took the suitcase inside and opened it to inspect its contents.

[21] Police subsequently entered the address and spoke with Mr Kemp who stated that Mr McGannan had contacted him earlier that day and asked if he could collect and hold a suitcase for him. They also discussed the possibility of Mr Kemp delivering the suitcase to Wellington. He was initially reluctant and suggested that the suitcase be couriered.

[22] Mr Kemp further stated that Mr McGannan had initially told him that the suitcase had a bit of “stuff” in it, but later told him that it contained three kilograms of cocaine. Part of the arrangement was that Mr Kemp would receive $2,000 if he delivered it to Wellington. He initially declined to do this but agreed to uplift the suitcase from Ms Gemmell as a favour.

[23] Mr Kemp agreed to assist police with their enquiries and was willing to continue with the delivery of the suitcase to a Wellington recipient. Mr Kemp contacted Mr McGannan and told him that he was willing to personally deliver the suitcase to Wellington and would leave early in the morning.

[24] It was then that Mr McGannan contacted you and confirmed arrangements for the exchange in Wellington. You had arranged for a friend of yours, Brendan Clarke, to purchase the cocaine for US$140,000 per kilogram.

[25] Mr Clarke resides in Wellington but works with you in Christchurch. You arranged for Mr Clarke to meet Mr Kemp at a storage facility. You then advised Mr McGannan of the arrangements so that he could pass these details onto Mr Kemp.

[26] Whilst he was in Wellington, Mr Kemp was contacted by Mr McGannan who told him to meet a male at an address. He was told that at this exchange the male would give him $4,000 which he could share with Ms Gemmell.

[27] Mr Kemp then met with Mr Clarke. Mr Kemp presented the suitcase containing cocaine to Mr Clarke. Mr Clarke then told Mr Kemp that he needed to go and get the cash. Mr Clarke drove away briefly and returned with $2,000 in cash which he gave to Mr Kemp.

[28] Once Mr Kemp had left, Mr Clarke opened the suitcase to inspect its contents and was subsequently spoken to by police. Mr Clarke stated that he had initially intended selling the cocaine, however he had changed his mind and was going to pass it on to you, who had facilitated his taking receipt of it.

[29] Mr Clarke agreed to assist police and arrangements were made for him to contact you and offer to deliver the suitcase personally. You agreed with Mr Clarke that he should deliver the suitcase to you, and as such, Mr Clarke was accompanied by police and NZ Customs officers to Christchurch.

[30] At 8:26am on Monday 19 December 2011, Mr Clarke sent a text to you which read ‘Hey bro, heading down now. See you soon. See you for lunch and i Will give you this dam case”, to which you replied “Sweet”.

[31] At about 11:00 am on Monday 19 December 2011, Mr Clarke called you and arranged to meet at 12 pm outside the Kathmandu store on Blenheim Road, Christchurch. At 12 pm Mr Clarke met with you inside a vehicle parked outside the Kathmandu store on Blenheim Road. He gave the suitcase to you and you engaged in a brief conversation which was recorded by the police. The recording is annexed to the sentencing. It has some significance and that is the reason why I attach it.

[32] Mr Clarke exited the vehicle and you were immediately approached and spoken to by police. In explanation you stated that you had been contacted by Mr McGannan on Wednesday 14 December 2011 and asked if you knew anybody that could sell three kilograms of cocaine that was currently in New Zealand.

[33] You stated in subsequent discussions about the conversation with Mr Clarke that Mr Clarke indicated he was interested in buying the cocaine and that as a favour to Mr McGannan you facilitated the transaction, acting as a contact between the two.

[34] You further stated that you had not been involved in, nor were you aware of the importation of the cocaine until it had already arrived in New Zealand.

Your personal circumstances

[35] It is necessary for me Mr Lockie to address your personal circumstances. I have the benefit of a presentencing report, a letter from Dr Pettit about your wife, and numerous testimonials as to your character. I also have your affidavit, which I will come to.

[36] You are 36 years old. You have a wife and two children, one aged five years and the other aged three months. You are a self employed builder living in Wanaka. You are the sole provider. Your parents and family are supportive but live in Palmerston North and Auckland, so there is no family support for your wife in

Wanaka. You are involved in the outdoor community in Wanaka, including membership of Search and Rescue. You do not take drugs.

[37] Regarding your offending, you explained to the presentence report writer that your friend called you and said that he was in trouble with cocaine. Initially you say you told your friend you could not help. You then told your work colleague about the situation and agreed to give your friend’s contact details to him so they could work it out. You adamantly denied having a co-ordinating role. You say you did not fully appreciate the consequences of what you were doing as a go between in a major drug deal. You however accept responsibility but, as I have said, in your words, you “don’t do drugs”.

[38] The report says that you are extremely remorseful and that no rehabilitative needs were identified. You are currently seeing a counsellor. You are very concerned about the effects on your family. The offending appears to have been out of character. Your risk of reoffending was assessed as low, and your risk of harm to others is also low, and you have complied with your bail conditions.

[39] Given, however, the seriousness of the offending, the report recommends imprisonment.

Letter from Dr Pettit

[40] Dr Pettit’s letter says that your wife has minimal family support and that she shows some features of post-natal depression (your youngest child is three months old). But he said that it was difficult to make such a diagnosis given the added burden of financial stress and uncertainty about your wife’s social situation. The doctor notes that if you are imprisoned, your wife will need medical support.

[41] Dr Pettit says home detention would be preferable as this would allow your wife to work full time while you care for the baby. Your wife says she does not know how she would cope if you were imprisoned. Dr Pettit states that she, as I have said, would need medical support to monitor her mood.

Testimonials

[42] There are 19 testimonials as to your good character. These include testimonials from your family members, including your parents and your wife. There are testimonials from long-standing friends, and also from your GP, the associate editor of the New Zealand Snowboarder magazine, and members of the Wanaka business community.

[43] The strong themes of the testimonials are that you are a caring person who puts others ahead of yourself, hardworking, ethical and compassionate. Many speak of your genuine remorse. You have also been heavily involved in the Wanaka outdoor community, both in recreation, water safety and as a volunteer; and they say you are well respected as a builder and tradesman. It is said that you were one of the first builders to offer assistance in Christchurch after the earthquakes. You are plainly much loved by your family and friends. Great concern is also expressed about the effect of this on your young family.

Your affidavit

[44] I am not going to traverse the detail of your affidavit, but I think some key points are worth noting.

[45] You describe how Daniel or Poodle called you and said he was in trouble about a package of cocaine in or going to be in Wellington and asked you if you could help deal with it. You were surprised, told your flatmates in Christchurch, where you were then working. Later that same day you told Brendan who later that week said he wanted the cocaine. You were worried about Daniel and linked him to Brendan.

[46] You then received a call from Brendan who was in trouble with his wife and wanted to offload the cocaine on you. You met with Brendan, said that you did not want anything to do with this, and agreed that it was too big for you and you were going to throw the cocaine in the river and as I have said this was all recorded by the police.

[47] You say that all of this came about because of a misguided loyalty and that you had no intention to make a profit out of any of it.

[48] You also explain how you believed you co-operated with the police, and that the only reason for the delay in making a plea is that only now do the police accept your explanation for the possession.

[49] You also invite me to examine how Ms Gemmell and Mr Kemp were persuaded to get involved and that this was similar to your involvement.

[50] You also talk about your deep remorse and regret at what your actions have caused your family.

Statutory requirements

Sentencing Act 2002

[51] Turning then to the framework for my assessment. In sentencing you Mr Lockie, I must have regard to the purposes and principles of the Sentencing Act. Particularly relevant to you are the following purposes of sentencing, namely to hold you accountable for your conduct, (s 7(1)(a)), and to denounce it (s 7(1)(e)), to deter others (s 7(1)(f)), to protect the community from you (s 7(1)(g)) and to provide for your rehabilitation (s 7(1)(h)). I must also have regard to, among other things, the gravity of your offending and the degree of your culpability (s 8(a)), as well as the desirability of consistency with appropriate sentencing levels (s 8(e)) – this is especially relevant given that there are others involved in the chain handling the cocaine and that they have been sentenced. I must also impose the least restrictive sentence possible in the circumstances, and I must take into account your personal circumstances that might mean a lengthy sentence of imprisonment would be disproportionately severe

Submissions of defence and Crown

Crown

[52] The Crown however submits that denunciation and deterrence are the key sentencing purposes for drug offending. It says personal factors are secondary.

[53] In terms of the offending, it says there are no aggravating features. However, two key features of the offending are submitted to be relevant to the starting point: first, the amount of cocaine involved (3 kg); second, your role as a facilitator to the supply of the cocaine to Mr Clarke. The Crown also says there are no mitigating features of the offending.

[54] As to the starting point therefore, the Crown says there is no clear sentencing range, because the Courts have only infrequently passed sentences for supplying cocaine or possessing cocaine for supply. The Crown says the best guidance is likely to come from the starting points adopted for other offenders in this case (all of whom pleaded guilty), noting that the starting points were 12 years for Mr Nevarez, ten years for Mr McGannan, nine years for Mr Clarke, and seven years for Ms Gemmell and Mr Kemp.

[55] The Crown says that your culpability is lower than that of Mr Clarke, but higher than that of Ms Gemmell and Mr Kemp. Mr Clarke was sentenced on the basis that he no longer wanted to be involved in distributing the cocaine, and was only reluctantly agreeing to store it, as an intermediary between suppliers. The Crown says this indicates that Mr Clarke was sentenced on the basis of lower culpability than is indicated in the summary of facts.

[56] An appropriate starting point for you therefore the Crown says is eight years

(that is, between Mr Clarke, and Mr Kemp/Ms Gemmell).

[57] Turning to mitigating factors relating to you personally, the Crown notes that all but Mr McGannan received discounts for mitigating factors other than their guilty pleas. Mr Nevarez and Mr Clarke received discounts for assisting the authorities. The Crown says that your co-operation with police did not lead to the apprehension

of any other offenders and therefore you should not receive a further discount on that basis.

[58] The Crown says a discount of 20% is submitted to be appropriate for your guilty plea.

[59] The Crown says that it is unlikely the end sentence would fall within the jurisdiction for home detention. Even if it did, the Crown says any sentence less than imprisonment would not reflect the necessary denunciation and deterrence. The observation of Priestley J that home detention “would be indefensible” given the size of the cocaine importation is relied upon.1

Defence

[60] Your counsel, Mr Hall, accepts that personal circumstances have less relevance in sentencing for drug offending, but submits nevertheless that those circumstances should be taken into account on compassionate grounds.

[61] As to your guilty plea Mr Lockie, it is submitted that you should receive full credit given that the plea was given as soon as the Crown had assessed the file and amended the indictment.

[62] Mr Hall identifies what he says are the key aspects of your offending, namely:

(a) You were a facilitator;

(b) You never intended to be the final recipient; (c) You could not afford to buy the cocaine; and

_{(d) You never intended to buy the cocaine.}

1 R v Gemmel & Kemp [2012] NZHC 2488 (sic – correct spelling is Gemmell).

[63] Mr Hall also submits that you are extremely remorseful, and that your affidavit shows this. He says you have done voluntary community work to atone for your actions. He also submits that credit should be given for this remorse, as well as for your previous good character – you have only one minor irrelevant conviction.

[64] He emphasises that you were willing to assist police as soon as you were arrested. However, there was no one else that you could assist with investigating (as the other members of the chain had already been apprehended at that point). You were willing however, to call Mr McGannan and you topped up your own cell phone in order to do so. Counsel submits that you should receive some credit for this.

[65] Turning to your involvement in the offending, Mr Hall submits that you became involved as a facilitator because of Mr McGannan’s desperation. You were not willing to assist in supplying the cocaine until Mr Clarke became involved, at which point you acted as a go-between. He says that you were only the custodian of the cocaine for a short time, and that this was an unintended and unwanted role. When you received it you immediately voiced an intention to get rid of it. There was no financial benefit to you he says and unlike other offenders you were not paid for your involvement.

[66] Mr Hall also asks for mercy for you, submitting that this is a constitutional prerogative of superior Courts.

[67] Turning to the sentences imposed on co-offenders, counsel says that your starting point should be lower because there was no commercial element on your part, you were unwilling to possess the cocaine even as a custodian, and you only came into possession of it because of the police investigation. Your willingness to put Mr Clarke and Mr McGannan in touch was because you believed Mr McGannan was in serious trouble.

[68] A starting point of between five to six years is submitted to be appropriate.

[69] Counsel notes that Ms Gemmell and Mr Kemp received discounts of around

60% and submit that you should receive the same. It is submitted that an end

sentence of around two years would be appropriate. Counsel does not submit on home detention.

Sentence

Starting point

[70] I turn then to my starting point for your sentence.

[71] Mr Lockie, as I have said, I am obliged to maintain consistency between sentences for similar offending. I look then to the starting points for the other participants in the chain of supply.

[72] At the top of this chain were, quite plainly, Mr Nevarez and Mr McGannan who received 12 and 10 years respectively. For my part the latter was fortunate not to be sharing the same starting point as Mr Nevarez. Mr McGannan was in my view the central player in all of this. Mr Clarke sits below them but only just – he was motivated by commercial gain – and the starting point of nine years reflects this. There are then Ms Gemmell and Mr Kemp. They were plainly mules, and paid accordingly ($2,000 each). They commenced with starting points of seven years.

[73] Against this band of sentencing, there are two key aspects to your culpability that inform my assessment.

[74] First, you were a link man. You brought together the key supplier and the prospective purchaser. Strongly mitigating what is otherwise very serious criminal activity, there is no evidence that you were paid or stood to gain commercially from this activity. Your own evidence, not challenged by the Crown and not subject to cross examination, is that you were helping a friend in need. I also think that I am able to infer from the numerous testimonials, again not challenged by the Crown, that this is entirely consistent with your character.

[75] Second, you received and were found in possession of what you thought was

3 kg of cocaine. That triggers a presumption of a high level commerciality given its street value of somewhere between $750,000 and $1.2 million. In most cases that

automatically qualifies for a lengthy term of imprisonment. But again there is direct evidence that you had no intention of making a commercial gain from it or otherwise distribute it. In the transcript of your conversation with Mr Clarke you state:

“And I’m going to throw this out in the fucken river...”

[76] Presumably the transcript is reliable or it would not have been attached to the summary of facts on which you entered a guilty plea. I could find that you had some inkling that the police were listening and that you were trying to cover your tracks. But that would plainly be speculation and an improper basis upon which to sentence you. Given the absence of evidence of any dealings by you in cocaine or drugs otherwise – for example there are no texts, or bank statements that might support a finding of commerciality, I am satisfied that the presumption of commerciality in this case is rebutted.

[77] In these circumstances, I am going to proceed on the basis that a starting point, reflecting the combination of aggravating and mitigating features just mentioned, places you in a special category of lesser overall culpability than those who were plainly, on the facts, going to gain commercially from the supply of cocaine. I therefore commence with a starting point of six years.

Personal Mitigating factors

[78] Turning to your personal mitigating factors. This is a most difficult case.

[79] In my view, you were motivated to help a friend and indeed there is no evidence on which I can reach a contrary conclusion. That was your decision to help your friend and was a serious and, as you have said, a stupid mistake. To the extent that I can, I have factored that into account in fixing a starting point. I do not think I can take it into account again.

[80] But what I can do in my view is recognise two things:

(a) First, that your prospect of reoffending must be very low, so the need to deter others like you is commensurately low – the position you find yourself in should be ample deterrence;

(b) Second, a prospect of your rehabilitation back into the community as a productive member of our community must be high, and in my view this should be enabled, to the extent possible, by me.

[81] I also think I should take into account the fragile state of your wife and the dependency of your family on you. A lengthy term of imprisonment would, in these circumstances, have a disproportionately severe impact on you. For clarity, I am not saying that in all circumstances a dependent family provides grounds for a discount. It is the combination of the low level of your personal culpability and the severe impact on you and your family that implores that outcome and brings into play the need for a proportionate response.

[82] In those circumstances, and having regard to your genuine remorse, I

consider a discount of 40% is appropriate.

Discount for guilty plea

[83] Turning then to your guilty plea. I think Mr Lockie that you should receive the full 25% discount. I accept your counsel’s explanation that your plea coincided with the amendment to the indictment.

[84] The total discount would then be 65%, which brings the end sentence down to 25.2 months. That equates to two years 1.2 months, which when rounded down comes to two years one month.

[85] This is broadly in line with the 60% discount which Ms Gemmell and Mr Kemp received. It is five months less than the final sentence imposed on Ms Gemmell, which given the lack of a financial incentive is justified in the circumstances. I note also that Ms Gemmell received a four month discount for her depression and psychological vulnerability, over and above the 60% discount. However I am not prepared to go further than I already have done.

Home detention

[86] Technically Mr Lockie you are not eligible for home detention. But even if you were I would have been unable to grant it to you. Drugs like cocaine wreak a horrible toll on our community. While your level of culpability is low, the quantum of the cocaine found in your possession means that your offending was still very serious. You knew how much was involved and yet you played the role of link man, not even thinking about the consequences that the supply of that amount of drugs means for our community. I accept that when it finally made its way to you, you were going to “throw it in the river”. But the culpability I am addressing relates to your disregard for the real consequences of your offending and when you played the part of link man. That is something which this Court must make a clear statement about, and in my view, only a term of imprisonment would properly serve the purposes and principles of sentencing.

[87] Mr Lockie, please stand. On the count of possessing cocaine for supply I

sentence you to a term of imprisonment of two years and one month.

[88] As a final comment I wish to acknowledge your otherwise unblemished character. You are and remain a good person. You made a mistake that I know you regret. And society demands that you must account for it. But this does not define you, and if the many testimonials I have read are anything to go by, you will be welcomed back into your community, and deservingly so.

Solicitors:

Raymond Donnelly & Co, Christchurch

PHB Hall QC, Christchurch