R v Rogers [2016] NZHC 1103 (24 May 2016)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of New Zealand Decisions

19 charges which relate to your participation in a drug manufacturing and dealing syndicate.

[2] Initially you faced a number of other charges arising out of these events. However, no doubt in recognition of the principle of totality and the entry of pleas of guilty, the Crown has elected not to offer evidence on the other charges and, accordingly, in terms of s 147 of the Criminal Procedure Act 2011 those charges are dismissed.

[3] Let me say from the outset that it is inevitable you will be sentenced to a lengthy period of imprisonment today. The law dictates that there can be no other outcome and this is accepted by you through Mr Leader in the excellent and comprehensive submissions he has made on your behalf.

[4] Furthermore, because sentencing is an important public function it must be conducted openly. This means that I am required to set out the relevant facts and apply those to the law which governs your case. This necessarily means I shall be discussing facts which are well known to you. I will also be discussing relevant legal principles which I am sure will also have been explained to you.

[5] Additionally, until this morning it was anticipated that you and Mr Mangu would be sentenced together. Given the issues raised by Mr Leader earlier this morning I dealt with Mr Mangu separately. In my comments to you this afternoon there will be large tracts repeated from what I said to Mr Mangu. That is because those comments relate to you both and are worthy and necessary of repetition in my sentencing comments to you now.

[6] When it comes to the formal imposition of sentence I shall ask you to stand. I shall tell you when. Until then you may remain seated.

[7] In July 2014, the Organised and Financial Crime Agency of New Zealand (OFCANZ) commenced an investigation into the activities of an organised criminal group made up of patched members of the Head Hunters Motor Cycle Gang and others (“the Group”). This operation was codenamed, “Taskforce Easter”.

[8] The Group was founded with one purpose in mind: to manufacture and sell large quantities of the class A controlled drug methamphetamine. The Crown’s case is that sitting at the apex of this Group was Brownie Joseph Harding (“Mr Harding”).

[9] You were one of the manufacturers of methamphetamine, otherwise known as “cooks”. According to the Crown, you operated under Mr Harding’s superintendence and in accordance with his instructions. I shall describe your role in more detail later. But in addition to the manufacturing of the drug, you were also involved in its distribution as the charges you face reflect.

[10] The manufacturing operation took place inside a rented residential address at Waiotira, a remote rural location situated approximately 30 kms southwest of Whangarei. The drugs you produced were then sold through the Auckland and Northland regions.

September and December 2014. These were over the following periods: (a) 23 to 26 September 2014;

[12] On 17 October 2014 an audio device was installed in the house. This allowed the Police to monitor and record what was being said and done inside. An analysis of these conversations reveals that you were producing truly enormous quantities of methamphetamine. Because the audio device was not installed until after the third manufacture it is not known, with any level of precision, quite how much methamphetamine was produced in the three manufactures conducted before then. But what is known is that the last three manufactures were very successful indeed. According to the summary they yielded amounts of 2545 grams, 1900 grams (although I will be discussing that amount later in these comments) and 2800 grams respectively. In total this is 7245 grams of methamphetamine.

[13] As I said, the Police are unable to be certain about the yields in the first three manufactures. The Crown submits the amounts produced in the earlier efforts were consistent with later manufactures.

[14] Mr Rogers, you dispute this. You say it took some time for the Group to develop the skills and ability to manufacture quantities at the level of the last three. You maintain the earlier manufactures yielded comparatively modest amounts of around 700 grams each. This afternoon you filed an affidavit in which you claim that the Crown’s assertion you were involved in the fourth cook between 20 and 23

October 2014 is wrong. You say you were not involved at all on 20 October 2014. You were in Auckland with Mr Mangu. You say that Mr Hura and Mr Lang used the laboratory that day and manufactured a large quantity of methamphetamine. You claim you did not know that the manufacturing by these two men took place until well after it was completed and that Mr Hura and Mr Lang used the house for that purpose without telling anyone.

[15] However, you accept you were present and involved in manufacturing for the balance of that period; that is from 21 to 23 October 2014. Over that period you claim you manufactured 770 grams.

[16] You also depose to the fact that in relation to the manufacturing run between

28 and 31 October 2014 you produced 1400 grams of methamphetamine rather than the 1900 grams the Crown alleges.

[17] The fact of the matter is it really does not matter. In my view, given the quantities, variations of this sort make no material difference. Even on your version you have produced well over 7 kgs of methamphetamine. It is likely it was a good deal more but for the purposes of this exercise I am prepared to accept the lesser amount and sentence you on that basis. This should not be taken as an acceptance on my part that there was, in fact, a maverick manufacturing operation undertaken on 20

[18] The other relevant factor is the methamphetamine produced was of a high quality. On 14 November 2014 the Police stopped a car which was carrying a quantity of methamphetamine bound for Auckland. It had recently been manufactured in your laboratory. Testing revealed it was 73 per cent pure.

[19] It goes without saying that a significant level of skill, application and patience was required to have produced such vast quantities of methamphetamine at such a high level of purity. You were not dabbling. This was a highly sophisticated, well organised commercial operation in which you played a critical role. You spent several days at a time working in this high yielding laboratory.

[20] In cases such as this, which involve commercial drug dealing, particularly on the scale seen here, the most important purposes of sentencing are to hold the defendant accountable, denounce their conduct and deter them and others from engaging in similar behaviour. Where the drug concerned is methamphetamine, these purposes assume an even greater significance.

[21] The law reports are full of cases where Judges have sent out warnings that those who engage in this pernicious trade can expect heavy sentences which reflect the need to denounce this kind of conduct and to prevent offenders and others in the

community from being seduced by the vast levels of profit this cynical trade produces.

[22] There is little I can add to those commentaries. It is a truism that this dreadful drug is causing unprecedented levels of damage in our community. Those who are caught within its grip are robbed of their dignity and their capacity to exercise self control. Inevitably it leads them down a path of personal ruin.

[23] But the effects of methamphetamine ripple much wider. Families are affected and so is the wider community including those who are the victims of crimes committed by addicts who resort to offending to feed their own habits.

[24] This is why the primary purposes and principles of sentencing in cases of this kind focus on accountability, denunciation and deterrence.

[25] By producing and selling this dreadful substance in the quantities you have inevitably contributed to this catalogue of misery. I do not think it is an overstatement to say that the consequences of your offending have been incalculable.

[26] So, in terms of the application of the relevant principles of offending, I need to take into account its gravity and seriousness and ensure I maintain consistency with appropriate sentencing levels, both in the context of other offenders caught up in Taskforce Easter as well as considering the sentences passed for comparable offending in other cases. Having said that, I must also impose the least restrictive outcome which is appropriate.

[27] It is against this background that I now turn to consider the sentences which I

[28] Mr Rogers, in your case you face 19 charges which arise out of this operation. Some insight into the seriousness of the offending is apparent from the maximum penalties the law prescribes. Ten of those charges carry life imprisonment, four carry 14 years’ imprisonment, one carries 10 years’

imprisonment, three carry five years’ imprisonment and one carries four years’

[29] Included in my sentencing notes will be a table which sets out the specific charges you have pleaded guilty to and the maximum penalties which those charges attract.

Charge	Section	Maximum penalty
Six charges of manufacturing methamphetamine	Section 6(1)(b) of the Misuse of Drugs Act 1975	Life imprisonment
Four charges of offering to supply methamphetamine	Section 6(1)(c) of the Misuse of Drugs Act 1975	Life imprisonment
Four charges of conspiring to supply methamphetamine	Section 6(2A) of the Misuse of Drugs Act 1975	14 years’ imprisonment
One charge of possession of material with intent that it be used to manufacture methamphetamine	Section 12A(2)(a) of the Misuse of Drugs Act 1975	5 years’ imprisonment
One charge of participating in an organised criminal group	Section 98A of the Crimes Act 1961	10 years’ imprisonment
One charge of possession of a precursor substance with intent that it be used in the manufacture of methamphetamine	Section 12A(2)(b) of the Misuse of Drugs Act 1975	5 years’ imprisonment
One charge of possession of equipment with intent that it be used in the	Section 12A(2)(a) of the Misuse of Drugs Act 1975	5 years’ imprisonment

[30] The approach which I shall adopt in calculating the appropriate sentence is uncontroversial. The lead charges are obviously those relating to the manufacturing. Once I reach a starting point on those charges I shall uplift the sentence to take into account the charges relating to the distribution of the drug, that is the charges of offering to supply methamphetamine, conspiring to supply and so on. The Crown accepts I do not need to give an additional uplift for the charge of participating in an organised criminal group because that charge is part and parcel of the manufacture and distribution offending. It does not call for a separate or discrete uplift.

[31] As Mr Leader will no doubt have explained to you the starting points for methamphetamine offending are dictated by a decision of our Court of Appeal in a case called R v Fatu.¹That case sets out four sentencing bands which are structured according to the quantity of the drug involved. Band 4, which is the highest and most serious band, covers offending involving the manufacture of very large commercial quantities of methamphetamine; in other words 500 grams or more. In

those cases the band requires a starting point of between 13 years and life imprisonment. Mr Rogers, any one of the six manufactures you were involved in, taken alone and in isolation, would easily have fitted you within band 4 without taking into account the other five manufactures. When all six are considered together it is plain that you sit at the very highest rungs.

[32] The Crown has referred me to a number of cases involving methamphetamine manufacturing to assist me in setting an appropriate starting point. I will not go

through these cases in detail but I will footnote them in my written judgment for the benefit of counsel.²While I express my gratitude to the Crown, I consider their usefulness for today’s exercise to be limited for two reasons. The first is that all involve different circumstances with different roles for each of the different offenders. The second is that, quite frankly, the quantity of methamphetamine produced in those cases does not even approach the quantities which were produced

[33] So, instead of linking the sentencing levels of those cases to the present, a more useful and effective approach is to compare your conduct to that of Jaydean Hura. Mr Hura was the third cook. He was recently sentenced by Lang J to 16 years and eight months’ imprisonment.³He was involved in five of the six manufactures. Lang J took a starting point of 21 years’ imprisonment, a figure which was influenced, at least in part, by the fact that Mr Hura did not take part in the distribution of methamphetamine and did not appear to have profited personally from its sale because he was using the methamphetamine he received to feed his own

[34] It is also appropriate that I compare your involvement with that of Mr Mangu’s. Mr Mangu’s involvement was more limited than yours and Mr Hura’s. You and Mr Hura were both the “principal cooks” sitting directly below Mr Harding in the Group’s hierarchy. The Crown says that you are the more culpable cook because you were involved in all six manufactures; whereas Mr Hura was involved in five. The Crown also says you were involved in distributing methamphetamine not only by selling it to others personally but also by acting as a “gate keeper” who controlled some of the methamphetamine produced by the Group and dished it out to others further down the chain to sell.

[35] The Crown submits that unlike Mr Hura, you personally profited from your involvement in the Group by obtaining methamphetamine as payment and then

[36] Taking all these factors into account this means your overall culpability is significantly higher. The Crown seeks a starting point, taking into account all these matters, of between 24 and 26 years’ imprisonment.

[37] Mr Leader, on your behalf, does not accept you were as senior in the hierarchy as Mr Hura. He submits Mr Hura was in fact the principal cook and your role was limited to the extraction of pseudoephedrine at the very start of the manufacturing process. The Crown does not accept that. It submits that you were involved in the manufacturing process in its entirety because that is what is apparent from the audio intercepts as well as the evidence which shows that you were present throughout the periods during which the manufacturing process took place. The Crown also points out that the equipment was which found at your home at the termination of the operation included items consistent with methamphetamine manufacture rather than the extraction of pseudoephedrine.

[38] I am satisfied to the high criminal standard which is required, that the only reasonable inference to be drawn from all this evidence is that which the Crown presses for. However, in any event, even if your involvement was limited in the way submitted, it really amounts to a distinction without a difference. This is because the extraction phase is a critical part of the overall process. An unsuccessful extraction necessarily means an unsuccessful methamphetamine manufacture. It is artificial to isolate the individual involvement of those engaged in the manufacturing exercise when assessing culpability, particularly in the context of a highly organised criminal group whose activities were focused on the successful manufacture and distribution of methamphetamine.

[39] In any event, Mr Leader responsibly accepts that a higher starting point in your case is inevitable given that you face an extra manufacturing charge as well as a number of other charges relating to distribution. But, Mr Leader takes exception to the Crown’s categorisation of you as a “gate-keeper”. Rather, he claims you simply did as you were told by Mr Harding and you passed on some of the methamphetamine to other members of the Group at his direction. Mr Leader also submits you did not receive the overall profits of the offending and to the extent that

you were rewarded, this was in the form of methamphetamine which you used to feed your own addiction and which you sold to repay gambling debts.

[41] In my view, whether you or Mr Hura was in fact the principal cook does not matter in any material sense. What the evidence makes clear is that with the exception of one, you were present throughout the manufacturing process. You lent your available skills to the operation as a cook. If there was a difference between you and Mr Hura in this regard it is a very slight one.

[42] Furthermore, your overall culpability is undoubtedly greater than Mr Hura’s as your counsel properly conceded by accepting you must receive a higher starting point. Not only were you involved in an additional manufacture but you also took part in the actual distribution of the drug.

[43] I do not accept the submission you were a mere foot soldier operating at Mr Harding’s direction. The evidence makes it plain that you were trusted by him to withhold and manage significant quantities of methamphetamine; indeed it was to you that your co-defendants, Mr Mangu and Mr Latimer, turned to obtain drugs for sale. I also consider it noteworthy that on one occasion Mr Harding authorised you to provide Mr Latimer with an ounce of methamphetamine. Despite this, you refused to supply the drugs until Mr Latimer had paid back funds he owed from an earlier supply. In that way the description of a “gate keeper” is appropriate. You exercised a degree of independent decision making when it came to the distribution of the methamphetamine.

[44] Furthermore, on several occasions you also offered or conspired to sell methamphetamine to unknown individuals in quantities of up to several grams.

[45] Finally there are the charges which relate to possessing a pre-cursor substance and possessing equipment with the intent it be used in the manufacture of methamphetamine. These charges relate to the items found at your home at the

termination of the operation. It is accepted by both counsel that this material was being stored by you from the principal operation and there is no evidence that any further or specific manufactures were being planned by you. But one of the essential ingredients of these charges is that the possession was for the purpose of a future manufacture, presumably either at Waiotira (if the operation had not been frustrated by the Police’s interception) or by you or another at a later date. This is an aggravating factor which I must take into account in setting the appropriate starting point.

[46] On the other hand, I accept your offending was driven, at least in part, by your own addiction to methamphetamine and gambling. Indeed you told the Probation Officer that you were using the drug daily. It appears that you either smoked the methamphetamine you received as payment or you sold it for the purposes of covering your gambling debts.

[47] Weighing up all these matters I consider the appropriate starting point is one

[48] First, I am of the view that having regard to all the factors I have listed above this overall starting point is the appropriate one.

[49] However, if I was to break the calculation into individual steps, a starting point of 22 years’ imprisonment for the manufacturing offending is appropriate. To that an uplift of two years’ imprisonment for the distribution and a further year for the possession of pre-cursor substances comes to the same total of 25 years’ imprisonment.

[50] Having set the appropriate starting point I turn now to consider your personal circumstances. You are 27 years old. You have a limited criminal history which is mostly concerned with driving offences. Properly, the Crown does not seek an uplift for those.

[51] The pre-sentence report records that you grew up with your grandmother who died about five years ago. Your grief at her passing apparently led you to gambling and getting involved in drugs. It seems that it was this combination which led you to take up with the Head Hunters.

[52] You have two children with your partner who, I understand, is also in prison on unrelated charges. So your children now live with your parents.

[53] Mr Leader has also filed seven letters written by those who support you. I have read every word of those letters and I must say I am left feeling a little bewildered. You have an extraordinary foundation of support from close members of your whanau. There are letters from your brother, your cousins, your mother, your aunty and your sister-in-law. They describe a young man who was admired for his humility, talent and intelligence. They speak of how financial and other difficulties led you slowly down to what one of your whanau described as the “dark path ... where you are now”. They express certainly that you will not repeat the mistakes which have led you to be seated in the dock of this Court. They ask me to take these matters into account. They speak of your sincere remorse and the fact that, deep down, you are a good person who has much to contribute to the world. Since your arrest they have supported you and they are in Court today as they continue that support.

[54] I have also read your letter to me and I have taken into account your comments in respect of your remorse and your deep reflection on the effects of what your offending also had on others within our community.

[55] But for the reasons I have already explained the extent to which I am able to take into account your past good character and remorse is limited. It is the nature of the charges you face which cause that limitation. It is a tragedy that you will not have the opportunity to see your children grow up and to play an effective paternal role during these formative years.

[56] I accept your remorse is both real and genuine. You now finally appear to grasp the enormity of what you have done and the damage which you have brought

not only to those who you love but as I said, also to the wider community. While we do not know who they are or exactly what that damage has been, you can be sure it is as real as the damage which you have caused your family and which you can see with your own eyes.

[57] Reflecting your remorse you have told the Probation Officer that you are no longer a member of the Head Hunters. I sincerely hope that is the case. Also to your credit you have completed two programmes designed to address your problem gambling and it is reported that you are highly motivated to undergo other programmes designed to address your issues with drug addiction. All of this is positive and commendable.

[58] Mr Leader urges that all these factors warrant a reduction in your sentence. However, for the reasons I have already touched on more than once, positive and encouraging as these signs are, the Courts have repeatedly emphasised that in cases of commercial drug dealing, personal circumstances can carry little weight.⁴I am prepared to give you some credit in recognition of these factors but I cannot give you more than the five per cent discount I gave Mr Mangu. I note Mr Hura did not

[59] Both your counsel and the Crown accept that a discount of up to 20 per cent should be applied to reflect your guilty pleas. I am prepared to follow that course. However, the discount of 20 per cent in the circumstances of your case is generous and certainly cannot be anything more. This is because your plea was not entered at a particularly early stage and was entered in the face of an extremely strong case against you. The evidence was overwhelming and conviction was inevitable. However, despite this, by pleading guilty you have relieved the State of an expensive trial, at least in relation to you. And so, despite its relative lateness, I am prepared to give the discount which the Crown and your counsel consider appropriate.

[61] Normally, a defendant who serves a term of imprisonment of more than two years will be eligible to apply for parole after they have served one third. However, under s 86 of the Sentencing Act 2002 the Court has the power to order a defendant to serve a longer term of imprisonment where it considers the grant of parole after the normal period would not be sufficient to meet the sentencing principles of deterrence, denunciation and accountability. The Court of Appeal has commented that in cases of very serious drug dealing it is almost inevitable that the criteria for a

[62] Despite the urgings of your counsel I have little choice but to apply the same minimum period of imprisonment. A failure to do so would mean that the sentencing principles I have referred to more than once, would not be given proper recognition. I order that you are to serve at least nine and a half years’ imprisonment before you are eligible for release.

[63] Mr Rogers, please stand. The sentences I am about to impose on you are to be served concurrently with each other. This means they run together and are not imposed on top of each other. Your imprisonment will end when you have served the longest sentence on the lead charges.

[64] On the six charges of manufacturing methamphetamine I sentence you to 19 years’ imprisonment.

[65] On the four charges of offering to supply methamphetamine I sentence you to

[68] On the charge of participating in an organised criminal group I sentence you to four years imprisonment.

[69] On the charge of possession of a pre-cursor substance with the intent it be

used to manufacture methamphetamine I sentence you to three years’ imprisonment.

[71] Finally, on the charge of unlawful possession of explosives you are convicted and discharged.

[72] As I have said there will be a minimum period of imprisonment of 50 per cent.

Hearing:	24 May 2016
Appearances:	Michael Smith for the Crown Nick Leader for Mr Rogers
Judgment:	24 May 2016

High Court of New Zealand Decisions

R v Rogers [2016] NZHC 1103 (24 May 2016)