R v Mangu [2016] NZHC 1104 (24 May 2016)

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Hearing:	24 May 2016
Appearances:	Michael Smith for the Crown Arthur Fairley for the Defendant
Judgment:	24 May 2016

[1] Anthony Hone Mangu, you appear for sentence today having pleaded guilty to 10 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 term of imprisonment today. The law dictates that there can be no other outcome and this is accepted by you through Mr Fairley who in advance of today’s hearing filed extensive and comprehensive written submissions on your behalf which he has added to orally this morning.

[4] Furthermore, because sentencing is an important public function it must be conducted openly. This means I am required to set out the relevant facts and apply those to the law that governs your case. This necessarily means I will 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 by Mr Fairley.

[5] When it comes to the formal imposition of sentence I shall ask you to stand. I shall tell you when but in the meantime you may remain seated.

[6] 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”.

[7] 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”).

[8] You were a manufacturer of methamphetamine, otherwise known as a “cook”. 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 reflect.

[9] 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 throughout the Auckland and Northland regions.

[10] The evidence shows there were six distinct manufactures which were conducted between September and December 2014. These were over the following periods:

[11] 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 truly enormous quantities of methamphetamine were being produced. 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. The amounts yielded were 2545, 1900 and 2800 grams respectively. In total this is

7245 grams of methamphetamine. It is in respect of these three manufacturing runs you are charged, although your actual involvement relative to each differed as I shall shortly explain.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] There is little I can do to 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.

[17] But the effects of methamphetamine ripple far 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.

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

[19] Through producing and selling this dreadful substance in the quantities you did, 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.

[20] So, in terms of the application of the relevant principles of sentencing, I need to take into account its gravity and seriousness and ensure that 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.

[21] It is against this background I now turn to consider the sentence which I must impose.

[22] You face 10 charges of which eight carry a maximum penalty of life imprisonment, one carries 14 years’ imprisonment and the other 10 years’ imprisonment.

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

Charge	Section	Maximum penalty
Three charges of manufacturing methamphetamine	Section 6(1)(b) of the Misuse of Drugs Act 1975	Life imprisonment
Five charges of offering to supply methamphetamine	Section 6(1)(c) of the Misuse of Drugs Act 1975	Life imprisonment
One charge of conspiring to supply methamphetamine	Section 6(2A) of the Misuse of Drugs Act 1975	14 years’ imprisonment
One charge of participating in an organised criminal group	Section 98A of the Crimes Act 1961	10 years’ imprisonment

[24] The approach which I shall adopt in calculating the appropriate sentence is uncontroversial. The lead charges are obviously the three 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 and conspiring to supply. 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.

[25] As Mr Fairley 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

[26] 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 here.

[27] 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 another of the cooks. He was recently sentenced by Lang J to

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 habit.

[28] Although you participated in three manufactures as compared to Mr Hura’s five, those manufactures still yielded more than seven kgs of methamphetamine. And so, as your counsel properly accepts, your offending falls easily within band 4 in Fatu requiring a starting point of between 13 years and life imprisonment.⁴

[29] I accept that in the first two manufactures you played a relatively minor role. In the first two you were present for several hours and although the conversation picked up by the audio device revealed you making comments about the process and asking questions, I do not understand the Crown to be suggesting that you were one of the primary cooks. For example, in the manufacturing between 20 and

_{23 October 2014 you were present on 21 October 2014 for a little over
three hours.}

During the 28 October to 31 October 2014 cook you were present for just over an hour after arriving with Mr Rogers. The audio device picked you up commenting on the manufacturing process and later in the afternoon you were seen to place a basket shaped item in the boot of your car.

2014 you were involved more extensively. You were present for nearly 12 hours on

7 November 2014 and throughout the night of 13/14 November 2014. This was the manufacture which yielded 2.8 kgs of methamphetamine.

[31] There is some disagreement as to where you sit in relation to Mr Hura. The Crown accepts Mr Hura was a more senior cook and therefore more culpable. However, it submits you should nevertheless receive a comparable starting point to him because you were also involved in the distribution and because an inference is available that you personally profited from the on-sale of the methamphetamine. The Crown seeks a total starting point of between 20 and 22 years’ imprisonment. Mr Fairley, on your behalf, makes the case that the limited distribution you were involved in does not bring the starting point up to the same level as Mr Hura. He submits that the offers made to supply others involved small quantities of the drug. He also submits that like your co-defendants, you did not personally profit from the enterprise, but instead took part to meet the demands of your own addiction. He submits a starting point of 18 years is appropriate.

[32] I have spent some considerable time reviewing these competing submissions. In your case setting the starting point is not straightforward. I accept you were not the principal cook; certainly not as that classification might be used in relation to Mr Hura. The summary of facts reveals you were receiving methamphetamine from your co-defendants further up in the enterprise’s hierarchy and then on-selling it to a number of other unknown and unidentified individuals. On some occasions these customers contacted you. On other occasions you sought them out and made offers to supply them with methamphetamine. Unsurprisingly, the Crown is unable to specify with any level of certainty how much of the drug you actually distributed. I accept that having reviewed the relevant intercepted communications it seems likely that each sale involved reasonably small quantities of the drug intended for personal

use. Furthermore, as with others of your co-defendants, I accept your offending was driven in large part by your methamphetamine addiction. I am satisfied that personal gain was not the end goal in your particular case. Reviewing your offending as a whole I do not believe your involvement in distribution, when added to the role you played in manufacturing, can be said to bring your level of culpability up to that of Mr Hura’s. In my assessment he was a more important cog in the success of this operation.

[33] Taking into account all of these factors I consider the appropriate starting point in your case is one of 20 years’ imprisonment.

[34] I turn now to your personal circumstances. You are 34 years old. Your criminal history is unenviable. It includes 20 criminal convictions for offences ranging from violence, failure to comply with Court-ordered conditions and alcohol- related offending. It seems you completed a sentence of imprisonment shortly before you became involved in the current offending. Responsibly and properly in my view, the Crown does not seek an uplift for your past criminal history. But the Crown does submit that your history removes any possibility of a reduction or credit arising from previous good conduct. I agree.

[35] The pre-sentence report provides some insight into your background and Mr Fairley’s submissions, both in writing and this morning reflect this. Yours was not a fortunate upbringing. You had no positive role models and you were frequently exposed to violence, perpetrated against your mother at the hands of your stepfather. You accept that this behaviour has been repeated by you in your own relationship of

14 years. Your mother has written a heartfelt and loving letter recording you have many positive qualities which others do not see. She speaks about what a good father you are. She asks that you be judged by your inner character and personal attributes instead of your wrong-doings and mistakes in life. Evelyn Henare has also written positively in your support. For reasons I shall develop, these factors count for relatively little.

[36] You and your partner have seven children although I am advised they have been removed from your care. You accept that the stressors of a long prison term will almost certainly result in your partner leaving you and you express the hope that she will regain the custody of all the children and lead a happy and safe life with them.

[37] You also accept your gang connections with the Head Hunters. During the interview you mentioned you had been thinking about distancing yourself from the gang and you expressed the hope that after sentencing you might move to a prison where there are fewer known Head Hunter associates. Those expressions on your part indicate you may have some insight into some of the influences on your offending.

[38] However, undoubtedly the greatest influence on your offending has been your drug addiction which has been a major feature of your life. You say you started smoking cannabis at the age of 11 before being introduced to methamphetamine at

19. After this your usage was up to a gram of the drug a day. You even took to manufacturing to meet your own needs. You reported that these drugs helped block out the pain in your life particularly the loss of your children. The time you have spent on remand has been your longest period of sobriety for many years and, to your credit, you have already completed several sessions with the Community Alcohol and Drug Service (CADS). You told the Probation Officer you wished to complete further rehabilitative programmes whilst in prison; these would be very beneficial indeed and I wish you the best of luck with them.

[39] The Probation Officer reports that you take full responsibility for your offending and you are now remorseful. I have also read your letter of apology and I accept that you appear to have some insight into the harm caused by your offending.

[40] The problem Mr Mangu, as Mr Fairley properly accepted in his oral submissions, is that the extent to which the law allows me to take your personal circumstances into account are very limited in major drug cases like this. Commercial drug dealing is properly regarded as being so serious that personal

circumstances can count for little. I am, however, prepared to credit you with a five per cent discount.

[41] Again, the Crown accepts that a discount of 20 per cent is available to reflect your guilty plea. I am satisfied this is appropriate. It certainly could not have been any higher given that this plea was not entered at a particularly early stage, and came in the face of overwhelming evidence as to your guilt. But you are entitled to some credit and that is because by pleading guilty you have saved the State the very substantial costs of a criminal trial (at least in respect of yourself).

[43] 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

[44] Mr Fairley submits that given your motivation to involve yourself in rehabilitation courses the Parole Board would be in the best position to determine when you should be released. In the alternative he submits a minimum period imprisonment of 40 per cent would be appropriate.

[45] Given the legal principles which are engaged in your case I can see no proper basis to treat you differently from Mr Hura who received a minimum period

_{of imprisonment of 50 per cent. This means I am satisfied it is
necessary to impose}

the same minimum period in your case. The result is that you will spend at least

[46] Mr Mangu, please stand. On the three charges of manufacturing methamphetamine I sentence you to 15 years’ imprisonment.

[47] On the five charges of offering to supply methamphetamine I sentence you to

[49] On the charge of participating in an organised criminal group I sentence you

[50] Each of the terms of imprisonment which I have imposed is to be served concurrently with each other. As I have stated, a minimum period of imprisonment of 50 per cent is ordered.

High Court of New Zealand Decisions

R v Mangu [2016] NZHC 1104 (24 May 2016)