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High Court of New Zealand Decisions |
Last Updated: 5 September 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-063-3363 [2016] NZHC 1153
THE QUEEN
v
SCOTT MACPHERSON
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Hearing:
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31 May 2016
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|
Appearances:
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B R Northwood for the Crown
A G Speed for the Defendant
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Sentence:
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31 May 2016
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SENTENCING NOTES OF MUIR
J
Counsel/Solicitors:
B R Northwood, MC, Auckland
A G Speed, Barrister, Auckland
R v MACPHERSON [2016] NZHC 1153 [31 May 2016]
[1] Mr MacPherson you appear before this Court today for sentencing
having pleaded guilty to a number of charges relating to
methamphetamine
offending as well as selling or conspiring to sell cannabis.
[2] Each of the methamphetamine supply, possession for supply and
offering to supply charges carry maximum penalties of life
imprisonment. That
is a reflection of society’s condemnation of those who traffic in the
human misery which is associated
with methamphetamine consumption and of which
you, of all people, are now fully aware.
[3] Due to the nature of your offending there are no victim impact
statements filed with the Court. However, I regard it as
appropriate to
acknowledge the victims of your offending, who are the members of the community
that have either been drawn into drug
use and addiction or whose habit you have
sustained through your offending. Mr Northwood will be familiar with this
comment because
I made it in relation to Mr Gaitau this morning. Every day our
courts are reminded of the huge human toll in terms of domestic
violence,
shattered careers, shattered families, mental health destroyed and a wide
variety of criminal offending which flow
from the addictions which you serviced
for personal profit, albeit that I accept the submissions of your counsel that
that profit
seems to have been substantially devoted to sustaining your own
habit.
Facts
[4] I traverse briefly the facts. In 2014, the police commenced
Operation Goa, investigating the supply of methamphetamine
between the North
Shore, Auckland area and Rotorua. They obtained surveillance warrants for
Messrs Elias and George Gaitau and two
other associates from July to November
2014. The warrants uncovered what was a wide scale operation of
methamphetamine production
and supply, resulting in 44 charges against eight
defendants, including you.
[5] You played a key role in the commercial supply of methamphetamine in the North Shore ring. Over the course of the police investigation it was determined that you possessed for supply, or in fact supplied, 151 grams of methamphetamine and in
addition you offered to supply or conspired to supply a further 35 grams.
Together the Crown says that the total value was approximately
$66,000. You
liaised with Mr George Gaitau to regularly move methamphetamine around the
country and supply it to members of the
community, and your involvement was
uncovered through the large number of texts you sent to Mr Gaitau organising the
supply and distribution
of methamphetamine and cannabis.
Purposes and principles of sentencing
[6] In any case involving serious drug offending of this nature the
pre-eminent purposes are to hold you accountable, to denounce
the conduct and to
deter the offender and others from similar offending in the future.
Rehabilitation and re- integration are also
relevant in this case, given that
you are a drug user yourself. In sentencing you today I take into account the
gravity of the offending
and the degree of your culpability, and the fact that I
must impose the least restrictive outcome which is appropriate.
Methodology of sentencing
[7] When deciding on an appropriate sentence I must first
consider your offending in isolation, removed from any factors
personal to you.
Your counsel will be well familiar with this methodology. That leads then to
what is called a starting point for
your sentence. Secondly, I will make such
adjustments as are necessary for features which are personal to you.
Finally,
I need to turn my mind to the appropriate discount for your
guilty plea.
[8] I take as the lead offending the methamphetamine supply and
possession for supply charges.
[9] In the Court of Appeal decision of R v Fatu the Court set
out four sentencing bands (ranges of starting points) for methamphetamine supply
as follows:1
(a) Band 1 – low level supply (less than five grams) – two to
four years’
imprisonment.
1 R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).
(b) Band 2 – supplying commercial quantities (five grams to 250
grams)
– three to nine years’ imprisonment.
(c) Band 3 – supplying large commercial quantities (250 grams to
500 grams) – eight to 11 years’ imprisonment.
(d) Band 4 – supplying very large commercial quantities (500
grams or more) – ten years’ to life imprisonment.
[10] Determining what band your offending falls into requires me to
consider any aggravating or mitigating factors of the offending,
identified by
the Court of Appeal, and to assess comparable cases. Your role in the operation
is also a relevant factor.2
[11] You pleaded guilty to multiple charges which are interconnected in
both time and circumstance and for that reason what are
called concurrent
sentences are appropriate for all the drug related charges that you face
today.3
Setting the starting point
Crown submissions
[12] The Crown puts your methamphetamine offending in Band 2 of
Fatu, based on your role and the quantities involved. It highlights as
aggravating features:
(a) the duration of your offending over a three month period involving
a consistent pattern of offending;
(b) the level of sophistication involved. It refers in particular to
the coded communications that occurred between you and
co-offenders;
and
(c) your role as a supplier and purchaser, and in organising the on-sale of methamphetamine to other suppliers which puts you above the level of simply a street dealer.
[13] It submits that a starting point of seven to seven and a half years of
imprisonment is called for with an uplift of nine months’
imprisonment
for the cannabis offending. In its written materials the Crown submitted
that the only discount that was available
from that was 10 per cent on account
of what it described as a belated guilty plea. However, Mr Northwood has
indicated, in oral
submissions this morning, that discount at this level should
be significantly greater than 10 per cent. I will come back to that
point later
in my sentencing notes.
Defence submissions
[14] Your counsel acknowledges that your methamphetamine offending is at
a serious commercial level warranting a starting point
of between six and six
and a half years’ imprisonment. He also acknowledges that a modest
uplift for your cannabis
offending is appropriate. Those were entirely
responsible submissions and are in fact reflected in the letter you have
written
to the Court where you acknowledge yourself that imprisonment
is an appropriate sentence for your offending and for
a significant
period.
[15] He emphasises particularly the motivation for your offending which
is your own addiction and the fact that the profits generated
by your offending
largely served to satisfy that addiction.
[16] He seeks a discount of between 12 and 15 months for the 17 and a
half months that you have spent on bail subject to a 24
hour curfew and a
discount for your guilty plea, which in his written submissions he suggested be
in the order of 20 per cent but
which this morning he submits should be closer
to 25 per cent.
Analysis
[17] I agree with the Crown and your counsel that your offending is that of commercial level supply of methamphetamine falling within Band 2 of Fatu. In my assessment you were relatively high up in the operation, as indicated by the text messages that showed you sourcing drugs from other dealers and organising on- sales. To that extent you may be described as both a wholesaler and retailer.
[18] Having regard to the cases I have reviewed I consider a starting point of six years and six months’ imprisonment appropriate in respect of the supply and possession for supply charges totalling 151 grams. The offer to supply and conspiracy to supply charges involved a much smaller quantity and in the case of the conspiracy charge a lower maximum sentence is statutorily recognised. I also recognise that in respect of the conspiracy offending it was at a relatively preparatory stage. On that basis I uplift the starting point by six months only for the other methamphetamine related offending taking the sentence to seven years for all such offending. In adopting that starting point I have considered a number of cases which I will footnote in these sentencing notes but which I do not need to discuss with you
at length now.4
Other offending
[19] You have also pleaded guilty to two other charges in relation to a
Class C drug – cannabis. Were you to be sentenced
alone for the supply
of cannabis, the Crown quantifies the total amount involved at 462 grams which
is a commercial quantity in Band
2 of R v Terewi requiring a starting
point of approximately two years’ imprisonment.5
[20] These additional offences increase the overall criminality of your
actions. Not only were you supplying methamphetamine but
you were in the
business of sourcing and supplying drugs generally and in commercial quantities.
However, taking into account the
principles of totality I do not uplift for the
two years I have identified. I consider that an uplift of six months is
appropriate
to reflect the other offending.
[21] A starting point of seven years, six months’ imprisonment therefore reflects the culpability of your offending on all the drugs related charges.
Aggravating and mitigating factors personal to the
offender
[22] I then turn to consider the factors which are personal to
you.
[23] You are a qualified builder, aged 35 years. You are in a stable
personal relationship. You are a methamphetamine addict
and that addiction has
been funded by your dealing. The pre-sentence report I have read
indicates that you have accepted
full responsibility for your offending, and
that you are motivated to address the underlying problems which have manifested
themselves
in your offending and which you properly acknowledge as the genesis
of it. You are about as loud an advertisement as they come
for the evils of
this particular drug having sacrificed so much in the pursuit of it – a
promising career, to say nothing of
the huge stresses that you have placed on
your family and other loved ones. Fortunately, you have family support from
your mother
and from your partner who you have been living with you while you
have been on bail for this offending. I have read all the relevant
correspondences from them and your own letter of remorse provided to me
today.
[24] When considering personal factors I must take cognisance of
what the
Supreme Court has said in a decision called Jarden v R to the effect
that:6
[12] ... [W]e emphasise again, in sentencing those convicted of dealing
commercially in controlled drugs the personal circumstances
of the offender must
be subordinated to the importance of deterrence. But this does not mean that
personal circumstances can never
be relevant.
[25] The Supreme Court went on to acknowledge that such circumstances may
be relevant where they contributed to the offending,
or on purely compassionate
grounds.7
[26] You have no significant prior offending. The Crown accepts that there are no aggravating factors of a personal nature.
[27] In terms of mitigation, you accept full responsibility for your
offending, and the fact that you have been allowed, in your
words, to be
“dragged” into it by those with whom you associated. There is an
old aphorism, Mr MacPherson, along the
lines of “show me your friends and
I will tell you who you are” and you are again a loud advertisement for
that. However,
you seem to me to be highly motivated to address your addiction
and to rehabilitate yourself. In that you have the support of a
loving family.
I consider that a discount is appropriate to reflect your remorse, as
demonstrated in the quite powerful letter this
morning, your attempts thus far
at rehabilitation, your commitment to rehabilitation in the future and your
prior clean record.
I allow a three month reduction in that
respect.
[28] I also accept your counsel’s submission that a discount for
the extended time spent on restrictive bail conditions,
being 17 and a half
months. Those conditions included a 24 hour curfew. I accept Mr Speed’s
submission that functionally
such a curfew is close to that of EM bail as
recognised in other cases before the Court. Adopting an approach broadly similar
to
that in Hohipa v R,8 I allow a discount of 14 months’
imprisonment to reflect the restrictive nature of your bail
conditions.
[29] In the result, I adjust the sentence, before allowing for your
guilty plea to one of six years and one months’ imprisonment.
Guilty plea discount
[30] You entered a guilty plea four days before the trial was
scheduled to commence. However, as Mr Northwood submits
this morning, there is
some history to this. Indeed he advises that last year when you were
represented by the late Mr Leary you,
through counsel, made an offer for
resolution of the charges you then faced. Given Mr Leary’s death, the
requirement that
new counsel be instructed and the intervention of the holiday
period it was not possible to further progress those matters until
this
year.
[31] Significantly, whereas prior to discussions with Mr Speed and the
Crown, you faced charges involving 350 grams of methamphetamine
which would
have
8 Hohipa v R [2015] NZCA 485 at [35].
pleaded guilty place you in a different and lower band.
[32] Nevertheless, the final plea was made very close to trial and in those
circumstances I do not consider the maximum discount
of 25 per cent is
appropriate. Nevertheless I adjust your sentence by approximately 22.5 per cent
to reflect that. I say approximately
because I am going to make the adjustment
in terms of months, being a reduction of 16 months from the sentence of six
years and one
month, which I have previously indicated.
[33] That brings me to a final sentence of four years and nine
months’
imprisonment.
Final sentence
[34] Would you please stand.
[35] Mr MacPherson, on the charges of supply and possession for
supply of methamphetamine I sentence you to a term of
imprisonment of four years
and nine months.
[36] On the charges of offering to supply and conspiracy
to supply methamphetamine I sentence you to one years’
imprisonment to
be served concurrently with the previous sentence.
[37] On the two cannabis charges I sentence you to six months’
imprisonment, again to be served concurrently with the sentence
in
[35].
[38] The effective sentence is therefore one of four years and
nine months’
imprisonment.
[39] Mr MacPherson, I wish you well in your recovery from
addiction.
[40] The Crown offers no evidence in respect of Charges 1, 10, 11, 19,
29, 43 and
44. I dismiss those charges under s 147 of the Criminal Procedure Act
2011.
Muir J
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