R v Stretch [2016] NZHC 2783 (18 November 2016)

Last Updated: 13 December 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-006779 [2016] NZHC 2783

THE QUEEN

v

_{ALBERT KARL LENIN STRETCH}

Counsel:	P K Feltham for Crown A W Clarke for Defendant
Sentence:	18 November 2016

_{NOTES ON SENTENCE OF COLLINS J}

Introduction

[1] Mr Stretch, you appear for sentencing this morning in relation to the following charges:

(1) One representative charge of supplying methamphetamine.¹

(2) One charge of participation in an organised criminal group.²

[2] You pleaded guilty to those charges after I gave you a sentence indication on

19 August 2016 of three years and two months’ imprisonment for your offending. At that sentence indication I noted that further personal mitigating factors may be able to be taken into account depending on the contents of pre-sentence reports and

_{additional submissions.}

¹ _{Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum sentence is life imprisonment.}

² _{Crimes Act 1961, s 98A. Maximum sentence is 10 years’ imprisonment.}

R v STRETCH [2016] NZHC 2783 [18 November 2016]

[3] I have now had the opportunity to consider a pre-sentence report, a comprehensive alcohol and drug assessment report and the submissions from your counsel, Mr Clarke, and the submissions from the Crown.

[4] This morning I shall:

(1) summarise your offending;

(2) explain the starting point I have adopted;

(3) explain the adjustments I will make to the starting point;

(4) refer to what deductions can be made for personal mitigating factors;

and

(5) explain your final sentence.

Your offending

[5] Since early 2013, the investigation known as “Operation Fantail” targeted a large scale methamphetamine supply network. You are one of the defendants who played a role in this network.

Participation in an organised criminal group

[6] Throughout the operation you were based in Porirua. You maintained a mutually beneficial relationship with Mr McKinley, who was described as being the “operations manager” of the enterprise. He regularly supplied significant quantities of methamphetamine to you and on occasions, when he ran out, you supplied methamphetamine to him.

[7] You also played a part in Mr McKinley’s emergency planning. He called you into town to meet with him after police intercepted approximately 142 grams of methamphetamine. You were observed meeting with Mr McKinley at the Cambridge Hotel alongside Ms Ryan and Mr Beazley.

[8] You were also seen by the organised criminal group as someone Mr McKinley and others would call on for physical enforcement if it was needed to recover drug debts or to intimidate customers or rivals.

Supplying methamphetamine

[9] I turn now to the representative charge of supplying methamphetamine. On each occasion you supplied methamphetamine to Mr McKinley as part of your agreement to help each other with supplies of methamphetamine. Throughout you communicated in code language in an attempt to reduce the risk of detection.

• On or about 13 April 2014 you supplied Mr McKinley with seven grams of methamphetamine for $4,200.

• On or about 22 April 2014 you supplied Mr McKinley with four grams of methamphetamine.

• Between 26 and 29 April 2014 you supplied Mr McKinley twice with unknown quantities of methamphetamine.

• On 22 May 2014 you supplied Mr McKinley with four grams of methamphetamine, delivering it at 10.30 pm that night.

• On 23 May 2014 you offered Mr McKinley approximately 14 grams of methamphetamine for $6,500. He agreed to buy 56 grams for a total of $26,000. You delivered the methamphetamine to his apartment that night.

• Between 16 May and 28 May 2014 you supplied Mr McKinley with methamphetamine on at least three other occasions.

• Between 6 June and 9 June 2014 you supplied Mr McKinley with

14 grams of methamphetamine.

[10] On 10 June 2014, your address was searched by police. During the search police located $350 cash, digital scales, utensils used for smoking methamphetamine and plastic ziplock bags used for packaging various amounts of methamphetamine.

Personal circumstances

[11] You are 35 years old and you are currently a beneficiary. You have a son who you see weekly and you have an extensive record of criminal convictions that include 11 previous periods of imprisonment.

Starting point

[12] The tariff judgment for methamphetamine offending is R v Fatu.³ Your offending sits within band two of that decision where the quantity of methamphetamine is between five grams and 250 grams and the starting point is generally between three years and nine years’ imprisonment.⁴

[13] Your offending has the following aggravating features:

(1) Planning and premeditation:⁵ your ongoing dealing in controlled drugs was planned and premeditated. This is particularly evident given the time period of over two months and ten alleged transactions with Mr McKinley.

(2) Quantity, value and frequency:⁶ the accepted quantity of methamphetamine you supplied for the purposes of this sentencing is

85 grams. That sits well below the mid range of R v Fatu.

[14] I have taken into account the role you played in the incident as this is a relevant factor. Those who are primary offenders can expect starting point sentences

³ _{R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).}

⁴ _{At [34].}

⁵ _{Sentencing Act 2002, s 9(1)(i).}

⁶ R v Fatu, above n 3.

towards the higher end of the relevant band with the converse applying to those whose role is less significant.⁷

[15] Mr Clarke has submitted that your role in the operation does not “fit tidily” into the established roles within methamphetamine offending. He said your level of culpability sits somewhere between Ms Ryan and Mr Beazley, who played an “apprentice role” in the group. In my view, while your roles were very different in nature, your culpability is on about a par with that of Mr Beazley. Although you did not take part in the full scale operation to the same extent, you on many occasions dealt directly with Mr McKinley and were sometimes called on to intimidate customers or rivals.

[16] In taking into account the role you played, the quantity of methamphetamine involved in your offending and the starting points of your co-offenders,⁸ I have concluded that a starting point of five years and three months’ imprisonment is appropriate.

Adjustments to the starting point

Uplift

[17] You have an extensive list of previous convictions, including burglary and driving charges. You also have three convictions for possession of cannabis most recently in 2002. I have however considered that this does not warrant any uplift to your sentence.

[18] I note that your offending occurred while you were on parole. Normally I would regard that as a factor which would justify an uplift in your sentence. I propose, however, to take this factor into account when assessing your prospects of

_{rehabilitation.}

⁷ _{R v Fatu, above n 3, at [31].}

⁸ R v Murdoch [2015] NZHC 2928; R v Ryan [2016] NZHC 1535; R v Foubister [2015] NZDC

26065; R v Beazley [2016] NZHC 1743; R v Wildman [2016] NZHC 1895; R v McKinley [2016] NZHC 1894 and R v Tate [2016] NZHC 1893.

Personal mitigating factors

Rehabilitation

[19] Mr Clarke has again alerted me to your personal circumstances and to your drug addiction. Your suitability for a drug and alcohol residential facility was not directly considered by the pre-sentence report writer due to issues that you believed you had with him.

[20] I have already allowed for a previous adjournment from your original sentencing to enable prospects for rehabilitation to be explored. I consider that I now have sufficient information from your counsel’s submissions and from the alcohol and drug assessment report to be able to proceed with sentencing.

[21] The alcohol and drug assessment report writer considers you have a high risk of reoffending if your drug issues are not addressed. That conclusion is consistent with the fact that your present offending occurred while you were on parole.

[22] I have taken into account your current rehabilitative steps and your attempts at involvement and engagement with Ora Toa Health Services. Mr Clarke submits you have taken these steps and that you are entitled to receive some credit for the efforts that you have made to try and address your profound addiction to methamphetamine and other drugs. I do propose to give you some discount to reflect this and that will be a discount of four months to reflect the efforts that you have made towards rehabilitative prospects.

Time spent on restrictive bail

[23] You were arrested on 10 June 2014. You have been on electronically monitored bail with a 24-hour curfew since 30 July 2014. Your compliance with the restrictive bail conditions can provide a basis for a reduction in sentence.⁹ I propose to do that and to provide you with a further discount of 16 months to reflect the

_{terms of your restrictive bail conditions.}

⁹ Keown v R [2010] NZCA 492 at [7].

Guilty plea

[24] You are also entitled to a discount of close to 20 per cent for pleading guilty and I propose to give you that discount.

Result

[25] Your final sentence is therefore two years and 10 months’ imprisonment.

[26] In my assessment this sentence will satisfy the purposes and objectives of the

Sentencing Act 2002 and will:

(1) hold you accountable for the harm you have done to the community by your offending;¹⁰

(2) promote in you a sense of responsibility for your offending;¹¹

(3) denounce your conduct;¹²

(4) deter you and others from committing the same or a similar offence;¹³

and

(5) is the least restrictive outcome that is appropriate in the circumstances.¹⁴

Conclusion

[27] Mr Stretch, you are now sentenced to two years and 10 months’

imprisonment on each charge. Those sentences are concurrent.

_{[28] Stand down.}

¹⁰ _{Sentencing Act 2002, s 7(1)(a).}

¹¹ _{Section 7(1)(b).}

¹² _{Section 7(1)(e).}

¹³ _{Section 7(1)(f).}

¹⁴ Section 8(g).

_{D B Collins J}

Solicitors:

Crown Solicitor, Wellington

A W Clarke Legal, Gisborne for Defendant