R v Pene [2016] NZHC 2787 (22 November 2016)

Last Updated: 22 November 2016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-088-003309 [2016] NZHC 2787

THE QUEEN

v

_{KIATA SONNY PENE}

Hearing:	22 November 2016
Appearances:	Michael Smith and Richard Annandale for the Crown Lucy Postlewaight for the Defendant
Judgment:	22 November 2016

_{SENTENCING NOTES OF MOORE J}

R v PENE [2016] NZHC 2787 [22 November 2016]

Introduction

[1] Kiata Sonny Pene, you appear for sentence having been found guilty following a long trial by jury.

[2] You were convicted of one charge of manufacturing methamphetamine and one charge of participating in an organised criminal group. Manufacturing a class A controlled drug carries a maximum penalty of life imprisonment. Participating in an organised criminal group carries a maximum penalty of 10 years’ imprisonment.

[3] Mr Pene you may remain seated until I tell you to stand at the end of these sentencing remarks.

Background

[4] Although it may strike you as seemingly unnecessary and repetitive, particularly given that the facts are well known to you and you sat through the seven week trial from start to finish, I am required to set out the facts on which you are to be sentenced. This is because sentencing is an important public function which must be undertaken in open Court. Your offending was serious and was committed in this community. As such, the community is entitled to know not only what your sentence is but the basis on which I have reached it.

[5] Also, where in the course of these sentencing remarks I make findings in relation to aggravating factors I do so on the basis of the evidence I heard at your trial and to the criminal standard which applies to those findings. I now turn to the facts.

[6] In July 2014 the Organised and Financial Criminal Agency of New Zealand began a large scale covert investigation into the manufacture and distribution of methamphetamine in Northland and elsewhere in New Zealand. The operation was codenamed “Easter”. Its focus was an organised criminal group made up of patched members and associates of the Head Hunters motor cycle gang (“the Group”). Leading the enterprise was Brownie Joseph Harding. The evidence was that you first met Brownie Harding when you 16 or 17 years old. Initially you knew him just

as a local from this city but your association with him grew particularly when you both became patched members of the Head Hunters gang.

[7] The Group manufactured the drug at an isolated rural address (“the address”) on Taipuha Road at Waiotira, approximately 30 kms southwest of Whangarei. The property apparently belonged to Mr Harding’s daughter and son-in-law who were then living in Australia. The house was used solely as a clandestine laboratory for the manufacture of methamphetamine and it is plain that very substantial quantities of the drug, measured in kilograms, were produced over the three month period of surveillance. The drugs produced were then distributed across the Auckland and Northland regions.

[8] Different people in different combinations played different roles in the Group over the duration of its operation. Some acted as cooks or assistant cooks. Some participated in the distribution of the drug. Others helped by driving the main cooks around or delivering materials. Some did little more than hide the profits of the venture, in both money and property, on behalf of the Group. Whatever their role may have been, each contributed, to a greater or lesser extent, to the overall success of the Group and to the damage that its dreadful trade wrought.

[9] Although the surveillance phase occupied approximately three months Operation Easter itself extended over a period of some four months. The initial surveillance of the address was in the form of a single movement-activated video camera. It scanned the northern side of the house but the view was limited not only by the angle but by the distance. A second camera was then deployed. This was closer to the address and covered the front driveway and eastern profile of the house.

[10] On 17 October 2014, after a surveillance device warrant was issued by a Judge of this Court, the Police succeeded in installing a listening device which picked up the sounds and conversations in the kitchen area of the house. Also, during currency of the operation the Special Tactical Group undertook four covert nocturnal entries into the house. These were recorded by still and video photography and showed not only the evolving sophistication of the operation but also its sheer size, complexity and sophistication.

[11] Through these methods the Police were able to identify six separate and discrete manufacturing phases (“phases”) which took place between September and November 2014. I do not propose to list each of those phases but for the purposes of the present exercise it is enough to record that the jury found you guilty of manufacturing methamphetamine between 20 and 23 October 2014 which was the fourth manufacturing phase and the first one to take place after the listening device was installed.

[12] As I have already mentioned literally kilograms of methamphetamine were produced during the six phases and while it is not possible to calculate exactly how much methamphetamine was produced in the first three phases before the listening device was installed it is possible to be more accurate in relation to the later phases. Not only were massive quantities of the drug being produced but the purity of the drug was also high. A testing of the drugs intercepted en route to Auckland during the sixth phase revealed that the finished product had a purity of 73 per cent.

[13] As I have already mentioned, you were involved in only the fourth phase of manufacturing between 20 and 23 October 2014. However, you did attend the address a month earlier when you drove Brownie Harding there. The surveillance recorded that you went inside and remained inside for about an hour before leaving. It was not the Crown’s case that you took any active role in manufacturing but it would have been obvious to you, even at that early stage, what was actually going on inside that house.

[14] Your active involvement in Phase 4 really began on 21 October 2014. The fourth phase was already well underway at that point. In fact it had been going for at least a day by that time. You arrived at the address shortly before 5:00 pm. You had driven Brownie Harding there. You helped him unload a large bottle of “Pure Dew” water which is used in the manufacturing process. You stayed at the address for nearly four hours that evening. You told the jury that you knew nothing about methamphetamine manufacture when you went out to the address. You accepted you carried some items into the house and drove Brownie Harding around but again you said you did not know what those at the house were up to and as far as you were concerned you were just helping out an old friend. The following morning you

returned to the Harding family home in Whangarei and picked up Brownie Harding. Over the next few hours you drove him around various stores before taking him out to the address. The two of you went inside. Not long afterwards you came out carrying two LPG bottles which you put in the back of Brownie Harding’s black Ford Falcon. Your evidence was that you had been asked to take them away and get them filled. You also took several bags of groceries into the house.

[15] Later you left the address, with Brownie Harding leaving separately a short time later. You went to a nearby service station where you claimed that you asked about the cost of filling up the LPG bottles. You said you thought the price was too high and decided to see if you could find a better deal elsewhere. Brownie Harding arrived at the same service station a short while later. He bought several bags of ice and then you swapped vehicles before making your own way separately back to the address. You took the LPG bottles out of the car. You remained at the address before leaving with Brownie Harding. You then returned later in the afternoon. You stayed for an hour and then left. At your trial you continued to insist that while you did these various things you had no idea what was going on in that house or how your efforts contributed to the Group’s drug making enterprise. Unsurprisingly, the jury, through its verdicts, plainly disbelieved you.

[16] The Crown claims that a total of 2½ kilograms of methamphetamine was manufactured over the days covered by the fourth phase. Much of this appears to have been produced on the first day before you arrived. Over the period of your involvement the Crown says a total of 770 grams of methamphetamine was manufactured. Your counsel accepts this. Accordingly, I will be sentencing you on the basis you were party to the manufacture of 770 grams of methamphetamine.

[17] I pause at this stage to note that there is no evidence that you were paid, either in money or product, for your assistance. Furthermore, you are not a methamphetamine addict. In fact it seems you don’t use the drug at all. You became embroiled in this whole business by helping out your friend and colleague simply because it seems he asked you to. That was an incredibly foolish and short sighted thing to do and you now face the heavy consequences of that regrettable decision.

Purposes and principles of sentencing

[18] It is now well established that in cases involving commercial drug dealing, 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. Mr Smith, in his oral submissions to me submitted this is especially so where a drug as harmful and addictive as methamphetamine is concerned. The relevant principles of sentencing require me to take into account the gravity and seriousness of the offending and maintain consistency with appropriate sentencing levels. And having said that, I accept that despite the seriousness of your offending I must also impose the least restrictive outcome appropriate and assist you in your rehabilitation.

Sentencing approach

[19] In sentencing you today, I shall follow the two-step approach which has become the standard in this country. First, I will determine what is called the starting point. That requires me to look at the nature and extent of each of your offending. I will consider your actions and weigh them against other defendants in Operation Easter, as well as other cases involving similar offending. In doing so, I will take the charge of manufacturing methamphetamine as the lead charge. However, I agree with the Crown that I should assess your culpability “globally” and that no uplift is necessary in respect of the charge of participating in an organised criminal group. I agree that this is really part and parcel of the manufacturing offending. After I have set the starting point, I will then adjust this to reflect the aggravating and mitigating factors which are personal to you.

Starting point

[20] In setting your starting point, I must begin with the well-known case of

R v Fatu.¹

[21] I am sure that Ms Postlewaight will have explained the significance of Fatu. There the Court of Appeal set out four sentencing bands which are largely defined by

¹ R v Fatu [2005] CRNZ 410.

reference to the quantity of the drug involved. Band 4 applies to the most serious offending where very large commercial quantities of methamphetamine are produced. Very large commercial quantities are defined as being 500 grams or more. Cases which fall within Band 4 attract starting points of between 13 years and life imprisonment.

[22] Ordinarily, a Band 4 case would require a starting point of at least 13 years. But that is not the end of the matter. In Fatu the Court recognised that the quantity of the drug produced is not the only relevant or determining factor. The role of the offender is obviously also critical in the analysis.

[23] Both the Crown and Ms Postlewaight have referred me to a number of cases which factually bear some similarity to yours. I will not go through those cases in any detail but I shall footnote them for your benefit and the benefit of counsel.² The difficulty with these cases is that none deals with offenders who were involved in a similarly limited way as you. As you will know, a number of the other defendants from Operation Easter have already been sentenced.³ However, I agree with Ms Postlewaight that given your role a starting point less than that of the main offenders is called for because you were not a principal cook or a particularly direct or active assistant in the actual manufacturing process.

[24] An exception, however, is the case of Sharn Keogh who I sentenced at the end of last year. In my view his case shares some real similarities for the purposes of comparison. Mr Keogh was a “delivery man” or “courier” for Brownie Harding. Like you, he drove Brownie Harding around. He also drove some of the principal cooks to and from the address. He was seen on one occasion to deliver a large container of liquid as well as several bags of ice. I was satisfied it was likely that he also provided some rudimentary assistance in the actual manufacturing of the drug because of the significant periods of time he was logged at the address. However,

_{Mr Keogh, unlike you, was a chronic methamphetamine addict who in return for his}

² R v Tang CRI 2009-004-13439, 6 October 2011; Ho, Hoe & Kupkovic [2015] NZCA 320; Cave v R [2013] NZCA 236; R v Pulman HC Auckland CRI-2007-057-2376, 27 August 2010; R v Ishak [2014] NZHC 2027.

³ R v Rogers [2016] NZHC 1103; R v Hura [2016] NZHC 777; R v Mangu [2016] NZHC 1104;

R v Lang [2016] NZHC 1899; R v Harding [2016] NZHC 2069.

services was supplied with small amounts of the drug. He participated in the second and third manufactures before the audio listening device was installed. How much methamphetamine was produced during those phases is less certain. However, I was satisfied it was a significant commercial amount which placed Mr Keogh’s offending well inside Band 4. Despite this, in recognition of Mr Keogh’s particular role, I adopted a starting point of 11 years in respect of the manufacturing offending, a level consistent with offending towards the higher end of Band 3. I did this because I considered Mr Keogh’s more limited role required a lower starting point. For these reasons I am of the view that his case is the most comparable and the most useful in terms of comparison.

[25] The Crown accepts that like Mr Keogh you were basically a delivery man or courier. However, Mr Smith in his oral and written submissions submits that the importance of this role should not be understated because, through your conduct, you assisted the Group in its illegal activities. The Crown also says an inference can be drawn that you provided some assistance, albeit likely minimal, to the cooks involved in the actual manufacturing during those quite lengthy periods you spent inside the house. It thus submits that even though your role was limited, these factors justify a starting point of 13 years at the very bottom of Band 4. It says that the starting point cannot be lowered beyond this and cannot dip into Band 3 having regard to the quantity of methamphetamine actually produced.

[26] On your behalf Ms Postlewaight does not suggest a precise starting point. However, she does emphasise that you were not the cook. You were also not part of the inner circle and you were not financially rewarded for what you did. She goes so far as to say you cannot even be properly labelled a delivery man or courier given that much of the time you did not even know what it was that you were supplying or transporting. Furthermore, she submits that you did not purchase any of the items yourself and what limited assistance you did provide could have been provided by anyone.

[27] I have carefully considered these competing submissions. However, it is difficult to find a principled basis to distinguish your role from that of Mr Keogh’s. Even if you might not have known precisely how the products you delivered

materially assisted the manufacturing process, it is inescapable and implicit in the jury’s verdict that you knew what you were doing and you knew you were assisting the manufacture of methamphetamine even if you may not have known how much of the drug was actually being manufactured. It is also possible that you may have helped out in some rudimentary way when you were inside the address but, in my view, that is speculative and I do not take it into account in assessing your culpability.

[28] I accept Ms Postlewaight’s submission that your actual participation was limited. You added nothing to the operation’s success in the form of skill or experience. It seems that you responded to Brownie Harding’s requests for assistance in an unplanned and unsophisticated sort of a way.

[29] For that reason I am satisfied that the appropriate starting point in your case is one of 10 years’ imprisonment. This is consistent with offending in Band 3 rather than at the bottom of Band 4 where your offending would normally be placed if the assessment was predicated on quantity alone. As I said when sentencing Mr Keogh, to place too great a reliance on quantity would result in a starting point which is out of all proportion to a mature and careful assessment of culpability bearing in mind the principle of totality. I do not consider the Fatu bands were intended to operate in such a rigid or inflexible fashion and in that regard I am fortified by the judicial

observations of others.⁴

[30] The starting point I have adopted in your case is a year lower than that adopted for Mr Keogh because he was charged as a party to two manufactures whereas you have been convicted of just one.

Personal factors

[31] I now turn to the factors which are personal to you which might justify an adjustment to the starting point.

4. R v Burdett CRI 2007-092-005673, 20 November 2007; R v Soles [2014] NZHC 2665, I record, however, that the conviction in this case was quashed on appeal.

[32] The pre-sentence report records that you are 40 years old. You were born in Wellington. Your mother was an addict who abused alcohol and drugs. She died very recently. You did not have any contact with your father throughout your childhood. You were adopted by your maternal grandparents but when you were four or five your grandmother died and your grandfather entered a new relationship. It seems you were badly mistreated by your step grandmother and her whanau.

[33] You left school at the age of 14 or 15 and fell into drinking and recreational drug use as a way to fill in your days. Predictably, it was not long before you found yourself appearing before the Courts. You have a reasonably modest list of previous convictions mostly for dishonestly-related offending. At some point you also became a member of the Head Hunters gang.

[34] Your last conviction in 1997 is pretty ancient and irrelevant for today’s purposes. That would appear to reflect the fact that your life stabilised after you met your wife at the age of 17 or 18. You are still together. In this more stable environment you stopped abusing drugs and alcohol. You settled into family life and you and your wife have a 12 year old son. You undertook several business management courses at Northland Polytech. You also worked at Carter Holt Harvey in Whangarei but were forced to give your employment up about 12 years ago when you began to suffer from a number of weight-related health issues. Since then you have been in receipt of a sickness benefit. As emerged at your trial, you have a real interest in rugby, both as a former player and as a coach.

[35] Despite the general turnaround in your life, regrettably it seems your association with the Head Hunters has continued. At your trial you gave evidence that you had moved away from the gang. However, that claim flew in the face of the evidence particularly the photographs and the gang-related banners and other regalia which were found in your home. Your reticence to speak about your involvement and how it was that you became embroiled in the present offending also suggests that your links with the Head Hunters remain. When asked by the probation officer to talk about your involvement you simply said, “It is what it is” and then added that when the Head Hunters ask you to drive “You do it”.

[36] However, given the positive factors I have discussed, Ms Postlewaight urges me to give you some credit. Ms Postlewaight made a powerful and persuasive submission about how it was you came to be involved in all this, especially not withdrawing on the second day. She started her submission by posing the question “Why?”. And she went a long way to answering that question. She has provided me with some references from those in the community who know and rate you. They all speak of you as a good and devoted family man; someone who is loyal and trustworthy and deeply caring. Perhaps of greater significance is that they describe you as someone who has proven to be a real role model and a mentor to the young in the community. You obviously have some real talent in that area and it is extremely disappointing that an inevitable consequence of your offending, as accepted by Ms Postlewaight, is that you will be taken from the very community which has been the beneficiary of your good works.

[37] Despite these positive factors the Courts have repeatedly stated and emphasised in oral submissions that personal circumstances can carry little weight in the context of serious drug offending.⁵ This is because mercy must take a back seat to the primary principles engaged in cases such as this; the principles of denunciation and deterrence. Despite this I am prepared to give you a discount of 10 per cent in recognition of these factors, a discount which given the principle I have already

discussed is a generous one. This discount also acknowledges the restrictive conditions of bail which you have been subject to since your arrest nearly two years ago.

[38] This brings your end sentence to one of nine years’ imprisonment. I am not prepared to impose a minimum period of imprisonment. I did not impose one in Mr Keogh’s case and for the same reasons as applied in his case I am not satisfied that one is justified in your case.

Sentence

_{[39] Mr Pene, please stand.}

⁵ See for example Jarden v R [2008] NZSC 69.

[40] On the charge of manufacturing methamphetamine, I sentence you to nine

years’ imprisonment.

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

to two years’ imprisonment.

[42] These terms are to be served concurrently which means at the same time as each other.

[43] Mr Pene, you are a man who has shown you can turn around the negative influences in your life and make a positive contribution to the community. I am confident that this offending was influenced by your longstanding connection with the Head Hunters and with Brownie Harding in particular. Your future rests in your own hands and your own life decisions. The next few years will give you the time and opportunity to reflect. You are still a relatively young man and I do not accept, despite the seriousness of your offending, you are a lost cause. You have much to live for. Your wife, Chelaire’s letter to me this morning is beautifully crafted and evocative. Uniquely it speaks of you as a husband and a father. It speaks to your potential. I sincerely hope that following your release you return to your family and to this community committed to change your life around in the way you have already shown you are capable of.

_{[44] Stand down.}

Moore J

Solicitors:

Crown Solicitor, Whangarei

Ms Postlewaight, Whangarei