R v Keogh [2016] NZHC 508 (23 March 2016)

Last Updated: 23 March 2016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-088-003309 [2016] NZHC 508

THE QUEEN

v

_{SHARN STANLEY KEOGH}

Hearing:	23 March 2016
Appearances:	Michael Smith for the Crown Chris Muston for the Defendant
Judgment:	23 March 2016

_{SENTENCING NOTES OF MOORE J}

R v KEOGH [2016] NZHC 508 [23 March 2016]

Introduction

[1] Sharn Stanley Keogh you appear for sentence today having pleaded guilty to five charges. Four are brought under the provisions of the Misuse of Drugs Act 1975 and one under the Crimes Act 1961.

[2] Under the Misuse of Drugs Act there are two charges of manufacturing the class A controlled drug methamphetamine¹ and two charges of conspiring to supply methamphetamine². The charge of participating in an organised criminal group³ is brought under s 98A of the Crimes Act. The lead charge of manufacturing carries a maximum penalty of life imprisonment.

[3] On 16 December 2015 I gave you a sentence indication. I indicated that in the event you were to plead guilty to these charges I would sentence you to a term of imprisonment of eight years and six months’ imprisonment. You accepted that indication. Although I gave brief reasons for reaching such a sentence then I am now required to record those reasons more fully as part of this formal sentencing process.

Factual background

[4] In July 2014 the Organised & Financial Crime Agency New Zealand commenced a covert electronic investigation into the manufacture and supply of methamphetamine in Northland by a syndicate of patched members of the Head Hunters Motorcycle Gang. The investigation was code named “Taskforce Easter”.

[5] In September 2014 a covert video camera was installed to monitor the activities of those coming and going from an address at 278 Taipuha Road, Waiotira,

_{Northland. Waiotira is an isolated rural area about 30 kms southwest of Whangarei.}

¹ _{Misuse of Drugs Act 1975, s 6(1)(b).}

² _{Section 6(2A).}

³ Crimes Act 1961, s 98A.

[6] The investigation revealed the address was not occupied on a full-time basis. Instead, it was used as a sophisticated clandestine laboratory which manufactured large quantities of methamphetamine.

[7] From the Police’s observations and the evidence collected through the covert phase, it was revealed that methamphetamine was manufactured at the address on six separate occasions over a three month period between September and December

2014.

[8] It was not until mid-October that an audio device was installed at the address. The intercepted communications which followed revealed methamphetamine was manufactured on three occasions over the period of the installation. The quantities

_{produced on each occasion were massive as can be seen by the table below:}

Date	Quantities
23 October 2014	2,545 grams
28 to 31 October 2014	1,900 grams
6 to 14 November 2014	2,800 grams

[9] You have pleaded guilty to manufacturing activity which took place before the interception device was installed. Those manufactures took place twice between

30 September 2014 and 1 October 2014 and between 8 and 9 October 2014.

[10] The evidence is that on the morning of 30 September 2014 you drove to the address and delivered a number of items. You remained inside the house for over two hours before leaving. You returned later the same day when you delivered a large container of liquid and several bags of ice from the boot of your car. It is plain that the items you delivered were directly connected to the manufacture of methamphetamine. Ice is an important cooling agent in the manufacturing process.

[11] You also acted as something of a taxi service. For example on 1 October

2014 you drove a number of the principal members of the group, including the methamphetamine cooks, to the address so they could manufacture methamphetamine. Later the same day you returned to the address and delivered some more large bags of ice.

[12] You are also charged with conspiring to supply an unknown person with methamphetamine on 9 November 2014. This relates to a telephone call you received from an unknown male. That conversation reveals you were involved in the sale of half a gram of methamphetamine for $400.

[13] Additionally, you are being sentenced for conspiring with Anthony Mangu (“Mangu”) to supply unknown persons with methamphetamine on 15 October 2014. This charge relates to you sending a text message to Mangu requesting to be supplied with methamphetamine. The two of you then exchanged a series of messages arranging to meet at a specified address. Intercepted conversations disclosed that you and Mangu discussed a sample of methamphetamine being shown to a third party. If the sale went ahead the plan was for Mangu to complete the supply. It would appear the drugs were never, in fact, supplied because although an agreement was reached with the purchaser, Mangu had already left for Auckland and you were unable to complete the sale.

[14] The charge of participating in an organised criminal group relates to your involvement in acting as a taxi service for the cooks and for the role you played as a delivery man and courier by supplying material which was essential for the successful manufacture of methamphetamine.

[15] On any analysis the methamphetamine manufacturing enterprise which you were a part of was extremely sophisticated. Quantities of the drug were produced in quantities which can only properly be described as enormous.

[16] Although the exact amount of methamphetamine produced in the two manufactures you were involved with cannot be calculated with the same precision later manufactures can be, the quantities were still very substantial.

[17] However, I am satisfied your role was limited. You were not a cook although it seems likely you assisted because the surveillance reveals you remained inside the target address for quite long periods after you had made the deliveries.

[18] It is also plain to me that you are a heavy methamphetamine addict and you have been for some time. The pre-sentence report reveals you admitted funding others to purchase methamphetamine for resale as a means of accessing free drugs for your personal use. You estimated your daily use at between 0.5 and 2 grams a day at a cost of between $400 and $1,600. On any analysis that is a phenomenally high level of personal use and underscores the level of your addiction.

[19] I am satisfied that your participation in this enterprise was driven by your addiction rather than the pursuit of commercial gain.

Purposes and principles of sentencing

[20] In sentencing you today I am required to give effect to the purposes and principles of sentencing. It is well settled that where commercial drug dealing is concerned the primary role of the sentencer is to impose a sentence designed to denounce the behaviour and to promote in the offender a sense of responsibility for the harm caused through their drug dealing. Methamphetamine is an insidious, pernicious and highly addictive drug as you know. It is responsible for incalculable levels of misery. Its dreadful effects ripple well beyond the addict. Families including your own have been decimated by its collateral damage. The consequence to our community is simply huge. That is why any sentence imposed must also operate as a deterrent to others who may be tempted by the massive profits associated with this trade.

[21] The seriousness which Parliament views pedalling in methamphetamine is reflected by the fact that the maximum penalty is life imprisonment, although the harshness of that penalty must be tempered by the need to impose the least restrictive outcome which is appropriate in the circumstances.

Sentencing approach

[22] I adopt the manufacturing charges as the lead offences. This is because they are obviously the most serious. The Crown suggests that the charge of being a member of an organised criminal group may be taken into account in setting the starting point for the manufacturing offending. Since your involvement in the manufacturing is inextricably connected to your membership of the group, I accept this is the correct approach.

[23] Obviously, an uplift is necessary to reflect the totality of the offending and in particular the conspiracy to supply charges.

[24] The guidelines for sentencing in methamphetamine dealing are well settled. In R v Fatu⁴ the Court of Appeal set out four sentencing bands. While the bands are structured to reflect quantity there is some overlap between them. Quite where any particular defendant may fit on the Fatu continuum will depend on the role they played in the production and supply chain.

Starting point

[25] Mr Keogh, the amount of methamphetamine produced in the two manufactures you were involved in easily places your offending within Band 4. That is accepted. That band indicates a starting point of between 13 years and life imprisonment. Taken in isolation, the sheer amount of the drug involved in your case would justify a starting point well above the lower end of that range.

[26] However, in Fatu, the Court of Appeal recognised that a more nuanced enquiry is necessary.⁵

[27] I have already accepted that your role was largely confined to being a delivery man or courier. The Courts have typically regarded such a role as attracting

⁴ _{R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 at [43].}

⁵ At [31]. The Court of Appeal stated:

“Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant.”

a lower level of culpability.⁶ Starting points consistent with offending in Band 3 have been adopted even where the quantity of methamphetamine has been above the lower limit for Band 4.

[28] Placing too heavy a reliance on the amount of methamphetamine you were involved in producing would result in an excessively high starting point. It cannot be overlooked you were involved in just two manufactures spanning a period of less than a month. In that regard I accept you were very much a secondary participant. The Crown too accepts this. As already noted, I am also mindful that addiction rather than avarice drove you to become involved in this dark trade.

[29] But on the other hand you were a willing participant in a large, gang-run, highly sophisticated, drug manufacturing and distribution ring. There was nothing impromptu or spur of the moment about this. This was not some group of misguided friends or associates getting together to make some “P”. The planning was precise and well co-ordinated. Your role was an important adjunct to the success of the operation as a whole. Any sentence must reflect that reality.

[30] When compared with other comparable cases I consider the appropriate starting point in your case is 11 years’ imprisonment.

[31] I am of the view that a starting point in the vicinity of two years’ imprisonment would be appropriate for the conspiracy offending if these were stand alone charges. But they are also, to a considerable extent, linked to your role in the enterprise as a whole, a factor which has been taken into account in setting the starting point for the manufacturing. That being the case I consider a three month

_{uplift is appropriate to reflect these additional charges.}

6. Ho v R [2015] NZCA 320; see also R v Kupkovic and Ors [2014] NZHC 1946; R v Burdett HC Auckland CRI-2007-092-5673, 20 November 2007.

Adjusting the starting point for personal factors

Previous convictions

[32] I now turn to your personal circumstances. At the age of 27 you have 20 previous convictions which date back to 2008. Most concerning is that you were convicted in 2010 on a variety of methamphetamine charges including supplying methamphetamine. You received what might be regarded as a merciful sentence of six months’ home detention.

[33] The balance of your convictions are largely to do with less serious drug offences. You have two convictions for unlawfully possessing a firearm.

[34] I cannot ignore your past drug offending. I have had the opportunity of reading the pre-sentence report which was prepared for your 2010 sentencing. It is apparent from that document your methamphetamine addiction was a driver for that offending too. Having recorded that, I note your comments to the author of that report that you felt remorseful and you were committed to rehabilitation and sorting out your methamphetamine addiction. Five years later you find yourself in the same position but, this time, facing much more serious charges. There must be an uplift to reflect your previous offending and I assess this at three months’ imprisonment.

Guilty plea

[35] In mitigation I must have regard to your guilty plea. You pleaded guilty some five months before trial after a sentence indication was given. Although this plea came fairly early in the evolution of this case, the prosecution case against you was overwhelming. However, by pleading guilty at an early stage meant that you stood apart from your peer group and that is a matter to which I shall return later in these comments. However, in my view you had little choice but to plead guilty. As I indicated in December last year I will give you a 20 per cent discount to reflect your plea. It is not the full discount because it was not entered at the first reasonable opportunity and, no doubt, was driven by the strength of the Crown’s case and the inevitability of conviction. This discount brings the end sentence down to nine years and two months’ imprisonment.

Totality

[36] Having reached this point I must stand back and reflect on your culpability as a whole. Having done so, I am satisfied it would be out of proportion to the brevity and limited nature of your involvement for that sentence to be passed. In deference to the totality principle I am prepared to further reduce the sentence by another eight months which leads to a final end sentence of eight years and six months’ imprisonment.

[37] As I indicated I will not impose any minimum period of imprisonment.

Conclusion

[38] Please stand.

[39] On the two charges of manufacturing methamphetamine I sentence you to

eight years and six months’ imprisonment; those terms to be served concurrently.

[40] On the two charges of conspiracy to supply methamphetamine you are sentenced to 18 months’ imprisonment; those sentences being concurrent with each other and with the lead manufacturing charges.

[41] In relation to your participation in an organised criminal group I sentence you to six months’ imprisonment which sentence is to be served concurrently with all other sentences imposed.

[42] Before you stand down I have some final comments. Mr Muston, who has spoken eloquently and vigorously in your support, has asked that I make reference to your need for drug counselling and rehabilitation. As I have already observed, you have been hopelessly addicted to this dreadful drug and I have no doubt it played a significant role of your offending not only in relation to the present offending but also in the past.

[43] I am satisfied you are in need of professional help in overcoming your addiction. I treat as sincere your expressions of commitment to change. I accept you

are motivated to improve your life and to extricate yourself from your dependence on methamphetamine.

[44] I also accept Mr Muston’s submission it is significant that in this major Police operation which resulted in a large number of defendants being arrested you were the first to acknowledge responsibility by facing up to what you have done and taking responsibility for that offending. That took courage. It required you to be prepared to stand up and be counted. It reflects the strength of your commitment to distance yourself from your peer group and to confront your drug demons. That is to your considerable credit.

[45] As you know, I turned down Mr Muston’s application on your behalf to adjourn this sentencing so that you could participate in a residential drug- rehabilitation programme. I did so, at least in part, because the principles of sentencing in cases of this sort emphasise deterrence and denunciation. Personal factors are very much secondary. That is why I determined your sentence should proceed today and that any self improvement programmes should be undertaken while you are in prison.

[46] However, I make these remarks because at some stage the Parole Board will consider your eligibility for release. Factors, including your willingness to participate in a rehabilitation programme, may well be of assistance to the Parole Board when that point is reached.

[47] You are about to embark on a long term of imprisonment. I have explained why that must be. The references from your former employer, FPS, speaks of your potential. You are described as a hard and honest worker. Your mother’s heart felt letter to me was difficult to read. She is a loving mother and you are lucky to have someone with the insight she has to support you. Your partner’s letter to me is in a similar vein. You are fortunate indeed to have such levels of love and support around you as you embark on this sentence.

[48] I would emphasise to you the need to reflect on where, at the age of 27, you now find yourself and how critical it is if you are to make a decent fist of life that

you remove yourself from all the influences which have lead to your present predicament. If you do not, I am confident you will be back here again. Whether you come back or not is very much in your hands.

_{[49] Stand down.}

Moore J

Solicitors:

Crown Solicitor, Whangarei

Mr Muston, Whangarei