R v Lavrent [2018] NZHC 229 (23 February 2018)

Last Updated: 7 March 2018

IN THE HIGH COURT OF NEW ZEALAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2012-004-9674 [2018] NZHC 229

THE QUEEN

v

ANDREW GEORGE LAVRENT

Hearing:	23 February 2018
Appearances:	B Northwood for Crown S J Bonnar QC for Defendant
Judgment:	23 February 2018

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors:

Crown Solicitor, Auckland Counsel:

S J Bonnar QC, Auckland

R v LAVRENT [2018] NZHC 229 [23 February 2018]

Introduction

[1] Andrew George Lavrent, you appear for sentence having pleaded guilty to:

(a) One representative charge of selling a Class C controlled drug analogue, 4-MEC;¹

(b) Four charges of importing a Class C controlled drug analogue;² and

(c) One charge of possessing a Class C controlled drug analogue for sale.³

[2] These charges arise from two police investigations into the importation and supply of Class C controlled drug analogues, Operation Ark and Operation Greenstone. The representative charge of selling arises from events during Operation Ark, and the importing and possession for sale charges arise out of Operation Greenstone.

[3] You are currently serving a sentence of eight years and six months’ imprisonment imposed on 27 February 2015 by Woodhouse J following your convictions in August 2014 for other charges arising out of Operation Ark, namely: two counts of importing a Class C controlled drug analogue, eleven counts of selling a Class C controlled drug analogue, and one count of possessing a Class C controlled drug for sale.⁴

The facts of the present offending

[4] Operation Ark commenced in late 2010 following a large-scale seizure of tablets containing the controlled drug analogue 4-MEC (intended to mimic the effects of ecstasy). The operation investigated London Underground, a business involved in marketing and distributing legal highs and also the sale of products including pills containing 4-MEC on the so-called “after-market”. Operation Ark terminated on 16 November 2011. You, among others, were arrested and charged.

¹ Misuse of Drugs Act 1975, ss 6(1)(e) and 6(2)(c): maximum penalty of eight years’ imprisonment.

² Sections 6(1)(a) and 6(2)(c): maximum penalty of eight years’ imprisonment

³ Sections 6(1)(f) and 6(2)(c): maximum penalty of eight years’ imprisonment

⁴ R v C [2015] NZHC 317 at [58]–[63].

[5] Your primary role within London Underground was providing an apparently legitimate address for the importation and receipt of raw powders by virtue of your role as a scientist employed at a cosmetics manufacturer. You on-delivered these substances on the instructions of London Underground’s senior members, Christopher Chase and Johnny Be Good. As I have said, you are serving a sentence for your offending in connection with London Underground.

[6] The offending for which you are to be sentenced today is separate but contemporaneous to your involvement in London Underground. The investigation in Operation Ark revealed that you developed your own channels for the sale of pills between 31 August 2011 and 16 November 2011. Your associate, Jeremy Kerr, pressed the powder into pills, and you supplied the pills to Rangimarie Kemp at your home address for Mr Kemp to sell. You and Mr Kemp met periodically to exchange pills and cash from the sales. During this period, Mr Kemp sold in excess of 10,000 pills containing 4-MEC, which you supplied to him. These are said to have been saleable at around $20 to $40 a pill. This offending forms the basis for the representative charge.

[7] Operation Greenstone involved investigations into Mr Chase’s attempts to re- establish his after-market business, where a Mr Stubbington was the primary distributer, with three sub-distributers. You facilitated the importation of further powders for Mr Chase, receiving mislabelled packages at the address of an associate’s workplace as you had lost your employment following your arrest. During May and July 2012, you facilitated the import of four imported packages via this address, on the basis you would receive $2,500 per package.

[8] The first two packages, received on 29 May 2012 and 28 June 2012 were not intercepted by the Customs Department. However, Customs did intercept and follow the packages received on 27 July 2012 and 29 July 2012. You forwarded those two packages at the request of Mr Chase.

[9] The package received on 27 July 2012 was labelled as one kilogram of a health supplement but contained 1.16 kilograms of a powder containing the controlled drug analogue alpha-PVP. The package received on 29 July 2012 was labelled as two
kilograms of a health supplement but contained 2.34 kilograms of a powder containing alpha-PVP. It is said that the packages received on 29 May 2012 and 28 June 2012, labelled as health supplements with weights of 2 and 4 kilograms respectively, also contained a controlled drug analogue, either ethylone or alpha-PVP.

[10] You have pleaded guilty in respect of all four importations and are to be sentenced on that basis.

Purposes and principles of sentencing

[11] In sentencing you, I must have regard to the purposes and principles of sentencing as set out in ss 7 and 8 of the Sentencing Act 2002. I take into account the purposes of holding you accountable for the harm done to the community; promoting in you a sense of responsibility for, and acknowledgement of, that harm; and denouncing your conduct and deterring others from committing similar offences. I need also to recognise the gravity of your offending, including the relative degree of your culpability as compared with your co-defendants, the seriousness of your offending, and the principle that I must impose the least restrictive sentence appropriate in the circumstances.

The starting point

[12] In accordance with the settled sentencing process, I will first determine what would be an appropriate starting point for your offending. I will then assess whether this should be adjusted due to your personal circumstances, before standing back and looking at the totality of the sentence to be imposed in conjunction with the sentence you are already serving.

[13] The Crown advocates that I adopt a global starting point of four years and six months’ imprisonment for both sets of offences, based on sentences approved by the Court of Appeal in Fraser v R⁵ and Wood v R⁶ for controlled drug analogues, as well as by reference to the Court of Appeal decision in R v Terewi,⁷ the tariff case for Class

⁵ Fraser v R [2013] NZCA 250.

⁶ Wood v R [2014] NZCA 183.

⁷ R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

C cannabis offending and which has been applied by analogy to analogue offending. However, the Crown also refers to the Court of Appeal comments in Fraser v R⁸ where the Court said it regarded controlled drug analogues as more serious Class C drugs than cannabis. The Crown also refers to the sentence imposed on Mr Stubbington⁹ where Woolford J set a starting point of 13 years for the importation of 337,000 pills containing Class B and Class C drugs with a value of approximately $13,400,000.

[14] In Terewi, the Court divided cannabis offending into three categories, with Category three reflecting the most serious class of offending involving large-scale commercial offending, having a starting point generally of at least four years, with Category 2 offending involving small-scale commercial offending having a starting point generally of between 2 and 4 years.¹⁰ The Crown says your offending falls into Category three of Terewi, although at the lower end.

[15] In Fraser, the Court of Appeal considered that a starting point of three years’ imprisonment was “about right” for the importation of drugs with a street value of about $21,600 in 2013 and was not manifestly excessive. It also rejected the contention that such offending fell into the bottom of Terewi Category 2.

[16] Your counsel, Mr Bonnar QC, advocates a different approach. He says that if you had been tried for the Operation Ark offending for which you are being sentenced today at the same time as the Operation Ark offences for which you have already been sentenced, there would have been no additional uplift on the sentence that has already been imposed on you. He also says the delay in progressing the trial for the Operation Ark offending for which you are being sentenced today was the consequence of the Crown’s decisions to separate the various sets of charges. For these reasons, he says no separate uplift should be imposed on your current sentence in respect of the Operation Ark offending.

[17] With regard to the Operation Greenstone offending, Mr Bonnar says a starting point of three years would be appropriate. He says the decision of R v Hall,¹¹ where

⁸ Fraser v R [2013] NZCA 250 at [14].

⁹ R v Stubbington [2013] NZHC 1904.

¹⁰ At [4].

¹¹ R v Hall [2013] NZHC 2271.

Lang J set a starting point of two years for your co-defendant, Mr Hall, is most helpful. Mr Bonnar also says Fraser v R and Wood v R are of limited assistance because they involved offenders who were the controlling minds or organisers of the enterprises in which they were engaged.

Discussion

[18] For reasons that will become apparent, whether I choose a global starting point or separate starting points for the Operation Ark and Operation Greenstone offending may not much practical difference to the outcome once totality considerations are factored in. However, I have considered the two sets of offending separately for the purpose of establishing a starting point so the gravity of each can be weighed.

Operation Greenstone importation charges and possession charge

[19] Looking first at Operation Greenstone, I do not consider the decisions in R v Stubbington, Fraser v R or Wood v R on the one hand or R v Hall on the other are especially apposite to your situation. Mr Stubbington’s involvement was at a scale and at a level of management very different from the role you played in the importation of the four packages of Class C analogues. While the activities of Mr Fraser and Mr Wood were also at a lesser scale, they were more involved in the management of operations than you were. Mr Hall’s activities, however, were at the other end of the spectrum. As Lang J said in his sentencing notes, Mr Hall’s role was “extremely limited”. Mr Hall had been recruited to act as a courier, collecting packages and payments and passing them on. But he had, in fact, done this on only one occasion.

[20] You imported four packages of powder, totalling approximately nine and a half kilograms of Class C analogue(s) in powder form. It is not in evidence before me how many pills this could have made. However, these are substantial quantities of the controlled substance for which you are to be sentenced. I accept that your offending was limited to providing the details of the delivery address and then forwarding them to Mr Chase, rather than being involved in the ordering or purchasing of the four packages. You did not receive a share in the proceeds of any on-sales, although you were to be paid $2,500 for securing each package. By contrast, Mr Stubbington paid
Mr Chase $50,000 for the 29 May package and $50,000 for the 28 June package. In this regard, the seriousness of your offending and your culpability is fairly low-level, although not as low level as that of Mr Hall.

[21] Mr Bonnar has emphasised that your Operation Greenstone offending occurred against a background of significant financial difficulty, with orders restraining the sale of your home preventing you from purchasing your new home and forcing you to find rental accommodation when you had no substantial income. This does not, however, absolve your offending.

[22] In my view, in terms of seriousness, your Operation Greenstone offending falls somewhere between that of Mr Hall on the one hand and Mr Fraser on the other and is towards the middle of Category 2 of Terewi – being small scale commercial offending on your part, even if it was part of a larger whole from which others like Mr Stubbington derived substantially more profit. For these reasons, I consider the appropriate starting point for the Operation Greenstone offending is three years’ imprisonment. This is also consistent with the decision in R v Kerr¹² where Venning J found that offending of a pill presser in possession of extensive materials and some 32,000 pills was category 2 of Terewi and adopted a starting point of three years’ imprisonment.

[23] However, that is not the end of the matter. You committed this offending while on bail on charges following your arrest in relation to your Operation Ark. The Crown seeks an uplift in the vicinity of six months to reflect this. Mr Bonnar says any uplift should be no more than four months.

[24] You assert that you were misled by Mr Chase about the contents of the packages you received, having been advised that they were a “smoking blend”, which was at the time a legal ingredient of synthetic cannabis and formed part of London Underground’s legitimate business. On the other hand, you are a qualified scientist and have a much better basis than others for knowing the truth about the products you were importing. I consider that you were at least reckless as to whether the imported substance was illegal or had a structure substantially similar to that of a controlled

¹² R v Kerr [2016] NZHC 1547.

drug. In these circumstances, it is an aggravating factor that you committed offending of this kind while you were on bail on charges of a very similar nature. I consider this warrants an uplift of five months’ imprisonment.

[25] That would result in a total starting point of three years and five months’ imprisonment for the charges arising from Operation Greenstone.

Operation Ark representative selling charge

[26] During the two and a half months between 31 August 2011 and 16 November 2011, the 10,000 pills you sold through your own channels would have resulted in (assuming the proposed value is correct) somewhere between $20,000 and $40,000 in revenue, although I accept this would not have been profit for you alone.

[27] Your co-defendant Mr Kerr faced one charge of selling Class C controlled drugs and four charges of possessing Class C controlled drugs for sale. As noted above, Venning J adopted a starting point of three years’ imprisonment in that case. While there are similarities with Mr Kerr’s offending, I consider his culpability was higher than yours as he had extensive materials and three times as many pills.

[28] Accordingly, I consider a starting point of one year and three months’ imprisonment would be appropriate if this Operation Ark representative charge was standalone offending. However, in the context of this case, where the two sets of offending arose out of the same circumstances and were inter-related, I consider it more appropriate to add an uplift to the starting point for the Operation Greenstone offending rather than to establish two separate cumulative starting points. I consider an uplift of ten months is appropriate.

[29] This results in a combined starting point of four years and three months’ imprisonment for the two sets of offending.

[30] In reaching this decision, I have taken into account Mr Bonnar’s submission that if all of your Operation Ark offending had been tried at the same time, your sentence on the current representative charge would have been imposed concurrently with the sentence you are already serving and would not have added to your period of
incarceration. While that might have been the case, I do not consider I can assume that if you had been sentenced for the Operation Ark offences at the same time that no separate account would have been taken of the present Operation Ark charge. It relates to you establishing, on your own volition, your separate channels for sales of Class C analogues. This activity was quite distinct from those giving rise to the other Operation Ark charges.

[31] Nonetheless, I will address any prejudice from the cumulative effect of these sentences as well as the issue of delay raised by Mr Bonnar when assessing totality.

Personal circumstances

[32] I begin by noting that your previous convictions are for offending arising out of the same circumstances as the present offending. Therefore, no uplift for that offending is appropriate.

[33] Dr Lavrent, you are 64 years old. You have three teenage children whom you love as they do you. Although you are divorced from your former wife following your arrest, she wants you to continue to have a role in your children’s upbringing. Her letter to the parole board describes how your incarceration has been particularly difficult on your children. Your children’s letters reinforce that point powerfully. Their letters demonstrate poignantly the effects of imprisonment on families. It is to your credit and theirs that you have maintained a strong presence in their lives despite the challenges.

[34] Your efforts towards rehabilitation are a strong feature in mitigation. A report by the parole board from December 2017 refers to your performance in prison as “outstandingly good”. You have taken on leadership and educational roles, helping tutor other prisoners in literacy, numeracy and technology. You have undertaken courses within prison to address offending related factors. The character references you provided to the parole board also do you credit. That professionals in your field are willing to include you in projects when you are released suggests your reintegration into the community should be well supported.
[35] One of the features with such a delay in time since the offending and this proceeding is that the Court is ending up sentencing a person who has had time to reflect on the offending. I accept that you have shown significant insight into your offending. This is borne out by your letter to the Court. Together with the pre-sentence report which notes that you accept responsibility for your actions and the extent of your offending, I am satisfied that you are genuinely remorseful, although the pre- sentence report notes that you continue to try to minimise your offending. I consider that a combined discount of 8 months, or just over 15 per cent, for remorse, previous good character, and efforts towards rehabilitation is appropriate.

[36] This reduces the sentence to one of three years and seven months’ imprisonment.

[37] I accept there has not been unreasonable delay in your guilty plea, given the complexity of the various related proceedings leading up to the dismissal of your appeal in the Supreme Court decision in Cameron v R in June 2017.¹³ The delay between the offending and the plea was the combined consequence of the Crown electing to separate the various charges for reasons that are not for me to judge today and of you and others pursuing your appeal rights as you had a right to do. You had to be given the opportunity to consider the impact of the decision in Cameron, in particular on the possible defences you might run at trial for the current offences. In that regard, I am guided by the Supreme Court’s decision in Hessell v R emphasising that a plea should be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all of the implications of the plea.¹⁴ I also consider that account should be taken in this context of the possibility that if the trial went ahead you would be held only to the lesser mens rea standard of recklessness which has been accepted as entailing a lesser level of culpability.¹⁵ Having regard to these matters, I consider a guilty plea discount of 25 per cent is justified.

[38] This results in a sentence of two years and eight months’ imprisonment.

¹³ Cameron v R [2017] NZSC 89, (2017) 28 CRNZ 166.

¹⁴ Hessell v R [2010] NZSC 135 at [65] and [75].

¹⁵ R v Shalendra [2017] NZHC 3036.

Discount for breach of the right to be tried without undue delay

[39] I turn now to whether a discrete discount should be given for a presumed breach of the right to be tried without undue delay.¹⁶ While I am cautious of double counting given my mention of delay in the guilty plea, I am cognisant that the right to be tried with undue delay involved different considerations to questions of promptness of a guilty plea.

[40] As the Supreme Court stated in R v Williams in the context of the remedy for undue delay:¹⁷

If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment.

[41] In the course of his stay decision, Palmer J found that the delay was an undue one for the defendants who had yet to be tried. You were not one of those defendants, but Mr Kemp, you co-accused for the present Operation Ark offending, was.¹⁸ While Palmer J stated that the proportionate response to the undue delay is “best made in considering any sentences that result from convictions at trial”, there is no reason that this should not extend to consideration of the sentence from a guilty plea.¹⁹

[42] You were convicted and sentenced in 2015 for Operation Ark, yet the present charges have been delayed for the reasons I have noted. You have been serving a sentence, but that time will not count as time served for any sentence I impose today. I accept there was an undue delay from your perspective as an accused, whatever the validity of the reasons for the delay. However, the detriment to you was minor given you had been tried for your earlier charges. I consider that any discount for breach of the right to be tried without undue delay will be adequately accounted for in consideration of totality.

¹⁶ New Zealand Bill of Rights Act 1990, s 25(b).

¹⁷ R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [18].

¹⁸ R v Shalendra [2017] NZHC 3036.

¹⁹ At [40].

Totality

[43] In accordance with s 85 of the Sentencing Act 2002 I must now consider the totality of the sentence to ensure that in imposing a cumulative sentence of imprisonment to reflect the present offending, whether in combination with concurrent sentences or not, the resulting total period of imprisonment would be wholly out of proportion to the gravity of the overall offending. As I have said, you were sentenced to eight years’ and six months’ imprisonment in February 2015. An additional two years and eight months’ imprisonment would lead to 11 years and two months’ imprisonment. I am satisfied, and the Crown and your counsel agree, that this would be wholly disproportionate and excessively punitive.

[44] The Crown’s position is that totality considerations should result in a cumulative sentence of between 18 months and two years’ imprisonment on top of your present term of imprisonment. Mr Bonnar submits that the total sentence for the present offending is in the range of nine to 12 months’ imprisonment, to be served cumulatively on the sentence currently being served.

[45] The present offending occurred in 2011 and 2012. In my view if you had been sentenced for the present charges at the time you were sentenced for the previous convictions arising from Operation Ark, you would probably have received a relatively modest uplift on your current sentence. Having regard to the totality principle, I consider that a cumulative sentence of 14 months’ imprisonment on top of your current sentence is appropriate, having regard to the delay in your being brought to trial on these offences.

Conclusion

[46] Dr Lavrent, would you now please stand.

[47] I sentence you to 14 months’ imprisonment, comprising of the following sentences:

(a) For the Operation Greenstone offending: 14 months’ imprisonment for each of the charges of importing a Class C controlled drug analogue
and possessing a Class C controlled drug analogue for sale, to be served concurrently with each other but cumulative with your current sentences;

(b) For the Operation Ark offending: eight months’ imprisonment for the representative charge of selling a Class C controlled drug analogue, to be served concurrently with the cumulative sentence imposed for the Operation Greenstone offending.

[48] You may stand down.





van Bohemen J