R v Toman [2018] NZHC 2546 (28 September 2018)

Last Updated: 8 November 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2017-091-000902 [2018] NZHC 2546

THE QUEEN

v

_{JIMMY RANGI TOMAN}

Counsel;	E M Light for Crown P H Mitchell and V C Nisbet for Defendant
Sentence:	28 September 2018

_{NOTES ON SENTENCE OF COLLINS J}

Introduction

[1] Mr Toman, you appear for sentence on the following charges:

(1) one representative charge of supplying or offering to supply methamphetamine;¹ and

(2) one representative charge of possession of methamphetamine for supply.²

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

_{20 April 2018.}³

¹ Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a); maximum penalty life imprisonment.

² Sections 6(1)(f) and (2)(a); maximum penalty life imprisonment.

³ _{R v Toman [2018] NZHC 748.}

R v TOMAN [2018] NZHC 2546 [28 September 2018]

[3] The delay in sentencing you until today has been to enable you to explore possible programmes to address your addiction issues.

[4] This morning I will:

(1) set out your offending;

(2) outline the appropriate starting point for that offending;

(3) explain any adjustments that may be made to that starting point; and

(4) state your final sentence.

Offending

[5] The charges result from a police operation code-named “Operation Walnut” which commenced in November 2016. That investigation targeted the commercial supply of methamphetamine in the Wellington region.

[6] A surveillance device warrant allowed police to intercept private communications and carry out visual surveillance of two principal targets, Mr Blance and Mr Berkland. They were purchasing kilogram quantities of methamphetamine from Auckland-based suppliers. Mr Blance and Mr Berkland would then on-supply the methamphetamine to a number of associates in their distribution networks. Most of the offending took place at an address in Coates Street in Tawa. Associates would then on-supply the methamphetamine further.

[7] You were one of those associates. Between 20 February and 11 April 2017, police intercepted 85 communications between you and Mr Blance, and observed you visiting the Coates Street address through CCTV footage on 10 separate days and on some days, you visited the address on multiple occasions.

[8] On 18 March 2017, police intercepted a communication where you and

Mr Blance were discussing your methamphetamine debt. It became evident from this conversation that you had previously purchased 28 grams of methamphetamine from

Mr Blance. This was corroborated by similar conversations intercepted on 28 March and 9 April 2017. You purchased 28 grams on 18 March 2017, which was supported by another intercepted conversation on 20 March 2107. Altogether, police estimate you purchased at least between 140 and 168 grams. That amount is worth approximately $60,000 to $70,000.

[9] On 11 April 2017, at the termination of the investigation, police executed a production order on two cell phone numbers used by you. Text messages from these numbers confirm that you were involved in the supply of methamphetamine to your own customers. Based on these text messages, you supplied methamphetamine on at least 15 occasions, and offered to supply methamphetamine on at least 36 occasions. Police have been unable to determine the quantity of methamphetamine supplied or offered for supply on these occasions.

Previous offending

[10] You have 75 previous convictions (five of which were in the Youth Court), including 28 related to drug offending, four of which were only possession charges (with one of those being in the Youth Court). Your earlier offending mostly involves minor trespass and traffic offences.

[11] Your first drug dealing offence was supplying a Class B drug in 1995. Since that time, your drug offending has escalated. In 2003, you were sentenced to four years’ imprisonment for conspiring to deal cannabis alongside money laundering charges. In 2010, you were sentenced to two years and eight months’ imprisonment for numerous supply charges of an unspecified drug. Then again, in 2015, you were sentenced to two years and six months’ imprisonment for possessing methamphetamine for supply.

Starting point

[12] There is a presumption in favour of imprisonment for Class A controlled drug dealing.⁴

⁴ Misuse of Drugs Act 1975, s 6(4)(a).

[13] The Court of Appeal’s decision in R v Fatu is the leading sentencing guideline judgment for offending involving the supply of methamphetamine.⁵ Your offending falls within sentencing band two, which provides that the supply of commercial quantities, that is between five and 250 grams, warrants a starting point of between three years and nine years’ imprisonment.⁶

[14] In setting the starting point, I have taken into account the following aggravating features of your offending:

(1) Premeditation and planning.⁷ A significant degree of premeditation and planning is inherent in your sale and supply of methamphetamine.

(2) Number and frequency of supplies/sales.⁸ I have outlined the instances of your offending, uncovered through intercepted communications and text messages. You have supplied or offered to supply methamphetamine on 51 separate occasions. Your offending occurred during a period of just less than two months.

(3) Amount of methamphetamine.⁹ Police estimate that you purchased between 140 and 168 grams of methamphetamine from Mr Blance, which you then on-supplied to your own customers. This amount sits in the middle to upper range of band two of R v Fatu.

(4) Commercial gain.¹⁰ The summary of facts indicate that you sold and supplied methamphetamine for profit. The value of the methamphetamine involved was approximately $60,000 to $70,000. Commercial gain is a relevant aggravating factor in your circumstances.

⁵ R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

⁶ At [34].

⁷ Sentencing Act 2002, s 9(i).

⁸ Sections 8(a) and (b); 9(d).

⁹ Section 8(a) and (b), R v Fatu, above n 5.

¹⁰ R v Fatu, above n 5, at [32].

[15] In terms of your role in the overall operation, you were not one of the principal offenders. However, you were a frequent visitor to the Coates Street address, purchased methamphetamine for on-supply and had your own customer base. You can be properly described as a mid-level dealer.¹¹

[16] To ensure consistency in sentencing,¹² I note all the other co-offenders from Operation Walnut have now been sentenced. The following co-defendants were in a similar position to you:

(1) Mr Hohua was sentenced for methamphetamine offending involving

127.4 grams. Mr Hohua was considered a mid-level dealer. A starting point of five years and six months’ imprisonment was adopted for the methamphetamine offending in his case.¹³

(3) Mr McGoldrick-Savaii was sentenced for methamphetamine offending involving 119 grams. He was also considered a mid-level dealer. A starting point of five years and six months’ imprisonment was adopted.¹⁴

(3) Ms Waiariki was sentenced for methamphetamine offending involving

36.1 grams. She was considered a street level dealer. A starting point of four years’ imprisonment was adopted.¹⁵

(4) Ms Svenson was sentenced for methamphetamine offending involving

15.45 grams. She was considered a middleperson between the drug dealers and the retail market. A starting point of three years’ imprisonment was adopted.¹⁶

¹¹ At [31]: “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”.

¹² Sentencing Act 2002, s 8(e).

¹³ R v Hohua [2018] NZHC 1509.

¹⁴ R v McGoldrick-Savaii [2018] NZHC 233.

¹⁵ R v Waiariki [2017] NZHC 2771.

¹⁶ R v Svenson [2017] NZDC 22165.

[17] I have also referred to comparable cases:

(1) In McKeown v R, a starting point of six and a half years’ imprisonment was upheld on appeal for offending involving 146 grams of methamphetamine.¹⁷

(2) In R v Tate, a starting point of five years’ imprisonment was adopted for offending involving 142 grams of methamphetamine. Ms Tate was considered to play a role “no more than that of a mule”.¹⁸

(3) In R v Foubister, a starting point of four years’ imprisonment was adopted for charges of conspiring to supply 140 grams of methamphetamine. Conspiracy charges typically result in a discount of about 30 per cent compared to the Fatu bands to reflect the lower maximum penalty.¹⁹ This suggests an equivalent starting point of about five years and eight months’ imprisonment would have been considered appropriate if the defendant had supplied the drugs.²⁰

(4) In R v Liu¸ a starting point of five and a half years’ imprisonment was adopted for offending involving 162 grams of methamphetamine.

Mr Liu was one of the principal offenders in a large-scale methamphetamine supply network.²¹

[18] The Crown submits a starting point of six to six and half years’ imprisonment is appropriate. Mr Mitchell submits a starting point of five and half years’ imprisonment is warranted.

[19] Methamphetamine is a dreadful drug, which causes significant harm to individuals and relationships. The courts have consistently adopted starting points which reflect the social harm caused by methamphetamine. Consistent with this

¹⁷ McKeown v R [2017] NZCA 99.

¹⁸ R v Tate [2016] NZHC 2522.

¹⁹ R v Clements [2016] NZHC 1387 at [31].

²⁰ R v Foubister [2015] NZDC 26065.

²¹ R v Liu [2018] NZHC 853.

approach and similar authorities,²² I consider a starting point of five years and nine months’ imprisonment is appropriate.

Adjustments to the starting point

Personal aggravating factors

[20] The Crown submits that your previous convictions warrant an uplift of nine months. These include previous prison sentences for drug dealing, including for possession of methamphetamine for supply in 2015. A “significant uplift” is required to vindicate the principle of deterrence, particularly in drug dealing cases where it is the dominant sentencing principle.²³ In my assessment, an uplift of six months is appropriate in your circumstances.

Personal mitigating factors

[21] I accept that you suffer from long-stranding drug addiction and abuse problems, starting when you were 15 years of age. You claim to have consumed much of the methamphetamine yourself, rather than on-selling it. This is said to explain why you were constantly in debt to Mr Blance.

[22] The report from Mr Brooking, a drug and alcohol addiction specialist, confirms your severe addiction to methamphetamine and that you are endeavouring to address your addiction.

[23] I have carefully considered the letter from Ms Aitken at Moana House. She also notes that your offending has been substantially driven by your addiction.

Ms Aitken sets out three options. She acknowledges that sentencing you to community detention so that you can attend Moana House is unlikely to be realistic. Nor is it feasible to adjourn your sentencing further and grant you bail to Moana House. Your sentencing has already been delayed a considerable period of time, and there is no guarantee that that course would ultimately prove to be

_{successful. The most sensible course is for you to attend Moana House through the}

²² R v Hohua, above n 13; R v McGoldrick-Savaii, above n 14; McKeown v R, above n 17.

²³ R v Arthur [2005] NZLR 739 (CA) at [26].

parole system. By my calculations you are likely to be eligible to be considered for parole almost immediately.

[24] I have also considered your letter, in which you set out your intention to take advantage of rehabilitation opportunities, and this morning I have received a letter from Ms Lustig, an ACC counsellor concerning your post-traumatic stress disorder and the reasons for that. I will not elaborate on those reasons in open court. They do, however, help to explain your addiction issues.

[25] The most generous approach that I can take to reflect your personal circumstances is to deduct 14 months from the sentence that I would otherwise have imposed.

Guilty plea

[26] You did not enter a guilty plea at the earliest possible opportunity, with a disclosure having been completed in October 2017. Before I provided my sentencing indication, Mr Mitchell submitted that you should be entitled to the full discount because Mr Mitchell had only been assigned two weeks prior and the trial was still then about three months off. I am prepared to give you a discount of just over 20 per cent, which is the maximum that I can give in the circumstances of your case.²⁴

Result

[27] Mr Toman, please stand.

[28] The end result is a final sentence of four years’ imprisonment. That sentence is imposed in relation to both charges. Those sentences will be served concurrently.

_{[29] You may now stand down.}

²⁴ R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.

_{D B Collins J}

Solicitors:

Crown Solicitor, Wellington

P H Mitchell Barrister & Solicitor Ltd, Wellington for Defendant Toman