NZLII Home | Databases | WorldLII | Search | Feedback

High Court of New Zealand Decisions

You are here:  NZLII >> Databases >> High Court of New Zealand Decisions >> 2018 >> [2018] NZHC 3377

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

R v F [2018] NZHC 3377 (18 December 2018)

Last Updated: 24 December 2018


ORDER PROHIBITING PUBLICATION OF THE NAME, ADDRESS(ES), OCCUPATION OR IDENTIFYING PARTICULARS OF MS F, PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-044-4279
[2018] NZHC 3377
THE QUEEN
v
F



Hearing:
18 December 2018
Appearances:
N R Webby for the Crown M N Pecotic for Defendant
Judgment:
18 December 2018


SENTENCING BY PALMER J















Counsel/Solicitors:

Meredith Connell, Auckland

M N Pecotic, Barrister, Auckland


R v F [2018] NZHC 3377 [18 December 2018]

Introduction


[1] Methamphetamine destroys lives and communities. Those dealing in methamphetamine cause, and profit from, human misery. That is why, in 2003, methamphetamine was reclassified as a class A drug in New Zealand. It “appeals to vulnerable populations, has a high physical and psychological dependence potential, and can lead to long-term physical and psychological effects”.1 It is one the most dangerous of drugs, which is why the maximum sentence for possessing or supplying methamphetamine is life imprisonment.

[2] Ms F pleaded guilty to two charges of supply of methamphetamine and one charge of supplying cocaine, another class A drug, in 2016. I sentence her for that offending today. Today also, by consent, the Crown withdraws the remaining ten charges against her. She faces further charges in April 2019 so her name and identifying particulars are suppressed until then to preserve her fair trial rights.

Approach to sentencing


[3] Sentencing is conducted for the purposes, and according to the principles, in ss 7 and 8 of the Sentencing Act 2002. In terms of the principles of sentencing, here, I have regard to: the gravity of the offending and Ms F’s culpability; the seriousness of these offences compared with others; the need to ensure the sentence is consistent with other sentences for this type of offending; Ms F’s particular circumstances and background; and the requirement to impose the least restrictive outcome appropriate in the circumstances.

[4] In terms of the purposes of sentencing Ms F, I have particular regard to: the need to hold her accountable for the harm her offending has done to the community; the need to promote in her a sense of responsibility for, and acknowledgement of, that harm; the need to denounce the conduct in which she was involved; and the need to protect the community from her offending in future. A significant sentence of imprisonment is required to achieve those purposes as well as for any deterrent effect it may have.
  1. Misuse of Drugs (Classification of Ephedrine and Pseudoephedrine) Order 2003: Report of the Health Committee (April 2003) at 3.
[5] The methodology of sentencing is first to set a starting point reflecting the seriousness of the offending, then to make adjustments for the offender’s personal circumstances and any guilty plea and finally to stand back to check the sentence reflects the totality of the offending.

[6] In sentencing Mr Riki Wellington and Ms Chevonne Wellington, with whom Ms F was to be tried before she pleaded guilty, I reviewed the rigidity of the Court of Appeal’s guideline bands in the case of R v Fatu.2 In my sentencing decisions today, I proceed on the same basis I did there, that the Fatu bands are not meant to be applied mechanistically or rigidly. The overall culpability of an offender is assessed not only by the quantity of methamphetamine she supplies but also by her role in a drug dealing operation and other aggravating or mitigating factors.

What Ms F did


[7] Ms F, you pleaded guilty on the basis of an agreed summary of facts. On 24 August 2018, at your first scheduled sentencing hearing, I determined that summary of facts left room for speculation on your role.3 I held a hearing into facts disputed between you and the Crown on 20 and 21 September 2018. I sentence you on the basis of the summary of facts supplemented by the evidence and my findings from that hearing.4

[8] I concluded you passed on directions about the supply of methamphetamine and counted and delivered money.5 That was an important and crucial role. But I did not consider the evidence established beyond reasonable doubt that you were the kingpin, directing or organising the operation. You were a trusted communications link, were willing to play that role and knew what you were doing.6 You were more than a minor cog in the operation; you were an indispensable link.7 You worked with Mr Callan Hughes, Mr Kane McArley and Mr Henry Robati to supply drugs to others. Mr Hughes, Mr McArley, Mr Robati and Ms Arna Smith were also charged with you.

2 R v Wellington [2018] NZHC 2196 citing R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

3 Minute No 8 of 24 August 2018 at [3].

4 R v F [2018] NZHC 2602.

5 At [1]

6 At [15].

7 At [15].

Like you, they pleaded guilty before trial. Mr and Ms Wellington, who were also charged with you, were found guilty at trial.

[9] You pleaded guilty to supplying 14.9 kilograms of methamphetamine and 1.9 kilograms of cocaine to Mr Uputaua and Mr Le’ca on 29 September 2016. You arranged to meet Mr Robati and told him to get a sports bag. The next afternoon, Mr Robati drove to a carpark at Totara Park in Manurewa and parked next to Mr Adrian Le’Ca and Mr Fred Uputaua who were in other cars. Mr Robati gave the sports bag to Mr Uputaua. Within 15 minutes after the handover, you called Mr Hughes and told him it had taken place. You also told Mr Hughes you had “taken care” of Mr Robati in response to a question about how much you had paid him. Police soon stopped Mr Uputaua and found the 14.9 kilograms of methamphetamine and 1.9 kilograms of cocaine in his car. You subsequently checked up on Mr Robati. Mr Robati, Mr Le’Ca and Mr Uputaua pleaded guilty to charges of possessing those amounts of methamphetamine and cocaine on 30 September 2016.

[10] You also pleaded guilty to supplying nine kilograms of methamphetamine to others on 8 November 2016. That evening, you arranged for Mr Hughes to meet you and then make a delivery on Dominion Road at 8.30 pm. Intercepted conversations show he delivered a car containing a bag of nine kilograms of methamphetamine to a location on Dominion Road. He texted you, in code, telling you the car’s number plate and that he had left it there with the keys on the dashboard. You texted him about 50 minutes later, when the collection was complete, to tell him he could go home, and he collected the vehicle. Mr Hughes pleaded guilty to supplying that amount of methamphetamine on that date.

[11] From 25 October 2016 to 16 November 2016, you delivered to Ms Yuet Maggie Mak four suitcases containing a total of $3.5 million in cash.

A starting point


[12] Before the disputed facts hearing, Mr Webby for the Crown, had submitted the starting point for your offending should be set at 18 years’ imprisonment for the 14.9 kilograms, uplifted by one year for the 1.9 kilograms of cocaine and another five years for the nine kilograms of methamphetamine. Now, after my findings from the disputed
facts hearing, he submits the starting point should be 13 years’ imprisonment for the
14.9 kilograms of methamphetamine, with an uplift of one year for the cocaine and a further four years for the additional nine kilograms of methamphetamine, so 18 years’ altogether. He refers, in particular, to the starting points used for Mr Le’Ca, Mr Uputaua and Mr Robati. He submits your offending is more serious than that of Mr Robati, but less serious than that of Mr Le’Ca and Mr Uputaua in light of my decision after the disputed facts hearing.

[13] Ms Pecotic, on your behalf, submitted before the disputed facts hearing and submits now that the overall starting point for both sets of your offending should be within the upper region of band 2 and lower region of band 3 of Fatu, leading to a total start point of 13 years’ imprisonment. She submits your role in relation to the 14.9 kilograms is lower than that of Mr Robati and you were acting under instruction from Mr Hughes.

[14] As I have said already, although not the kingpin, you had an important and crucial role in this offending. And the offending was very serious. In these two transactions alone, in six weeks, you helped arrange for the supply of almost 24 kilograms of methamphetamine and almost two kilograms of cocaine. The amount of methamphetamine clearly falls within band four of Fatu, in which the Court of Appeal said supply of large commercial quantities of methamphetamine of 500 grams or more generally attracts a starting point of ten years’ to life imprisonment, though as I have noted role is also an important consideration.8

[15] It is clear you treated the supply of methamphetamine as a business. You took preventative measures against getting caught, changing phones regularly and using coded languages, a variety of vehicles, and cut-outs to transfer drugs. You appear to have ignored the human misery you caused.

[16] The starting points for Mr Le’Ca’s, Mr Uputaua’s and Mr Robati’s sentencings as the organiser, a catcher and a more junior catcher, in supplying the 14.9 kilograms in September 2016, were: 18 years’, 15 years’ and 12 years six months’ imprisonment

8 R v Fatu, above n 2, at [33]–[34].

respectively.9 The starting point for Mr Hughes’ sentencing as catcher or cut-out in supplying the nine kilograms in November 2016 was 12 years and six months’ imprisonment. In another sentencing this year, the starting points for sentencing of Mr Blance and Mr Berkland’s supply of 15 kilograms of methamphetamine, as the mastermind and right-hand man respectively, were 18 years and 16 and a half years’ imprisonment.10 And in Murray v R, Ms Rose received an 18-year starting point for being “at or near the top of the supply chain” of a supply operation across four years in respect of 8.44 kilograms of methamphetamine.11

[17] I consider it clear you were more involved in the supply of the 14.9 kilograms than Mr Robati. Your coordinating role was more important and crucial than his, which anyone could have played. You were less involved than Mr Le’Ca. It is more difficult to assess your culpability in relation to that of Mr Uputaua who was sentenced on the basis he played a very important support role.12 He was directly involved with transporting the methamphetamine and you were not. But those with greater responsibility, and therefore the ability to delegate transporting of drugs to others should not get away with lower sentences for that reason. You knew of this offending in advance and you helped to coordinate and monitor Mr Robati’s involvement with it. Your role was essential. But I found, in the disputed facts judgment, the Crown had not proven you were in charge of organising the operation.13 Rather, I found you passed on directions, which was an important and crucial role, but not a directing or organising one.14

[18] Taking these amounts and roles into account, I am prepared to accept the starting point for your involvement in supply of the 14.9 kilograms in September 2016 should be 13 years’ imprisonment, as the Crown submits. That is, in my view, relatively generous by today’s standards, but I consider it appropriately reflects your role in this offending as well as the amount. As with Mr Le’Ca and Mr Uputaua, I uplift that by one year to reflect the cocaine.

9 R v Le’Ca [2018] NZHC 274; R v Uputaua [2017] NZHC 2320; R v Robati [2018] NZHC 1168.

10 R v Berkland [2018] NZHC 1520.

11 Murray v R [2014] NZCA 189.

12 R v Uputaua [2017] NZHC 1921 at [8]–[9].

13 R v F, above n 4, at [16].

14 At [18].

[19] I must also apply an uplift to reflect the nine kilograms you supplied in November. If it were stand-alone offending, I consider that would warrant a starting point of around 11 years in and of itself, slightly lower than the 12.5 years Mr Hughes received. But adjusting for totality I consider an uplift of four years is appropriate to reflect the November offending. So that’s an overall starting point of 18 years’ imprisonment.

Adjustments for personal circumstances


[20] You are a 29-year-old Tongan woman. Your parents moved to Australia when you were two years old. You did not follow immediately but spent time in New Zealand and Tonga while a young child and later moved to Australia. Other family members are whāngai parents to your two biological children. You accompanied your brother back to New Zealand when he was deported from Australia after being incarcerated there. The day after you arrived your brother introduced you to Mr Hughes who had also been deported from Australia. He became your partner though he is not now.

[21] The Department of Corrections assesses your risk of harm to others as moderate to high, given the elaborate and complex network you were part of and the quantities of drugs and money involved. Corrections considers your anti-social associates and attitudes of entitlement contributed to your offending. You say you have never used drugs. You expressed to Corrections no remorse for the harm you have caused others who used the drugs you supplied.

[22] You have provided me with an affidavit dated 24 August 2018. In it, you explain your family background which includes abusive relationships such as with your co-defendant and then-partner, Mr Callan Hughes. You express remorse for your offending. You say you are very gullible, which is why people call you the Tongan Blonde, especially when it comes to men. You say your offending was motivated by a desire to please Mr Hughes, who you say was very possessive of you and paranoid. I have heard evidence consistent with it. You provide details of Mr Hughes beating you up and threatening to kill you the day of his arrest. You have provided a psychological report to the effect, in summary, that you suffer from post-traumatic
stress disorder, you have depleted self-esteem, you are remorseful and would benefit from and are ready for treatment. I need not elaborate. Understandably, you would rather the details of all of that are not disclosed more than necessary.

[23] Mr Webby submits the Crown is not aware of any aggravating factors personal to you. He acknowledges you have no previous convictions. Ms Pecotic says that you have the support of your family and seeks credit for your previous good character and seeks a discount for mental health on the basis of the psychological report.

[24] Ms F, there are no features of your personal circumstances that call for an uplift to your sentence. I consider your personal history, including of abusive relationships, your previous good character and the potential impact of your imprisonment on your children justifies a modest discount of around ten per cent, or 22 months. It is not more, because the evidence I heard in the disputed facts hearing indicates that you knew what you were doing, you deployed considerable intelligence in pursuing it and you appear to have been indifferent to the suffering your offending would have caused many people. I accept your evidence that your life has at times been difficult but I do not consider you conform to the blonde stereotype nor that you are as easily manipulated as Ms Pecotic submits.

Guilty plea and totality assessment


[25] You pleaded guilty the day before your trial was due to start. Mr Webby submits you are entitled to a discount for pleading guilty in the region of ten per cent. Ms Pecotic submits she came on board late, changes to the Crown charge notice and materials were constantly being made right up until shortly before the start of trial and you pleaded guilty at the first available opportunity once full disclosure had been made. She submits your guilty plea saved considerable time and resources.

[26] I agree your guilty plea shortened the trial, though it also occasioned a delay in its commencement. I accept Ms Pecotic came on board to advise you relatively late and you were considering evidence and your position until just before the trial was scheduled. But by the stage you pleaded guilty most of your co-defendants had already pleaded guilty. I consider this was not the first available opportunity for your plea. I
consider you are entitled to a discount of just over ten per cent or 20 months for pleading guilty.

[27] I am satisfied the resulting sentence of imprisonment for 14 years and six months appropriately reflects the overall gravity of your offending.

Should I impose a minimum period of imprisonment?


[28] Under s 86 of the Sentencing Act 2002, I can impose a minimum period of imprisonment. That would be the period before you would be able to apply for release on parole. Otherwise, you would be eligible to apply for release after one third of your sentence. I can only impose a longer minimum period of imprisonment if I am satisfied the period otherwise applying would be insufficient for the purposes of holding you accountable, denouncing your conduct, deterring others or protecting the community. The minimum period must not exceed ten years’ imprisonment.

[29] Mr Webby submits a minimum period of imprisonment of at least 50 per cent should be imposed on you. He refers to the Court of Appeal’s observation in R v Anslow that a minimum period was frequently imposed for methamphetamine offences where the sentence was nine years or longer but seldom when less than that.15 He submits it is required to hold you accountable, denounce your conduct and deter future offending.

[30] Ms Pecotic submits a minimum non-parole period is not required in your circumstances, by reference to case law. She submits eligibility to apply for parole after a third of your sentence is already long enough given your personal circumstances. And she refers me to a helpful report prepared by the Office of the Prime Minister’s Chief Science Adviser of March 2018 in submitting that longer sentences of imprisonment are not an effective deterrent.16 She submits a minimum period of imprisonment often prevents commencement of rehabilitation programmes



15 R v Anslow CA182/05, 18 November 2005 at [27].

16 Office of the Prime Minister’s Chief Science Adviser Using evidence to build a better justice system: The challenge of rising prison costs (Office of the Prime Minister’s Chief Science Adviser, 2018).

while I prison. She submits your rehabilitative needs override the need for deterrence, which the report suggests is not engendered by harsher sentences anyway.

[31] Ms F, you are relatively young, you have never been convicted or received a prison sentence before. You have two children. You are clearly intelligent and competent, and capable of better things and a better life. I think you are a strong woman. Bearing I mind the psychological report I do urge you to see counselling and assistance to fulfil that potential. You will eventually have a second chance at making your way in society. I do not consider a particularly long non-parole period is necessary to protect the community from you. The usual period after which release on parole is considered by the Parole Board is one third of the sentence. In your case, that will be just under five years. Release on parole at that point is not guaranteed. But if the Parole Board, considering the reports it has about your circumstances then, considers you should be released on parole in order to facilitate your rehabilitation, then I would not want a decision of mine, made five years earlier, to stand in the way of that. I decline to impose a minimum period of parole.

Sentences


[32] Ms F, please stand. I sentence you to:

(a) 14 years and six months’ imprisonment for your conviction for supplying 14.9 kilograms of methamphetamine;

(b) 11 years’ imprisonment for your conviction of supplying nine kilograms of methamphetamine, concurrently with the other sentences; and

(c) seven years’ imprisonment for your conviction of supplying 1.9 kilograms of cocaine, concurrently with the other sentences.

[33] That means your end sentence is 14 years and six months’ imprisonment.



Palmer J


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2018/3377.html