IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CRI-2016-044-4279 [2018] NZHC 2196 THE QUEEN v CHEVONNE WELLINGTON RIKI WELLINGTON Hearing: 24 August 2018 Appearances: B D Tantrum and N R Webby for the Crown A J Maxwell-Scott for C Wellington M W Ryan for R Wellington Judgment: 24 August 2018 SENTENCINGS BY PALMER J Counsel/Solicitors: Meredith Connell, Auckland A J Maxwell-Scott, Barrister, Auckland M W Ryan, Barrister, Auckland R v WELLINGTON [2018] NZHC 2196 [24 August 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 adverse physical and psychological effects. 1 It is one of the most dangerous of drugs, which is why the maximum sentence for supplying methamphetamine, or possessing it for supply, is life imprisonment. [2] Mr Riki Wellington was found guilty at trial of four charges of possession of methamphetamine for supply and two charges of supplying methamphetamine. His sister, Ms Chevonne Wellington, was found guilty of one charge of possession of methamphetamine for supply and three charges of supplying methamphetamine. Today I have to determine their sentences. Approach to sentencing Purposes and principles [3] Mr and Ms Wellington as you have heard, I have had submissions on aspects of the legal basis for sentencing which I must address before I get to your offending. It does matter. Please bear with me for a while. [4] 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 the offenders culpability, the seriousness of these offences compared with others, the need to ensure the sentences are consistent with other sentences for this type of offending, the particular circumstances and background of these offenders and the requirement to impose the least restrictive outcome appropriate in the circumstances. 1 Misuse of Drugs (Classification of Ephedrine and Pseudoephedrine) Order 2003: Report of the Health Committee (April 2003) at 3.
[5] The need to deter others from committing the same or similar offences, is often said to be an important purpose in sentencing for drug-related offences. Indeed, the Court of Appeal has said it is a fundamental requirement and a primary sentencing objective. 2 That sounds sensible but do we know whether long prison sentences deter drug offending? On 17 August 2018, I invited the parties to provide additional submissions and information regarding the deterrent effects of sentences of imprisonment for drug-offending in New Zealand or internationally. [6] Mr Tantrum, for the Crown, submits deterrence is a primary purpose and of crucial importance in sentencing for commercial drug dealing, according to Court of Appeal and Supreme Court precedent. 3 He states the Crown s understanding is the approach to deterrence is currently dictated by the appellate courts and respectfully submits it is for the appellate courts, at the invitation of the Crown or offenders on appeal, to revisit that approach. [7] Ms Maxwell-Scott, for Ms Wellington, submits there is a body of academic literature suggesting long sentences are not effective in deterring others or the offenders themselves. She cites a Florida study which concluded imprisonment for drug crimes, as opposed to non-prison sentences, was not associated with a reduction in the likelihood of recidivism, and for white offenders prison appeared to increase recidivism. 4 She also quotes Sentencing Law and Practice and cites the Victorian Sentencing Advisory Council for the proposition that deterrence predicated on rational choice fails to account for offenders affected by drugs, alcohol or mental illness. 5 She acknowledges imprisonment may have some level of general and particular deterrence. But she points out the prevalence of methamphetamine has vastly risen since it was reclassified as a class A drug, which must put a huge question mark over the effectiveness of the deterrence of long prison terms. 2 R v Terewi [1999] 3 NZLR 62 at [13]; Sarah v R [2013] NZCA 446 at [42]. 3 Citing Sarah v R, above n 2, at [42] and Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [14]. 4 Ojmarrh Mitchel and others The effectiveness of prison for reducing drug offender recidivism: a regression discontinuity analysis (2017) 13 Journal of Experimental Criminology 1 at 21. 5 Geoffrey G Hall Sentencing Law and Practice (3rd ed, LexisNexis, Wellington, 2014) at 108; Donald Ritchie Does Imprisonment Deter? A Review of the Evidence (Victoria Sentencing Advisory Council, April 2011) at 11.
[8] The problem with the Crown s position is that one of the purposes I must consider in sentencing these two offenders, according to s 7(1)(f), is to deter them or others from committing the same or a similar offence. In order to do that it would be helpful for me to understand whether I can expect that imposing a long sentence of imprisonment will, or will not, deter these or other offenders from committing the same or a similar offence. Of course it is important to deter commercial drug dealing. But will a prison sentence do that and in what circumstances? The studies cited by Ms Maxwell-Scott make it difficult to conclude I can expect it can. The Crown has not engaged. This is not a matter of appellate precedent about the law but legislative facts which help to determine the content and application of the law. 6 The principle of deterrence on its own does not, in my view, justify a longer sentence if there is nothing to suggest that it would deter. [9] There are other purposes of sentencing relevant to drug offending. In terms of the purposes of sentencing these offenders, I have particular regard to: the need to hold them accountable for the harm their offending has done to the community; the need to promote in them a sense of responsibility for, and acknowledgement of, that harm; the need to denounce the conduct in which they were involved; and the need to protect the community from them offending in future. A significant sentence of imprisonment is required to achieve those purposes here as well as for any deterrent effect it may have. Methodology and guideline judgments [10] There are three steps to the sentencings today. First, I will explain what sentence the offending itself deserves, to set a starting point for each offender. Second, I will adjust the starting point based on the personal circumstances of each offender. Finally, I consider whether a minimum period of imprisonment should be imposed. [11] Setting a starting point for methamphetamine offending was the subject of a guideline judgment of the Court of Appeal in 2005, R v Fatu. 7 The Court determined a manufacturer is more culpable than an importer who is more culpable than a 6 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [9] and footnote 9; Wu v Minister of Immigration No 2 [2016] NZHC 3194, at [61]. 7 R v Fatu [2006] 2 NZLR 72 (CA).
supplier. 8 It identified different bands of offending for each. Following previous interim guidance in R v Arthur, the Court identified four overlapping bands of offending broadly referable to different quantities of methamphetamine supplied or possessed: 9 (a) (b) Band one low level supply (less than 5 g) two years to four years imprisonment. Band two supplying commercial quantities (5 g to 250 g) three years to nine years imprisonment. (c) Band three supplying large commercial quantities (250 g to 500 g) eight years to 11 years imprisonment. (d) Band four supplying very large commercial quantities (500 grams or more) ten years to life imprisonment. [12] In R v Fatu, the Court of Appeal did not provide reasons for setting the bands where it did. It did not analyse why those quantities reflected low-level, commercial, large commercial or very large commercial supply. It simply adopted the three bands as guidance earlier that year by a divisional Court of Appeal in Arthur and added band four for very large commercial supply. [13] In setting the length of imprisonment for each band in Arthur, until a guideline judgment was issued, the Court took great cognisance of the collective wisdom of the High Court s sentencing decisions after methamphetamine was reclassified as a class A drug. 10 It appended a table of 35 High Court decisions from August 2003 to March 2005 involving methamphetamine. Of those cases, only four were clearly above 20 grams. 11 The Court distinguished quantities of methamphetamine by adopting three bands it said were based on the New South Wales legislative regime enacted in 1985 and amended in 1988. The Court in Arthur said a commercial quantity under the New South Wales Act was five grams and a large commercial quantity 250 grams and labelled the bands accordingly. 12 However, the New South 8 At [22]. 9 At [33]-[34], referring to R v Arthur [2005] 3 NZLR 739 (CA). 10 At [15]. 11 R v McLeod HC Auckland CRI-03-090-12511 (191 grams); R v Fatu HC Hamilton CRI-2003-019-25487 (600 grams); R v Shaida HC Auckland CRI-2005-004-6330, 21 September 2004 (around 11 kilograms) though overturned on appeal in R v Graaf CA383/04, 6 March 2007; R v Samson HC Christchurch CRI-2003-009-13390 (around 60 100 grams). 12 R v Arthur, above n 9, at [17] [18].
Wales Act appears to have treated a quantity of more than 250 grams as commercial and more than one kilogram as a large commercial quantity. 13 I do not have information about the policy objectives of the New South Wales Parliament in setting those bands. Neither is there explanation in Fatu about the basis on which the Court of Appeal set the quantities for bands three and four. [14] On 17 August 2018, I advised the parties I would be assisted by further submissions about the extent to which the quantity of drugs should be the determining factor in sentencing here, compared with other factors such as role, and whether or not the quantities of methamphetamine identified in the various bands of Fatu in 2005 are still appropriate in 2018. [15] Mr Tantrum, for the Crown, submits Fatu s approach recognised multiple factors, including role, can be considered when assessing culpability. Mr Ryan, for Mr Wellington, submits the quantities identified in Fatu as large commercial quantities or very large commercial quantities have become somewhat obsolete and cannot be assessed at 500 grams, though he acknowledges I am bound by Fatu. Ms Maxwell- Scott, for Ms Wellington, submits large-scale methamphetamine dealing was in its infancy in New Zealand when Fatu was delivered, the scale of dealing has increased significantly since then and the Fatu bands are outdated and do not properly reflect the present state of the market for methamphetamine distribution in New Zealand. She submits the application of the Fatu bands based on quantities to an offender network that may include dozens of assisting minnows is illogical and unfair and does not properly reflect their culpability. Mr Ryan submitted Fatu needed to be revisited in light of the circumstances of 2018. [16] On the basis of my review of recent sentences for methamphetamine offending, the amounts of methamphetamine supplied now in New Zealand are more frequently significantly greater than they were before the courts in 2005. Together with the lack of information about deterrence and my lack of clarity about the policy objectives behind the quantities on which the Arthur and Fatu bands are based, I consider this 13 Drug Misuse and Trafficking Act 1985 (NSW), amended by the Drug Misuse and Trafficking (Amendment) Act 1988 (NSW).
raises a question about whether a starting point should be determined primarily on the basis of the same quantities as in 2005 or not. [17] Consistency in sentencing suggests it should. If the quantities distinguished in the various bands in 1988 in New South Wales and in 2005 in New Zealand were determined on the basis of social harm that might suggest the same bands of quantities are appropriate now. But if the quantity bands were set simply on the basis of what was thought to be a relatively small or large amount of methamphetamine, then they may need to be revisited. And Ms Maxwell-Scott s question whether quantity-based bands properly reflect the culpability of those lower down a large-scale drug operation is a good one. In the absence of a sentencing council, or greater legislative specification, such policy considerations are for the Court of Appeal to decide whether to revisit. For the purposes of this sentencing today, I examine the extent to which my decision should be tied to the Fatu bands in terms of quantity. [18] The Court in Arthur stressed quantity is, of course, not the only factor required to be taken into account but is of prime importance in fixing starting points. 14 The Court in Fatu said quantity is not the only consideration that is material to culpability and the gradation of sentencing response is only broadly referable to quantity. 15 It stated the role played by the offender and the aggravating and mitigating factors will be highly relevant in fixing a starting point within a particular band. 16 [19] This year in R v Agu, the Court of Appeal said the fundamental task for the sentencing judge in selecting a starting point is to identify the criminality involved in the offending, the offender s culpability for that offending, and also to take into account the purposes and principles of sentencing. 17 In Chan v R, the Court of Appeal stated the amount of methamphetamine supplied is not the only consideration and the role played is a critical consideration. 18 It recognised those at the lower end of the operation are often vulnerable and used by those higher up in the hierarchy who prey on their vulnerability such as drug addiction. 14 At [19]. 15 At [9] and [33]. 16 At [31]. 17 R v Agu [2018] NZCA 147 at [13]. 18 Chan v R [2018] NZCA 148 at [20].
[20] I have identified seven cases in which the wisdom of the High Court has led to sentencing outside (below) the relevant Fatu bands for supply, importation and manufacture since Fatu was issued, by Harrison, Brewer, Courtney, Venning, Moore and Fogarty JJ. 19 Each found the role of the offender was more limited than placement in the band would justify. Two judgments also treated the knowledge of the offender as relevant to culpability, 20 and two treated motivation as relevant (one relating to heavy addiction). 21 Five judgments not only set a starting point in the band below but at the very bottom of that band. 22 On appeal of Brewer J s judgment, the Court of Appeal commented there was no reason to interfere with the Judge s assessment of role and culpability even though the starting point was set below the relevant band calculated on quantity alone. 23 [21] In my sentencing decisions today, I proceed on the basis the Fatu bands are not meant to be applied mechanistically or rigidly. The culpability of an offender is influenced not only by the quantity of methamphetamine they supply but also by their role in a drug dealing operation and other aggravating or mitigating factors including whether they are addicted to drugs themselves. What the Wellingtons did [22] The Crown s case against the Wellingtons is they were each part of a significant methamphetamine supply and distribution network in Auckland and Christchurch. [23] Mr Ryan, for Mr Wellington, does not accept the quantity of methamphetamine alleged by the Crown, suggesting Mr Wellington could have been supplying in tens of grams not tens of ounces. Ms Wellington does not contest the Crown s position on quantity. As will become clear, I largely accept the Crown s submissions on quantity. 19 R v Burdett HC Auckland CRI 2007-092-005673, 20 November 2007; R v Kupkovic [2014] NZHC 1946, in relation to Mr Leighton Hoe at [54]; R v Soles [2014] NZHC 2665; R v Hughes [2015] NZHC 22; R v Keogh [2016] NZHC 508; R v Pene [2016] NZHC 2787; R v Harland [2017] NZHC 1226. 20 Soles, above n 19; and Hughes, above n 19. 21 Keogh, above n 19; Pene, above n 19. 22 Burdett, above n 19; Kupkovic, above n 19; Hughes, above n 19; Pene, above n 19; and Harland, above n 19. 23 Ho v R [2015] NZCA 320 at [40].
This is based on the evidence at trial and is consistent with the scale of the operation. It is also consistent with others pleas though I do not rely on that. [24] Ms Wellington, you were convicted of possessing methamphetamine in Auckland on 4 October 2016, for the purpose of supplying it. I accept the amount was 56 grams. You bought it from Mr Hughes for you and a mate. The ease, informality and spontaneity of this transaction suggests it would have been unlikely for Mr Hughes to go to the effort of supplying 10 or 25 grams of methamphetamine at a time to Mr Wellington in Christchurch. [25] Mr Wellington, you were convicted of possessing methamphetamine on 6 October 2016 and of supplying it to others. You flew to Auckland with your children. You met with Mr Hughes and Mr McArley. You and Mr McArley drove to Christchurch with the methamphetamine. You on-supplied it to a network of customers or other suppliers. I accept there is a clear inference from the evidence the amount involved was 10 ounces, or around 280 grams, of methamphetamine. The amount of effort involved in this and the other supply trips goes against Mr Ryan s submission the amounts of methamphetamine were in grams rather than ounces. [26] Ms Wellington you were convicted of supplying methamphetamine, with Mr Hughes, on 11 October 2016, to Mr Wellington in Christchurch who was convicted of possessing it for the purpose of supply. You, Ms Wellington, flew down to Christchurch with Mr Hughes with the methamphetamine and supplied it to Mr Wellington before flying back to Auckland the same day. I accept this amount was also 10 ounces or around 280 grams. [27] Ms Wellington, you were convicted of supplying, with Mr Hughes and Mr McArley, methamphetamine to Mr Wellington on 18 October 2016 in Picton. You and Mr McArley drove down from Auckland, crossed Cook Strait by ferry and met Mr Wellington in a motel in or near Picton. Mr Wellington, you were convicted of possessing that methamphetamine for the purpose of supply. I accept the evidence supports the amount being 25 ounces, or around 700 grams.
[28] Ms Wellington, together with Mr Hughes, you were convicted of supplying methamphetamine to Mr Wellington in Christchurch on 27 October 2016. You and Mr Hughes drove from Auckland to Christchurch and met Mr Wellington in the Coachman Motel where you supplied him with methamphetamine. The amount is unclear. The Crown submits I can be sure it was at least 25 ounces or 700 grams because that matches the previous supply. Mr Ryan also submits it was the same as the previous supply, but that both were 25 grams not 25 ounces. I consider it is beyond reasonable doubt the amount was at least 10 ounces or 280 grams. That was the previous usual amount supplied to Mr Wellington before he was pressured into accepting 25 ounces by Mr Hughes. But I cannot be sure it was more than that. The Crown s case was some of the methamphetamine brought to Christchurch on this trip was supplied to Mr Wellington and the rest was left in Mr Hughes car to be collected later. There was some defence evidence supporting that. It also supported the Crown s position that the quantity supplied was in ounces although Mr Ryan now submits the jury must have disbelieved that evidence. 24 Mr Wellington, you possessed at least 10 ounces of methamphetamine and supplied it to others. [29] In total, therefore, I conclude Mr Wellington possessed and/or supplied 10 ounces on 6 October, 10 ounces on 11 October, 25 ounces on 18 October and 10 ounces on 27 October 2016. This amounts to 55 ounces or just over 1.5 kilograms. I conclude Ms Wellington possessed for supply two ounces on 4 October, and supplied 10 ounces on 11 October, 25 ounces on 18 October and 10 ounces on 27 October, amounting to just over 1.3 kilograms. Starting points Submissions on starting points [30] Mr Wellington, Mr Tantrum submits it is appropriate to impose a starting point of ten years and eight months imprisonment for your possession for supply of 280 grams on 6 October and 700 grams on 18 October 2016, the same as the starting point for Mr McArley for supplying those amounts on those dates to you. He submits your supply of the 280 grams on 6 October, possession of 280 grams on 11 October and 24 Notes of Evidence at 228/18, 231/1, 234/6-9, 238/23, 244/8, 255/12-19, 257/15, 258/30-34.
possession and supply of 700 grams on 27 October 2018 justifies an uplift of five years to reflect the totality of your offending. That would mean an overall starting point of 15 years and eight months imprisonment. [31] Ms Wellington, Mr Tantrum similarly submits an appropriate starting point for your supply of 280 grams to Mr Wellington on 11 October and 700 grams on 18 October 2016, is ten years and eight months imprisonment, the same as for Mr McArley for those amounts. He submits that should be uplifted by three years and six months for your supply of 700 grams on 27 October 2016 and your possession of 56 grams on 4 October 2016. The Crown therefore submits an appropriate starting point for the totality of your offending, Ms Wellington, would be 14 years and two months imprisonment. [32] Mr Tantrum points to aggravating factors that the offending was on a commercial scale and involved repeated deliveries over a month. He points to the regular changing of mobiles, use of coded language and different vehicles as indicating the sophistication and pre-meditation of the offending. In terms of roles, he submits Ms Wellington assisted Mr Hughes in collecting money to buy methamphetamine to supply Mr Wellington who had his own customers buying large quantities. Mr Tantrum submits in addition to her addiction there was a financial element to Ms Wellington s offending. He refers in particular to the starting points used in sentencing Mr Robati, Mr Hughes, Mr McArley and Ms Arna Smith. [33] Mr Ryan submits the changing of phones and vehicles and coded language are standard rather than sophisticated techniques. He submits Mr Wellington s role was less than Mr Hughes and Mr McArley s though he accepts the jury found he was the Christchurch distributor. He submits there is no evidence of purity of methamphetamine. He submits the Crown s proposed starting point of 15 years and eight months cannot stand, compared with the starting point of 15 years for Mr Uputaua who had almost 15 kilograms of methamphetamine and almost two kilograms of cocaine. He also points to Mr Hughes starting point of 12 years and six months. He submits a starting point in the range of band two or three of Fatu is appropriate, based on his submissions on quantity. He submits a starting point between eight and ten years would be appropriate.
[34] Ms Maxwell-Scott submits that while Ms Wellington s offending falls within band four of Fatu based on quantity, I should depart from that guideline. She says Ms Wellington s role was minor and ancillary and the Crown s proposed starting point would be excessive. Unlike Mr Hughes and Mr McArley she submits Ms Wellington was not involved in planning any logistical aspects of the supply and her involvement was limited to carrying the drugs on her person or assisting in driving a vehicle. She says this left her most exposed to detection by the authorities and demonstrated she was insulating those higher in the organisation from detection. She seeks a humane sentence that appropriately reflects her culpability. She submits the appropriate overall starting point is nine years imprisonment. Other sentences [35] The offences for which Mr Hughes was sentenced included supplying almost two kilograms of methamphetamine in 10 transactions, including for 56 grams on 4 October, 280 grams on 6 October, and 700 grams on each of 18 and 28 October 2016. 25 In his sentence indication, Lang J commented that, standing alone, those 10 offences would easily attract a starting point in excess of ten years imprisonment. 26 [36] The starting point for Mr McArley s sentence for supplying 280 grams of methamphetamine in Christchurch on 6 October, and 700 grams of methamphetamine to Mr Wellington in Picton on 18 October 2016, was ten years and eight months imprisonment. He was more culpable than a cut-out or catcher, and was sentenced as the trusted lieutenant of Mr Hughes, who the Crown submits was the principal organiser of the drug network and worked for the ringleader. 27 [37] Ms Arna Smith received 252 grams of methamphetamine from Mr Hughes over a month, in amounts ranging from 14 to 84 grams and then on-sold them as a street dealer. The starting point for her sentence was seven years and six months imprisonment. 28 25 R v Hughes [2018] NZHC 1760; R v Hughes [2018] NZHC 1367. 26 At [20]. 27 R v McArley [2018] NZHC 1363 at [8]; R v McArley [2018] NZHC 2073 at [13] [14]. 28 R v Smith [2018] NZHC 1763.
Decision on starting point for Mr Wellington [38] Adopting the methodology proposed by the Crown, I consider the starting point for your sentence, Mr Wellington, should be similar to that of Mr McArley for the same methamphetamine you received by car on 6 October 2016 and by ferry in Picton on 18 October 2016, of 980 grams: ten years and eight months imprisonment. [39] I would uplift that by another three years for the other convictions involving the total of 560 grams of methamphetamine you received by air on 11 October and by car again on 27 October 2016 (noting that I consider the amount proved to be involved on 27 October was 280 grams rather than 700 grams). [40] I consider the resulting starting point of 13 years and eight months imprisonment appropriately reflects your offending involving running a distribution network in Christchurch receiving large quantities of methamphetamine on four occasions in a month for supply, and on-supplying them twice. Your offending involved more methamphetamine and a greater role than that for which Mr McArley was convicted. So it is appropriate your starting point is higher than that imposed on him. Decision on starting point for Ms Wellington [41] However, Ms Wellington, I consider your role was significantly less important. Your counsel suggested at trial you went along for the ride with much of this offending. I consider there is more to it than that. You helped Mr Hughes gather money to purchase methamphetamine, particularly once you were in a relationship with him. But there is no evidence you were involved in any planning or organising of the supply of methamphetamine. You bought methamphetamine for your own use and for a mate. You accompanied Mr McArley and Mr Hughes on various trips. Your most direct involvement may have been in transporting methamphetamine on a flight to Christchurch on 11 October 2016. But in general, your role appears to have been a relatively minor one, assisting others, probably due to your own heavy addiction to methamphetamine, as with the offender in Keogh. 29 The offending would have 29 Keogh, above n 19.
happened with or without you. And your role was not particularly sophisticated or well-thought out. I accept as Ms Maxwell-Scott submits you were often placed in the most vulnerable position for detection. [42] So although you were involved in supplying and possessing a large amount of methamphetamine, I do not consider your role was nearly as significant as that of Mr Hughes trusted lieutenant Mr McArley, who was actively involved in planning, organising and implementing operations. On the other hand, you were involved at a wholesale level with large quantities of methamphetamine on repeated occasions and appear to have been entirely willing to be. So I consider your culpability is higher than that of Ms Smith, the lower level retailer. You were informed, complicit and encouraging but not a sophisticated contributor, like the deliberate offenders in Burdett, Keogh, Harland or Kupkovic. 30 [43] I set your overall starting point for the four offences for which you were convicted at nine years and six months imprisonment. I consider that starting point appropriately reflects the offending of a drug addict playing a relatively minor role assisting the supply of around 1.3 kilograms of methamphetamine on four occasions in a month. It is comparable with, but appreciably less serious in role and quantity, than the offending in R v Hurring where the offender made eight trips as a pivotal courier for at least 1.9 kilograms and received a starting point of ten years. 31 I impose your overall sentence on the offence involving the greatest amount of methamphetamine. Adjustments for personal circumstances Adjustments for personal circumstances of Mr Wellington [44] Mr Wellington, you are a 28-year-old Māori man born and raised in Christchurch. You have two children aged two and six. You became associated with gangs due to your father s connections. The Department of Corrections tells me you continue to maintain your innocence and you seem to think your sister s attempt to take full ownership of the offending exonerates you. That does not sit very well with 30 Burdett, above n 19; Keogh, above n 19; Harland, above n 20; Kupkovic, above n 19. 31 R v Hurring [2009] NZCA 577.
your defence at trial that you were dealing drugs but it was synthetic cannabis not methamphetamine. Corrections considers your anti-social attitudes, criminal associations and propensity to use violence contribute to your offending. Corrections assesses you as at high risk of reoffending and harm towards others. You do have an extensive criminal history and have spent a time in prison. You told Corrections you are not bothered about spending more time in prison. Yet I have seen a letter from your mother saying your absence will be felt by the whole family. Your partner says in a letter she cannot bear thinking about your absence which is taking a huge toll on her children s emotions and behaviour. [45] Mr Tantrum submits there should be an uplift to your sentence Mr Wellington, of six months, because you were subject to a sentence for burglary and participation in an organised criminal group at the time you committed this offending. He submits some discount for your time spent on EM bail would be appropriate. [46] Mr Ryan acknowledges a modest uplift to reflect your offending while subject to sentence is appropriate and submits no uplift for your previous convictions is warranted. He submits a 10 per cent discount to recognise your year on EM bail on 24-hour curfew which he characterises as house arrest, is reasonable. He submits your potential for rehabilitation and family support should result in a modest discount. [47] Your previous convictions are mainly for burglary with only one drug related offence in 2008 of possession of cannabis and nothing for class A drugs. The Court of Appeal has stated, and s 9(1)(j) of the Act provides, an uplift to a sentence for previous offending can be justified on the basis of protection of the public because it indicates a tendency to commit the particular type of offence for which the offender is convicted. 32 I have previously found the same can be true, in accentuated form, for offending while on parole, serving a sentence. 33 While those offences were of a very different nature to these, doing so indicates a disregard for the law at the very time you were supposed to be most aware of it. I consider there should be an uplift to your 32 Beckham v R [2012] NZCA 290 at [84]; R v Casey [1931] NZLR 594 (CA) at 597; R v Ward [1976] 1 NZLR 588 (CA). 33 R v Bell [2017] NZHC 2975 at [16]; see also Waterworth v R [2012] NZCA 58 at [44].
sentence of three months because the offending was committed while you were subject to sentence. [48] You have expressed no remorse for your offending. Your family s support is to be welcomed but is not a reason for a discount. Neither is the fact alone that you have young children. But it is open to me to consider the impact of a sentence on your family and make some adjustment to recognise the likely impact on them of your incarceration. 34 Children need fathers. I consider a discount of six months is justified for that. And, if you had been remanded in custody, that would count against your sentence. I agree a discount is warranted to reflect the time you had on EM bail with a 24-hour curfew. I give a discount of five months for that. So, overall, a discount of eight months. That means a total sentence of 13 years imprisonment. Adjustments for personal circumstances for Ms Wellington [49] Ms Wellington you are a 26-year-old Māori woman. You have a nine-year-old daughter with an ex-partner and you are involved in her life. You told Corrections you first used methamphetamine when you were 12 years old and you are a long-term user. You were able to access methamphetamine through Mr Hughes, your partner. Your relationship with Mr Hughes was a significant factor in this offending, driven by your drug dependency. Your convictions show your offending has worsened over time. [50] Corrections considers you have given a frank account of your own drug use. It assesses your risk level as linked to that. Until you have been clean for a sustained period Corrections assesses your risk of drug-associated reoffending is high. Otherwise your risk of harm to the community is low. I have seen a letter from a Senior Tutor saying you have successfully completed a rehabilitation programme. And I have seen certificates of a number of courses you have undertaken. You have been diagnosed with a high level of Post-Traumatic Stress Disorder and are working with a counsellor. I encourage you in this. You intend to undertake education while in custody. You started a university degree before. Your mother tells me in a letter you have huge potential. 34 R v Ransom [2010] NZCA 390, (2010) 25 CRNZ 163; R v Harlen (2001) 18 CRNZ 582 (CA).
[51] Mr Tantrum submits there should be an uplift of to your sentence, Ms Wellington, because you were convicted in 2014 of possession of methamphetamine for supply. He also submits there should be an uplift if the sentence is imposed on a concurrent basis because, at the time of your arrest on these charges you were also charged with, convicted of, and sentenced to three years imprisonment, for manufacturing methamphetamine. The Crown submits there should be an uplift of one year to reflect the totality of your offending. That applies either way the sentence is structured. [52] Ms Maxwell-Scott submits an uplift reflecting totality as proposed by the Crown is not appropriate and there should be a reduction of two years to reflect the totality of this offending and your manufacturing conviction. She acknowledges an uplift is appropriate for your two previous convictions for possession of methamphetamine, associated with your addiction, of no more than six months imprisonment. She submits you have engaged positively in rehabilitation in custody and have insight into your addiction, the cause of your offending. She says you are in a good place in terms of addressing your addiction. She submits that should be reflected by a discount of at least 15 per cent. [53] I accept you appear to be taking advantage of rehabilitative opportunities in prison. This is promising. The pre-sentence report says you have been clean in prison, and the materials supplied by Ms Maxwell-Scott suggest you are willing to engage. I consider a discount of around 10 per cent, or 12 months, is appropriate to recognise your prospects for rehabilitation, enhanced by your age, and the effect on your family. [54] I have seen the sentencing remarks for your 2014 offending which involved you pleading guilty to offering to supply half a gram of methamphetamine to an associate for which you were sentenced to five months home detention. 35 I do not propose to uplift this sentence just because of the existence of that conviction. It reflects your addiction. [55] Section 85(2) of the Act provides the total period of imprisonment must not be wholly out of proportion to the gravity of the overall offending where there are 35 R v Wellington DC Manukau, CRI-2013-092-9709, 27 August 2014.
cumulative sentences of imprisonment, individually or in combination with concurrent sentences. As the Court of Appeal said in 2016, there is ample authority that such a totality assessment should be made where an offender is already serving a term of imprisonment for separate offending and particularly where there is a connection between the offending, as there is here. 36 The proper approach is to determine what the appropriate sentence would have been if all matters had been dealt with together. [56] Ms Wellington, on 27 March 2018 the District Court sentenced you to three years imprisonment for manufacturing methamphetamine. 37 It seems you were again assisting Mr Hughes. A portable clandestine methamphetamine laboratory was installed at your house for a third man to use in an attempt to manufacture methamphetamine. At your sentencing, the Judge said there was no suggestion you were actively involved in the manufacture, though precursors, cash and firearms belonging to you were found in your house, bedroom and car. 38 Your role was to keep an eye on the manufacture and report back to Mr Hughes. Less than half a gram was produced in useable form, and at most just over two grams was produced warranting further refinement. The judge imposed a starting point at the very bottom of the lowest band for manufacture in Fatu, of four years. [57] That offending is less significant than the offending for which I am sentencing you. But it occurred at the same time and was linked in nature, so I must view it together. 39 If I were sentencing for all of it, I would take the current offending and uplift your sentence for that offending by an additional one year and six months. [58] The sentence I impose today will be on top of, or cumulative on, your existing sentence. So I reduce this sentence by one year and six months to ensure the total sentence is only one year and six months higher than this one. The sentence I impose will be seven years imprisonment. 36 R v Ogden [2016] NZCA 214 at [64]. 37 R v Wellington [2018] NZDC 17346. 38 At [7]. 39 Sentencing Act 2002, s 84.
Should I impose minimum periods of imprisonment? [59] Under s 86 of the Sentencing Act 2002, I can impose a minimum period of imprisonment. That would be the period before each of you would be able to apply for release on parole. I can only do so 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. [60] Mr Tantrum submits minimum periods of imprisonment of at least 50 per cent should be imposed on each of you. He refers to the Court of Appeal s observation that a minimum period was frequently imposed for methamphetamine offences where the sentence was nine years or longer but seldom when less than that. 40 [61] Mr Ryan submits I should take into account Mr Wellington s lack of previous drug offending, low risk of re-offending in relation to drugs and recent release from prison on burglary charges. He also submits your offences do not have any victims. [62] Ms Maxwell-Scott submits a minimum period was not imposed on Mr McArley who was higher in the organisation than Ms Wellington. She submits taking into account that lesser role and the steps she has taken to address her drug addiction means a minimum period is not appropriate. She cited the recent Court of Appeal judgment in Chan. [63] Mr Wellington, I do not consider your release on parole, as soon as you are ordinarily eligible, would sufficiently denounce or hold you accountable for your supply of huge quantities of methamphetamine. Contrary to Mr Ryan s submissions, although we cannot identify them by name today, there are very real victims of drug offending. Supplying methamphetamine has undoubtedly ruined lives and communities of those to whom it was supplied. I set a minimum period of imprisonment of five years, for you Mr Wellington. 40 R v Anslow CA182/05, 18 November 2005 at [27].
[64] Ms Wellington, I do not consider the same applies to you. You are 26 years old, you had a limited role in the offending and there is evidence of reasonable potential for your rehabilitation. While the Court of Appeal has said a minimum period will often be imposed where sentences are above nine years, it does not fetter judicial discretion by saying it must always be imposed and your sentence is less than that. 41 In R v Agu the Court has upheld a decision not to impose a minimum period where the offender had a limited role in relation to a much larger quantity than that at issue here. 42 And in Chan v R, it overturned a minimum period emphasising the defendant s age. 43 I consider the Parole Board should decide when you should be released from prison. I do not impose a minimum period of imprisonment on your sentence. [65] Finally, for completeness, I note the Crown withdrew three charges against you, Ms Wellington, for possessing equipment, supplying methamphetamine and manufacturing methamphetamine. Sentences [66] Mr Riki Wellington, please stand. I sentence you to the following sentences, concurrent with each other: (a) nine years and six months imprisonment for possession of methamphetamine for supply, in Christchurch on 6 October 2016, these are to be served concurrently; (b) nine years and six months imprisonment for supplying methamphetamine in Christchurch on 6 October 2016; (c) nine years for possession of methamphetamine for supply, in Christchurch on 11 October 2016; 41 R v Anslow, above n 40, at [27]; R v Zhou [2009] NZCA 365 at [19] 20. 42 R v Agu, above n 17, at [13]. 43 Chan v R, above n 18, at [39].
(d) 13 years imprisonment for possession of methamphetamine for supply, in Christchurch on 18 October 2016, with a minimum period of imprisonment of five years; (e) nine years for your possession of methamphetamine for supply, in Christchurch on 27 October 2016; and (f) nine years for supplying methamphetamine, in Christchurch on 27 October 2016. [67] That means your end sentence is 13 years imprisonment. You will be in prison for at least five years from the beginning of your sentence before there is any possibility of release. [68] Ms Chevonne Wellington, please stand. I sentence you to the following sentences, concurrent with each other and cumulative on those imposed on 27 March 2018: (a) three years and six months imprisonment for possession of methamphetamine for supply, in Auckland on 4 October 2016; (b) seven years for supplying methamphetamine to Mr Wellington in Christchurch on 11 October 2016; (c) seven years for supplying methamphetamine to Mr Wellington in Picton on 18 October 2016; (d) seven years for supplying methamphetamine to Mr Wellington in Christchurch on 27 October 2016. [69] That means your end sentence is seven years imprisonment, on top of the sentence you are currently serving. Please stand down. Palmer J