IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-004-13858

THE QUEEN

v

HARRY WHITEHEAD

Hearing:	17 September 2010

Appearances: Mr M Wharepouri for Crown
Mr P Dacre for Prisoner

Judgment:	17 September 2010

SENTENCING REMARKS OF LANG J

Solicitors/Counsel:
Crown Solicitor, Auckland
Mr P Dacre, Auckland

R V WHITEHEAD HC AK CRI-2008-004-13858  17 September 2010

[1]       Mr Whitehead, you appear for sentence today having pleaded guilty in this

Court to several charges.  They are:

a)	Selling and being in possession of a Class B controlled drug MDMA, known as ecstasy, for the purposes of sale;

b)	Being in possession of the Class B controlled drug GHB for sale;

c)	Being in possession of the Class A controlled drug LSD for sale;

d)	Being in possession of the Class C controlled drug cannabis for sale;

and

e)	A charge of receiving stolen property.

[2]       The most serious charge in terms of penalty is that of being in possession of LSD because, as you know, that carries a maximum sentence of life imprisonment. The ecstasy and GHB charges carry maximum penalties of 14 years imprisonment. The charge of being in possession of cannabis for sale carries a maximum penalty of eight years imprisonment, and the charge of receiving carries a maximum penalty of one year’s imprisonment.

The facts

[3]       All of the charges against you arose out of a police operation in which the police targeted a number of people who were involved in drug-dealing operations in Christchurch and in Auckland.

[4]       They intercepted conversations between these people and they learned that regular transactions involving ecstasy were being carried out by two people by the name of Mr Frewer and Mr Voerman.  By intercepting Mr Voerman’s conversations, they learned that a Mr Purchase was acquiring ecstasy on a regular basis from Mr Voerman.  They then discovered that you were obtaining ecstasy from him.

[5]       The police continued to monitor telephone conversations between April and June  2008.    They  found  that  during  this  period  you  were  regularly  obtaining quantities of 1000 doses or more of ecstasy from Mr Purchase.  Then, in June 2008, you  decided  to  cut  Mr  Purchase  out  and  you  began  dealing  directly  with  Mr Voerman.

[6]       This was drug dealing on a reasonably significant scale because, as I have said, you were acquiring doses of ecstasy from either Mr Purchase or Mr Voerman of 1000 or more.  On several occasions, I am satisfied from the text messages that have been placed before me, you obtained more than 1000 doses.  The summary of facts records that during this activity you came into possession of between 7000 and
10,000 doses of ecstasy.

[7]       Now as I have said this morning to your counsel, I consider that the Crown has been relatively generous in this, because reading the summary as a whole it would appear that you actually dealt in more than that quantity, so you need to understand that the Crown has taken a conservative view of your dealing.  By any standard, you must have been acquiring drugs for a very large sum of money and then on-selling those drugs for a significant sum of money.   We are talking here hundreds  of  thousands  of  dollars,  not  tens  of  thousands.    So  you  were  really operating at what must have been the wholesale end of the market in which you were acquiring large amounts, and it is likely that you were then distributing those to others in reasonably large amounts.  I do not accept that you would have been selling at a street level.

[8]       The police operation came to an end on 18 June 2008 and a snapshot of the kind of activity in which you were involved can be gained from what the police found when they searched your address.   They found 1100 ecstasy tablets, 476.8 grams of GHB, $3,670 in cash, scales containing traces of MDMA and cannabis on them and 407 grams of cannabis plant material.  Quite clearly, you were dealing not only in ecstasy on a regular basis, but also in other drugs.

[9]       That fact is reinforced by the fact that on 25 April 2008, you were driving to

Wellington with an associate.   You and your associate stupidly drew attention to

yourselves and a police car stopped you.  When the police searched the vehicle, they found quantities of LSD, cocaine and ecstasy.

[10]     You appeared for sentence in the District Court at Rotorua on 15 December

2009 in relation to those charges and their seriousness can be gauged by the fact that the Judge took a starting point of three  years six months imprisonment.   After reductions for guilty pleas, you ended up with an effective sentence of two years nine months imprisonment which you are currently serving.

[11]     I do not take into account that offending in sentencing you today.  I merely draw attention to it to demonstrate that, both in April and June 2008, you were shown to be in significant quantities of different types of drugs.  As I have said, that gives some kind of flavour to the nature of your offending.

[12]     Part of your offending arose whilst you were on bail.  I take it that you were on bail after the police arrested you following your trip to Wellington on 25 April
2008.  One of the terms of your bail was that you would not have a cellphone.  In blatant breach of that bail condition, you obtained a cellphone and the police then monitored calls that took place up until September 2008.  Not only did you have a cellphone in breach of the bail condition, but you made or received 11,000 calls or text messages.   These demonstrated quite clearly that you were continuing to sell ecstasy in amounts of 10 to 50 tablets, notwithstanding the fact that you were on bail on serious drugs charges.

Sentencing Act 2002

[13]     In any case involving drug dealing of this type, as I am sure you now know, sentences of imprisonment are inevitable.  That is the only way, Mr Whitehead, that the courts can demonstrate that they are serious about the scourge that drugs like LSD and ecstasy have become within our society.

[14]     Sentences of imprisonment are required under both the Misuse of Drugs Act

1975 and the Sentencing Act 2002 to deter you and others from future offending, to hold you accountable for what you have done and to denounce what you have done.

At the same time, however, it is important that the Court imposes a sentence that is consistent with those that are imposed in similar or related cases.  That is particularly important here, because others in the supply ring in which you were involved have already been sentenced and those sentences provide an important signpost to the Court in sentencing you.

Starting point

[15]     The first issue I must resolve is the starting point to be selected in relation to the sentence to be imposed on you.  That is the sentence that would be imposed after a defended hearing, but before taking into account factors that are personal to you.

[16]     The leading case in this area is a decision of the Court of Appeal in R v Wallace [1999] 3 NZLR 159.  I accept that in terms of this decision you would fall within a category of offending that would attract a starting point of between five and eight years imprisonment.   The most useful exercise, however, is to compare sentences that have been imposed on other persons who were in your drug ring.

[17]     Mr Voerman  was sentenced in September 2009 and the Judge who sentenced him  selected  a  starting  point  of  seven  years  imprisonment:  R  v  Voerman  HC Auckland CRI 2008-004-16711, 4 September 200).   A person by the name of Mr Keown, who was said to be operating on a par with Mr Voerman, was sentenced on
20 May 2010 and the Judge who sentenced him also selected a starting point of seven years imprisonment: R v Keown HC Christchurch CRI-2010-409-000056, 20
May 201).

[18]     I accept that your offending falls to be dealt with at a lower level, because you were further down the chain than Mr Voerman and Mr Keown.  Nevertheless, the scale of your operation was such that a significant starting point must be selected.

[19]     I select a starting point of six years imprisonment in relation to the ecstasy charges alone because they are the most serious in my view.

[20]     I cannot ignore the fact that you were found in possession of other drugs as well.  That is a factor that has to be taken into account and the overall starting point that I select must be increased by six months to reflect that fact.

Aggravating factors

[21]     I  now  need  to  give  consideration  to  factors  that  aggravate  the  situation because of the fact that they relate to your personal situation and not the offending per se.

[22]     There is one here, and I have already mentioned it, and that is the fact that you were prepared to offend in a significant way whilst on bail on other serious drugs related charges and in breach of the specific condition that you not be in possession of a cellphone.  The reason, Mr Whitehead, that the courts impose that condition is in an attempt to stop people who are involved in activity like yours from being engaged in it further.  Well, you let the Court down and you let yourself down by continuing to offend.

[23]     The Crown says that I should increase the starting point that I have selected by a year to reflect that fact.  I propose to take a more lenient approach and to uplift the sentence by just six months to recognise the fact that you were offending whilst on bail.

Mitigating factors

[24]   This means that I have taken an overall starting point of seven years imprisonment before taking into account mitigating factors that operate to reduce the sentence to be imposed upon you.  The most significant factor for which I can give you  credit is the fact that  you  have pleaded  guilty.   You did not plead  guilty, however, at the earliest stage.

[25]     This Court, as you probably now know, is bound by a decision of the Court of Appeal called R v Hessell [2009] NZCA 450, in which the Court set out the manner in which sentencing courts may reduce the sentence to reflect a plea of

guilty.   Persons who plead guilty at the very earliest opportunity are entitled to a credit of 33 per cent.  That is not available to you, because you did not plead guilty when the charges were called in the District Court.  Instead, you proceeded through depositions and into the jurisdiction of this Court.

[26]     In Hessell the Court of Appeal said that people who plead guilty at callover in this Court are entitled to a discount of 20 per cent.  You entered your guilty pleas some time after first callover, but the Crown accepts that an intimation came that you would be pleading guilty in February 2010.  Your first appearance in this Court was in November 2009.

[27]     I propose to take the same approach as the sentencing Judge took in the case of Mr Keown.  She applied a discount of 20 per cent when guilty pleas were entered in circumstances that seemed to be reasonably similar to yours.  I therefore propose to allow a reduction of 20 per cent to reflect that fact.

[28]     Your counsel urges upon me further reductions.   He points to the fact that you are now just 21 years of age.  Well, Mr Whitehead, you are just 21 years of age, but you have now been involved in serious offending and many would say that if you offend like an adult you should be treated like an adult.  Certainly the flavour of the text messages that I have seen suggests that you were an enthusiastic drug-dealer and, no doubt, you enjoyed the fact that you were involved in what you probably considered to be a big business and certainly one that involved plenty of money.

[29]     I accept, however, that your offending occurred when you were relatively young.  You may not really have appreciated just how serious your offending was.  It is clear from the material that has been provided to me that your upbringing has had its difficulties.  You were raised largely it seems by your grandfather, who clearly took a very close interest in what you were doing.  Your parents separated and this caused difficulties.   At about this time you were faced with the death of your grandfather  and  difficulties  in  your  mother’s  life.    I  suspect  that  all  of  these combined to mean that you were effectively running wild at this time.  I think that I have to make some allowance for the fact that your immaturity is likely to have clouded your judgment in becoming involved in this type of offending.

[30]     You say, and I hope it is true, that you now understand the error of your ways.   You clearly have people that support you, both within and outside your family.  You have let them all down badly by what you have done.  It really is over to you, Mr Whitehead, as to what you make of your life from this point on.  You are a person obviously with considerable ability.  The CV that you have placed before me makes that clear.

[31]     You really have a simple choice to make.  Either you keep doing what you have been doing and in that case, as your counsel rightly says, the next time you come here the sentence that you receive will have a one in front of it.  You will be receiving a sentence of ten years imprisonment or more.  Secondly, it is likely that from now on if you appear on this type of offending, the Judge will impose a minimum term of imprisonment.   A Judge has the power to require a prisoner to serve up to two-thirds of their sentence before being eligible to apply for parole.  I have no doubt that if you keep offending in this way that is what is going to happen in the future.  So that choice is going to mean that you are going to spend very long periods of what amount to the best years of your life sitting in jail.

[32]     The other choice is to get rid of your involvement with drugs.  That means probably getting rid of your associates with whom you have been spending your time.  Look to your family, to your partner and to your friends of good standing for assistance to choose another path.

[33]     I propose to make some allowance for those factors and, in particular, your youth and give you an overall discount of 25 per cent.

Sentence

[34]     On the two charges relating to ecstasy you are sentenced to five years three months imprisonment.

[35]     On the charge of being in possession of LSD you are sentenced to three years imprisonment.

[36]   On the charge of possessing GHB you are sentenced to three years imprisonment.

[37]   On the charge of possessing cannabis you are sentenced to two years imprisonment.

[38]     And  on  the  charge  of  receiving  you  are  sentenced  to  three  months imprisonment.

[39]     All of those sentences are to be served concurrently with each other and also concurrently with the sentence that you are now serving in relation to the charges to which you pleaded guilty and were sentenced in the District Court.

Forfeiture

[40]     There is an order for forfeiture of the cash that was found in your possession.

Lang J