IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-19380 [2013] NZHC 915

THE QUEEN

v

DANIEL OLIVER MCGANNAN

Hearing:	30 April 2013

Counsel:	J Wall for Crown
G Newell for Prisoner

Judgment:	30 April 2013

SENTENCING NOTES OF TOOGOOD J

Solicitors:
J Wall, Meredith Connell, Auckland:   justin.wall@meredithconnell.co.nz
G Newell, Barrister, Auckland:   g.newell@xtra.co.nz

R V MCGANNAN HC AK CRI-2011-092-19380 [30 April 2013]

Introduction

[1]         Daniel Oliver McGannan, you appear for sentence having pleaded guilty to one count of supplying the Class A controlled drug cocaine.1

Factual background

[2]         Your offending was detected as a result of a Police investigation into the importation of cocaine and its subsequent distribution in New Zealand.  Living in the United Kingdom at the time, your role in the enterprise was to arrange the onwards delivery of the cocaine to a number of your associates within New Zealand following the importation.  You did this by being in contact with your friends via phone calls and text messages from the United Kingdom.

[3]         On 13 December 2011, a Mexican national, David Nevarez, was caught at Auckland International Airport attempting to smuggle 2.985 kg of cocaine into New Zealand in a suitcase.  The cocaine was 80 per cent pure and had an estimated street value of between (NZD) $750,000 to $1.2 million.   You were contacted by the person who had arranged the importation; he was someone who had supplied you with cocaine for your personal use.  With the promise of a quick financial gain, you agreed to see if you could arrange the distribution of the drugs within New Zealand.

[4]         You persuaded friends in New Zealand who, like you, had no previous involvement in drug-dealing, to handle the shipment.  You made the arrangements with  your contacts  which  resulted  in  the cocaine being shipped  from Auckland through Wellington to Christchurch where it was finally seized.

[5]         Following the Police investigation into your offending, you were arrested and spent four months in custody before being extradited to New Zealand from the United Kingdom on 26 October 2012 to face trial.  You intimated a guilty plea at the
post-committal hearing and pleaded guilty at the second call-over in this Court, after

1	Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a).

the Crown agreed not to pursue the allegation that you were involved in the importation of the drugs.

Personal circumstances

[6]         You are 28 years old and are a dual citizen of New Zealand and the United Kingdom.  You came to New Zealand aged 11 and remained here until you were 18. It seems you have returned here from time to time.   For three years prior to your extradition you ran your own business as a wine merchant; financial difficulties associated with your business appear to have been the motivation for your naive acceptance of the invitation to commit this offence.  However, you have a supportive family and friends who also think highly of you.  They have spoken of your good character and it appears to me that you had – and still have - the potential to do well. Those who know you are shocked by your offending but the many people who have provided references for you remain confident you can overcome your present predicament and lead a worthwhile life.

Prior convictions

[7]         You have no prior convictions in New Zealand or the United Kingdom.

Pre-sentence report

[8]         I have received a pre-sentence report prepared by the Probation Service. You told the report writer that your offending arose due to your involvement with drug-dealing associates in London.  You were offered an opportunity to make some quick money by finding a buyer for the cocaine in New Zealand.  You explained that you saw the offending as “opportunistic” and a way of making money with minimal risk and involvement, all at a time when your own business was suffering financially.

[9]         The report writer assesses you as representing a low risk of harm and a low risk of reoffending.   That assessment matches the views of the members of your family and friends who have written to the Court.

[10]       Illicit drug use and your involvement with the criminals who supplied you are  identified  as  the  key  factors  in   your   offending.  However,  no  specific interventions for your rehabilitation are recommended.  You are sufficiently able and intelligent to recognise the folly of your actions; what you may have thought to be merely the harmless recreational use of cocaine led you into serious criminal activity with devastating consequences, not only for you but also for the friends whom you involved in this venture, and your family.  The report writer says that you accept full responsibility for your actions and that you have expressed remorse for your offending.

Purposes and Principles of Sentencing

[11]       I am required to consider a number of sentencing purposes and principles as set out in the Sentencing Act 2002.  The relevant purposes I have taken into account particularly are:

(a)	holding you accountable for the harm done to the community by your involvement in the supply of Class A drugs;

(b)	promoting in you a sense of responsibility for, and acknowledgement of, that harm;

(c)	denouncing your conduct; and

(d)	deterring you and other persons from such offending.

[12]       I have had regard also to the purpose of assisting you in your rehabilitation and reintegration.  I have taken into account the principles of sentencing set out in s 8 of the Sentencing Act, particularly those under s 8(e) regarding co-offenders and s  8(g)  which  requires  the  Court  to  impose  the least  restrictive  outcome  that  is appropriate in the circumstances.

[13]       I turn to fixing the sentence.   The approach I intend to follow2  involves considering the circumstances and seriousness of the offending you committed and setting what is known as the starting point with the aid of any guideline decisions or comparable cases, including the sentences imposed on your co-offenders.  That will reflect the seriousness of your offending.  I then need to consider whether there are any relevant aggravating or mitigating personal features which might increase or reduce the sentence from that starting point.  Finally, I apply an appropriate discount to reflect your guilty plea.

Submissions of counsel

Crown submissions

[14]       The Crown argues that I should adopt a starting point in the vicinity of 10 –

11 years’ imprisonment, referring to three key factors in assessing the seriousness of your offending.  First, Mr Wall points to the value and amount of the cocaine, and the fact that you were aware of its weight and purity whereas your co-accused were not.  Second, you played a crucial role in the distribution chain, being that of what counsel describes as the overseas facilitator and overseer.   You actively recruited friends over a period of days and arranged for their involvement.  Third, there was high degree of premeditation in your involvement, but I apprehend that he is there referring  to  the  fact  that  your  involvement  in  making  the  arrangements  for distribution occurred over 6 days, during which you could have withdrawn at any time.

[15]       The Crown submits there are no mitigating factors personal to you, but concedes that you are entitled to a discount for your guilty plea in the region of 20
per cent.

2	R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

[16]       Mr Newell argues that a starting point of 9-10 years is appropriate; that I should give you credit for your previous good character, your remorse, and the additional burden of imprisonment through your isolation from your family.  He also asks that the maximum discount of 25 per cent be applied on account of your guilty plea.

[17]       Mr  Newell  has  assisted   your  cause  by  arranging  the  provision  of testimonials from members of your family, friends and others who know you well. The positive personal characteristics they have described and the strength of their continuing support for you has persuaded me to impose a sentence lower than that which I had in mind before receiving Mr Newell's submissions.

Setting the starting point

[18]       There is  no  tariff decision  for the offence of  supplying cocaine so  the starting point will be set with regard to the sentences imposed on your co-offenders, other comparable cases and the factors which I consider to increase your culpability.

[19]       Having regard to the factors listed in s 9(1) of the Sentencing Act 2002 and the facts of the case, I consider the following factors increase your culpability:

(a)       First, there was almost 3 kg of cocaine with an estimated street value of between $750,000 and $1.2 million. This is a very large amount and it is trite to say that drugs such as these create considerable harm within the community. The seriousness of supplying Class A drugs is evident in the maximum penalty of life imprisonment.

(b)       Second, although you claim not to have known about the shipment until after the drugs had arrived in New Zealand, your offending was calculated.  You took steps to contact and put at risk friends in New Zealand  whom  you  thought  would  also  like  to  make  some  quick money through distributing the drugs.

(c)       Third, you played a key role in the offending.  Mr Newell says that the Crown's description of you as the “overseas facilitator and overseer” overstates the position.   Whatever the label, there is no doubt you oversaw the transmission of the drugs through your associates in New Zealand and put them in contact with each other so as to organise each stage of the distribution.  You were also in contact with those who were running the operation in the United Kingdom. Your input was key to the success of the distribution once the drugs arrived in New Zealand.

(d)       Fourth, you offended for personal financial gain; basically, it was just greed which motivated you.  While it is not clear how much you stood to earn from this enterprise, you nonetheless told the writer of the pre- sentence report that you saw this as a quick way of making money.

[20]       I have considered the starting point sentences adopted by this Court for your co-offenders.   They range from 12 years’ imprisonment for the importation,3  and between seven and nine years’ imprisonment for those who were involved in the possession and further distribution of the cocaine.4   I need to bear in mind principles of parity with these cases.

[21]       I have also taken into account a number of other comparable cases.  These show that for persons who are crucial players in the importation and distribution of Class A drugs, but who are not master minds of an operation, starting points of between 10 and 13 years’ imprisonment are generally appropriate.5

[22]       In light of all these factors, I consider that the appropriate starting point for

your offending is one of 10 years’ imprisonment.   As the Crown has reasonably

submitted, it could have been higher.

3	R v Nevarez [2012] NZHC 1566.
4	R v Gemmell [2012] NZHC 2488 (starting points of seven years’ imprisonment for Ms Gemmell and eight years’ imprisonment for Mr Kemp); R v Clarke [2012] NZHC 1692 (starting point of
nine years’ imprisonment for Mr Clarke).
5	R v Wickremasinghe HC Auckland T013408, 28 March 2003; R v Reynecke HC Auckland CRI-
2004-004-9111, 29 July 2005; R v Davis CA440/04, 20 October 2005; R v Morgan HC Auckland
CRI-2004-004-007235, 10 February 2005; R v Hayward HC Auckland CRI-2011-092-4639, 13
September 2011; R v Yee CA169/01, 29 November 2001.

[23]       I must now adjust this starting point to take account of any aggravating and mitigating factors which are relevant to you personally.

Aggravating factors

[24]       There are no aggravating factors. You do not have any prior convictions in

New Zealand or the United Kingdom.

Mitigating factors

[25]       As  for  mitigating  factors,  Mr  Newell  submits  that  you  are  genuinely remorseful for your offending and asks me to take that into account, together with your previous good record.  I am satisfied from the testimonials and the letter I have received from you, that you are genuinely remorseful about becoming involved in the highly destructive crime of dealing in Class A drugs, which has devastating effects on individuals and the community as a whole.   When presented with an opportunity to make easy money, you thought there was little risk for your friends and you, and you gave no thought to the seriousness criminality in what you were doing.  In making that choice you betrayed your parents and the other people who care about you, without any thought for the consequences.  As your father has put it in his eloquent letter to me, your family will be serving a sentence too.  It is to their credit, and encouraging for the future, that they continue to love and support you.

[26]       Although  I agree that  you present a low risk of re-offending, the New Zealand courts must make it clear that those who bring controlled drugs into this country and distribute them can expect a stern response.   The need for deterrent sentences for crimes like yours limits the weight which can be given to personal factors, which count for less in sentencing for commercial drug dealing than they might with other types of offending.6   However, I am satisfied that greed and naivety led you into offending which was entirely out of character and I will extend as much leniency as I can.

(a)       First,  you  must  serve  your  sentence  in  New  Zealand  when  it  is apparent that you have not resided here for some time and your family and fiancée are not in this country.

(b)       Second, since you have been in prison you have taken steps towards rehabilitation and you hope to take advantage of educational opportunities  available to  you  during  your  sentence.   Those  steps decrease the risk of re-offending and justify reducing the sentence that would otherwise be required to deter you personally.   I note that in terms of a credit for time served prior to today, the period during which you were in custody in the UK pending extradition will be
added to the time you have spent in prison here.7

[28]       I need to bear in mind that I should leave room for hope of parole and not impose a sentence which will discourage you. On account of those considerations I am prepared to allow a discount of 15 months, which would reduce the sentence to eight years and nine months' imprisonment.

Guilty plea

[29]       Finally, you are entitled to credit for your guilty plea.  You admitted your offending when spoken to by the Police and, after indicating your intentions at the post-committal hearing, you pleaded guilty in this Court when the Crown agreed not to offer any evidence against you in relation to the importation charge.  I will allow you a discount of 25 per cent for your plea, which you may regard as generous.

Result

[30]       Please stand, Mr McGannan.

[31]	On the count of supplying the Class A controlled drug cocaine, you are sentenced to six and a half years’ imprisonment. Stand down.

...................................................

Toogood J