IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-006361 [2013] NZHC 2271

THE QUEEN

v

MICHAEL GERARD HALL

Hearing:	3 September 2013	

Appearances:	
G R Kayes for Crown
J C LaHatte for Prisoner	

Sentence:	
3 September 2013	

SENTENCING REMARKS OF LANG J

R v MICHAEL GERARD HALL [2013] NZHC 2271 [3 September 2013]

[1]       Mr Hall, you appear for sentence having pleaded guilty to being in possession of a Class C controlled drug for the purpose of sale.  The maximum penalty for that offence is eight years imprisonment.

Background

[2]       Your offending came to light as a result of a large scale police operation designed to target analogue drugs being manufactured and distributed within the wider Auckland region.  The modus operandi of those at the head of the operation involved the importing of Class B and C controlled durgs, and then manufacturing them into analogue Ecstasy pills.

[3]       As  the  Crown  acknowledges,  your  role  in  the  operation  was  extremely limited. You were recruited by a person considerably further up the chain to act as a courier whose role was to collect packages and provide them to other people.  It was also anticipated that you would collect payment for those packages, and pass it back to the person on whose behalf you were acting.   In practical terms, however, you only performed this role on a single occasion.  On that occasion, you transported one package that contained alfa PVP.  This is an analogue of the Class B controlled drug pyrovalerone. The package contained approximately one kilogram of that substance. This could have been used to make approximately 5,000 ecstasy type pills.

[4]       The initial arrangement between you and the person instructing you was that you were to receive $5,000 per package that you transported.  Ultimately, however, you only received the sum of $2,000 in respect of the single package with which you had an involvement. The Crown therefore accepts that you played a very minor role in what was a much larger operation.

Sentencing Act 2002

[5]       In  any  offending  involving  the  possession  or  distribution  of  Class  C controlled drugs for commercial gain, issues of deterrence and denunciation are to the forefront.  The courts routinely select starting points of imprisonment to reflect the serious issues that Class A, B and C controlled drugs present for our society.

That is the only way in which the courts can hope to make any impact on the war against drugs.

Starting point

[6]       The first issue, as always, is to select the starting point to be imposed to reflect the overall culpability of your offending.  The starting point is the sentence that relates to the offence alone, and without taking into account factors that are personal to you.

[7]       In your case, the aggravating factors of the offending are that a significant quantity of the drug was involved.  Secondly, you agreed to become involved in the operation purely for commercial purposes.  You say that you were not aware of what was  in  the  package,  but  your  plea  indicates  that  you  knew  that  you  were  in possession of a drug of some sort.  The fact that you were to be paid large sums of money  for  transporting  these  packages  must  have  indicated  to  you  that  they contained illegal substances.  You were therefore prepared to undertake that task on the basis that you would receive significant sums of money for doing so.

[8]       Having said that, I take into account the fact that this was a single incident in which you transported drugs on behalf of another.  You had no beneficial interest in the drugs, and you were not to receive any of the profits that the distribution of those drugs would produce.  You were merely to receive a fee for your services as a mule or courier.

[9]       The importance of your role, however, is that it enabled those further up the chain to protect themselves from being caught in possession of the drugs.  Persons higher up the chain use persons like you so that they can distance themselves from the drug, and thereby make it harder for the authorities to detect their involvement in the operation.

[10]     There is no guideline judgment of the Court of Appeal in relation to analogue drugs per se.  This Court has derived some assistance in the past by comparing this

type of offending with offending involving the Class C controlled drug cannabis.1

Cannabis is, of course, a different type of drug because it is purely a Class C drug. The Court of Appeal has also recently indicated that it considers offending relating to analogue type drugs to be more serious than cannabis offending. because of the manner in which those drugs are created.2

[11]    The guideline judgment of the Court of Appeal in relation to commercial cannabis offending is R v Terewi.3   In that case, the Court of Appeal said that those involved in low level commercial cultivation or dealing in cannabis could expect a starting point of between two and four years imprisonment.  Counsel agree that your offending falls broadly within that category.  The fact that you had no beneficial interest in the drugs, however, and the fact that your offending occurred on a single occasion, means that you fall at the very bottom end of the category identified by the Court of Appeal in Terewi.

[12]    Your counsel submits that a starting point of two years imprisonment is appropriate, and the Crown does not disagree with that.  I therefore select a starting point of two years imprisonment to reflect the overall culpability of your offending.

Aggravating factors

[13]     You have a number of previous convictions.  Predominantly, however, these relate to driving offences involving excess breath or blood alcohol.  You have no previous drug related convictions.  For that reason, I do not uplift the starting point I have selected to reflect aggravating factors personal to you.   The only remaining issue is the extent to which I should reduce the starting point to reflect mitigating factors.

Mitigating factors

[14]     The pre-sentence report reveals that you are 54 years of age.   You are a business person, whose business got into severe difficulties at the time of your

1	R v  Vigneau HC Wellington CRI-2011-085-4047, 7  December 2011 at [14];  R v  Day HC Hamilton CRI-2010-019-10271, 23 June 2011; R v Lau [2013] NZHC 1463 at [5].
2	Fraser v R [2013] NZCA 250 at [14].
3	R v Terewi [1999] 3 NZLR 62.

offending.   You saw the cash to be earned from your offending as the means by which you could address those financial difficulties.   You have children from a number of relationships, but to all intents and purposes lead the lifestyle of a single man.

[15]     The probation officer assesses your risk of reoffending in the future as low. You are said to have insight into your offending, and to be sincerely remorseful in respect of it.

[16]     I propose to recognise those factors by reducing the starting point by three months. You are then entitled to credit for your guilty pleas, which were entered at a comparatively early stage.  The Crown does not cavil with your counsel’s suggestion that a discount of approximately 25 per cent is appropriate to reflect this factor.  I therefore reduce the sentence by five months to reflect this factor. This leaves an end sentence of 16 months imprisonment.

Home detention

[17]     In any case where the Court imposes a sentence of two years imprisonment or less, it is entitled to consider the alternative sentence of home detention.  The pre- sentence report assesses you as being suitable for this sentence.  You do not have a history of breaching Court orders, and you are therefore likely to be compliant with the conditions that are imposed as a necessary consequence of a sentence of home detention.   The only real concern was that your residential address adjoins commercial premises that currently hold a liquor licence. Your counsel confirms that the liquor licence is to be suspended as from 8 September 2013.  As a consequence, that concern will shortly be removed.

[18]     I also see you as a suitable candidate for home detention because of your lack of past involvement in drug related activity.  In addition, you do not consume drugs yourself.   There is therefore no risk that you will consume drugs if sentenced to home detention.  That being the case, I consider a sentence of home detention to be appropriate.

Sentence

[19]     On the charge to which you have pleaded guilty you are sentenced to eight months home detention.  The sentence is to be served subject to the following conditions:

(a)       You are to travel directly from Court to your proposed residential address, and you are to remain there to await the arrival of the probation officer and a representative of the monitoring company.

(b)	You are to reside at your nominated address for the duration of the sentence, and you are not to change address without the prior written approval of a probation officer.

(c)       You are to abstain from consuming, and not to be in possession of, illegal drugs or alcohol for the duration of the sentence.

(d)	You are to attend and complete any counselling programme that may be directed by the probation officer.

(e)       You are not to undertake any employment, paid or unpaid, without the prior written approval of the probation officer.

(f)	You are not to associate with any of your co-offenders for the duration of the sentence.

Lang J

Solicitors:
Crown Solicitor, Auckland
Counsel:
C LaHatte, Auckland