R v Helmbright

[2016] NZHC 3087

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-085-012123 [2016] NZHC 3087

THE QUEEN

v

CLINT JOHN TUIRANGI HELMBRIGHT

Hearing:	14 December 2016
Counsel:	E M Light for Crown E W Forster for Defendant
Sentence:	14 December 2016

SENTENCING NOTES OF CLIFFORD J

Introduction

[1]      Clint John Tuirangi Helmbright, you appear for sentencing having been found guilty by a jury following a trial before me on 38 charges, principally for offending involving the unlawful drugs methamphetamine, BZP and cannabis.

[2]      You were convicted on 19 charges involving methamphetamine: 15 of supply and two each of possessing for supply and offering to supply.

[3]      You were convicted on 12 charges involving BZP: nine of selling and three of possessing for sale.

[4]      You were convicted on five charges involving cannabis: four of selling and one of offering to sell. Various of those charges were laid on a representative basis.

R v HELMBRIGHT [2016] NZHC 3087 [14 December 2016]

[5]     Those charges attract differing maximum sentences.   Those involving methamphetamine – life imprisonment.   Those involving BZP and cannabis, eight years.

[6]      The  maximum  of  life  imprisonment  for  the  methamphetamine  offences reflects the especially pernicious effects of that drug in our communities.

[7]      You   were  also   convicted  of  offending  by  deception   and   unlawfully possessing a firearm.

Disputed facts

[8]      To decide your sentence, I first have to determine the offending that the jury’s verdicts represent as regards your methamphetamine offending.  You and the Crown take somewhat different views on that.   You say you should be sentenced on the basis that in total your offending involved something in the range of 200 grams of methamphetamine.  The Crown’s position is that I should sentence you on the basis that between 250 and 300 grams was involved, and there are other submissions I have heard about sophistication and the centrality of your role in the offending.

[9]      As trial Judge, I will resolve that difference of views on the basis of the evidence I heard at trial, the verdicts the jury reached and the submissions made, and I will do that as part of this sentencing exercise.

[10]     In doing so, and where the evidence is uncertain, I take the version of events which is most favourable to you provided that it is not manifestly false or wholly implausible.

[11]     Your  offending  came  to  light  pursuant  to  what  came  to  be  known  as

Operation Nebraska.

[12]     Operation Nebraska was a police investigation, conducted between July and October 2013, from Rotorua in the central North Island as far south as Christchurch. That investigation was centred on your activities.  You were the organiser of a drug dealing ring that distributed methamphetamine, BZP and cannabis.   You obtained

those drugs from some three to four people. You distributed them using a network of some 15 dealers or “runners”, including your own son and daughter.

[13]     You were tried with a number of other defendants who were arrested and charged as a result of Operation Nebraska.  They were four people to whom you had supplied, or alleged to have supplied, methamphetamine (Messrs van der Wiel, and Persico, Ms Morrison and Ms Chapman) and a fifth, Mr Padden, who was alleged to have supplied methamphetamine to you and to whom you I think supplied BZP.

[14]     By the time that trial took place a number of other people had pleaded guilty to charges they faced based on their involvement in your activities.

[15]     Of those:

(a)      two, Messrs Hemopo and Robinson, had pleaded guilty to charges involving methamphetamine; and

(b)six, Messrs Reed and Forsyth, Ms Dinsdale-Dette, Ms Paul, and your son  and  daughter,  Jade  and  Courtney,  had  pleaded  variously  to charges involving BZP and cannabis.

[16]     In addition your co-defendant Mr Persico pleaded guilty to his BZP charges at the start of the trial and, at a reasonably late stage in the trial, to his methamphetamine charges.

[17]     Messrs Hemopo and Robinson and Ms Dinsdale-Dette gave evidence at your trial.   Evidence of the conviction of the others was introduced by way of agreed statements of fact.

[18]     At the start of your trial you faced a total of:

(a)       56 charges involving methamphetamine; (b)    17 involving BZP; and

(c)       five involving cannabis.

[19]     The  jury  returned  a  range  of  guilty  and  not  guilty  verdicts  and  were undecided, or hung as we say, on a number of charges.  The overall pattern of the jury’s verdicts was that you were found guilty of the offending with respect to which the jury had not only the evidence obtained by the police during Operation Nebraska

– principally comprising recovered or intercepted text and telephone messages and the results of covert observations of meetings between you and various other defendants, but also the evidence either from defendants who had pleaded guilty and who gave evidence at your trial, or for whom there was evidence in the form of admitted statements of fact.

[20]     I therefore proceed on the basis that the jury accepted you had possessed and supplied  methamphetamine  and   other  drugs,   principally  as   reflected   in   the convictions of your co-defendants.

[21]     Mr  Hemopo’s  evidence  was  that  you  supplied  him  with  a  total  of approximately 100 grams of methamphetamine.  Mr Robinson’s evidence was that, all up, you supplied him with approximately 90 grams of methamphetamine.  Other specific amounts for which there was direct evidence was the methamphetamine you supplied to Mr Persico (seven grams), the more than five grams you supplied to Ms Morrison  in  July,  and  the  two  grams  found  in  Ms Chapman’s  possession  on

16 October.   That therefore is a known amount – a known specific amount - of

204 grams.

[22]   I also accept that the verdicts do reflect your being involved with methamphetamine in an amount greater than that, and to use the phrase I referred to earlier, it would be implausible if that was not the case.

[23]     In  my  view,  the  evidence  therefore  puts  you,  in  terms  of  the  Court  of Appeal’s Fatu guideline judgment, at the upper end of Band 2.  I agree that your role was central.  That is an aggravating factor of this offending, as is the fact that you have admitted yourself that you involved your children.  I also accept your offending involved planning and premeditation.  I take a slightly different view of the degree of

sophistication that was involved than the Crown does.   By my assessment of the evidence, whilst these were commercial quantities, there was something of an unreal nature in many ways in your involvement in this. You would appear to have got into a world quite outside your control.  With respect to you, you gave yourself a position of importance and almost delusions of grandeur in the way you carried on.  I say that in all frankness to you.   Accordingly, my assessment is that, as regards your methamphetamine offending, a starting point sentence of nine years’ imprisonment is called for.  I do not think it is appropriate, as the Crown argued, to elevate that higher into the Band 3 range the Crown proposed.

[24]     As  regards  BZP  and  cannabis,  again  the  offending  was  of  significant commercial quantities. At least 15,000 BZP pills and 10-15 ounces of cannabis.  My assessment is that an uplift of three years is required to recognise that offending.

[25]     Finally,  there  are  the  charges  of  obtaining  by  deception  and  unlawful possession of a firearm.  The Crown suggests an uplift of 12 months on account of that offending.   The obtaining by deception was discrete and cynical offending to meet the cash flow requirements of your methamphetamine business.  Principally by reference to that offending, I agree that a 12 month uplift is appropriate.

[26]     That produces a starting point, before considering questions of totality and matters personal to you, of 13 years’ imprisonment.  You have heard my exchanges with counsel today.   On reflection, I accept that an adjustment is required to take account of the 18 month sentence you have served on the attempting to pervert the course of justice charge, and I allow a reduction of six months on account of that totality adjustment.   So that brings the starting point sentence, before considering matters personal to you and other totality considerations, to 12 and a half years.  I do not think that that sentence otherwise offends the totality principle so I then turn to matters personal to you.

[27]     I accept you have expressed remorse for the impact this offending has had on your family and that you have completed a short drug rehabilitation course .  Given the pattern of your offending, I do not think any discrete discount for remorse or efforts to rehabilitate is appropriate here.   Your position, in that regard, is quite

different to those of your co-offenders who I have already sentenced and, in doing so, gave discounts for rehabilitative efforts.

[28]     On that basis I sentence you to a term of imprisonment of 12 years and six months and  I structure your sentence in the following way:

(a)      On all the charges relating to methamphetamine, you are sentenced to terms of eight and a half years’ imprisonment, concurrent with each other and that reflects the six month totality adjustment.

(b)On the BZP and cannabis, you are sentenced to terms of imprisonment of three years, cumulative on the methamphetamine charges but concurrent with each other.

(c)      On  the  charge  of  obtaining  by  deception  and  firearms,  you  are sentenced to a term of imprisonment of one year, cumulative on the methamphetamine and other drugs charges, but concurrent with each other.

[29]     I come then to the question of a minimum period of imprisonment.  It is well established, and I only need to refer to one decision, that of the Court of Appeal in Anslow, that very serious drug offending will normally call for a minimum period of imprisonment to reflect the need to denounce and to deter both the person being sentenced and others.  I have thought about this quite carefully.  Going back to the pattern of your offending, and the fact that I accept for a long period in your life you worked hard and operated successful businesses, this is a particular fall from grace. It  may have  come  out  of  financial  difficulties  you  faced.    That  itself  is  not  a mitigating factor, but in all the circumstances, I think the question of your deterrence and rehabilitation can be left to the Parole Board to assess where you get to in prison. You will have further opportunities to demonstrate that you have put this part of your life behind you and on that basis I will not impose a minimum period of imprisonment. As I said, I will leave that to the Parole Board.

[30]     Mr Helmbright, on the basis I have outlined, you are sentenced to a term of imprisonment of 12 and a half years.  There will be a forfeiture order as regards the proceeds of the sale of the vehicles that are subject to the Crown’s restraint and there will be a reparation order in favour of the finance company, Marac.  The reparation to be paid to Marac is $24,199.06.

[31]     Thank you Mr Helmbright. You may stand down.

“Clifford J”

Solicitors:

Crown Law, Wellington