DOLLMAN v POLICE [2016] NZHC 2553

DOLLMAN v POLICE [2016] NZHC 2553 [26 October 2016]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2016-425-000017[2016] NZHC 2553BETWEEN CHRISTIAN KARL DOLLMANAppellantAND NEW ZEALAND POLICERespondentHearing: 17 October 2016Appearances: S Vidal for the AppellantR Donnelly for the PoliceJudgment: 26 October 2016JUDGMENT OF NATION J[1] On 28 November 2013, jointly with Ryan Kitto and Kerryn McDonald, Christian Dollman was charged with three charges of importing into New Zealand a Class C controlled drug Pentedrone. The charging documents alleged offending on 29 July 2013 and 30 July 2013. He pleaded guilty on 4 August 2015.[2] At the same, he also faced a number of charges that, jointly with others, he had sold a Class C controlled drug cannabis, had sold a Class C controlled drug BZP, had been in possession of BZP for the purpose of sale and had been in possession of cannabis for the purpose of sale.[3] On 23 March 2016, Christian Dollman pleaded guilty to five charges on a new Crown charge list. Those charges were:(a) with Karl Alfred Dollman, between 30 July 2012 and 6 August 2013, sold a Class C controlled drug, cannabis – representative;(b) together with Karl Alfred Dollman, between 12 June 2013 and 12 July 2013, sold a Class C controlled drug, BZP – representative;(c) with Karl Alfred Dollman and Rebecca Elliott, on about 23 July 2013, had possession of a Class C controlled drug, BZP, for the purpose of sale;(d) with Karl Alfred Dollman, on about 24 July 2013, had possession of a Class C controlled drug, cannabis, for the purpose of sale; and(e) with Karl Alfred Dollman, on about 24 July 2013, had possession of a Class C controlled drug, BZP, for the purpose of sale.[4] On 22 June 2016, Christian Dollman was sentenced to imprisonment for four years and eight months.1 He appeals against that sentence.Decision of the sentencing Judge[5] The Judge assessed the circumstances of the appellant's offending anddecided that the two drug dealing/importation operations should be treated as separate sets of offending for the purposes of sentencing. He assessed appropriate starting points for each and combined them cumulatively.[6] On the possession/sale charges of cannabis/BZP, the Judge adopted a starting point of three years and nine months. For the Pentedrone importation, a starting point of 3 years was reached.[7] Together, this resulted in a sentence of six years and nine months'imprisonment. From that, the Judge subtracted 15 months for totality and then applied a 15 per cent discount for guilty pleas, resulting in the end sentence of four years and eight months.Appellant's position[8] The appellant contends that:1 R v Dollman [2016] NZDC 11399.(a) the Judge did not correctly assess the appellant's culpability in thePentedrone charges;(b) the appellant's sentence was manifestly excessive, and the approachtaken to the sentencing process was unprincipled and inconsistent with the approach taken to the sentencing of the co-offenders; and(c) the timing of the appellant's guilty pleas should have entitled him to aguilty plea discount of 20 per cent.[9] The appellant says that in the circumstances the Judge's sentence should bequashed and a new sentence imposed by this Court on appeal. Counsel advocates for an approach which effectively takes the cannabis/BZP offending as the "lead offending" and treats the Pentedrone importation as offending warranting a smalluplift. Counsel therefore proposes a starting point of three years for the cannabis/BZP charges, an uplift of three months for the Pentedrone charges and a 20 per cent discount, resulting in a sentence of 31 months.Respondent's position[10] The respondent's primary position is that the Judge was entitled to separatelyassess, set and cumulatively add the starting points for the two distinct drug operations, which brought about a principled result after a substantial reduction on the grounds of totality. In all the circumstances, the sentence was not imposed in error such that it was manifestly excessive.Principles on appeal[11] This appeal is an appeal against sentence and, as such, is brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act.[12] Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that a different sentence should be imposed.2[13] If the sentence under appeal may be properly justified, having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentenceis "manifestly excessive" that the Court should interfere with the exercise of theJudge's discretion. As Toogood J said in Larkin v Ministry of Development:3[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.The Pentedrone importations[14] Ms Vidal submitted the Judge made an error in assessing Christian Dollman'sculpability with regard to this offending. She said the Judge had been in error in saying that he had been responsible for the transfer of money for the importation. She said he was in error in saying that he had worked with Mr McDonald at Alliance. She submitted that he only became involved when the importation had been completed and the packages intercepted. She said the intercepted conversations upon which the importation charges were laid against Christian Dollman recorded him discussing the importation after McDonald had transferred funds overseas for the drugs. She said they established that he had no prior knowledge of where the drugs were sourced or how payment was facilitated to enable the drugs to come into New Zealand. She also said the Judge had been in error in saying that Christian Dollman had been in possession of two or three dockets in respect of the importation. She said there was no reference to this in the summary of facts. She said, on that basis, his offending was less than his co-offenders McDonald and Kitto.[15] Contrary to Ms Vidal's submissions, the summary of facts did refer to the factthat Christian Dollman and Kerryn McDonald did work together at the Alliance Makarewa Venison Plant but, of itself, that may have meant little as to how they had2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Larkin v Ministry of Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].both been involved in the importation. The summary of facts did say that, when the Police executed a search warrant on 5 August 2013 at the Venison Plant, they located in Christian Dollman's vehicle a piece of paper with the names, addresses and tracking numbers of two of the three importations of the Pentedrone that were being imported into New Zealand from China and seized by New Zealand Customs.[16] The packages were intercepted by New Zealand Customs on 29 and 30 July 2013. They had been imported into New Zealand before 1 August when the Police intercepted a text conversation between Dollman and McDonald where McDonaldsaid he was waiting for Dollman at Kitto's address. Dollman pleaded guilty to thecharges of importation. In doing so, he acknowledged that he had assisted in the importation of the packages into New Zealand.[17] There was also sufficient information in the summary to indicate Christian Dollman was likely to have been significantly involved with the importation before the packages had been intercepted. He responded to the text message from McDonald on 1 August treating it as a matter of urgency and saying he would be there in five minutes. Later that evening, his partner complained about him going out that evening without telling her where he was going. He replied to her that he sometimes had to do things she did not need to know about. All of that indicates he had known in advance what McDonald and Kitto were doing and was ready to respond quickly if needed.[18] Dollman asked his partner to go to Countdown and buy a phone so he could ring someone and then throw the phone away. He told her she could not get hold of him because he had to turn his phone off as he was talking about stuff that he did not want overheard.[19] The Police summary indicated that it was McDonald who went to Countdown and purchased a cell phone as well as a prepaid top up voucher. McDonald then made calls using that phone. In Dollman's car at the Venison Plant, the Police located a receipt for the cell phone that had been purchased and the top up voucher receipt. The Police later obtained information indicating McDonald and Kitto had made a number of calls with the mobile phone which had been purchased. Callswere made to a woman at the Chinese business which was sending them the Pentedrone. A number of calls were made to New Zealand Post enquiring as to the packages. In each of his calls, Kitto quoted either the Chinese or New Zealand tracking number of the intercepted packages. Those must have been numbers thatthe Police had found on the piece of paper in Dollman's vehicle.[20] Despite Dollman retaining those records and wanting to obtain the phone used to initially contact the woman from the Chinese business, the calls using the phone were made by Kitto and McDonald. Rather than indicating that Dollman played a lesser role in the importation, all of this suggests that, consistent with the authority which Dollman had within the Invercargill Road Knights, he was an organiser and facilitator but willing to use others or intermediaries for direct dealings with other parties involved in the criminal offending.[21] Consistent with that role, in a conversation between McDonald and Dollman on 2 August 2013, they discussed waiting for a parcel to arrive via international mail and clear customs. Dollman asked McDonald if he had asked the lady from the Chinese business whether or not they could change the address they were sending it from. The summary said they discussed having imported heaps in the past, building up from 30 and 50 gram weights to half a kilo, but saying it seemed to be getting harder and harder to do.[22] The packages were addressed to three different addresses in Invercargill. In making submissions in the District Court, Ms Vidal acknowledged Dollman had supplied the addresses which were to be used.[23] It appears the Judge was in error in saying that Dollman had been responsible for the transfer of the money for the importation of the Class C drugs but there was sufficient information in the summary of facts to indicate Christian Dollman was fully involved in the importation and was likely to have been supporting McDonald and Kitto in all that was happening.[24] The Judge had adopted a starting point for Mr McDonald's involvement inthis offending of three years and four months. For Mr Kitto, he had adopted a threeyear starting point. Mr McDonald appealed his sentence, arguing the three years and four months starting point was manifestly excessive and out of line with authority. Dunningham J considered comparable cases which had been relied upon by MrMcDonald's counsel.4 She considered the starting point of three years and four months adopted for McDonald was entirely within range for category 2 offending in terms of R v Terewi which could be applied by analogy.5[25] The sentencing Judge adopted a starting point of three years' imprisonmenton the importation charges. I consider that starting point was well within range.[26] The Judge was entitled to adopt a cumulative approach on sentencing, given the importation charges involved different perpetrators, a different series of events and a different controlled drug.6[27] I do not accept that the Judge was in error as to his assessment of ChristianDollman's culpability for the importation charges or in imposing the sentences on a cumulative basis.Disparity in sentences[28] For Dollman, Ms Vidal argued the Judge was wrong to have treated the Class C importation as warranting a separate cumulative sentence when concurrent sentences were imposed for the Class B manufacturing and supply charges committed by Karl Dollman.[29] Karl Dollman faced one charge of manufacturing a Class B drug, cannabis oil and a charge or charges of selling the Class B drug cannabis oil on 12 occasions. He faced charges involving the sale of Class C drugs on his own and together with Christian Dollman on 118 occasions. With Karl Dollman, the charges involving the Class B drug were essentially an add-on to the other offending involving cannabis. That offending arose out of the same general circumstances. The offending was still connected with cannabis.4 McDonald v Crown Law [2016] NZHC 339.5 At [16]-[21], citing R v Terewi [1999] 3 NZLR 62 (CA).6 Sentencing Act 2002, s 84.[30] The Judge arrived at the sentence for Karl Dollman by adopting a startingpoint for all the offending of four years' imprisonment, given that Class B drugs were involved. Ultimately, with a discount for guilty pleas, concurrent sentences of three years and seven months were imposed on Karl Dollman for the Class B offending and the Class C offending.[31] The approach with Christian Dollman was much the same. Although the Judge first arrived at starting points for the cannabis/BZP and importation offending on a cumulative basis, allowing a discount of 15 months for totality, he arrived at a starting point for all the offending of six years and nine months. He then applied a 15 per cent discount for guilty pleas. In the end, concurrent sentences of four years and eight months were imposed on all charges.[32] Ms Vidal suggested that Karl Dollman's offending in relation to the Class Bmanufacturing and sale should have been regarded as more serious than ChristianDollman's importation offending because Karl Dollman had full culpability with regard to the Class B offending and more harm had been done through that offending through the way the Class B drug came to be actually sold into the community. She submitted that Pentedrone was a less serious drug and, in this instance, did not cause the same harm because it was never sold into the community.[33] I do not consider Karl Dollman's offending should have been treated as moreserious on that basis. But for customs interception of the Pentedrone packages, it would have been sold into the community. While the Pentedrone was a Class C drug, given the quantity that was imported, there was potential for the sale of that drug to result in substantial harm. For the purpose of sentencing, it was agreed, as referred to in the summary of facts, the street value of the Pentedrone was $75 per gram, $54,450 for 726 grams.[34] Ms Vidal also submitted there was a disparity in sentencing such that an ordinary member of the public would find it difficult to understand why Christian Dollman, whose Class C offending she suggested was just over half that of Karl Dollman, was sentenced to one year and one month's more imprisonment, when KarlDollman had nearly twice as many Class C sales and was involved in the manufacture and sale of Class B drugs.[35] I do not consider the different sentences would be seen in that light. The Pentedrone importations involved separate and distinct criminal offending in a waywhich was not the case with Karl Dollman's Class B offending. The importationswere for controlled drugs of a significant value. Karl Dollman's Class B offendingwas essentially an extension of his other offending involving cannabis and BZP.[36] The Judge was also right to assess the seriousness of Christian Dollman'soffending as to cannabis and BZP not just in terms of how many transactions he was involved with. The Judge sentenced him on the basis he was central to the cannabis/BZP operation. He had advised the person cultivating the cannabis about drying techniques for the cannabis. He was responsible for organising the ongoing supply of cannabis to his father. He was using his address to store drugs. He was part of the wholesale supply to small time dealers. He had tick lists in respect of the cannabis that he was selling. Ms Vidal did not take issue with that summary as to his involvement.[37] The factual background was detailed in a lengthy summary of facts. The charges arose out of a Police surveillance operation called Operation Crimson, conducted between December 2012 and November 2013 in relation to "The Road Knights". At the time Christian Dollman was the president of that group. Karl Dollman was his 78 year old father. A Mr Ladbrook was an associate of the Road Knights gang.[38] Mr Ladbrook had a sophisticated indoor cannabis growing operation. On 31 October 2013, 96 plants were found growing in his house, significantly altered to facilitate their cultivation. He received substantial sums from Karl Dollman for ongoing cannabis supply.[39] Evidence gathered during operation Crimson showed Christian and Karl Dollman were sourcing controlled drugs and selling to persons who were breaking it down into smaller amounts and on-selling it.[40] On 23 July 2013, the Police executed a search warrant at the address of Rebecca Elliott. She is the daughter of Karl Dollman and sister of Christian Dollman. The Police found cannabis at the address, packaged into snap lock bags, and amongst other items what appeared to be a tick list. After that search warrant was executed, Karl Dollman went to her address and uplifted a quantity of BZP which he buried at the Otatara Scenic Reserve in a 20 litre bucket also containing cannabis. The Police intercepted conversations between Christian Dollman and hisfather in which they spoke of the cannabis found at Elliott's home as being theirs.They also intercepted a conversation where Christian Dollman had referred to there being $20,000 worth of drugs in the bucket and to his having used it to store drugs for the last 12 years. The Police found that bucket concealed in the ground. It contained 306 BZP pills, 26 individual ounces of dry high quality cannabis head in snap lock bags, two bags of BZP in powder form weighing a total of 200 grams and a large quantity of small unused plastic snap lock bags. The street value of the drugs located in the bucket was around $27,500.[41] On executing a search warrant at Karl's address, consistent with informationwhich had been discussed between Karl and Christian Dollman, the Police found $35,700 in cash. That cash was packaged in $5,000 lots. At Karl Dollman's addressthey also found tick lists. One page contained the headings "Personal", "Chris" and"Firm" with dollar amounts ranging between $1,000 and $1,600, totalling $13,755. That page related to money from the joint drug dealing enterprise between Karl and Christian Dollman.[42] In conversations of 18 July 2013, Christian and Karl Dollman discussed the quantity of drugs they had. Karl mentioned they had two pounds of cannabis.[43] The Judge adopted a starting point of three years and nine months in respect of the BZP and cannabis charges on which Christian Dollman was jointly charged with his father.[44] I consider there was no error in that starting point. The offending was near the top of band 2 of R v Terewi.7 This was a long term and sophisticated operation.7 R v Terewi, above n 5.The network available for distribution was substantial. Christian Dollman was directly involved with 66 instances of drug dealing. The tick lists indicated there were substantial monies due and obtained as a result. They were dealing with large volumes, evidenced by the scales and number of snap lock bags which were located when the warrants were executed.[45] The sentencing Judge's approach was to separately assess, set and add the starting points for the two distinct drug operations. That led to a starting point for both sets of offending of six years and nine months. He then discounted that starting point to reflect the totality of the offending, reducing the starting point to five years and six months.[46] On appeal, the focus is on the end sentence imposed rather than the process by which the sentence is reached.8[47] The starting point for all the offending before a discount for guilty pleas was five years and six months. That starting point could have been reached by taking the cannabis/BZP offending as the lead offending, adopting the starting point for that offending of three years and nine months, and uplifting that by one year and nine months for the Pentedrone operation. With the Pentedrone operation, Christian Dollman had been actively assisting in three separate importations of that Class C drug from China, the drugs involved having a street value of $54,450. Using the R v Terewi categorisation by analogy, the importation puts that offending in the upper end of category 2. An uplift of just one year and nine months for that offending would thus have been well within the appropriate range.[48] I thus consider there was no error in the Judge arriving at an adjusted starting point for all the offending of five years and six months.The discount for guilty pleas[49] The sentencing Judge allowed an overall discount of 15 per cent, noting the guilty pleas on the cannabis/BZP charges were entered just weeks before the trial.8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.Guilty pleas on the Pentedrone charges were entered 13 months after Dollman's firstappearance.[50] Ms Vidal provided me with a copy of a memorandum she had provided to the District Court on a without prejudice basis. This was for a case review hearing on 23 June 2014. In that document she said a proposal had been put to the Crown whereby Christian Dollman would plead guilty to the importation charges on the basis of one representative count. She said a summary of facts had been agreed to for that purpose.[51] In submissions to me, Ms Vidal said that Dollman had accepted that he was involved in some of the Class C offending but not all of the offending and, in particular, not the Class B offending. She said he could not plead guilty to the offending which he did admit to at that stage because he would then have run the risk of his guilty pleas being used as propensity evidence to establish the other offending, the Crown case being that there was, in essence, a joint criminal enterprise between the father and son to sell drugs.[52] The Court of Appeal has said that, in considering a discount for guilty pleas, a defendant should not necessarily be penalised for making an offer to plead guilty subject to evidence against them being ruled admissible.9 This was not that sort of situation. Dollman was delaying entering a plea of guilty for admitted offending for strategic reasons. In those circumstances, the Judge was right to consider a potential discount on the basis the guilty pleas to admitted charges could have been entered much earlier than they were.[53] Furthermore, having read the memorandum presented to the District Court, Ido not accept Dollman's proposal was made on just that basis. In the memorandum Christian Dollman indicated he would plead guilty to seven specific charges relating to the cannabis/BZP. In the memorandum, Ms Vidal said that he was offering to plead guilty to offending that he was involved in but denied any involvement in the other offending. The memorandum noted that the Police asserted the offending was part of a criminal enterprise between Christian Dollman, Karl Dollman and Rebecca9 Mains v R [2016] NZCA 290.Elliott. Christian Dollman at that point was denying there was any basis for that allegation that he was part of a criminal enterprise involving those people. Ms Vidal said the basis for the Police allegation as to the joint offending was not apparent from the disclosure which had been made to date.[54] Christian Dollman knew what his involvement had been without having to depend on the disclosure that had been made. Ultimately, but only two weeks before trial and more than two years after he had been arrested, he pleaded guilty to a representative charge that he had been involved jointly with his father Karl Dollman in selling cannabis between 30 July 2012 and 6 August 2013, and a further representative charge that he had been involved with his father in selling BZP between 12 June 2013 and 12 July 2013. He also pleaded guilty to being, jointly with his father, in possession of BZP for the purpose of sale, jointly with his father and his sister Rebecca Elliott being in possession of BZP for sale and jointly with his father being in possession of cannabis for the purpose of sale.[55] While ultimately there was a reduction in the number of charges he faced and Karl Dollman must have been separately charged in respect of a number of transactions, including the Class B offending, Christian Dollman did plead guilty to charges that he had been involved in a criminal enterprise jointly with his father and sister, something which he had denied in June 2014. It has not been suggested that the delay in entering pleas of guilty resulted from the Crown not engaging over the proposals that had been made.[56] As a result of the lengthy Police investigation and the surveillance operation, the evidence against Christian Dollman was strong.[57] In Mains v R, the Court of Appeal held that there should have been some discount for the offer of earlier guilty pleas where an offer had been made but conditional on a challenge to the admissibility of evidence not succeeding.10 The Crown had not engaged over the offer. The admissibility issues were ultimately determined in both the High Court and the Court of Appeal against the defendant. Following that, the defendant repeated the earlier plea proposals. The Crown10 Mains v R, above n 9, at [26]-[28].responded and agreement was reached in the week before the trial. The Crown ultimately dropped charges of cultivation and accepted pleas to charges of possession and sale of cannabis. The Court said he had benefitted from the withdrawal of other charges. It also took into account the fact that his guilty pleas were not entered at the first available opportunity after the admissibility issues were finally resolved. The Court of Appeal did however hold he was entitled to a discount of approximately 10 per cent.[58] I do not consider the Judge was in error in allowing an overall discount of 15 per cent for guilty pleas.Conclusion[59] I have not been persuaded that there was any material error in the ultimate sentence imposed or that a different sentence should be imposed. I therefore dismiss the appeal.Solicitors:Southern Law, InvercargillPreston Russell Law, Invercargill.