Crighton v R

[2018] NZHC 3282

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2018-442-15

[2018] NZHC 3282

BETWEEN

LEANNE MAREE CRIGHTON

Appellant

AND

THE QUEEN

Respondent

Hearing:	12 December 2018
Appearances:	A J D Bamford and E J Riddell for the Appellant K Peirse-O’Byrne for the Respondent
Judgment:	12 December 2018

JUDGMENT OF COOKE J

[1]    Ms Crighton was sentenced to 22 months’ imprisonment on 6 August 2018 by Judge Zorhrab in the District Court at Nelson.1 Ms Crighton had pleaded guilty, following a sentencing indication, to the following charges:

(a)one charge of disorderly behaviour;2

(b)one charge of driving while disqualified;3

(c)eleven charges of offering to supply methamphetamine;4

(d)three charges of supplying methamphetamine;5

1      R v Crighton [2018] NZDC 16378.

2      Summary Offences Act 1981, s 3; maximum penalty three months’ imprisonment.

3      Land Transport Act 1998, s 32(1)(a) and (3); maximum penalty three months’ imprisonment.

4      Misuse of Drugs Act 1975, s 6(1)(c) and (2); maximum penalty life imprisonment.

5      Section 6(1)(c) and (2); maximum penalty life imprisonment.

CRIGHTON v R [2018] NZHC 3282 [12 December 2018]

(e)one charge of possessing methamphetamine;6

(f)one charge of possessing a methamphetamine pipe;7

(g)one charge of possessing a knife;8 and

(h)one charge of breach of community work.9

[2]    Ms Crighton appeals her sentence on the basis that it was manifestly excessive, either because the starting point was too high, or because a larger discount should have been provided for her personal circumstances.

Summary of offending

[3]    Ms Crighton was sentenced as part of Operation Tulip, a Police investigation targeting the commercial supply of methamphetamine in and around Nelson. As part of that investigation, Police executed a production order on Ms Crighton’s cell phone between 11 October 2017 and 30 November 2017. This revealed several text messages indicating that Ms Crighton had supplied or offered to supply a total of 3.75 grams of methamphetamine on 14 separate occasions.

[4]    On 7 December 2017, Police executed a search warrant at Ms Crighton’s home address. During the search, Police found three methamphetamine pipes, three sets of digital scales, various utensils commonly used to weigh methamphetamine, approximately 0.1 grams of methamphetamine and a stun gun. Ms Crighton was initially charged with possession of a restricted weapon in relation to the stun gun, but that charge was later dropped.

[5]    Additionally, on 9 September 2017, Ms Crighton had gone to an address to confront its occupants about her suspicion that they had stolen some of her property. When she arrived outside the property, Ms Crighton started yelling and swearing loudly at the occupants. As a result of this behaviour, the occupants armed themselves

6      Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty six months’ imprisonment.

7      Section 13(1)(a) and (3); maximum penalty one year’s imprisonment.

8      Crimes Act 1961, s 202A(4)(a); maximum penalty three years’ imprisonment.

9      Sentencing Act 2002, s 71(1)(f); maximum penalty three months’ imprisonment.

with weapons, including a knife. Ms Crighton was hit on the head with a blunt instrument.

[6]    Finally, on 9 October 2017, Ms Crighton was disqualified from driving for six months. On 11 November 2017, she was found driving a Holden motor vehicle on Tukuka Street in Nelson. When Police searched her vehicle, a dagger was located in the door-well of the driver’s door.

Personal circumstances

[7]    Ms Crighton is 46 years old. She has two young children, two late teenage children and two adult children, each from different relationships. Ms Crighton lost custody of her two younger children in December 2017. She has no contact with her teenage children, and it is unclear whether or not she has contact with her adult children.

[8]    Ms Crighton has four previous convictions. In 2017, she was sentenced to community work for careless driving causing injury. In 2012, she was sentenced to community work for possession of cannabis. In 1999, she was sentenced to community service for drink driving. Also in 1999, she was fined for assault.

[9]    Ms Crighton was assessed by the pre-sentence report writer as being at a low- risk of reoffending and a low-risk of harming others. She explained that she started using methamphetamine in 2017 to help her cope with the pressures of life. She said that she only sold the drug to subsidise her own purchases for personal use.

[10]   According to a letter from Addiction Services at Nelson Hospital, Ms Crighton reported being abuse as a child. She has also suffered several fractures through assault, and suffered from depression in the past. In 2017, she was seen by mental health services following an overdose in the context of relationship issues. Ms Crighton used alcohol heavily during her teenage years, and had been consuming spirits on a daily basis over the 12 months prior to May 2017. Since she started using methamphetamine, Ms Crighton had developed symptoms of addiction, including withdrawal syndrome and increased tolerance.

[11]   Ms Fon, a clinical psychologist, had provided the District Court with a report outlining the issues discussed above. Ms Fon’s report describes in more detail the seriousness of the physical abuse and neglect Ms Crighton was subjected to by her family as a child, as well as sexual abuse that occurred while Ms Crighton was at a boarding school during her early teenage years. Ms Fon also describes Ms Crighton’s various adult relationships, which each involved serious instances of domestic violence, including her most recent partner breaking her ribs.

[12]   Ms Fon’s report describes Ms Crighton as starting to use methamphetamine together with her most recent partner. Ms Crighton reiterated to Ms Fon that she sold it to pay for her own drug use, but also because she felt under increasing pressure to supply her partner as his usage was escalating. Ms Crighton stated that she supplied him with drugs to resolve any potential conflict and to ward off any violence, as he was becoming more violent and demanding.

[13]   Ms Fon assessed Ms Crighton as meeting the DSM-5 criteria for PSTD, which she said mostly prominently arises from the trauma related to the sexual assaults she experienced as a teenager, although she said all Ms Crighton’s abusive experiences have contributed.

[14]Ms Crighton also wrote a letter to the District Court outlining her situation.

District Court decision

[15]   On 22 March 2018, Judge Zohrab gave a sentencing indication in relation to the majority of the charges, along with the now-withdrawn charge for possession of the stun gun. The Judge adopted a starting point of two years and nine months’ imprisonment on the lead  charge  of  supplying  methamphetamine.  He  assessed Ms Crighton’s offending at towards the upper end of band one of R v Fatu.10 He then indicated an uplift of two months for the stun gun charge, and a 25 per cent discount for guilty plea.

10     R v Fatu [2006] 2 NZLR 72 (CA).

[16]   On 6 August 2018, Judge Zohrab sentenced Ms Crighton to 22 months’ imprisonment. He adopted the starting point of two years and nine months’ imprisonment indicated earlier, but removed the uplift for the stun gun charge. The Judge then uplifted by one month to account for the driving while disqualified and breach of community work charges, which had not been accounted for in the sentencing indication. A discount of 10 per cent (four months) was given to recognise Ms Crighton’s difficult personal circumstances, and the 25 per cent (eight months) guilty plea discount was applied. This resulted in an end sentence of 22 months’ imprisonment.

[17]   The Judge considered the possibility of imposing a sentence of home detention. He concluded that the proposed address was not appropriate. This was because Police had expressed concerns about gang connections with the address and Oranga Tamariki had expressed concerns about Ms Crighton’s presence around the young children that resided at the address. He imposed a sentence of imprisonment, but granted leave for Ms Crighton to apply to substitute her sentence with one of home detention if she could find an appropriate address, or home detention to a residential treatment programme.

[18]   The Judge also imposed special release conditions that Ms Crighton was not to possess or consume alcohol or drugs, and was to attend an alcohol and drugs assessment and complete any counselling or treatment programme as recommended by the probation officer.

[19]   Throughout his decision, the Judge made reference to Ms Crighton’s traumatic personal circumstances. However, he also said that he needed to balance this against “the need to ensure the purposes of denunciation and deterrence are met”. He highlighted that while Ms Crighton’s circumstances led her to offend, by supplying others she was “creating more victims” whose lives would be affected like hers. The Judge also observed that it is not unusual for people who have come from backgrounds like Ms Crighton’s to be involved with drugs.

Approach on appeal

[20]   An appeal against sentence is an appeal against a discretion. Section 250 of the Criminal Procedure Act 2011 requires the Court to allow the appeal if, and only if:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[21]   The Court of Appeal has explained that whether a sentence is “manifestly excessive” continues to be an important guide to finding an error.11 The Court of Appeal has also explained:12

The discretion to vary [a] sentence [on appeal] is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.

[22]   If the end sentence is within range, then the appeal court will not change it, even if the lower court made an error to reach that end sentence.

Grounds of appeal

[23]   Mr Bamford, counsel for Ms Crighton, focussed his submissions on the fact that Ms Crighton had been dealing to support her own addiction, and the events that had led to this. He placed reliance on Ms Fon’s report, which summarised her circumstances in the following way:

21. Ms Crighton admitted to the charges as laid out in the Summary of  Facts. She explained that she began selling the drug after she was casually approached by others. Ms Crighton disclosed that over time she increased the amount of methamphetamine that she sold, as she calculated that this would pay for her own, and her partner’s usage. She stated that she felt increasingly pressured to continue to supply her partner with drugs, as his usage was escalating, and he was becoming more violent and demanding. Ms Crighton reasoned that continuing to supply him with drugs, immediately resolved any potential conflict and warded off any violence.

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

12     At [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].

[24]   Mr Bamford submitted that an arbitrary application of the bands in R v Fatu to low-level dealers in these circumstances would bear little relevance to the purposes and principles of sentencing. He also submitted that R v Fatu had to be viewed in light of the reality that exists in the community, of people such as Ms Crighton dealing to support their addictions. He urged an assessment of the culpability of the offender that took into account the reason why Ms Crighton was supplying methamphetamine. He referred to recent authorities that he said supported this approach.13

[25]   Mr Bamford also referred the recent decision in R v Wellington, in which Palmer J called for submissions on the deterrent effects of sentences of imprisonment for drug-offending.14 Mr Bamford said that the studies referred to in that case call into question the deterrent effect of prison sentences for drug offending.

[26]   Mr Bamford referred to the approach taken to drug offending in the United Kingdom, which he described as setting a starting point based of an assessment of culpability alongside the quantity of the drugs involved.

[27]   Mr Bamford challenged the rationale for treating offers to supply the same as actual supplies. He said that approach was logically flawed, because there would be instances where several offers would be made but the offender could only make good on some of those offers.

[28]   The upshot of Mr Bamford’s various submissions was that a starting point of less than two years — below the bottom end of band one of R v Fatu — should have been adopted in Ms Crighton’s case. He referred to the qualification of the Court of Appeal in R v Fatu that “supply in small quantities where there is no commerciality and no other aggravating features may call for starting points less than those indicated as appropriate for band one.”15 Mr Bamford submitted that there was no commerciality in Ms Crighton’s offending because she was acting out of desperation to source her next hit, rather than seeking any sort of commercial gain, or that the

13     R v Agu [2018] NZCA 147 at [13]; Chan v R [2018] NZCA 148; and R v Keogh [2016] NZHC 508 at [28]–[29].

14     R v Wellington [2018] NZHC 2196.

15     R v Fatu, above n 10, at [34].

approach in R v Fatu needed to be adapted to recognise that Ms Crighton’s offending should be treated in the same way as completely non-commercial supply cases.

[29]   Mr Bamford emphasised that the parties Ms Crighton was supplying were a small circle of familiar associates, that her dealing was to fuel her addiction and that her addiction was the result of her personal mitigating circumstances. He submitted that the Judge erred by failing to reconsider Ms Crighton’s starting point after receipt of the various reports referred to earlier. He suggested an appropriate starting point taking into account her culpability would have been around 20 months’ imprisonment.

[30]   Alternatively, Mr Bamford submitted that the 10 per cent discount was manifestly inadequate to take into account the role Ms Crighton’s mitigating circumstances played in her offending. He suggested that a 30 per cent discount would have been more appropriate. Either way, Mr Bamford submitted, the end sentence was manifestly excessive.

[31]   Ms Peirse-O’Byrne for the Crown submitted that the Judge correctly assessed the offending as falling within band one of Fatu, and that there was no prescriptive approach to allowing discounts for personal mitigating factors as it was largely a discretionary exercise. She submitted the discount of 10 per cent for personal hardship was at the top of the range available on existing authorities as canvassed by Whata J in Solicitor-General v Heta.16

Analysis

[32]   I am not satisfied that Ms Crighton’s sentence was manifestly excessive. While she has certainly lived a traumatic life, and that has played an important role in her present offending, the Judge took that into account when arriving at the sentence he imposed.

[33]   I do not accept Mr Bamford’s submission challenging the treatment of offers to supply. It seems contrary to the Court of Appeal’s decision in R v Dodd, which held

16     Solicitor-General v Heta [2018] NZHC 2453.

that the Court is entitled to infer that an offender was in a position to make good on an offer to supply methamphetamine.17

[34]   The factors relied upon by Mr Bamford do not persuade me that the Court should adopt a starting point below band one in the present case. The reference to “no commerciality” must be read in context. Earlier in R v Fatu, the Court indicated what it had in mind in relation to non-commercial supply:

[32] In cases involving importation and supply, considerations of commerciality may be significant. Indeed, as will become apparent, we think that in importation cases involving only small quantities of the drug for personal consumption, the appropriate sentencing response may lie outside (that is, beneath) the bands postulated (see para [34]). In cases involving supply, there is an obvious culpability difference between those who supply for gain and those who give small quantities of drugs to friends for their personal consumption (or, perhaps, buy small quantities of drugs for their friends). Where there is a complete absence of commerciality and an absence of aggravating features (for example, an aggravating feature such as the supply of drugs to schoolchildren or other young people) sentencing Judges may sentence beneath the bands postulated in para [34].

[35]   It seems unlikely that the Court had in mind the present sort of case when it referred to “a complete absence of commerciality”. It had in mind situations such as in the example provided of gifting drugs to friends for personal use. No money changes hands in that scenario.  That  is  different  from  the  present  case,  where Ms Crighton was selling methamphetamine to an established group of clients to obtain revenue, albeit in order to support her own use. Ms Crighton still played a role in a commercial supply operation, regardless of her reasons for doing so, with the adverse implications for others and the community that results. I agree with the Judge on that point.

[36]   In fact, as Mr Bamford submitted, it is not uncommon for low-level drug dealers to also be drug users. On many occasions, this is even true of higher-level drug dealers. Everyone has their reasons, but they do not detract from the harm methamphetamine causes to the community. As Ms Crighton’s situation is far from unique, it would be inappropriate not to apply the standard bands in R v Fatu.

17     R v Dodd [2013] NZCA 138 at [14].

[37]   It might be, as Mr Bamford suggested, that R v Fatu, which is now 13 years old, no longer matches with the reality of methamphetamine dealing in New Zealand, or with social views about how best to deal with that problem. The factors relied on by Mr Bamford are not without merit. It may well be that offenders in the position of Ms Crighton are trapped by their circumstances, which may suggest that lower tariffs are appropriate. Equally it may well be that deterrence has little impact on offenders in those circumstances. But those factors really go to whether there should be an adjustment to the tariffs set out in R v Fatu. Both the District Court, and this Court, are bound by that decision, which must still be applied unless and until it is adjusted by a further decision of the Court of Appeal. A change in approach of the kind advocated by Mr Bamford could only be implemented by a higher court, or the legislature. I take the same view in terms of any review of the general effectiveness of deterrence as a sentencing principle.

[38]   I also do not accept Mr Bamford’s further submissions that the starting point was out of step with other decisions he referred to including:

(a)R v Haeata, where a starting point of three years’ imprisonment was adopted in circumstances where the defendant had supplied four grams of methamphetamine, been in possession of an additional eight grams, and offered to supply a further three grams;18

(b)Galloway v R, where the Court upheld a three-year starting point for possession for supply of 11 grams of methamphetamine;19 and

(c)R v Wiki, where a starting point of three years and three months’ imprisonment was adopted in relation to supply of five grams of methamphetamine, but where there was discussion of supplying a total of 31.9 grams.20

18     R v Haeata [2017] NZHC 959.

19     Galloway v R [2015] NZHC 1026.

20     R v Wiki [2013] NZHC 3439.

[39]   Rather than demonstrating that the present case is out of step, those decisions suggest to me that the starting point here of two years and nine months’ imprisonment for a lower quantity was within range.

[40]   For those reasons I do not believe the starting point adopted for Ms Crighton was manifestly excessive. The amount of methamphetamine involved in her offending was 3.75 grams, which is in the upper half of band one of R v Fatu, which provides for starting points between two and four years’ imprisonment.21 The starting point of two years and nine months’ imprisonment adopted by the Judge was therefore well within range. It is also consistent with the starting points adopted in other comparable cases:22

(a)In R v Matthews, a starting point of two years and nine months’ imprisonment was adopted for conspiracy to supply and offering to supply 3.6 grams of methamphetamine, where no actual supplies took place.23

(b)In R v Slape, a starting point of three and a half years’ imprisonment was adopted for supplying between 3.6 and 4.2 grams of methamphetamine.24

(c)In Mohammed v R, a starting point of three years’ imprisonment was upheld on appeal for possession for supply and supply of 2.2 grams of methamphetamine.25

[41]   I also do not accept that the discount provided by the Judge for personal mitigating circumstances was erroneous. Ms Peirse-O’Byrne noted that this discount was actually closer to 12 per cent than 10 per cent. She also observed that the guilty plea discount was actually about 27 per cent. There is a wide range of discretion for discounts for personal circumstances, and they will largely be dependent on several

21     R v Fatu, above n 10, at [34](a).

22     Sentencing Act 2002, s 8(e).

23     R v Matthews HC Whangarei CRI-2010-088-2612, 14 April 2011.

24     R v Slope HC New Plymouth CRI-2009-043-2845, 22 September 2009.

25     Mohammed v R [2016] NZCA 254.

overlapping factors.26 Discounts anywhere between one and 30 per cent have been provided in the past. While the discount provided in this case was arguably on the lower end of what would have been appropriate in Ms Crighton’s circumstances, it was within the acceptable range.

[42]   On the whole, I am satisfied that Ms Crighton’s end sentence was not manifestly excessive. Even if a slightly larger discount could have been granted to recognise her extenuating personal circumstances, and the role they played in her offending, that would have had a relatively minor impact on the final sentence and could fairly be characterised as tinkering. Certainly, nothing of the scale proposed by Mr Bamford would have been appropriate in this case in the absence of a change to the overall sentencing approach for this kind of case.

Result

[43]The appeal against sentence is dismissed.

Cooke J

Solicitors:

Crown Solicitor, Nelson Bamford Law, Nelson

26     Solicitor-General v Heta, above n 16, at [62]–[63].