Department of Corrections v Lawrence (aka McCormack)

[2015] NZHC 2582

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-012-002556 [2015] NZHC 2582

DEPARTMENT OF CORRECTIONS

v

STEPHANIE ROSE LAWRENCE (AKA MCCORMACK)

CRI-2015-076-000805

THE QUEEN

v

STEPHANIE ROSE MCCORMACK (AKA LAWRENCE)

Hearing:	20 October 2015 (by way of Audio Visual Link)
Appearances:	M A Beattie for Crown L L Heah for Defendant
Judgment:	20 October 2015

REMARKS OF GENDALL J ON SENTENCING

[1]      On 20 February this year, Ms McCormack I sentenced you to eight months home detention on one charge of being an accessory after the fact to murder.1    In considering home detention to be the appropriate sentence I impressed upon on you

that it was the appropriate sentence because: 2

1      R v Boskell [2015] NZHC 286.

2 At [112].

DEPARTMENT OF CORRECTIONS v LAWRENCE (AKA MCCORMACK) [2015] NZHC 2582 [20 October

2015]

“it meets the purposes and principles of sentencing and has the added benefit of placing you in a position of rebuilding your life, re-establishing your relationship with your daughter and perhaps regaining custody of her.

[2]      There  were  several  conditions  attaching  to  that  sentence.    The  first  of relevance was that you were “not to possess or consume alcohol or illicit drugs for the duration of the sentence”.   The second was that you were to undertake and complete counselling for alcohol and drug abuse to the satisfaction of your probation officer.  As matters transpired it does seem sadly, Ms McCormack, that you have paid little heed to these conditions.

[3]      On 14 August of this year a charging document was filed at the Christchurch District Court alleging that on a date between 20 July 2015 and 31 July 2015 you, Ms McCormack, offered methylphenidate (Ritalin) for supply.   This is an offence against s 6(1)(c) and 6(2) of the Misuse of Drugs Act 1975.  You have pleaded guilty to this offence.  The nature of this drug offending might be said in the circumstances here to be all the more concerning, given the role Ritalin played in the offending leading to the charge of being an accessory after the fact to murder.

[4]      As a result of this series of events there are two applications currently before this Court. The first is the re-sentencing, Ms McCormack, of you in relation to being an accessory after the fact to murder.  The second is the sentencing for the fresh drug offending.3

Events giving rise to the drug offending

[5]      Turning now to the events giving rise to the drug offending, police enquiries into the sale of Ritalin led to them obtaining a production order in relation to your cell phone, Ms McCormack. Analysis of this data revealed that between 20 July and

31  July  2015  you  offered  Ritalin  for  supply  to  four  different  people  on  nine

occasions.   When spoken to you admitted what you had done and could offer no

3      On 10 September 2015 I issued a minute ordering transfer of the drug offending from the District Court to this Court so the re-sentencing and sentencing could occur together.  I there noted that Ms McCormack indicated she would plead guilty to the drug offending on this basis. See Department of Corrections v McCormack HC Dunedin CRI-2013-012-2556 and CRI-2015-

076-805, 10 September 2015.

explanation for your actions. The offending occurred at your home detention address whilst you were subject to your sentence.

Pre-sentence report

[6]      Turning now to the pre-sentence report, the report writer discloses that your likelihood, Ms McCormack, of reoffending is assessed as being “medium”, which is substantially based on the fact that you reoffended whilst subject to a sentence of home detention.   It is  noted, however, that  your risk of harm to others and of violence is assessed as being low.   Thus, whilst you do have available an address suitable  for  home  detention,  it  is  recommended  that   you  be  sentenced  to imprisonment on the basis of your poor inability to comply.

Previous history

[7]      Turning   now   to   your   previous   history,   Ms   McCormack,   you   have

17 convictions (including the accessory after the fact to murder charge).  Of these, four relate to drug offending, three are for non-compliance with a sentence (two are breaches of community work and one for breach of conditions of supervision).  Of further note is one conviction for driving whilst intoxicated, which occurred on

20 June 2014, which was after the events giving rise to the accessory after the fact charge, but before sentencing.   Thus, this offending occurred at a point when you were on remand for other offending.

Letter in support

[8]      Pastor Murdoch of the Elim Christian Centre in Timaru has provided a letter in support of you, Ms McCormack, which attests to you attempting to move forward with your life.  It relevantly provides:

I have only known [Ms McCormack] personally during the 12 months that she has been attending our congregation and have seen a change in her perspective on life, on how she wants to live life, and her desire to become a respected member of society and a good role model for her daughter.   There is no doubt that Stephanie’s past has impacted on her reason for being in court and that she is still vulnerable to making mistakes however her overwhelming desire to move on from her past is evident.

Re-sentencing

[9]      Turning  now  to  the  re-sentencing  issue,  I  intend  to  adopt  a  pragmatic approach  to  the  re-sentencing  exercise.    In  my  original  sentencing  notes  I had adopted a starting point of 10 months for the offending, uplifted to 12 months for previous convictions, before being reduced to 11 months on the basis of remorse and rehabilitation.

[10]     Instead of imposing a short term of imprisonment, I imposed a sentence of eight  months’ home  detention,  which  I  considered  was  necessary  to  meet  the purposes of sentencing.  It is apparent that had you been sentenced to imprisonment, your release date, Ms McCormack, would have come and gone, but you would still have been subject to a sentence when committing the current drug offending.  The approach I therefore propose to take is to simply treat the fact the current offending occurred whilst subject to a sentence as an aggravating feature.

Drug offending

[11]     Turning now to the drug offending sentencing, the purposes and principles of sentencing are well known and I need not repeat them here.  It is sufficient to state that at the fore in cases such as this are denunciation of this type of offending and deterrence, the latter being particularly important in your case, Ms McCormack, given your apparent difficulties in complying with orders of the Court.   This is related to the requirement to inculcate in you, Ms McCormack, a sense of responsibility for what you have done, which, hitherto, it might be said does not seem to have been sheeted home to you.

Starting point

[12]     Turning to the starting point, in terms of the aggravating features of the drug offending, I see the following to be relevant:

(a)      extent of harm:  Ms McCormack, you offered to supply the drug on nine separate occasions to four different people.   In my view it is irresistible that this offending contained a commercial element.  The

insidious effects of drug dealing are well known, particularly how such offending causes harm and violence to the community and its values.

(b)premeditation:  it is not possible, as I see it, to couch this offending as being opportunistic.   Ms McCormack, you took deliberate steps to make contact with multiple associates at the same time, seeking to offload Ritalin to them.

[13]     It is these two aggravating features, together with the guideline judgment in R v Wallace, which provides the framework for assessing the starting point for the offending alone.4    In my view, this offending can be categorised as low level commercial, which the Court of Appeal in Wallace stated will attract sentences of up to five years’ imprisonment.5

[14]     In Crown submissions, the frank concession was made that no comparable cases were able to be located because of the diverse circumstances in which such offending may arise.  Nonetheless, the Crown submission was that the totality of the offending would warrant a starting point of between two and two and a half years’ imprisonment.

[15]     The case of Andrews v R was an appeal against a sentence of two years, three months’ imprisonment for offending involving 90 Ritalin tablets.6     The Court of Appeal did not disturb the sentence (which was also the starting point).  In this case the appellant also had the care of three children, one of whom was four years old.

[16]     In Andrews v R, the Court of Appeal referred to two previous decisions of the

Court of Appeal and described them in these terms at [12] and [13]:

[12]     Piper involved the possession for supply of 37 Ritalin tablets, 32 cannabis tinnies and nine grams of cannabis. The total value of all of the drugs was around $1,750. This Court on appeal considered that a first time offender  could  have  expected  a  two  year  sentence  for  that  offending following  trial.    Scott  involved  the  possession  of  50  Ritalin  tablets  for

4      R v Wallace [1999] 3 NZLR 159 (CA).

5 At [32].

6      Andrews v R [2012] NZCA 76.

supply.  This Court held that the sentencing Judge did not err when taking a two year starting point for that offending.

[13]      Based  on  these  cases  and  given  the  present  offending  involved nearly twice the number of Ritalin tablets as were present in Scott, we are satisfied that a starting point three months higher than in Scott was available. Further, it should not be thought those cases were setting any sort of rule: a three month deviation is unlikely to be problematic.

[17]     A case involving an entirely different magnitude of Ritalin offending is Sudol v New Zealand Police.7    In that case Ms Jessica Sudol was charged with one representative count of offering to sell Ritalin, which involved approximately 491 pills with a street value in the order of $4,910.  In that case, it was held that a starting point of three years was, if anything, lenient given the quantity of drugs and the commerciality of the operation.8

[18]     Having regard to these authorities I consider a starting point here of two

years’ imprisonment to be appropriate.

Adjusting the starting point

[19]     Some uplift is needed to reflect, Ms McCormack, your previous history and the fact that this offending occurred whilst you were subject to a sentence.

[20]     In terms of your criminal history, of particular concern are the four previous drug offences, one of which was a conviction for offering to supply a Class C drug (BZP) in 2010.   Of further relevance are your previous convictions for non- compliance, which it might be said is redolent of the disdain you seem to have, Ms McCormack, for compliance with court orders.

[21]     As to the offending whilst subject to a sentence, I find the current breach to be  particularly  opprobrious.     Ms  McCormack,  you  were  sentenced  to  home detention, despite committing the offence of driving whilst intoxicated and convicted of breaching community work whilst on remand and awaiting sentence for being an

accessory after the fact to murder.   Now, during your sentence of home detention,

7      Sudol v New Zealand Police [2014] NZHC 1264.

you have taken the ill conceived step of committing drug offending from your home detention address.

[22]     For these factors, I would uplift the starting point by six months.

[23]     Some consideration needs to be afforded to your daughter, Ms McCormack, in my view.  The starting point is that separation from a child, which will inevitably result in harm to that child, is not in itself a ground for leniency – this is particularly so when principles of deterrence and denunciation predominate, as is the case here.9

This  principle  can  of  course  be  displaced  where  imprisonment  would  cause

exceptional hardship to family members.10

[24]     I find but, sadly with some reluctance, that this is not a case where any leniency can be justified on the basis of your young daughter, Ms McCormack.  This is an unfortunate consequence, but also a reality, of offending in this way.  Several factors have crystallised my view on this aspect.

[25]     First,  Ms  McCormack,  you  were  put  on  notice  when  sentenced  for  the accessory after the fact charge.  At that point you were afforded an opportunity to rekindle your relationship with your daughter.   It might be said through your own actions, that opportunity has been squandered.  Secondly, the reality of the situation is that you, Ms McCormack, have been committing drug offending from the home – this Court would have serious concerns about such behaviour around a child.

[26]     For these reasons I decline to afford any further discount on this ground.  I also decline to extend any further discount for remorse or rehabilitative efforts.   I consider there to be issues over whether there is genuine remorse here and any efforts at rehabilitation have been overtaken.

[27]     This leaves an adjusted sentence of two years, six months’ imprisonment. From here allowance needs to be made for your guilty plea, Ms McCormack.  The Crown has conceded that you are entitled to full credit for your plea.   It is not

apparent on the face of it that a full discount is appropriate.  A plea was not entered

9      R v Williams CA23/05, 15 March 2005 at [20]; Skelton v R [2011] NZCA 35 at [40].

at the first opportunity (though it was intimated from a very early stage).  Further, the Crown case against you, Ms McCormack, was a powerful one.  Though I consider it perhaps somewhat generous, I have nonetheless acceded to the Crown submission and have decided to afford the full 25 per cent discount.

End sentence

[28]     The starting point of two years, as I have noted, is uplifted by six months to account for personal aggravating features.  From that adjusted starting point of two years, six months’ imprisonment I allow a discount of 25 per cent, which reduces the end sentence to one of 22 months’ imprisonment.

Home detention

[29]     The end sentence I have reached renders you, Ms McCormack, eligible for home detention.   I must therefore consider whether a sentence of home detention would be the least restrictive sentence appropriate in the circumstances.

[30]     On this I have reached the clear view that home detention here would be inappropriate.   First, you, Ms McCormack, have evinced very clear difficulty in compliance with court orders and sentences, including complying with conditions of your home detention.   The fact that this present serious offending occurred whilst subject to a sentence puts this Court on clear notice of your inability here to abide. The  second  reason  is  that  it  is  generally  considered  inappropriate  to  return  an offender to home detention when offending was committed from the home.

[31]     While I have sympathy for your family, Ms McCormack, and your daughter in particular, it is simply unrealistic to suggest that home detention would once more be an appropriate sentence.  In this case I consider a short term of imprisonment to be the least restrictive sentence to achieve the purposes and principles of sentencing. In this respect, I note it is trite that the existence of home detention as a sentencing option has not overborne the viability of the short term sentence of imprisonment.

Sentence

[32]     Ms McCormack, would you please stand now.  On the charge of offering to supply Ritalin, I sentence you, Ms McCormick, to 22 months’ imprisonment.  For the avoidance of doubt, I do not grant leave to substitute that sentence for home detention.

[33]     On the charge of being an accessory after the fact to murder I sentence you, Ms McCormick, to time served. This sentence is effectively exhausted.

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

Gendall J

Solicitors:

Gresson Dorman, Timaru

Copy to L L Heah