Magon v Police
[2021] NZHC 447
•9 March 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2020-412-000039
[2021] NZHC 447
BETWEEN HARRIET PATRICIA MAGON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 March 2021 Appearances:
T J Surrey for the Appellant
P A Norman for the Respondent
Judgment:
9 March 2021
JUDGMENT OF NATION J
[1] On 22 October 2020, the appellant, Ms Magon, was sentenced to 23 months’ imprisonment. She appeals that sentence, relying largely on her realisation while in prison that her drug use has been a core factor in her offending. She would like to be granted leave to apply for home detention on the basis that sentence would be served at an appropriate drug rehabilitation centre in Canterbury.
[2] Ms Magon was sentenced to 23 months’ imprisonment on charges of possession of cannabis for supply,1 sale of cannabis to a person over the age of 18 (representative),2 and supply of cannabis to a person under the age of 18 (representative).3
1 Misuse of Drugs Act 1975, s 6(1)(f).
2 Section 6(1)(e).
3 Section 6(1)(d).
MAGON v POLICE [2021] NZHC 447 [9 March 2021]
Facts
[3] These were set out in the summary of facts which was accepted for the sentencing in the District Court.
[4] In June 2020, Central Otago Police were alerted to a significant use of cannabis within a group of high school students. An investigation established Ms Magon was supplying cannabis to students aged between 13 and 17 years.
[5] Generally, to purchase the cannabis, one 14 year old girl would make contact with Ms Magon by text, either on her own behalf or on behalf of other students of a similar age. On other occasions, members within the peer group would make direct or indirect contact with Ms Magon to purchase cannabis. The cannabis was normally sold in $50 bags each containing approximately 2 g.
[6] Text messages and bank records revealed Ms Magon sold cannabis to persons under the age of 18 between February 2020 until the time of her arrest in June 2020. There is evidence of 19 bank transactions showing cannabis being sold to persons under the age of 18. This offending resulted in the representative charge of selling cannabis to persons under the age of 18 years.
[7] Examination of Ms Magon’s bank records revealed that between July 2019 and June 2020 she sold cannabis to persons over the age of 18 on at least 64 occasions. This resulted in the representative charge of supplying cannabis to persons over the age of 18 years.
[8] On 24 June 2020, Police observed Ms Magon alone in her vehicle driving from Canterbury to an address that was known to contain a group of young people, some of whom had been her previous customers. Police executed a search at the address and a search of the vehicle. One pound of cannabis broken into 16 one ounce bags was found.
[9] A search warrant was later executed on Ms Magon’s room at her Alexandra address. A tick list was found outlining amounts owed to her in the denomination of
$50. The names on the tick list corresponded with known children and young persons
aged approximately 14 years. A large number of unused snap-lock bags used as $50 deal bags were located.
District Court decision
[10] Judge Turner placed the offending within band 2 of the guideline judgment R v Terewi.4 His Honour considered the aggravating factors to be the duration of the offending, the regular supply of cannabis to children as young as 13 and the obvious breach of trust. His Honour noted that the number of snap-lock bags found and a tick list point to the activity being more than of a minor nature.
[11] The Judge adopted a starting point of two years and three months’ imprisonment. His Honour applied an uplift of three months to reflect the fact Ms Magon was before the Court on other drug charges and that the offending continued after Ms Magon had been dealt with by the Court on those offences. A further uplift of three months was applied to reflect Ms Magon’s prior drug convictions. This brought the overall starting point to 33 months’ imprisonment.
[12] The Judge allowed a five per cent discount for personal circumstances, as set out in the pre-sentence report. A 25 per cent credit for guilty pleas was applied. The Judge did not consider a discrete discount for remorse was justified. This brought the end sentence to 23 months’ imprisonment.
[13] In respect of home detention, the Judge noted Ms Magon told the probation officer she did not consent to a sentence of home detention as it would require her to inform her employer of the charges. The Judge considered the purposes and principles of sentencing were not met by a sentence of home detention. Further, the fact Ms Magon committed the offences while subject to a community-based sentence reinforced his view that Ms Magon was not a suitable candidate for home detention.
Principles on appeal
[14] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An
4 R v Terewi [1999] 3 NZLR 62 (CA).
appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.5 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower Court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
Submissions
[15] In written submissions, Ms Surrey, on behalf of Ms Magon, submitted the sentence imposed by the District Court Judge was manifestly excessive when considered in light of comparable cases. She submitted the Judge did not give sufficient credit for mitigating factors, including Ms Magon’s personal circumstances and remorse. In support of this submission, Ms Surrey referred to Ms Magon’s personal circumstances and what she said were Ms Magon’s battles with addiction and efforts to deal with those issues since her incarceration.8
[16] The second ground of appeal was that the District Court Judge erred in not commuting Ms Magon’s sentence to home detention. Through counsel, Ms Magon sought a variation of the sentence imposed so as to grant her leave to apply for home detention on the basis this would be served with her residing at an approved drug treatment facility.
Respondent’s submissions
[17] For the respondent, Ms Norman submitted there was a fundamental problem with the appeal in that Ms Magon was not, in essence, suggesting there was any error in the Judge’s decision based on the information before him at the time of the sentencing. She was relying on developments that had occurred since then, progress Ms Magon was said to have made in facing up to her drug use issues and the potential
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
8 Referring to Criminal Procedure Act, s 335.
for her to engage positively with a programme to deal with those issues when there was no evidence before the Court to support that submission.
Discussion
[18] I am satisfied there was no error in the way the Judge arrived at an end sentence of 23 months’ imprisonment. He adopted a starting point sentence of 27 months’ imprisonment. This was close to the lower end of two years within band 2 of the guideline judgment of R v Terewi.9 In the District Court, Ms Magon had submitted the offending came within band 2.
[19] The prosecution had submitted the aggravating features of the offending were the duration of the enterprise, the numerous sales to persons under 18 and the overall scale of the offending as apparent from physical evidence recovered, and argued for a starting point sentence of three and a half years’ imprisonment.
[20] There has been no criticism of the uplifts for the fact the offending occurred when Ms Magon was before the Court and after she had been sentenced on other charges, and that she had prior drug convictions.
[21] The Judge allowed a five per cent discount for her personal circumstances. She was given a 25 per cent credit for guilty pleas. There was a tentative suggestion she could have been given a discrete discount for remorse but the Judge was fully justified in saying there was no tangible demonstration of remorse of the sort that would justify special recognition. He had referred to the fact that Ms Magon appeared to have minimised the seriousness of her offending in telling the pre-sentence report writer that, in her opinion, her young victims were already using cannabis before she started to supply cannabis to them. The pre-sentence report referred to her regretting her actions but that was because of the way her apprehension for the offending had affected her life in Alexandra which had been going well, both personally and professionally. The pre-sentence report referred to her expressing remorse only for the impact her offending had on her teenage niece. It was not suggested for her at the sentencing that her offending had been caused by drug addiction and the information
9 R v Terewi, above n 4.
before the Court was to the contrary. Ms Magon had told the report writer that she did not like using cannabis.
[22] In the District Court, Ms Magon did not seek either a sentence of community detention or home detention for rehabilitation purposes. The Judge was told in the pre-sentence report that Ms Magon did not agree to the imposition of a sentence of home detention. This was because she did not want her then employers to be aware of the matters for which she was being sentenced or that she had previous criminal convictions. She did agree to a sentence of community detention, which was what her counsel sought in written submissions presented to the District Court. She wanted to be on community detention with specific curfew hours that would allow her to continue working in the hospitality industry but she would not agree to Corrections contacting her employers to check that those suggested hours were required for her continued employment.
[23] Ms Surrey had referred the Judge to cases where the High Court had imposed sentences of home detention for band 2 cannabis offending.10 Those cases could be distinguished because of the particular aggravating features of this offending.
[24] There was also no error in the Judge deciding community detention would not be appropriate. There was no error in the Judge considering that Ms Magon was not a suitable candidate for home detention because of a degree of minimisation of the seriousness of her offending, the fact she had offended while subject to a community- based sentence and was in breach of that sentence. A community-based sentence had not been sought to assist with her rehabilitation. The Judge also referred to the fact Ms Magon had not attended a sentence of intensive supervision with real effort and she had sought to deal with methamphetamine use issues through a residential treatment in Blenheim but was exited from that programme as a consequence of criminal offending – theft by shoplifting.
[25] Even if Ms Magon had been a suitable candidate for home detention and such a sentence could have been imposed for her admitted offending, it cannot be said there
10 R v Morrell [2013] NZHC 2801; Solicitor-General v Manson [2016] NZHC 1224; Brown v Police
[2019] NZHC 3365.
was any error in the Judge not imposing such a sentence when Ms Magon had told Corrections she did not agree to the imposition of such a sentence.
[26] I am satisfied, on all the information available to the Judge at sentencing, there was no error at that time in the sentence imposed.
[27] Ms Magon however pursues her appeal in the hope it could result in her being able to leave prison and be sentenced in substitution to home detention at an appropriate drug treatment centre.
[28] Although I have no evidence from Ms Magon that this is what she wants, I do acknowledge the progress she has made in recognising her particularly drug abuse issues.
[29] This appeal was originally set down for hearing on 16 December 2020. Ms Magon’s counsel sought an adjournment of the appeal on the basis that, despite an earlier denial of ongoing addiction problems, Ms Magon had come to realise she had an addiction issue that required treatment. The Court was told Ms Magon was undertaking an intensive drug addiction and rehabilitation programme within the prison system which she attended five days a week. She wanted the opportunity to complete the course. The Crown and the Court agreed to an adjournment of the hearing of the appeal for that purpose.
[30] On 2 March 2021, Ms Magon’s counsel filed a memorandum with an attached email from Ms Magon’s case manager at the Christchurch Women’s Prison. It advised Ms Magon had completed an eight week intensive AOD programme11 and was beginning a 16 week offence-specific programme during the week of 1 March 2021. The case manager advised Ms Magon was doing well on treatment at this stage. Counsel advised the Court that, despite the appeal, Ms Magon wished to remain in prison to complete that specific programme.
11 Alcohol and Other Drugs programme.
[31] For that to happen, Ms Magon will need to stay in prison until at least the end of June 2021. With her being subject to a short term period of imprisonment of less than two years, she will be released on parole in early October 2021.
[32] When imposing the sentence of imprisonment, Judge Turner said Ms Magon was, on release from prison, to be subject to the standard conditions of parole and special conditions as set out in the Department of Corrections sentencing memorandum until six months after the expiry of her current prison sentence. The special conditions are:
1. to reside at an address approved by a probation officer and not to move address without the prior written approval of a probation officer;
2. not to possess or consume any alcohol or drugs not prescribed to her;
3. to attend an assessment for a department programme as directed by a probation officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer; and
4. attend and complete an appropriate alcohol and drug programme to the satisfaction of a probation officer.
[33] This means, with her current prison sentence as imposed, Ms Magon will benefit from the rehabilitative drug treatment programme she wishes to participate in until July 2021. She would have a further three months in prison but should then have continuing support available to her from Corrections for potentially a period of up to a further 17 months to ensure she can continue to take advantage of any residential treatment programme that will address the causes of her offending. Her current prison sentence thus meets the rehabilitative needs Ms Magon wishes to address.
[34] Ms Magon has however pursued this appeal in the hope this Court will somehow provide for her to seek substitution of a sentence of home detention to begin after June 2021. There is no evidence or information before the Court to indicate she would then be suitable for such a sentence or that any residential programme would actually be available for her. Her counsel was not able to give me any detailed
information as to just what facility might be available. There is also no evidence before the Court to establish that, at the time of this offending, Ms Magon suffered from drug addiction or that it was a cause of the offending for which she was being sentenced.
[35] Ms Surrey referred to a judgment of the High Court in Brown v Police where the High Court allowed an appeal, held that a sentence for cannabis offending of two years and three months’ imprisonment was manifestly excessive, and arrived at an appropriate end sentence of 24 months.12 The Court also decided that home detention was appropriate and substituted such a sentence for a period that also recognised the time spent in prison. Counsel submitted the approach in Brown would be appropriate with the appeal being allowed and the remainder of the sentence converted to allow Ms Magon to serve the remainder of her sentence in a residential rehabilitation facility and then a home detention address.
[36] In Brown however, the appellant sought home detention where that sentence had been recommended in the pre-sentence report, and the address approved for home detention in the report was still appropriate and available on appeal. Dunningham J held the sentence in the District Court had been manifestly excessive and arrived at a lesser adjusted end prison sentence, not on the basis of circumstances that had arisen after sentencing but on the basis of the information that had been before the District Court as to the appellant’s personal circumstances at that time.
[37] Here, the appellant relies on circumstances that have arisen while she has been serving her prison sentence. The Court has no information now on which it could decide that a sentence of home detention is appropriate or that a residential rehabilitation facility would be suitable and available as the address for which home detention would be appropriate. Ms Magon only seeks leave to apply for home detention.
[38] I am satisfied there was no error in the sentence originally imposed. Ms Magon is to be commended for the efforts she appears to be making to address the causes of her offending but the sentence of imprisonment will allow her to continue doing this.
12 Brown v Police, above n 10.
The Court certainly hopes she can make the most of the support available to her to avoid any further offending of the sort that has caused problems for her, the members of her family and the victims of her offending in the past.
[39]Ms Magon’s appeal is dismissed.
Solicitors:
MacTodd Lawyers, Queenstown-Lakes RPB Law, Dunedin.
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