McDonald v Police HC Rotorua Cri-2009-463-81

[2009] NZHC 2586

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY

CRI-2009-463-81

CHARLEY LEIGH MCDONALD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:12 October 2009

Appearances:  Mr R A A Weir (on instructions from B S Cooper) for Appellant

Mrs H Booth for Respondent

Judgment:12 October 2009 

(ORAL) JUDGMENT OF LANG J
[on appeal against sentence]

Solicitors:
Crown Solicitor, Tauranga
Counsel:
Mr B S Cooper, Rotorua
Mr R A A Weir, Auckland

[1]       Ms McDonald pleaded guilty in the District Court to charges of supplying methamphetamine, selling cannabis and receiving stolen property.  All of that offending occurred between July and October 2008. 

[2]       Ms McDonald appeared for sentence on 3 September 2009 having pleaded guilty on the day of depositions, namely 4 June 2009.  After hearing submissions from counsel, His Honour Judge Thomas sentenced Ms McDonald to an effective term of two years and three months imprisonment.  She now appeals against that sentence on the basis that it is manifestly excessive.  Her counsel argues that the Judge ought to have imposed a sentence that was one of two years imprisonment or less.  Had he done so, he would have been in a position to consider a sentence of home detention.  That was the sentence recommended by the pre-sentence report.

The facts

[3]       The facts that have given rise to Ms McDonald’s offending are to be found in a lengthy summary of facts that deals with offending not only by her but also by two other persons, one of whom was her partner.  It transpires from this that Ms McDonald was involved in selling methamphetamine at street level.  She would purchase approximately a gram of methamphetamine for about $1000 and then on-sell it to others, presumably in quantities of .1 of a gram.  This is said to have occurred over a three month period.

[4]       The summary also reveals that during the same period Ms McDonald was involved in selling cannabis to others, although the summary is silent as to the amounts and prices that were involved.

[5]       The receiving charge arises because of the fact that Ms McDonald had cosmetic and toiletry items stolen to order for her by an associate.  Her partner paid for these by giving the associate cannabis. 

The Judge’s decision

[6]       The Judge took the view that Ms McDonald’s offending fell within Category 1 in R v Fatu [2006] 2 NZLR 72. This involves dealing in methamphetamine of up to five grams. Offenders who come within that category face a starting point of two to four years imprisonment. The Judge considered that this was commercial dealing, albeit at the lower end of the scale. For this reason he took the view that a starting point of two years imprisonment would have been appropriate in relation to the methamphetamine charge viewed on a stand-alone basis.

[7]       Similarly, the Judge took the view that Ms McDonald fell within Category 2 of R v Terewi [1999] 3 NZLR 62, the leading authority on dealing in cannabis. That, too, calls for a starting point of two to four years imprisonment.

[8]       The Judge said that, viewing the cannabis and methamphetamine charges together, a starting point of between three and three and a half years was appropriate.  He also said that there must also be an uplift to reflect the fact that Ms McDonald had blatantly received stolen property and paid for that by means of drugs.  Overall, the Judge took a starting point of three years and three months imprisonment.  He gave Ms McDonald a credit of 12 months for the guilty pleas because they occurred at depositions.  This left the Judge with an end sentence of two years and three months imprisonment on the lead charge of supplying methamphetamine.  This effectively precluded him from considering further the submission that Ms McDonald should be considered for a sentence of home detention.

Grounds of appeal

[9]       On appeal, counsel for Ms McDonald contends that the Judge adopted a starting point that was too high.  He submits that a starting point of no more than three years imprisonment was appropriate.  When the appropriate discount is applied for the guilty pleas, he submits that the Judge ought to have arrived at an end sentence of around two years imprisonment, thereby enabling him to impose a sentence of home detention.

[10]     Counsel relied for this submission considerably on the sentencing remarks of Rodney Hansen J in R v Spijkerbosh HC Rotorua CRI 2006-063-4690 30 May 2008.  That case, however, involves a completely different set of factual circumstances, most of which do not apply in the present case.  I derive little assistance from that authority when considering the appeal.  To me, it seems that the issue in the present case is whether, on an objective basis, the Judge adopted a starting point that was too high or failed to apply a sufficient discount to matters worthy of a discount.

Decision

[11]     I consider that the manner in which the Judge approached the methamphetamine charge was appropriate because it is quite clear that Ms McDonald willingly engaged in repeated sales of methamphetamine over a three month period.  Although there are no indicators to suggest that she made a large profit out of these activities, nevertheless she was clearly motivated by a desire to make money from trading in methamphetamine.  No doubt this also assisted her to feed her own methamphetamine habit.  For this reason I accept that a starting point of around two years imprisonment was appropriate on that charge.

[12]     It is a little more difficult to ascertain where Ms McDonald’s culpability lay in relation to the cannabis charge.  The summary of facts is very vague in relation to this charge.  It seems that Ms McDonald dealt in cannabis on several occasions, but there is absolutely no way of determining the quantities and values involved, or even the frequency with which these transactions occurred.

[13]     In those circumstances there is room for the view that the Judge could have adopted a lower starting point of two years imprisonment on that charge.  The fact that this was commercial dealing, however, means that the Judge was entitled to adopt a starting point of two years imprisonment.  That is at the very bottom of the relevant band identified for this band of offending in R v Terewi.  For this reason I cannot say that the starting point that the Judge selected in relation to the cannabis charge was outside the appropriate range.

[14]     The Judge was also required to have some regard to the receiving charge.  The receiving charge has aspects of seriousness about it, particularly because it also stimulated drug-dealing activity.  Some degree of uplift was required to reflect that fact.

[15]     The Judge clearly applied totality principles because he ultimately selected a starting point of three years three months imprisonment on all three charges.  This was, of course, considerably less than the sentence that would have been imposed in respect of each charge had they been considered on a stand-alone basis.  I therefore cannot say that the Judge adopted a starting point that was too high.

[16]     The next issue is whether the Judge ought to have reduced the starting point by more than he did to reflect mitigating factors.  To the forefront of these was the fact that Ms McDonald pleaded guilty.  She did not plead guilty at the earliest opportunity, however.  Ordinarily a guilty plea entered at depositions would attract a starting point of around 20 to 25 per cent.  Following the recent decision of the Court of Appeal in R v Hessell CA170-2009 2 October 2009 it will attract a starting point of 20 per cent if it is entered at the conclusion of depositions.

[17]     The Judge applied a discount of 12 months imprisonment in respect of a total starting point of 39 months imprisonment.  This is just less than a third, so I cannot say that it was less than the Judge ought to have allowed.

[18]     The only remaining issue is whether the Judge ought to have made some further allowance to reflect the fact that Ms McDonald had made efforts to rehabilitate herself since the offending occurred.  This is a matter of some importance, because it is clear that Ms McDonald has been significantly immersed in the methamphetamine culture for a considerable period. 

[19]     During the course of the hearing I obtained access to the materials relating to an earlier set of charges that Ms McDonald faced, and for which she was sentenced on 14 April 2008.  One of those charges related to possession of a methamphetamine pipe.  She also faced three charges of receiving.  These related to incidents in which she received a variety of electronic goods that had been stolen in earlier burglaries. 

[20]     It is quite clear from the Judge’s sentencing remarks, and from the pre-sentence report that was prepared in respect of that offending, that Ms McDonald was deeply involved in the use of methamphetamine at that time.  This persuaded the probation officer to make the recommendation, unusual in the case of a first offender, that the appropriate sentence was one of imprisonment rather than home detention or community detention.  There was no suggestion in that material that Ms McDonald had any intention at that time of divorcing herself from the use of methamphetamine as a recreational drug.

[21]     The pre-sentence report that the Judge received in relation to the present offending is quite different.  It reveals that, as at the date of sentence, Ms McDonald had been free of drugs for approximately eight months.  The probation officer noted that she presented at interview as being healthy, and that her demeanour was vastly improved since she had abstained from drugs.  Her young baby was present at the interview and appeared to the probation officer to be a normal and well cared-for child that was happy and contented.  These observations led the probation officer to make the following recommendation:

… even though imprisonment should be the recommendation, the Court may wish to offer Ms McDonald leniency on this occasion, and grant her the opportunity to stay in the community, albeit with limitations”.

[22]     It appears that Ms McDonald had not undertaken any formal rehabilitative steps during the period leading up to her sentencing.  Nevertheless there is no reason to dispute her assertion that she had remained drug free for eight months.  The probation officer’s comments also appear to suggest that she was telling the truth when she said that she had been able to rid herself of the vicious cycle that methamphetamine produces.

[23]     In those circumstances I consider that some allowance needed to be made to reflect the steps that Ms McDonald had taken to free herself from drugs.   That is the only way in which she can be given encouragement to remain free of drugs in the future.

[24]     I therefore consider that the end sentence should have been reduced slightly to reflect this factor.  From an end sentence of 27 months imprisonment, I consider that at least three months should have been deducted.  Had that been done, the Judge would have been left with the ability to consider home detention as an alternative to imprisonment.  That is an important factor at this stage of Ms McDonald’s involvement with drugs, because if she can remain drug free for a reasonably significant period she has some chance of ridding herself of her dependency on methamphetamine.

[25]     Home detention remains problematic for several reasons.  The first of these is that Ms McDonald has not responded well to earlier community based sentences.  Her response has, in fact, been described as poor.  This has led to outstanding sentences of community work which have yet to be addressed.  I take the view, however, that her earlier attitude may well have been influenced materially by the fact that she was immersed in a drug culture and could not see past that.  It may be that once she is free from that culture she will address her responsibilities in a different manner.

[26]     Secondly, the address that has been canvassed for home detention is Ms McDonald’s mother’s address.  The probation report notes that that is an address that is “well-known to the police”, and this raises obvious concerns.  The report also says, however, that the police do not express concern regarding the suitability of the address and neither does the Child Youth & Family Service.  The Community Probation and Psychological Service holds a similar opinion and has given its consent to Ms McDonald serving a lengthy sentence of home detention at that address.  The report also notes that there is nothing to suggest that there would be any compliance issues.  Those factors persuade me that the apparent difficulties with the address may not be as serious as would first appear to be the case. 

[27]     The third matter that gives rise to cause for concern is that Ms McDonald has committed drug-related charges.  Home detention is seldom granted to drug offenders for several reasons.  First, it may send the wrong message to those involved with drugs. Ordinarily imprisonment is the only realistic option in such cases.  Secondly, it can be seen to be wrong in principle to send a drug offender back to the same environment within which the offending has occurred.  Thirdly, the stresses of home detention can themselves produce the need for relief in the form of the consumption of drugs.  Finally, although the presence of the offender at the address can be guaranteed, there can be no guarantee that the activities that are conducted at that address can be adequately monitored.

[28]     I recognise all of those difficulties so far as Ms McDonald is concerned.  From the probation report, however, I detect that she may have turned the corner in terms of her involvement with drugs.  I consider that it would be appropriate to put this to the test, albeit on strict conditions.  I am therefore prepared to take a chance and impose a sentence of home detention on Ms McDonald.  I do so, however, on the basis that, should she fail to comply with any of the conditions, I would expect the authorities to immediately bring that fact to the Court’s attention so that she can be re-sentenced.  That would inevitably mean that she would resume serving her sentence of imprisonment.

[29]     Ms McDonald is to be subject to random drug testing in a manner directed by the probation service.  In the event that she fails any such drug test, or breaches any of the other conditions I have imposed, the authorities are to give immediate consideration to making an application for an order that Ms McDonald be re-sentenced on these charges.

[30]     I therefore quash the sentence of imprisonment that the Judge imposed.  In its place I impose a sentence of 11 months home detention on all charges.  That sentence is not to commence until such time as the monitoring service has notified the prison authorities that it is in a position to provide a monitoring service to the nominated address.  Once that occurs, I direct that Ms McDonald is to be released on the following conditions:

a)She is to travel directly from prison to 8 Reeve Road, Rotorua.

b)She is to await the arrival of the probation officer and monitoring company representative at that address.

c)She is to reside at 8 Reeve Road, Rotorua for the duration of the home detention sentence.

d)She is not to consume alcohol or illicit drugs for the duration of the home detention sentence.

e)She is to undertake an assessment for alcohol and drug use and to attend any counselling or treatment as recommended by that assessment to the satisfaction of the probation officer and provider.

f)She is to undertake and complete any other counselling treatment or programmes if directed and to the satisfaction of the probation officer and the provider.

g)If she meets criteria she is to undertake a pre-programme interview and complete any departmental programme, subject to availability, to the satisfaction of the probation officer and programme facilitator.

h)She is to undergo regular random drug testing for the consumption of illicit substances.

[31]     I direct also as a post-detention condition that she is to complete any counselling or programmes to the satisfaction of the probation office and service provider.

Lang J