Q U E E N v Paul Selwyn Pearson Larrisa Ann Manley

[2005] NZHC 1764

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-004-007134

Q U E E N

v

PAUL SELWYN PEARSON LARRISA ANN MANLEY

Prisoners

Hearing:         13 May 2005 Appearances: S Mount for Crown

H Leabourn for Ms Manley R Chambers for Mr Pearson

Judgment:      13 May 2005

SENTENCING REMARKS OF SIMION FRANCE J

Solicitors:

Crown Solicitors, Auckland Counsel:

Mr R Chambers, PO Box 941, Auckland Mr H Leabourn, PO Box 941, Auckland

R V PEARSON And Anor HC AK CRI 2004-004-007134 [13 May 2005]

[1]You may remain seated, and I will ask you to stand at the end.

[2]        Ms Manley I am going to advise you at the outset that I will be granting you leave to apply for home detention and deferring this sentence.

[3]        Ms Manley and Mr Pearson have each pleaded guilty to one count of possessing methamphetamine for supply. A search warrant was executed at their address. Found on the premises were 3.6 grams of methamphetamine, together with other items commonly associated with drug dealing, $7,000 cash, pipes, 60 snaplock bags, a tick list, and scales. Inside Ms Manley’s handbag was a further tick book, digital scales and $1,500 cash.

[4]        In sentencing you today I intend to first fix a starting point for the offending. That means I will fix the figure that the higher courts have said should first be identified. It is the  figure that compares this drug offending to other like cases.  After that I will then address individually the personal factors that cause that figure to be adjusted up or down.

Starting point

[5]        In March of this year the Court of Appeal reviewed the guideline tariffs for this type of offending. In that case the Court fixed a starting point for the amount of methamphetamine that you possessed of somewhere between two to four years. However, the Court emphasised that quantity is but one factor.

[6]        In my view the context of possession is important. In the present case there was found the cash, the snaplock bags, a tick list, and scales. All this is indicative to me of a significant involvement in dealing methamphetamine.

[7]        I have reflected today on your counsel’s submissions and the positions of the Crown, and weighing those factors I have taken a starting point for this offending of three-and-a-half years. That starting point reflects the primary purposes in this area of accountability, denunciation, and most importantly deterrence. Quite frankly, it could be higher, but given your age and what I regard as a degree of stupidity in your

conduct, it seems to me to best reflect the balance between your culpability, the concerns of society, and the needs for rehabilitation.

[8]I now address you individually.

(a)        Mr Pearson

[9]        Mr Pearson, you are 22 years of age. You were born in Australia and lived there until you were 12. At that point you came to New Zealand with your mother and your two sisters. You left school at 17 and worked at various jobs. You have been in a relationship with Ms Manley for three years, and together you have a young son who is almost two. You say that you have been using drugs since you were 17 or 18. Initially it was ecstasy and then three years ago you started using P. You have made several unsuccessful attempts at giving up the drug. It is said you have been drug free whilst in custody; you have until then been a heavy user.

[10]      You have several previous drug offences. On 2 April 2004 you were sentenced on two counts of possessing a Class B drug for supply, and two counts of possessing its impliciter. The sentencing notes, which I have read, record that you had a relatively small amount, but also deal bags, scales and a quantity of cash. You secured a sentence of 18 months, which was in itself, I consider, reasonably favourable. Because of an apparent willingness to address your drug habit you were granted leave to apply for home detention, and you were bailed pending that being considered.

[11]      The present search warrant was executed but five days after the Court extended to you that significant leniency.

[12]      On your behalf today, Mr Chambers has focussed on your current position. He emphasises your belated awareness of your situation, your strong reform which is reflected in your conduct whilst serving your prison sentence for the previous offending, and your growing maturity.

[13]      Taking that starting point of three-and-a-half years, I am satisfied that there are two significant related figures that require that it be adjusted upwards.

[14]      First, your previous record of supplying drugs. You have until now, at least, had no idea of the seriousness with which society views this offending. Unfortunately for you today, the sentence which you receive might well finally bring that home.

[15]      Second, the circumstances of the offending, namely that it occurred whilst you were on bail pending your home detention application. It is apparent from the material that I have seen that this was not a spur of the moment lapse. I am satisfied beyond doubt that you and your partner had continued to deal in drugs during this time.

[16]      Taking those factors into account, I increase the starting point in relation to you to four-and-a-half years.

(b)        Ms Manley

[17]      Ms Manley, you are 21 years of age. Frankly, I suggest you are here today because of Mr Pearson’s influence. You had a normal upbringing and seemingly had much talent. Unfortunately, you left school at the age of 15 and undertook various employment. You have been a heavy methamphetamine user, but say you have not used it since arrest. You have, since these events, cared for your child.  You indicate a commitment to Mr Pearson once sentences are served. The pre-sentence report is positive and you are plainly capable of much better. You have no previous convictions.

[18]      On your behalf, Mr Leabourn emphasises your lack of previous convictions, and your guilty plea, and your growing development. Unlike Mr Pearson, there is no need for any adjustment to the starting point upwards, and accordingly, before looking at mitigating factors, I leave your starting point at three-and-a-half years.

Final sentence

[19]I turn to the final sentence.

[20]      Mr Pearson, concerning mitigation, you are entitled to some credit for a plea entered on 21 February 2005. I have some hesitation myself in describing it as anything but late, but both the Crown and your counsel accept that negotiations concerning it began earlier, and that the credit should be based on that. I  am prepared to acquiesce to that today. I see no other matters of credit. I trust,  and  hope, that what your counsel says today is correct concerning your commitment to change, but it has been said before and not yet reflected in your record.

[21]      I allow you credit of one year for your guilty plea, and so your final sentence will be three years six months.

[22]      Ms Manley, the sentence you are to receive is lenient. Your plea was late,  but again for the factors identified earlier, I will give you credit. You are receiving credit for the change in your attitude, for your commitment to move away from drugs, and I hope that you learn to take control of your life.

[23]      The sentence you are receiving will, I am sure, be seen by many as lenient, but I consider on behalf of society that you have strong prospects, and I urge you to realise them. As accepted by the Crown I take into account the concern I feel for your young child. I hope in the future you show more concern for your son than you did when entering into this offending.

[24]      You accordingly will be sentenced to a term of two years imprisonment. You will be given leave to apply for home detention and I will defer the imposition of the sentence until that application can be considered. I note that the Crown supported this outcome if a sentence of two years were available.

[25]      The Parole Act requires me to impose the standard conditions of parole, and I do so.

[26]So if you would both please stand.

[27]      Mr Pearson, for the reasons I have given, you are formally sentenced to a term of imprisonment of three years six months.

[28]      Ms Manley, for the reasons I have given, you are sentenced to a term of imprisonment of two years. You are given leave to apply for home detention, and I defer the imposition of your sentence for two months to allow that application to be heard.

[29]Please stand down.

Simon France J