R v Aitken

[2012] NZHC 2901

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-009-008952 [2012] NZHC 2901

REGINA

v

GEMMA LOUISE AITKEN

Hearing:         1 November 2012

Counsel:         B Hawes and N Robson for Crown

S J Shamy for Prisoner

Judgment:      1 November 2012

SENTENCING REMARKS OF WHATA J

[1]      Ms  Aitken  you  have  pleaded  guilty  to  one  charge  of  conspiracy  to manufacture a Class A controlled drug (methamphetamine).  The maximum penalty for this offending is 14 years imprisonment.

Wider background

[2]      You were charged with several other accused in relation to this offending, including Mr Newton, Mr Situ, and others.  It is now clear that Mr Newton was a central figure in a methamphetamine enterprise.  It is equally clear to me however that you played a very minor role in this enterprise.  Indeed your role was limited to providing assistance to find properties for drug related purposes, permitting premises that   you   occupied   to   be   used   for   storing   drug   items   and   manufacturing

methamphetamine and acting as a gofer for Mr Newton.  Nevertheless you resided

R V AITKEN HC CHCH CRI 2010-009-008952 [1 November 2012]

with Mr Newton in an apartment at 6/32 Cashel Street and you were present when a search warrant was executed there.  Quantities of methamphetamine and drug related items were found, including 81 grams of methamphetamine, scales, large numbers of gram deal bags and point bags, cash of $22,100 and cannabis.  Given your limited role, it is not necessary for me to detail the facts of the methamphetamine enterprise, other than to observe that a significant quantity of methamphetamine was found at four different addresses, all linked in some way to Mr Newton, and that various types of substances containing pseudoephedrine were also located at four addresses.

Personal circumstances

[3]      I now turn to your personal circumstances.   You are 28 years old and the mother of a six year old daughter.  You currently live alone and share care for your child with the father.   You have a stable and caring extended family.   You have recently received an offer of employment in a real estate firm and by this sentencing date I understand you will have completed your university studies for the year.  You have also enrolled in summer school at the university and the course will run for the summer break between the hours of 9.30 am and 11.30 am, Monday to Friday.  You are also engaged in a running group three times a week.

Pre-sentence report

[4]      The   pre-sentence   report   helpfully   provides   some   insight   into   your background, including your relationship with Mr Newton.   You described it as a short lived and turbulent relationship.  At the interview you indicated that you were medicated for anxiety and depression, both of which you state became prominent following  your  arrest.     Self  reported  alcohol,  gambling  and  drug  tests  were undertaken at interview and these revealed no harmful pattern of abuse in the past 12 months.  You said that you had been addicted to P for a couple of years between

2008 and 2011, reportedly spending as much as $100 to $200 daily on the habit.

[5]      You  have  no  history  of  previous  offending.    You  have  actively  sought counselling for drug and alcohol abuse and your counsellor has described you as an

impressive, driven and honest young woman who made some bad relationship choices.

[6]      Overall the report observes that you are assessed at being at low risk of reoffending and a moderate risk of harm to others.  The report says this accounts for the significant lifestyle changes and rehabilitation you have undertaken since your release on bail but is balanced by the high level of harm that methamphetamine can have on individuals and their communities.

[7]      The report recommends a sentence of home detention.   Child Youth and Family Services  have no  concerns  with  you  undertaking home  detention  at  the specified address.  The police also do not oppose you completing home detention at the specified address.

[8]      Finally there is a character reference provided by the clinical team leader at the Ashburton Community Alcohol and Drug Service.   In addition to the previous comment just mentioned, she found that you are a loving mother to your daughter with clear and appropriate boundaries.

Crown position

[9]      The Crown suggests a starting point of two to two and a half years on the basis that you took an active role in acquiring an apartment to be used for the purposes of manufacture of methamphetamine.   Additional factors are noted, including your domestic relationship with Mr Newton, indicators of violence and no suggestion of commercial gain from your involvement.  The Crown also notes that you are entitled to a credit for a guilty plea and 15% is suggested.

[10]     Mr Shamy on your behalf accepts that a starting point between two and two and a half years imprisonment is appropriate.  He stresses the following mitigating factors on your behalf:

(a)       You have no previous convictions;

(b)You pleaded guilty once agreement was reached as to the charge and the summary of facts, the agreement being reached in May 2012;

(c)      There was very limited involvement in the offending on your part;

(d)You had, because of the domestic violence, and being in the thrall of an older principal offender, Mr Newton, some diminished culpability;

(e)      You have demonstrated remorse and he also refers to the case of R v Lorigan[1] where a starting point of two and a half years was employed for similar low level involvement.

[1] R v Lorigan HC Auckland CRI 2010-404-1742, 29 November 2011.

[11]     Mr Shamy also refers to home detention and the fact that it is available to you.

Assessment

[12]      I now turn to my assessment.  I must of course be guided by the purposes and principles of the Sentencing Act 2002.  Particularly relevant to you Ms Aitken is the need for accountability, denunciation and deterrence, as well as recognising the importance of your rehabilitation.

[13]     The Court of Appeal in R v Fatu[2]  provides four sentencing bands for the manufacture of methamphetamine and this provides a helpful reference point for the purposes of conspiracy, although as noted in R v Te Rure,[3]  conspiracy involves less criminality.    I do not propose to repeat the relevant bands.  I simply note that the conspiracy was well advanced, that you must have been aware of it and you took an active role in assisting its achievement.  Having said that, I am mindful that it was stated in Fatu (as highlighted by your counsel) that:[4]

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

[3] R v Te Rure [2008] 3 NZLR 627 (CA).

[4] R v Fatu at [43].

... The sentence imposed must reflect not only the quantity of the drug involved, but also the role of the particular offender in the manufacturing ring in question.

[14]     It  is  quite  obvious  to  me  that  your  role  was  a  minor  one  and  I  think undoubtedly influenced  by Mr  Newton.    I have  had  the  benefit  of  listening  to numerous communications between you and he and he plainly played a dominant and at times violent role towards you.  All of this informs my view of your level of culpability which I consider to be low in context.  I therefore agree with counsel that an appropriate starting point is between two and two and a half years and given the mitigating factors I have identified, and your limited degree of culpability, I adopt a starting point of two years.  I also consider that a discount of 15% is appropriate in light of your guilty plea.  Your prospects of rehabilitation are also very strong and I think would warrant a further small discount.  But I propose to factor that into my assessment of the type of sentence that should be imposed.  If I were to impose a sentence of imprisonment taking into account all relevant factors, I would impose a sentence of one year eight months imprisonment.

[15]    However, as foreshadowed, I am satisfied that given the nature of your offending, and your personal circumstances, that home detention is appropriate.  The demonstrable efforts that you have made to turn away from drugs and your focus on self improvement and on your daughter, speaks well of you.   I also note that you spent six weeks in custody.   A sentence of home detention must still reflect the Court’s and the public’s concern about methamphetamine offending, however small.

In light of other similar authorities[5]  I impose a sentence of eight months home

[5] Including R v O’Keefe HC Napier CRI 2008-020-002368, 31 July 2008.

detention.

[16]     The conditions that apply to the sentence are as follows:

(a)      You   are   to   go   directly  to   31   Gleneagles  Terrace,   Fendalton, Christchurch, and await the arrival of the probation officer and a representative of the monitoring company;

(b)You are to reside at 31 Gleneagles Terrace, Fendalton, Christchurch, and  not  move  address  without  the  prior  approval  of  a  probation

officer;

(c)       You  are  to  abstain  from  the  consumption  of  alcohol  and  non prescription drugs;

[17]     It is further my recommendation that you be allowed to continue your studies through this period, but of course that will be a matter for the probation officer.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

S J Shamy, Christchurch, for Prisoner

Solicitors: