R v Aitken HC Christchurch CRI 2006 009 006310

[2007] NZHC 1772

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006 009 006310

REGINA

v

JOANNE MAREE AITKEN

Hearing:         31 May 2007

Appearances: J Farish for Crown

P B Hall for Prisoner

Judgment:      31 May 2007

SENTENCE OF HON. JUSTICE JOHN HANSEN

[1]      Joanne Maree Aitken you have pleaded guilty to two offences against the Misuse of Drugs Act 1975.  Firstly, possession of Class A drug methamphetamine for supply, which carries a maximum sentence of life imprisonment.   Secondly, possession of pipes, which carries a maximum sentence of one year’s imprisonment.

[2]      The police executed a search warrant at your home on 31 May last year, exactly one year ago.  They located a set of electronic scales which had residue of methamphetamine on the plate; 35 point bags; a tick list; a pipe for consuming methamphetamine;  some  cannabis  and  some  cash.     It  now  acknowledged,  I

understand, that the amount of drug involved was .392 of a gram.

R V AITKEN HC CHCH CRI 2006 009 006310  31 May 2007

[3]      In  terms  of  the  Sentencing  Act  2002,  I  bear  in  mind  the  need  for accountability, promoting a sense of responsibility, protection of the community and rehabilitation.  But being Class A drug offending I must give more weight, in my view, to denunciation and deterrence.  I also bear in mind the relevant principles of sentencing set out in s 8 of the Act.

[4]      You are aged 25.  It must be said that you had a sheltered and indeed a very comfortable upbringing.  Unfortunately, you entered into misguided associations that have led you into the drug world and addiction to methamphetamine.   That is something that happens to many people in our society from all sorts of backgrounds.

[5]      You  have  only  one  previous  conviction  for  driving  with  excess    breath alcohol, which I am satisfied is irrelevant for present sentencing purposes, and I set it aside.  I note, however, that fines relating to that remain unpaid.

[6]      Both counsel have recognised that the start point is the decision of  R v Fatu [2006] 2 NZLR 72 (CA). There the Court of Appeal set offending for Class A methamphetamine sale or supply into four bands. It is accepted by both counsel that you fall into band one, which gives a starting point of between two and four years imprisonment. While one could refer to a number of High Court authorities, it is the Court of Appeal guideline sentence that is the appropriate one.

[7]      The Crown say that you should be towards the higher end of band one, with a starting point of between three and three and a half years imprisonment.  Ms Farish, in her submissions, has specifically referred me to documents found by the police when they executed the search warrant.  What that shows is that you are a low level commercial  dealer,  making  money  from   your  dealing  in  methamphetamine. However, the Crown also accept that the profit from this dealing was used to feed your own drug habit.  They also accept that, in part, an associate you formed two years ago has contributed significantly to the position you find yourself in today.

[8]      On the other hand, Mr Hall seeks to categorise this as a lower level of band one in Fatu.  He does that by submitted that your dealing was simply to fund your own habit.  That those you sold to were people already addicted and you were not

selling to people outside the drug milieu.  He also stressed that in this case there are positive signs.   I must say they have only become apparent since you have been remanded in custody;  they certainly were not there previously.

[9]      Mr Hall points to two factors.  One, that your family now support you.  That the rift that understandably occurred because of your addiction has been healed, and you are fortunate because many addicts who come before the Court do not have that sense of strong family support.  Also that you have been endeavouring to get into a drug addiction programme, and that you have positive support from a partner.  He submits that because of lack of previous convictions, and your willingness to deal with your problem, a starting point of around two years is appropriate.

[10]     Mr Hall accepted that because the guilty plea came so late the Court is limited in the allowance it is able to make for that.  I must comment on that, because it is something that happens so frequently in these Courts, but the message does not seem to get through to offenders.   In this case there was overwhelming evidence against you.  If you had pleaded guilty at an early stage, this Court would have been able to make an allowance of at least one third of your sentence because of that early guilty plea, without other factors.  The fact that you have chosen not to, and many others follow such a similar path, means, in mathematical terms, a longer sentence than you would otherwise have faced.

[11]     It seems to me in this case the appropriate starting point is one of two years and three months’ imprisonment.  I make little allowance for the guilty plea because it came so late.  But there are impressive features in the Probation Report of your endeavouring to turn your life around, and I acknowledge the very strong family support that you have.   It is to be hoped that you rely on that support from your family and your partner in dealing with this addiction.  It will not be easy.  Perhaps you now realise that, having spent some time in custody, but you are being given every opportunity because of that support.   For that I make an allowance of three months, which leaves an end sentence of two years’ imprisonment.

[12]     On  the  charge  of  possession  of  methamphetamine  for  supply  you  are sentenced  to  two  years’  imprisonment.    On  the  possession  of  a  pipe  you  are sentenced to one month’s imprisonment, concurrent.

[13]     I must, of course, consider the application to apply for home detention, which is governed by the Sentencing Act.  It seems to me because of your previous lack of convictions and the positive signs Mr Hall has referred to, it is appropriate to grant you leave to apply for home detention, so  that  the  Parole  Board  will  have  the opportunity to assess in more depth the sincerity of your claim you wished to turn your life around, and whether or not there are suitable drug addiction programmes you can be placed in.

[14]     Accordingly, you are granted leave to apply for home detention.

Solicitors

Crown Law, Christchurch for Crown

P B Hall, Christchurch for Prisoner.