R v Bishop HC Auckland CRI 2009-004-7670

[2010] NZHC 1149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-004-7670

THE QUEEN

v

PAULINE ALISON BISHOP AND ALLAN ROSS HUTTON

Hearing:         29 June 2010

Appearances: R M McCoubrey for Crown

P Dacre for Ms Bishop
R Mansfield for Mr Hutton

Judgment:      29 June 2010

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Auckland r[email protected]

P Dacre, Auckland

R Mansfield, Auckland

R V BISHOP AND HUTTON HC AK CRI 2009-004-7670  29 June 2010

[1]     Ms Bishop, Mr Hutton, you each appear for sentence this morning in consequence of guilty pleas entered to a number of charges related to serious drug offending.

[2]      Ms Bishop, you have pleaded guilty to supplying methamphetamine, to conspiracy to manufacture methamphetamine, to possession of methamphetamine for supply and to possession of methamphetamine simpliciter.

[3]      Mr Hutton, you have pleaded guilty to supplying methamphetamine and to supplying materials for the manufacture of methamphetamine.

[4]      The maximum sentence for supplying methamphetamine and for possession of methamphetamine for supply is life imprisonment.  The maximum sentence for conspiracy to manufacture methamphetamine is 14 years imprisonment;   the maximum sentence for supplying materials for the manufacture of methamphetamine is seven years imprisonment, and for possession of methamphetamine, the maximum sentence is six months imprisonment.

[5]      You each pleaded guilty to these charges on the occasion of the seventh call of this case in this Court, having first appeared in this Court on 28 October 2009.

Factual background

[6]      Early in 2009 the police commenced an investigation into a number of individuals who were believed to be involved in the manufacture and distribution of methamphetamine.   During the course of that investigation, they intercepted and analysed a number of cell phone communications occurring between December 2008 and March 2009.  There were subsequent police searches.

[7]      Ultimately, the police identified a number of offenders who were participants in the manufacture and distribution of methamphetamine on a relatively large scale. You,  Ms  Bishop,  were  identified  as  the  principal  organiser  of  the  syndicate.

Mr Hutton, you were also actively involved, although I accept at a somewhat lower level.

[8]      Ms Bishop, the police case against you, is that you were involved in both the manufacture  and  supply of  methamphetamine.    Between  1  December  2008  and

1 April 2009 you supplied a total of about 250 grams of methamphetamine to others. In addition, you were involved as part of a conspiracy in the manufacture of methamphetamine.     In  that  capacity  you  were  an  active  participant  in  the organisation of manufacturing activities.   There were numerous text messages between you and others during the period December 2008 to February 2009, in which  the  detail  of  methamphetamine  manufacture  was  discussed.    Further,  on

10 December  2008  you  obtained  1  kg  of  iodine,  a  precursor  substance,  from

Mr Hutton.

[9]      On 31 January 2009 the police searched an apartment you were sharing with a co-offender, Mr Hamerton.   On that occasion the police found 10.5g of methamphetamine, intended for supply to others.   A further small quantity was found by the police when they searched your own residence on 16 March 2009.

[10]     The   Crown   position   is   that   your   involvement   in   methamphetamine manufacture was simply part and parcel of your commercial selling activities, and so should   be   treated   as   an   aggravating   factor,   rather   than   requiring   separate consideration in its own right.  Your counsel does not disagree with that approach.

[11]     On your behalf Mr Hutton, your counsel, Mr Mansfield, accepts sales by you of a minimum of 77g of methamphetamine.   That figure largely accords with the figure arrived at by the Crown, and I proceed accordingly.  I must take account also of course, of the transaction in which you supplied a significant quantity of iodine to Ms Bishop.

Personal circumstances

[12]     Ms Bishop, you are 51 years old and of Ngapuhi affiliation.  You are plainly an intelligent woman, who has held a number of responsible positions in banks and

government departments and as manager of various hotels over a period.   You became a mother at an early age and have four children aged between 34 and 16 years.  You were married for a very long time, but more recently became the partner of a co-offender, Mr Hamerton, who was sentenced a month or so ago to three years imprisonment for his part in the offending with which the Court is concerned this morning.

[13]     It  seems  that  you  have  been  a  long-standing  drug  user,  having  been introduced to cannabis at the age of about 15 years, and more recently have commenced to use methamphetamine.   It seems your former husband was also a methamphetamine user and the drugs issue brought about in effect the end of your marriage.   Your exposure to methamphetamine brought you into the company of other drug users and eventually led you into this large scale drug offending.

[14]     There are six previous convictions, but they are historical in character and bear little relationship to the offending for which you now appear.   For present purposes I put them to one side.

[15]     The probation officer considers you to be deeply remorseful for what has occurred, and believes the offences to form part and parcel of your own drug habit. The Court is advised that you have approached Odyssey House on your own initiative.  That is a promising sign.  In the future you will have an opportunity to adopt a drug-free lifestyle.  A degree of personal resolve will be necessary, however, to achieve that.  I must mention the letter you have handed up to the Court which I have read very carefully.  It is consistent with the probation officer’s impression of you.  I have an obligation to mark this offending in a proper fashion, but in my view there are grounds for optimism that following completion of your sentence you may be able to strike out on an offence-free future.

[16]     Mr Hutton, you are 29 years of age and in a long term relationship.  You have no children but your partner has three children from a previous relationship and you are endeavouring to assist her in their upbringing.

[17]     There have been difficulties within your own family.  Your parents separated about 10 years ago.  Although you do not have any contact with your mother, you have recently re-established your relationship with your father who is present in Court today, along with your partner.  It is pleasing in cases like this to see a degree of network support because it bodes well for the future.

[18]     Much of the difficulty in your life stems from the abuse of alcohol and drugs. You freely acknowledge through your counsel that they have led you into a lifestyle which has involved criminal offending, and at the same time has damaged your personal relationships.  Your use of methamphetamine has increased in recent years. There is an obvious connection between that and your part in the offences for which you now appear.

[19]     The probation officer considers you to be remorseful for what has occurred, and  there  are  indications  of  your  willingness  to  participate  in  remedial  and therapeutic programmes.   Obviously you have been close to Ms Bishop for some time, and your involvement in serious drug offending appears to have coincided with her offending.

[20]     You have a significant list of previous convictions, which is remarkable for its variety, but there are no convictions for drug offending of any sort.  As in the case of Ms Bishop, I do not consider it necessary to impose any additional penalty on account of your previous record.

[21]     A matter upon which Mr Mansfield places some emphasis, is your recent involvement in orchard work and the landscaping industry.  The Court is told that you have obtained fulltime work in these areas, and that you have already identified the  benefits  of  playing  a  worthwhile  role  in  society.    The  Court  is  given  to understand work in those areas may be available to you following your release from prison.   That factor bodes well for the future.   As Mr Mansfield submits, the availability of a strong support network, along with something useful to do, are important factors.

[22]     In order to achieve anything in life you will need to address your alcohol and drugs problem.  Mr Mansfield advises that you are committed to doing just that.

[23]     Generally  personal  issues  play little  part  in  sentencing  for  class  A  drug offending, but I note for the record that things are not the best in your family at the present time;  both your sister and your partner have had serious health scares and I am told that has made you even more determined to ensure that when you have served your sentence you will be able to provide the necessary support.

[24]     I have read your letter which, as with Ms Bishop, evidences a degree of insight and determination that suggests you can turn your life around.   There are other letters of support as well from those who obviously think highly of you.

[25]     Mr Mansfield has asked the Court on the question of fines remission to consider remitting very substantial fines which you have accumulated in the District Court in the past, as a way of ensuring you will be able to meet reparation payments which you are determined to pay in due course from your earnings.  Although I have a degree of sympathy for an argument that suggests that an offence-free lifestyle may be easier to achieve if there is no burden of outstanding fines, I am not persuaded that this Court has jurisdiction to do what Mr Mansfield asks.   There is Court of Appeal authority to the contrary, as Mr McCoubrey points out.

[26]     I do however note that there are grounds for optimism in your case, and if the District Court should see fit to remit the whole or part of the outstanding fines, that may assist  you to  get on  your feet financially and remaining offence-free once released from prison.

Sentencing principles

[27]     Sections 7 and 8 of the Sentencing Act 2002 set out a number of factors which the Court must take into account during the sentencing process.   Of the s 7 factors, it is necessary in a case involving serious drug offending that the Court bear in mind the need to hold you each accountable for what has occurred, to promote in you a sense of responsibility, to denounce the offending, and to deter both you and

others from offending in a similar fashion in the future.  A related objective is that of protecting the community from offenders of this sort, whose activities tear at the very fabric of our community.

[28]     I must take into account also the gravity of the offending, the seriousness of this type of offence, and the need for sentencing consistency.

Discussion

[29]     It is common ground that the Court must be guided by the tariff judgment in the Court of Appeal in R v Fatu [2006] 2 NZLR 72, and indeed, there is a degree of similarity in counsels’ approach to the ultimate sentencing outcome in each case.

[30]     In Fatu the Court identified four sentencing bands in ascending order of gravity.   Band 2 is concerned with the supply of commercial quantities of methamphetamine, of between 5 and 250g.  In that band the suggested starting point is three to nine years imprisonment.  Band 3 is concerned with the supply of even larger quantities of between 250 and 500g.   There, the suggested starting point is eight to 11 years imprisonment.  The Court of Appeal in Fatu emphasised the need to take account not only of the quantity of drugs involved, but also the role played by an offender in the chain.  The more senior the role of a given offender, the higher the penalty must be.

[31]     Ms Bishop, in your case the quantity of methamphetamine with which you were associated places you at the very top of band 2, or the lower part of band 3. There is an element of overlap where the bands intersect.  I need to take into account your pivotal role in this offending syndicate, and also the aggravating circumstance of your involvement in the manufacture of methamphetamine, including the acquisition of iodine, a precursor substance in the manufacturing process.  I consider the proper starting point in your case to be nine years imprisonment.

[32]     Mr Hutton, in your case the identified quantity of methamphetamine is 77g. There is material before the Court to suggest that there were further supplies of amounts which have not been quantified, but there is insufficient evidence to justify

an uplift on that ground within band 2 of Fatu, where your case clearly belongs. There  is  little  between  counsel  in  respect  of  the  appropriate  starting  point. Mr McCoubrey suggests four and a half to five years imprisonment, Mr Mansfield considers four to four and a half years to be appropriate.

[33]     I propose to adopt a starting point of four and a half years imprisonment. That reflects, in my view, the plainly active role you played within the offending group,  and  takes  into  account  your  involvement  in  the  trading  of  precursor substances.  Moreover, it properly reflects the greater role you played overall than did Mr Hamerton, who on 3 June 2010 was sentenced by Cooper J to three years imprisonment.  In that case the Judge adopted a starting point of three years and nine months before an uplift for prior offending.  Mr Hamerton was found in possession of 10.5g, and there was an acceptance of a further sale of 2g, so the quantities there were significantly lower than here.

[34]     There are no aggravating factors for either of you.  In mitigation you are each entitled to credit for your guilty pleas.  They were not entered at the earliest possible time, but were nevertheless intimated at callover and well before the Crown incurred the trouble and expense of preparing for trial.

[35]     I specifically note your remorse, which in each case I am satisfied is genuine, and which will be reflected in a general sense in the discount I allow for your guilty pleas.  In each case I allow a 25% discount.

[36]     That produces for you,  Ms Bishop, a sentence of six  years nine months imprisonment, and for you Mr Hutton, a sentence of three years four months imprisonment.

Sentence

[37]     Ms Bishop, on the charges of supplying methamphetamine, of possession of methamphetamine for supply and of conspiracy to manufacture methamphetamine, you are sentenced to six years nine months imprisonment.   On the charge of possession of methamphetamine you are sentenced to one months imprisonment.

[38]     Mr Hutton, on the charge of supplying methamphetamine, you are sentenced to three years four months imprisonment.  On the charge of supplying material for the manufacture of methamphetamine you are sentenced to 12 months imprisonment.

[39]     In each case the sentences are to be served concurrently.  The result is that Ms Bishop  is  to  serve  a  sentence  of  six  years  nine  months  imprisonment,  and Mr Hutton is to serve three years four months.

[40]     Each of you got into this offending in my view by reason of your own drug habits.  You are entitled to as much assistance as the system is able to supply.  I draw the attention of the prison authorities to the fact that it would be of advantage to each of you to participate in such programmes as the prison may be able to put in place.

C J Allan J