R v Carroll

[2012] NZHC 1837

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-054-000454 [2012] NZHC 1837

QUEEN

v

STEPHANIE JANE CARROLL

Hearing:         20 July 2012

(Heard at Wellington)

Counsel:         B D Vanderkolk for Crown

P H Surridge for Prisoner

Sentencing:     20 July 2012

SENTENCING NOTES OF MILLER J

[1]    Ms Carroll, you appear for sentence today on three charges, one of possessing methamphetamine for supply and two of actually supplying it.

[2]    You were arrested following a police investigation known as Operation Stamp, which   targeted   the   ‘Rebels’   motor   cycle   gang.      Your   former   husband Herre Van Niekerken is a patched member of that gang, and it was through him that you became involved in distributing methamphetamine.   Precursor materials were sourced from Auckland and manufactured into methamphetamine in Hamilton and Murupara, and ultimately distributed in the greater Manawatu, Wanganui and Horowhenua  areas.     This  conspiracy  subsisted  for  about  six  months  from  1

September 2010, and it seems to have operated on a substantial scale.

R V CARROLL HC PMN CRI-2011-054-000454 [20 July 2012]

[3]    The  gang  members,  including  Mr  Van  Niekerken,  were  responsible  for sourcing  the  precursor  material  and  arranging  manufacture.     One  of  them, Mr Matthews, took care to distance himself from actual possession of the drug, choosing to engage others for that purpose.   You were used as a courier, to uplift methamphetamine from Hamilton and deliver it to Palmerston North, and you have admitted to dealing small quantities of the drug to local purchasers on two occasions.

[4]    Turning to the specifics of  your involvement,  on 20 November 2010  you travelled to Hamilton to collect a quantity of methamphetamine, which you transported back to Palmerston North.  Intercepted communications suggest that the quantity exceeded 400 grams.  You were paid $7,500 for this.

[5]    On   12   January   2011   you   travelled   to   Hamilton   again   and   uplifted approximately 402.1 grams of methamphetamine.  You were arrested in possession of that quantity, the police having staged a traffic stop so that they could recover the methamphetamine without having to terminate their investigation.

[6]    Four  hundred  grams  of  methamphetamine  has  a  street  value  exceeding

$320,000 if sold in grams.  When ESR analysed the methamphetamine which you had on arrest they found its purity was approximately 55 per cent.

[7]    You admitted uplifting the methamphetamine on 12 January 2011, and further admitted the previous run.

[8]    In November 2010 you bought a Mitsubishi Grandis car for $8,000.  You were driving that vehicle when arrested.  For that reason the Crown seeks forfeiture of the car.    It  also  seeks  forfeiture of  $1,960  found  in  your  possession  on  arrest  and

$98,906.80 found at your house, a total of $100,866.80.  You say that the $98,000 was  secreted  there  by  your  former  husband  when  he  visited  for  access  to  the children, and I will accept that for present purposes.  The Crown also seeks forfeiture of a Nissan car registration FQW484, which is not your car.  You say, and I accept for present purposes, that that car and an Audi which is a subject of an application for a restraining order were registered in your name by a third party but had nothing to do with you.  You do not oppose forfeiture of any of these items.

[9]    The pre-sentence report records that you are aged 45.  You have seven children ranging in age from 19 years to four years, one of them disabled, and you rely on the emergency benefit.   I acknowledge the presence of your children in Court today. You are not a gang member yourself;  you have no drug or alcohol problems of your own.  You have explained your offending by saying that you were at the end of your tether financially and needed money for the children.  I am prepared to accept that. You genuinely regret your offending and you are characterised as a very low reoffending risk.   The probation officer found you highly motivated to attend programmes or courses.   Referees speak highly of you as an honest and sincere person, always willing to help others.  I accept that you are genuinely remorseful.  I also accept that you will not reoffend.   I also accept that imprisonment will work considerable hardship on the children, for whom you are the fulltime caregiver.  You do not have family support for them.  Regrettably, limited allowance can be made for that.  Deterrence and denunciation are the dominant sentencing considerations in offending of this sort.  It gives me no pleasure to say to you that I have no alternative but to send you to prison today.

[10]  A home detention report has been prepared, but home detention is out of the question;  the sentence I must impose is too long for that.

[11]  I begin with the starting point.  As counsel will have told you, the approach that the Court takes to sentencing methamphetamine offending is well settled.  The drug is extremely addictive and socially harmful, and sentences are stern as a result.

[12]  Based on the facts I have outlined your case might be thought to fall within band four of R v Fatu, which is the tariff case for supplying methamphetamine. Band four covers quantities exceeding 500 grams at a purity of 60 per cent or more. I make that point because of the quantity with which you were arrested and your involvement in a prior courier run.

[13]  The Crown, however, accepts that this should be characterised as a band three case.  You face only one charge of possession for supply and none of conspiracy, for which you should count yourself very lucky.  The Crown also accepts that your role was less significant than the other accused.  It is always necessary to establish the

role played by the individual offender and to examine her culpability.  Couriers play an important but low-end part in the manufacture and distribution of illicit drugs. You were used because other, more senior, people were not willing to take the risk of being caught with methamphetamine in their own possession.  Evidently you were considered expendable.  Your share of the profits seems to have been modest.  As noted, the purity of the methamphetamine was a little less than 60 per cent meaning that the quantity should be discounted a little.

[14]  That said, your previous involvement does tell me that you were a knowing participant here.  That is an aggravating feature of this offending, as is the quantity that you couriered, and your motive, which was that of making money, albeit for reasons  of  financial  difficulty.    The  Crown  accepts  that  you  were  not  a  gang member, so I will not treat the gang context as an aggravating factor.

[15]  When I weigh all of that up it leads me to accept Mr Vanderkolk’s submission that the starting point should be at the bottom end of band 3, that is eight years imprisonment.1

[16]  I must now look at aggravating and mitigating factors.  There are no personal aggravating factors.  You have some previous convictions.  They are relevant only in that they exclude a claim to being a first offender.

[17]  In mitigation, you co-operated substantially with the police and indicated from an early stage that you would plead, and you are remorseful.  I accept that there are good reasons for the delay in entering the plea in this case.  I have referred also to your personal circumstances.  For these factors I will allow a discount of 40 per cent. I also make a small allowance for forfeiture of the car, accepting as I have said that it was not bought with the proceeds of drug dealing but has been forfeited because it was used in the crime.  Of course you get no credit for forfeiture of the cash or the other car since they were not yours.  I accept that you have been on restrictive bail

for some time.   But that is not unusual and I have reflected, so far as, I can your

1   Comparable cases are Horrobin, Kuo Liang Tsai, Chee Hoi Lee, Tsung Hui Chou, Moses and

Whitley.

personal circumstances.  So that would result in an end-sentence of four years and three months imprisonment.

[18]  The Crown has asked me for a minimum period of imprisonment that is a period longer than the one-third which you most normally serve before you are eligible for parole.  As I have said, methamphetamine is a dangerous drug and the Court routinely imposes a minimum period on those responsible for dealing in it. While that is true, I am not prepared to impose a minimum period here.  I say that having regard to the very positive, unusually positive probation report and your difficult personal circumstances and my own assessment that you will not reoffend. I think you should be eligible for parole in the normal course and it will be for the Parole Board to assess your suitability in the normal way.

[19]  Ms Carroll, your sentence on the three charges is four years, three months imprisonment, to be served together.

[20]  There will be orders for forfeiture of the two vehicles and the cash.  There will be a restraining order by consent in relation to the Audi.  Those orders are made in accordance with the joint memorandum of counsel which has been handed up today.

Miller J

Solicitors:

Crown Solicitor’s Office, Palmerston North for Crown

Surridge & Co, Porirua for Prisoner