R v Cassidy

[2018] NZHC 2797

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-092-4045 [2018] NZHC 2797

THE QUEEN

v

RUTH CASSIDY

Counsel:

J V Barry for Crown

J W Clearwater for Defendant

Sentenced:

30 October 2018

Charges:

Supplying methamphetamine

Plea:

Guilty

SENTENCING NOTES OF BREWER J

Solicitors:

Meredith Connell (Auckland) for Crown

Clearwater & Associates (Auckland) for Defendant

R v CASSIDY [2018] NZHC 2797 [30 October 2018]

Introduction

[1]      Ms Cassidy,   you   have   pleaded   guilty   to   one   charge   of   supplying methamphetamine.1  The maximum penalty for this offence is life imprisonment.2

[2]      The goal of your lawyer is to have me sentence you to home detention rather than to a period of imprisonment. The fact that you have breached your bail and have arrived at Court 35 minutes late is not an encouraging start to your lawyer’s efforts on your behalf.  But I am going to put that to one side because I think the bigger picture in your case requires me to do so.

The offending

[3]      Between 21 August 2017 and 6 September 2017, your former partner was living with you at your family home.  I am told you and he have a child together who is now four years old.

[4]      During this quite short period, your partner sold methamphetamine to a considerable extent. You knew this. His customers would come to your family home to buy methamphetamine from him.  Eventually, your family objected to this and so he began to deliver methamphetamine to his customers instead.

[5]      At times when your partner was unavailable, you supplied methamphetamine on his behalf. The summary of facts states that the total amount of methamphetamine you supplied is unknown.  However, two occasions are detailed.

[6]      On 21 August 2017, your partner sent you a text message saying, “Make sure he gives 9 hun and tick him two grams.” You responded, “Ok babe.”

[7]      On   25 August   2017,   an   unknown   person   purchased   0.5   grams   of methamphetamine from your partner.   You helped in the transaction by yourself supplying the methamphetamine and receiving payment.

1      Misuse of Drugs Act 1975, s 6(1)(c).

2      Section 6(2)(a).

[8]      In addition, when interviewed by Police, you told them that you would sometimes drop off methamphetamine to your partner’s customers when he had no transport. The amounts involved in these drop-offs is not specified.

Starting point

[9]      There is a case called R v Fatu3  which sets out sentencing bands depending upon the amount of methamphetamine involved.  The Crown submits your offending falls into the bottom of band two. This is presumably on the basis that you must have supplied at least five grams of methamphetamine. The Crown suggests a starting point of three years’ imprisonment, which is at the very bottom of band two.

[10]     Your lawyer, Mr Clearwater, has told me in his written submissions on your behalf that, in his view, your offending falls into band one of Fatu and he suggests a starting point of two-and-a-half years’ imprisonment. He points out that the summary of facts only records you as supplying 2.5 grams of methamphetamine in explicit terms on 21 and 25 August 2017.  He submits the amount dealt by you when your partner did not have transport cannot be known precisely, and should not be presumed to be more than 2.5 grams.

[11]     In addition, Mr Clearwater says the nature of your role is limited.  He submits you only acted in a go-between capacity, and further that your participation was due

to the influence of your partner.  He points to the fact that you never received any money from the transactions, although you accept sale proceeds were used by your partner to support the family.

[12]     Mr Barry for the Crown does not dispute that your role is limited. He says you acted as an assistant to your partner when he was unavailable to manage his own supply.  He acknowledges that even though the Crown says your offending is in band two, it is nevertheless at the very bottom of the band and in any event bands one and two overlap.

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

[13]     Given the ambiguity in the summary of facts which I have outlined, I will not place your offending within band two of Fatu.  Although you admit to supplying methamphetamine in excess of the 2.5 grams you supplied on 21 and 25 August, I cannot be sure that this further amount pushed the total quantity supplied by you above five grams.

[14]     I therefore place your offending in band one because of the quantities of methamphetamine involved. And, as I have said, in any case, due to the overlapping of the bands, the Crown’s suggested starting point lies in the middle of band one.

[15]     As Mr Barry says, regardless of the bands, I have to look at your overall role. So, even if I were satisfied that the total amount of methamphetamine dealt by you was more than five grams, I would still not place your offending within band two. That is because of the relatively peripheral nature of your offending.  You were a conduit for your partner’s dealing and only on occasion. It is clear from the summary of facts that your partner was dealing methamphetamine to a far greater extent than your assistance contributed to.  You derived little benefit from your criminal activity. Your offending only covered the brief period of time (some 17 days) while your partner was living at your family home.  His influence is a factor which I consider lessens the seriousness of your offending.

[16]     I find that your offending falls towards the bottom of band one.  I will adopt a starting point of two years and six months’ imprisonment.

Personal factors

[17]     I have reviewed your criminal history.  It does not contain any drug-related offending.  The Crown does not propose an uplift for your past offending, and I am not going to impose one.  Neither, of course, will I give you any credit for having a good character.

[18]     Mr Clearwater raises factors which he says mean I should reduce your starting point.

[19]     First, there is the issue of remorse.  Mr Clearwater has provided me with a letter of apology written by you.  In it, you say you accept responsibility for your offending and promise to give back to the community to make up for the harm you have caused.  The pre-sentence report tells me that while you are not a drug-user yourself, you might benefit from a drug abuse programme so that you might learn about the impacts drugs have on the community.  I would be astonished, Ms Cassidy, if given your background you do not already have first-hand knowledge of the impact of drugs on the community, but I take the pre-sentence report at face value and I note you have expressed a willingness to enrol in such a programme.

[20]     Mr Clearwater also refers me to your personal circumstances. As I have said, you are 22 years old and have a four-year-old child, for whom you are now the sole caregiver.  Mr Clearwater has also provided me with a number of certificates which reflect qualifications you have gained since leaving High School. All of them predate your offending so I do not find them relevant as mitigating material.  But what they do tell me, Ms Cassidy, is that you have potential to do much better than you are doing. If you can gain those sorts of qualifications having left High School and with a four- year-old child, you have potential not to be standing on the brink of going to prison but of actually making something of yourself. You need to start thinking about that.

[21]     Mr Clearwater wants you to have a sentence of home detention.  He tells me you have been meeting with a social worker for advice, and that you propose living with your mother. I have seen a letter of support for you from your mother.

[22]     Mr Clearwater submits these factors mean I should give you a discount on the starting point of 20 percent.  I should give you 10 percent for remorse and 10 percent for your prospects of rehabilitation. I am not going to give you a discount for remorse. It is easy to write a letter saying you feel sorry, particularly when you are facing jail time and very much do not want to go to jail.  But, as I have said, I do think you have a greater potential than you have shown in the easy way in which you helped your partner deal in a Class A controlled drug which subjected you to a possible life term of imprisonment.

[23]     I will give you a discount of 10 percent to reflect what I think is your ability to lead a better life than you have to this point.

[24]     Finally, Mr Clearwater submits you should be given a full 25 percent discount for your plea of guilty.   The Crown does not suggest otherwise.   I do not apply discounts for pleas of guilty automatically and I have looked at how you came to enter your plea of guilty. I accept it was at an early opportunity and that the video interview you provided to the Police was an expression of guilt.  I will give you the further discount of 25 percent.

[25]     Applying these discounts to your sentence starting point, I come to an end sentence of one year and eight months’ imprisonment.

Home detention

[26]     I must now consider whether to commute the sentence of imprisonment to one of home detention.4   It is a fundamental principle of sentencing that the Court must always impose the least restrictive outcome that is appropriate in the circumstances.5

[27]     The pre-sentence report recommends home detention.  The Crown does not suggest that a sentence of imprisonment should follow. I have to make an independent decision, and I consider these are the factors that are in favour of a sentence of home detention:

(a)The  pre-sentence  report  assesses  you  as  having  a  low  risk  of reoffending. You are young and you have prospects of rehabilitation.

(b)You have a positive record of compliance with home detention and post-detention conditions.

(c)      You have a young child who is solely within your care.

4      Sentencing Act 2002, s 15A.

5      Section 8(g).

(d)The proposed address for home detention, belonging to your mother, has been assessed as suitable and its occupants are willing to support you.

[28]     It is wrong to say that a short-term period of imprisonment should always be commuted to a sentence of home detention.   What a Judge has to do is make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.6

[29]     Given the factors to which I have referred, and the extent to which your current offending was tied to your relationship to your former partner, the need to protect the community from you is not a great one. A sentence of home detention will provide an appropriate balance between denunciation and deterrence, on the one hand, and assisting you in your rehabilitation, on the other.

Sentence

[30]     Ms Cassidy, I sentence you to 10 months’ home detention.

[31]     The sentence is to be served at the home detention residence of 6 Trent Road, Panmure, Auckland. You are to travel directly to this address and await the arrival of a security officer to fit you with a home detention monitoring device. You are to reside at 6 Trent Road for the duration of your sentence.

[32]     I make it a condition of your sentence that you not consume any drugs that are not prescription drugs that have been prescribed for you.

[33]     I make it a further condition that you undertake and complete appropriate assessment, treatment and/or counselling (including cultural) as directed by and to the satisfaction of a probation officer.

6      Fairbrother v R [2013] NZCA 340 at [30].

[34]     I make a final condition you are to attend and complete an appropriate alcohol and drug rehabilitation programme, including a residential programme if necessary, to the satisfaction of a probation officer.   The specific details of the appropriate programme shall be determined by a probation officer.

[35]     You may stand down.

Brewer J