R v Crompton
[2013] NZHC 3347
•10 December 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2011-088-004182 [2013] NZHC 3347
THE QUEEN
v
SAMANTHA JAYNE CROMPTON
Hearing: 10 December 2013
Counsel: BM O'Connor for the Crown
C Muston for the prisoner
Judgment: 10 December 2013
SENTENCING NOTES OF ASHER J
Solicitors/Counsel:
Crown Solicitor, Whangarei.
C Muston, Whangarei.
R v CROMPTON [2013] NZHC 3347 [10 December 2013]
Introduction
[1] Samantha Crompton, you appear today for sentence having pleaded guilty to six counts of offering to supply methamphetamine (being counts 44, 49, 57, 58, 60 and 61 in the indictment), and one count of conspiracy to supply methamphetamine (count 54). A sentencing indication has already been given.1 You entered pleas of guilty following that sentence indication.
[2] In respect of two other counts, counts 55 and 56, the Crown offering no evidence you are discharged on those counts.
[3] As the number of counts indicates, these charges arise out of a significant Police operation known as Operation Beema. There are some serious charges that are to be heard next year against the principal offenders. The Police will be alleging a very significant methamphetamine manufacturing and supply ring of which you were a part.
[4] As is common in such cases, a good deal of the evidence is in text exchanges and this makes it difficult to set out a coherent chronology of your actions. Suffice to say that in relation to the offering to supply counts, it is clear that the amount of methamphetamine involved did not exceed two grams. Thus, while you were selling for commercial purposes, this was at the lowest level. You were a street level dealer in the true sense of the term.
[5] In relation to the conspiracy to supply count, the text exchange in relation to this count shows that you were contacted by someone further up the chain and asked to assist in the disposition of an ounce of methamphetamine. The person who contacted you appears to have wanted it moved quickly and wanted to receive a total of $11,000. You were then shown to have texted a number of people advising them that you had an ounce or a large quantity and asking if they were interested in buying
some of that.
1 R v Crompton [2013] NZHC 2707.
[6] There was some debate at the sentence indication hearing as to whether you had the ounce in your possession at any stage. In the end Ms O’Connor for the Crown fairly and in my view correctly conceded that the Crown could not prove beyond reasonable doubt that you had the methamphetamine in your possession. Indeed, on my assessment of the text messages it is most likely that you did not. So it is against this factual background that I must assess the starting point.
The starting point
[7] There has been one other Operation Beema defendant sentenced and that was Ms Clunie whom I sentenced in October 2013. The starting point in relation to Ms Clunie’s sentence was seven and a half years’ imprisonment. Ms Clunie was undoubtedly at a higher level in the chain than you. Ms Clunie was not a street level dealer. Her activities had another layer of sophistication and seriousness and were also more extensive than yours. I therefore can take little assistance from that sentence as a benchmark. I consider your culpability to be at a much lower level.
[8] There have also been some sentences of defendants in another methamphetamine investigation known as Operation Arabia, which although not related was a Whangarei investigation and had some similarities to Operation Beema. I have been referred to a number of sentencing decisions arising out of that investigation where some of those convicted were low level dealers in a position not entirely different from your own. I have considered in particular the decisions of
R v McGee,2 R v Matthews3 and R v Tohu4 where starting points ranging from two
years and six months, and three years and two months were imposed.
[9] Here the key points for fixing the starting point for your offending
Ms Crompton are as follows:
You were dealing at the lower street level.
The offending was over a three week period.
2 R v McGee HC Whangarei CRI-2010-88-2612, 6 July 2011.
3 R v Matthews HC Whangarei CRI-2010-88-2612, 13 April 2011.
4 R v Tohu HC Whangarei CRI-2010-88-2691, 7 October 2010.
The amounts involved in the six supply counts were modest, of about two grams, but not exceeding that.
The amount involved in the conspiracy to supply count was at a considerably higher level of one ounce. Nevertheless, that ounce was never in your possession and you were acting in a go-between
capacity.
[10] If this was just the offering to supply counts I would have fixed a starting point of around two years and six months’ imprisonment. This would have been akin to the starting point imposed in R v Tohu where there was approximately two grams involved and four charges of supply and four charges of offering to supply. However, I take into account the added culpability of the conspiracy to supply the ounce. Standing on its own if there was an actual supply this would have warranted a significant uplift.
[11] However, the maximum penalty for the conspiracy count is only 14 years and not life imprisonment, and it is appropriate to consider the extent to which the conspiracy was carried out in assessing culpability. Here it has not been proved that supply was implemented or came close to implementation. As I have said I am not satisfied that you were ever in possession of methamphetamine. Essentially what you did was send out a number of text messages to see if you could raise interest. You acted very much as a go-between, between the principal who had the methamphetamine, and the street level people who you knew might be interested in it.
[12] Taking all these factors into account I think a significant but not overly severe uplift is warranted of six months. That makes the starting point three years’ imprisonment. That is the starting point I will use.
Personal factors
[13] I now turn to matters relating to you personally. Both Crown and defence agree you are entitled to a 20 per cent discount for your guilty plea, and I will deal
with that at the end as is indicated in R v Hessell.5 I propose considering two further matters in relation to your personal circumstances, namely the EM bail that has been imposed and your remorse and efforts to rehabilitate herself. The relevant facts are common to both issues.
[14] You were a methamphetamine user and clearly very much involved in the drug scene at the time of your offending. However, you are also the mother of three children aged seven, five and one. On arrest you were ultimately granted EM bail and you have been on bail for 15 and a half months. During that time Mr Muston has submitted on your behalf that you have turned your life around entirely.
[15] I have evidence before me that you have attended the Bridge programme. Now following the sentence indication I have the benefit of a full pre-sentence report and a home detention report. You voluntarily completed the eight week intensive course run by the Salvation Army, which would have addressed your offending needs. I also recorded in my sentence indication that you graduated from a course you attended four days a week on 25 July 2013. You then attended four after-care appointments and are attending courses on a monthly basis. You are involved in a number of programmes in relation to your children and the material I have indicates that you are well thought of and are committed to the wellbeing of your children.
[16] I also have a number of letters from members of your family and others. They all speak of your strong family and your good family values and good moral character and integrity. They also speak of your remorse and your rehabilitation.
[17] The pre-sentence report confirms this remorse and rehabilitation. It assesses your motivation to stay drug-free in the future as high. You are assessed at having a low risk of re-offending and a low level of harm. You have expressed remorse for your offending and you are confident that you can remain drug-free in the future. The probation officer sees a sentence of home detention as providing a community- based alternative while deterring you from further offending and maintaining motivation to remain drug-free. The probation officer recommends that standard
conditions be imposed. A home detention sentence is recommended.
5 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [72].
[18] I also have two reports from the ESR dated 14 November 2013 and
27 November 2013 reporting that you have been analysed as negative in relation to drug use.
[19] Judges are always cautious in assessing declarations of remorse and rehabilitation. However, I am satisfied here that there is good reason to believe that you have turned her life around. I proceed accepting that your remorse is genuine and that you have genuinely rehabilitated yourself and are no longer a drug user.
[20] I turn to the issue of EM bail. You have been on EM bail for 15 and a half months. You have had a 24-hour curfew and you have on occasions been allowed to go and see ill relatives and allowed to attend drug and alcohol courses. Nevertheless, I accept that the total restraint of being at home has involved a very significant restriction on your movement and way of life. Mr Muston, in his submissions, equated the EM bail restraint to home detention and suggested that a final rule of thumb of two months’ imprisonment for one month home detention, meaning a total discount approaching your actual sentence, could be warranted.
[21] I am not going to go that far. These matters must all be looked at in the round. I bear in mind that a defendant is not obliged to go on EM bail. A defendant chooses to do so when the defendant has the option of pleading guilty and of being sentenced immediately. That in itself is a factor which distinguishes the impact of EM bail in assessing a term of imprisonment from the impact of serving the actual penalty of home detention.
[22] Nevertheless, in my sentencing discretion I feel some discount should be allowed for the very considerable restraint on your quality of life for such a long period.
[23] I have decided that it is appropriate to deduct nine months for the remorse, rehabilitation and the time on EM bail. So that my methodology is clear, I ascribe approximately half that nine months to take into account her serving EM bail and the other half to be on account of your remorse and rehabilitation. If that nine months is deducted from the end sentence it comes down to 27 months’ imprisonment. If from
that 20 per cent is deducted for your guilty plea, the end sentence is 22 months’
imprisonment.
[24] I have also considered whether there should be any other discounts or increases. You have a driving and a minor dishonesty conviction. These mean that you are not entitled to a discount for good character, but they are also not related to the present offending and there will be no increase on account of those convictions.
Home detention
[25] In my view home detention is the appropriate sentence for you. The available sentence of 22 months’ imprisonment qualifies you for home detention. As I have said, in my view you are genuinely remorseful and you have gone through a rehabilitation process. You have been on bail and you have been in a settled home environment with your brother and three children. Taking the low level of your offending and these positive factors about your personal circumstances into account, home detention is in my view the appropriate penalty.
[26] I had in my sentence indication indicated that home detention was the appropriate penalty, and that a period of nine to 12 months would be appropriate. I continue to be of that view. The question is what exact period should be imposed. The Crown submits that something towards the upper level should be imposed, whereas Mr Muston submits something closer to the nine months.
[27] This is one of those unusual cases where a Court can feel confident about the level of remorse and rehabilitation. I am also mindful that although I have already given a discount for this, the penalty of being on EM bail for so long was significant. I am also influenced by your very positive pre-sentence report.
[28] Taking all these factors into account I have decided that the appropriate home detention sentence is 10 months.
[29] Stand up please Ms Crompton.
[30] Ms Crompton, I sentence you to 10 months’ home detention on each of the seven counts. Those sentences are all to be concurrent. I make the point to you that this is a lenient sentence and it is lenient mainly because of the efforts you have made to turn your life around, and my acceptance of your assertions that you are going to stay clean and maintain this greatly improved lifestyle. So that is why I have taken this unusual step.
[31] The sentence is to take effect from 10.00 am tomorrow, and the conditions set out at pages three and four of the appendix to the full pre-sentence report dated
28 November 2013 are to apply.
[32] Mr Muston has proposed that the fines of $2,564.60 be remitted. I am sympathetic to that request. However, counsel have not come ready to make full submissions on the issue. They are to file a memorandum by 5.00 pm tomorrow, hopefully by consent, setting out the way forward in relation to the fines.
[33] You may stand down.
……………………………..
Asher J
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