R v Duncan

[2012] NZHC 1208

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2010-070-7804 [2012] NZHC 1208

THE QUEEN

v

ALISON JUSTINE DUNCAN

Hearing:         31 May 2012

(Heard at ROTORUA)

Counsel:         GC Hollister-Jones for Crown

C Stevenson for Prisoner

Sentence:       31 May 2012

SENTENCING REMARKS OF LANG J

R V ALISON JUSTINE DUNCAN HC TAU CRI-2010-070-7804 [31 May 2012]

[1]      Mrs Duncan, you appear for sentence today having pleaded guilty to one charge of supplying the Class A controlled drug methamphetamine. As I am sure you know, that charge carries a maximum sentence of life imprisonment.

Factual background

[2]      The factual background to your offending can be described very shortly.  You came to the notice of the police because of a much wider investigation that they were conducting into drug-related activities by your husband and others.   During the course of this investigation they came across a conversation between you and your husband.  The effect of the conversation was that your husband had given you an unknown quantity of methamphetamine for your own use.   Rather than using the methamphetamine yourself, you had on-sold it to a third party.

[3]      The offence is therefore one of dealing in methamphetamine, although on a very restricted basis.

Sentencing Act 2002

[4]      I am sure you know that, in any case involving Class A drug dealing, the courts react with deterrent sentences, usually of a term of imprisonment.   That is really the only way in which the courts can hope to make any mark on the scourge that is methamphetamine.

[5]      For that reason issues of deterrence and denunciation are to the forefront, as is the need to hold the offender responsible for his or her actions.

[6]      The real issue in the present case, as in many, is to determine what sentence is consistent  with  those  imposed in  broadly similar cases  and  to  impose the least restrictive outcome appropriate in the circumstances.

[7]      The starting point for the sentence to be imposed on you is to be determined having regard to the guideline Court of Appeal judgment in R v Fatu.[1]In that case the Court identified starting points for offending involving methamphetamine.  For dealing  in  methamphetamine  of  up  to  five  grams,  the  starting  point  is  usually between two and four years imprisonment.

[1] R v Fatu [2006] 2 NZLR 72

[8]      It is possible to go below a starting point of two years imprisonment where there is no commerciality involved but, of course, I must sentence you on the basis that there was a low level of commerciality.  I accept, however, that you were at the very bottom end of Band A in Fatu and for that reason I select a starting point of two years imprisonment.

Aggravating factors

[9]      There are no aggravating factors that would operate to increase that starting point.

Mitigating factors

[10]     You appear for sentence at 44 years of age.   You have been involved in a difficult relationship, and I accept that your involvement in using methamphetamine has arisen largely as a result of your husband’s activities.

[11]     The only factor in respect of which I can realistically give you credit is your plea of guilty.  This was not at the earliest stage, but was nevertheless at an early stage following committal to this Court.  For that reason I propose to reduce your sentence by 25 per cent to reflect that fact.

[12]     This leaves an end sentence of 18 months imprisonment.

[13]     Given that your sentence is one of less than two years imprisonment, I am entitled to consider whether or not to impose a sentence of home detention.

[14]     The courts are often cautious about imposing sentences of home detention in drug-related cases, particularly where offending has occurred within the home environment.  The caution stems from a number of factors.  Included in these is the possibility that  returning  a  drug  offender  to  his  or  her  home  environment  may stimulate further offending.  It may also send the wrong message in serious cases to impose a sentence of home detention, rather than imprisonment.

[15]     I am satisfied, however, that your case stands out from the usual run of cases that the Court encounters in relation to methamphetamine.  First, your dealing must be viewed at the very lowest level.   This is certainly not a case where you were dealing in methamphetamine regularly from your home.   Secondly, you have now extricated yourself from the relationship that got you involved with methamphetamine.  Thirdly, you have taken steps to rehabilitate yourself in a way that will ensure that you remain drug-free in the future.

[16]     You have identified an address that is both technically feasible and acceptable to the Corrections authorities.   For that reason there is no impediment to me now imposing a sentence of home detention.

[17]     These factors persuade me that a sentence of home detention is appropriate.

Sentence

[18]     On the charge to which you have pleaded guilty you are sentenced to nine months home detention. You are to serve that sentence at 5 Turret Road, Tauranga.

[19]     I impose the following conditions:

(a)       Upon your release from Court today, you are to travel directly to 5

Turret Road, Tauranga and await the arrival of a probation officer and security officer there.

(b)      You are to reside at that address for the duration of your sentence.

(c)       You are not to purchase, possess or consume alcohol and/or illicit drugs or utensils for the duration of the sentence.

(d)You  are  to  undertake  and  attend  such  family  and/or  parental responsibilities as may be approved by a probation officer.

(e)       You are to report to a probation officer as directed, and to comply with any programmes that the probation officer may direct you to

attend.

Lang J

Solicitors:

Crown Solicitor, Tauranga
Counsel:

C Stevenson