R v F HC Auckland CRI-2008-004-17507
[2010] NZHC 1599
•26 August 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-004-17507
THE QUEEN
v
F
Hearing: 26 August 2010
Appearances: Mr B Northwood for Crown
Mr F Hogan for Prisoner
Sentence: 26 August 2010
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Auckland
Mr F Hogan, Auckland
R V F HC AK CRI-2008-004-17507 26 August 2010
[1] Ms F , you appear for sentence today having pleaded guilty in the District Court to one representative charge of supplying methamphetamine. That charge arose as a result of a police operation known as Operation Leo. You have also pleaded guilty in this Court to a representative charge of supplying methamphetamine and the charge of conspiring to supply methamphetamine. Those charges arose out of an operation called Operation Moremi.
[2] As you know, the charges of supplying methamphetamine carry a maximum sentence of life imprisonment. The charge of conspiring to supply methamphetamine carries a maximum sentence of 14 years imprisonment.
Operation Leo
[3] The police operation known as Operation Leo commenced in late 2007 and focussed on the activities of gangs in the South Auckland area. You were not an original target in the operation, but you quickly became one because the police became aware that your partner, Mr Chapman, was heavily involved in dealing in methamphetamine. You were involved with him in that activity also. For that reason the warrant was ultimately extended so that the police could intercept your communications.
[4] During the period that your communications were being intercepted, you were involved in 2,737 telephonic communications with Mr Chapman. These occurred on 28 out of the 30 days that Mr Chapman’s phone was intercepted. A total of 280 of these text messages and telephone conversations related to drug-dealing activities.
[5] You were involved throughout this period in drug transactions. Generally speaking, you would be involved in the sale and purchase of quantities ranging from quarter grams to full grams. In total, the amount of methamphetamine that you dealt in during this period was around 43 grams.
[6] The charges that arise out of Operation Moremi stem from an operation that the police carried out between 18 June 2008 and 14 August 2008. During this period the police monitored the telephone communications of a number of persons, including a Mr Nguygen and his associates. They established through these interceptions that you and Mr Chapman were acquiring methamphetamine from this group. You were also continuing to sell methamphetamine to your associates in the same kind of quantities that were involved in relation to Operation Leo.
[7] You pleaded guilty to the charge of conspiring to supply methamphetamine on the basis that the communications show that you were involved in discussions relating to the sale of approximately 30 grams of methamphetamine. It is not possible, however, to know exactly how many sales actually took place, because these discussions did not necessarily translate into sales.
[8] The operation terminated, so far as you and Mr Chapman were concerned, on
4 August 2008. On that date the police followed you and Mr Chapman in a motor vehicle from Mt. Wellington to Great South Road, Manurewa. There the police stopped the vehicle and searched it. They found 1.1 grams of methamphetamine in the vehicle. They also located a number of point bags containing residue of methamphetamine, as well as glass pipes and a straw of the type commonly associated with the consumption of methamphetamine. In addition, the police located more than 50 snaplock plastic bags, which are commonly referred to as point bags.
Sentencing Principles
[9] As I am sure you recognise, any case involving dealing in Class A drugs means that a starting point of a period of imprisonment must follow. That is the only way that the principles set out in the Misuse of Drugs Act 1975 and the Sentencing Act 2002 can be applied. People who deal in Class A drugs in this way must know that if they are caught they are virtually inevitably going to serve a sentence of imprisonment.
[10] The issue I need to determine is the starting point that reflects your overall culpability in relation to the two sets of offending to which you have pleaded guilty. The starting point is the sentence that would apply to that type of offending after a defended hearing, but without taking into account matters that are personal to the offender.
[11] The leading case in relation to this type of offending is the decision of the Court of Appeal in R v Fatu [2006] 2 NZLR 72. In that case the Court of Appeal identified a number of bands of offending that would attract a starting point according to the amount of methamphetamine involved and also the overall nature of the offender’s offending.
[12] Band 1 relates to the supply of up to five grams of methamphetamine, and will attract a starting point of two to five years imprisonment. Band 2 relates to methamphetamine of between five and 250 grams, and will attract a starting point of between three and nine years imprisonment. The fact that you were prepared to become involved in methamphetamine, having a total weight of approximately 43 grams of methamphetamine means you fall towards the middle of Band 2.
[13] I note that one of your co-offenders, Mr Michael Shortland, pleaded guilty to supplying 40 grams of methamphetamine in the context of Operation Leo. The Judge in the District Court who sentenced him adopted a starting point of four years six months imprisonment [R v Akau’ola & Ors DC Manukau CRI-2009-092-006005
3 July 2009]. The Crown says that your offending warrants a starting point of between four and five years imprisonment.
[14] I consider that a starting point of four years six months would ordinarily be appropriate and would be consistent with the starting point adopted in the case of Mr Shortland. I accept, however, that it is highly likely that you were operating under the influence of your partner, Mr Chapman, throughout this period. The Crown accepts that he was the prime mover in the operation and he pleaded guilty to charges that were far more serious than yours arising out of Operation Leo. Giving
you the benefit of that doubt, I propose to adopt a starting point of four years imprisonment in relation to the charge that arises out of Operation Leo.
[15] The Crown accepts that the level of offending in Operation Moremi was much more modest. Nevertheless, the fact that you were found in possession of 1.1 grams of methamphetamine and you were involved in supplies of up to 30 grams means that some account must be taken of it, notwithstanding the fact that the final quantities can never be known.
[16] The Crown suggests that an uplift of between six and 12 months imprisonment is appropriate. I add that, ordinarily, a starting point of three years would be appropriate but I need to apply totality principles. I consider that, again giving you the benefit of the doubt in relation to Mr Chapman’s involvement, an uplift of six months imprisonment is warranted to reflect the offending arising out of Operation Moremi.
Aggravating factors
[17] You do have some previous convictions, but they were of a totally different kind and there can be no suggestion that there should be any uplift to reflect those.
Mitigating factors
[18] So far as mitigating factors are concerned, there are several. First, you undoubtedly have a number of good qualities. That is borne out by the material that has been placed before me in the pre-sentence report and from others who have provided support to you for your sentencing.
[19] You clearly had a troubled upbringing and this led to you becoming rebellious at an early age. Not surprisingly, this led to the consumption of drugs and your association with people like Mr Chapman, who became heavily involved in the drug scene. Inevitably when drugs are consumed in quantity, the offender moves on to dealing in drugs to finance and support the habit.
[20] In your case, you and Mr Chapman both frankly admit that one of the attractions of selling drugs was that it gave you money to finance a lifestyle that was otherwise unavailable to you. This is, I have to say, an aggravating factor because it means that you have offended purely for personal gain and without any thought for the ravages that methamphetamine causes to our society.
[21] The factor to which I can give greatest recognition is the fact that you have pleaded guilty to all the charges against you.
[22] When I sentenced Mr Chapman yesterday, I applied a discount of 20 per cent to reflect a guilty plea that had occurred before trial, but not at the earliest stage. I accept that your position is more complicated than Mr Chapman’s, because you and he were represented by the same counsel up until October 2009. This meant that, although you had indicated at committal that you would plead guilty, there were difficulties in formally providing that plea until such time as you had separate counsel. The Crown accepts that as soon as Mr Hogan became involved on your behalf in October 2009, he intimated that guilty pleas would be forthcoming. I therefore propose to provide you with a greater discount than I gave Mr Chapman to reflect that fact.
[23] Taking all those matters into account, I have decided to apply a discount of two years six months to your sentence. This means that there is an end sentence of two years imprisonment. That being the case, I have the ability to consider imposing a sentence of home detention.
Home detention
[24] Normally people who are involved in drug-dealing activities do not have a chance of receiving home detention. Often the activities in which they have been engaged occur within a home environment, and it is inviting temptation if a drug- dealer is sentenced to home detention.
[25] In your case, however, that principle does not apply. Your drug-dealing activities occurred within the context of your relationship with Mr Chapman. He is
now serving a lengthy sentence of imprisonment, and you will not be associating with him in the future. Moreover, the sentence of home detention will be served at your parents’ home. They have a vested interest in ensuring that you remain drug- free and free from drug-dealing activities.
[26] I also consider that it would be a retrograde step for you to be sent to prison at this stage. I consider that there would be a real risk that you would not achieve the full rehabilitation that is available if you remain in the community, albeit subject to a sentence of home detention.
[27] I therefore accept that a sentence of home detention is appropriate. I intend to impose conditions, however, that will ensure that you remain drug free and will also ensure that you have no contact whatsoever with Mr Chapman. Those two conditions are, in my view, essential if you are to have a hope of rehabilitating yourself in the future. I would also expect that, if there is any breach of any of your conditions, the Probation Service will seek an immediate order that the sentence of home detention be revoked and be replaced with a sentence of imprisonment.
[28] Your future, Ms F , is therefore in your own hands. If you remain drug free and are able to cope with the strictures that home detention imposes, you will not go to prison. If you are tempted to stray and to become involved in drug use or drug-dealing activities, then you can expect to go to prison immediately. You also need to understand that this is your last warning. If you ever come before a Court again for drug related activities, I expect that the sentencing Judge will be provided with a copy of my sentencing remarks. He or she will then know that you are a drug-dealer who was not prepared to take the chance that was offered to her. A sentence of imprisonment would then be inevitable, and it is also likely that the sentence would be increased to reflect the fact that you have not learned the lessons that are there to be learned from this offending.
Sentence
[29] On the charge of supplying methamphetamine arising out of Operation Leo, you are sentenced to 12 months home detention.
[30] On each of the other two charges you are sentenced to six months home detention with all sentences to be served concurrently.
[31] The sentence of home detention is subject to the following conditions:
1.You are to travel directly from Court to 74 Alabaster Drive, Papatoetoe and there await the arrival of the Probation Officer.
2.You are to reside at 74 Alabaster Drive, Papatoetoe for the duration of home detention.
3.You are to attend and complete any drug abuse programme as may be directed by the Probation Officer.
4.You are to attend and complete relationship counselling as directed by the Probation Officer.
5.You are to attend and complete any departmental programme as directed by the Probation Officer.
6.You are to participate in an assessment and complete to the satisfaction of the Probation Officer, any assessments and any treatment or programme as may be directed by the Probation Officer.
7.You are not to associate with any person or persons as directed in writing by the Probation Officer.
8.You are to notify your Probation Officer prior to starting, terminating or changing, your position or place of employment.
9.You are not to consume or be in possession of alcohol or non- prescription drugs for the duration of the sentence of home detention.
10.You are to submit yourself to random drug testing as directed by your Probation Officer. I express the hope that this will occur at least every two weeks.
11.You are not to associate, or visit, or have contact either directly or indirectly (including text messaging), with Quintin Chapman for the duration of your sentence of home detention.
[32] The Crown has offered no evidence in relation to the balance of the charges in the indictment that was before the District Court, and you are discharged on those charges pursuant to s 347 of the Crimes Act 1961.
Lang J
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