R v Gazzard HC NAP CRI 2007-020-004419

[2008] NZHC 2463

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2007-020-004419

THE QUEEN

v

LISA SHARON GAZZARD

Hearing:         31 July 2008

Appearances: J E Rielly for the Crown

A J Snell  for the Prisoner

Judgment:      31 July 2008

SENTENCING NOTES OF ANDREWS J

Solicitors:

Elvidge & Partners, P O Box 609, Napier

Counsel:

A J S Snell, P O Box 101, Hastings 4201

R V GAZZARD HC NAP CRI 2007-020-004419  31 July 2008

[1]      Ms Gazzard, you appear for sentencing today having pleaded guilty to one Count of possession of methamphetamine for supply and three Counts of supplying methamphetamine.   Under the Misuse of Drugs Act 1975 each of those Counts carries a maximum penalty of life imprisonment.

Relevant facts

[2]      You were in a car that was stopped on 28 September 2007.  You were seen to remove something from inside your top, hold it in your hand, and you then tried to conceal it between your legs and then in your mouth.   This turned out to be two small plastic bags containing methamphetamine, comprising a total 238mg of methamphetamine.

[3]      In  your  bag  you  had  32  small  point  bags  and  several  pieces  of  plastic drinking straws.   You told the Police you had given some methamphetamine to associates earlier in the night and you had earlier sold a $200 bag of methamphetamine.    It  is  accepted  that  the  amount  you  actually  had  in  your possession  was  small  and  that  the  evidence  of  supply  came  from  your  own statements to the Police.

Pre-sentence report

[4]      I look first at the pre-sentence from the Probation Office.  It is recorded that you are 42 years old.  The report details your family history, as does your own letter to the Court that I have read carefully.   I note from this that you have had five children and for a time you ran your own business.  About eight or nine years ago you were introduced to morphine and developed an addiction to that drug.   You sought help for it and through a methadone programme managed to get off the drug.

[5]      Then about two years ago you were subject to a home invasion and suffered serious injuries.  I have been told of the circumstances of this and it is clear you were severely traumatised and unable to leave your room for several weeks.   That was when a friend introduced you to methamphetamine and because it made you feel confident at the time you rapidly became addicted.

[6]      The Probation Officer’s assessment is that you have a harmful pattern of drug abuse.

[7]      In relation to the offending you told the Probation Officer that you had been using “P”, or methamphetamine, three times a week in the three months leading up to your arrest.  You had an arrangement with your supplier that you would hook up new buyers and in return you received drugs for free.

[8]      You have previous convictions for drug offences in 2006, 2007 and 2008.  To date your sentences have been by way of fines.

[9]      You are assessed at having a lack of any insight into the reality of your offending and you are assessed at being at a high risk of re-offending.

Sentencing process

[10]     In the sentencing process I am first going to talk to you about the general law relating to sentencing and the principles that I have to apply.  Then I have to decide what sentence is appropriate for your offending, and for you.   That is a two-step process.

[11]     The first step is to establish what we refer to as the starting point.   The starting point is what sentence would be imposed for the charges on which you have been convicted, had that conviction come following a trial in this Court.  The second step is to take that starting point and decide what is the appropriate sentence for you, for your offending.  I do this by considering whether there is anything about your offending that makes it more (or less) serious, those are aggravating or mitigating factors and they would lead me to impose a sentence that is either greater (or less) than the starting point.

[12]     I also consider matters that relate to you personally because these may also lead me to adjust your final sentence, either upwards or downwards.

[13]     I have to take into account what the law has set out as the purposes of sentencing.  I have to hold you accountable, that is, to make you responsible for what

you have done.  I have to consider deterrence and protection of the community.  I have to denounce your offending and by this I mean that I have to tell you, in as clear terms that I can, that your offending is not acceptable in New Zealand society. At the same time the purpose of sentencing is to help you with getting back into the community as a useful member of it.

[14]     It is also necessary to protect the community from methamphetamine.  The social cost to families and to the community that follows from the use of methamphetamine is destructive, it is devastating, and we see its effects in the Courts every single day.  Ms Gazzard, I suspect that you yourself have personal experience of the devastating and destructive effects of methamphetamine.   I hope that you remember that.

[15]     There are also some general principles of sentencing that must be considered. In your case, I consider the gravity of your offending including your responsibility for it, and the seriousness of your offending in comparison with other types of offences.  It is generally desirable to maintain consistency in sentencing levels and I am directed also to impose the least restrictive outcome that is appropriate in the circumstances.

[16]    Under the Sentencing Act 2002 it is desirable to keep offenders in the community as far as that is practicable with due regard to the safety of the community.  However, the Courts can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant to your case.

[17]     For the offences to which you have pleaded guilty the Misuse of Drugs Act provides  that  there  is  a  presumption  that  a  sentence  of  imprisonment  will  be imposed.   So I start from the basis of a sentence of imprisonment is appropriate.

Starting point

[18]     I come therefore to the starting point.   On methamphetamine charges this

Court is guided by the Court of Appeal’s judgment in a case called Fatu1.  In that

1    R v Fatu [2006] 2 NZLR 72

case the Court of Appeal set four levels (or bands) for sentencing for supply of methamphetamine.   Those bands depend on the quantity of methamphetamine involved.  The lowest band is less than 5 grams; the highest is 500 grams or more. Quite clearly the first (or the lowest) band applies in your case and the Court of Appeal says that the appropriate starting point is imprisonment for between two and four years.

[19]     I have considered the sentences imposed in circumstances similar to yours.  I say immediately that no two cases are ever exactly the same.   Starting points of between two and four years have been imposed in cases of supply of methamphetamine and possession for supply, where the circumstances were similar to yours.  I give you just a few examples.

[20]     In the case of Wells2  the starting point was four years imprisonment where there were three supplies of methamphetamine, two of them were 0.2 of a gram and one was of 1 gram.  In Parker3  the starting point was two years imprisonment for one supply of 0.25 of a gram.  In Hughes4 a starting point of three years was upheld by the Court of Appeal involving five bags, each containing 0.1 of a gram, a tick list and $100 in cash.  In Kemp5 the starting point was two years where there were three bags each containing 0.5 of a gram.  Finally, in Meyer6 there was a starting point of

21 months where there were 11 bags of methamphetamine containing between 40 and 60 mg.

[21]     In your case both Mrs Rielly on behalf of the Crown and Mr Snell on your behalf agree that a starting point of two years should be adopted.  I accept that that is appropriate.

Features of offending

[22]     As I said earlier Ms Gazzard, the law requires me to look at the aggravating and mitigating features of your offending, that is, things that make it more (or less)

2    R v Wells HC AK CRI 2004-044-4190 10 July 2004, Cooper J

3    R v Parker HC WHA CRI 2005-029-380 7 July 2006, Simon France J

4    R v Hughes CA444/06, 19 March 2007

5    R v Kemp HC WHA CRI 2006-088-497 20 August 2007, Heath J

6    R v Meyer HC Greymouth CRI 2006-018-632 18 May 2007, Panckhurst J

serious.  As to aggravating factors I note that you have five previous convictions for offences under the Misuse of Drugs Act 1975.  One of these was for possession of methamphetamine.   However, I also note that these have been dealt with by fines although you have been given a warning that a harsher penalty would be imposed on the next occasion you appear.

[23]     There are no mitigating factors in relation to your offending.

Personal factors

[24]     As to matters relating to you, personally.

[25]     I accept the submission from Mrs Rielly that it is apparent, both from your own letter and the pre-sentence report, that you have spent a lot of time associating with people in the drug scene.  That is a matter of concern.

[26]     On  your behalf Mr Snell referred  to  your early guilty plea and  you  are entitled to be given credit for that.   He also stressed that your involvement with methamphetamine arose as a consequence of the attack on you in your home.    He submitted that your dealing is at the bottom end of the scale, that you are on the periphery of the drug scene, that you are used by others – being easily used and easily manipulated.

[27]     To your credit, he submitted, was the fact that you moved to your current address in order to get away from the drug scene in Hastings.   It is also to your credit, he submitted, that you are there trying to look after your children in a comfortable rural environment with a school nearby.    He submitted that the bad associations you have had ceased when you moved from Hastings.

[28]     Mr Snell quite properly accepted that there is substantial Police concern as to your  continuing association with  your son, Matthew  Hoggett.     Of  course it  is understood that he is your son, but it is also the case that he is a person well known to the Police in the drugs context.     Mr Snell has submitted to me that if you are

granted home detention you will accept a condition that requires you not to have contact with him.

[29]     Mr Snell also advised me that you have told him that there are at present trespass notices in place in respect of both Mr Hoggett and your former husband Mr Gazzard, that is in respect of incidents that occurred in the course of your marriage.

[30]     Finally,  Mr  Snell  tells  me  that  you  appreciate  that  you  are  at  risk  of  a custodial sentence and that you appreciate the seriousness of your situation.    I am sure that that will have been apparent to you Ms Gazzard, from my discussion of the starting point and the presumption that a sentence of imprisonment should be imposed.

Home detention

[31]     The  Probation  Officer  carried  out  an  assessment  for  the  purposes  of considering a sentence of home detention.   Your home address has been assessed as suitable and you, yourself, as being a suitable candidate for home detention.

[32]     However, as you will have heard from Mrs Rielly this morning, there has been strong Police opposition to a sentence of home detention and that was for two reasons.   The first was that your methamphetamine offending occurred from your home but the second, and perhaps more substantial concern, resulted from the known presence of your son, from time to time, well known to the Police as a drug offender, at your home address.    Notwithstanding that he is your son, your association with a person known to be a drug offender is not a good start for a home detention sentence.

[33]     I  am  mindful  that  in  sentencing  you  on  a  methamphetamine  charge  the Misuse of Drugs Act 1975 provides the presumption that a sentence of imprisonment will be imposed.  Nonetheless home detention may be imposed if it is appropriate in all the circumstances.  Were I to impose a sentence of imprisonment, Ms Gazzard, then it would be in the order of 12 to 15 month’s imprisonment.

[34]     However, on the basis of the conditions that I intend to impose I am satisfied that in your case it is appropriate to impose a sentence of home detention.

[35]     Would you please stand.

[36]     On each of the charges of possession of methamphetamine for supply and supply of methamphetamine, you are sentenced to eight months home detention.

[37]     Those two sentences are to be served concurrently, that is, at the same time. That means a total period of home detention of eight months.

[38]     I impose the following conditions:

a)       You are to reside at 575 Valley Road, Bridge Pa, Hawke’s Bay for the duration of the home detention sentence and you are not to leave the address without the written approval of the Probation Officer.

b)You are to abstain from the consumption of alcohol and illicit drugs for the duration of the home detention sentence.

c)       You are to be assessed for and, if suitable, undertake and complete a Departmental Programme as directed by the Probation Officer and, to attend any Maintenance Programmes as directed.

d)       Neither your son (Matthew Hoggett) nor your former husband (Mr

Gazzard) are to reside at the address;  and

e)        Further, you are to refrain from any contact (in person) with Matthew

Hoggett.

[39]     A designated landline is required to be installed.  Therefore, your sentence of home detention will be deferred until such time as that has been installed.   It is expected to take approximately two weeks.

[40]     In the meantime you are remanded to the above address on your current terms of bail, with the additional term that there is to be no personal contact with Matthew Hoggett.

[41]     Are those conditions clear to you Ms Gazzard?

[42]     Would you please stand down.

Andrews J