R v Geldard
[2019] NZHC 1351
•14 June 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-277
[2019] NZHC 1351
THE QUEEN v
NADINE GELDARD
Hearing: 14 June 2019 Appearances:
S Teppett for the Crown M Ryan for the Defendant
Sentence:
14 June 2019
SENTENCING REMARKS OF GORDON J
Solicitors: Crown Solicitor, Auckland Counsel: M Ryan, Auckland
R v GELDARD [2019] NZHC 1351 [14 June 2019]
Introduction
[1] Ms Geldard, you appear for sentence having pleaded guilty to a representative charge of supplying 10 to 15 grams of methamphetamine.1 The maximum penalty is life imprisonment.2
[2] The facts of your offending are set out in my sentence indication. I will not repeat them here. My sentence indication will be attached to these remarks and form part of them. In short, you dealt in around 10 to 15 grams of methamphetamine with 13 individuals between 1 August 2015 and 31 March 2016.
Approach to sentencing
[3] Ms Geldard, sentencing involves three steps. First, I must set a starting point which reflects the gravity of your offending. Secondly, allowance is made for personal aggravating and mitigating factors. Finally, there is a discount for a guilty plea.
[4] In sentencing you today, I am required to take into account the purposes and principles of sentencing as contained in ss 7 and 8 of the Sentencing Act 2002.
[5] In particular, I must impose a sentence which: holds you accountable for the harm methamphetamine offending does to the community; promotes in you a sense of responsibility and acknowledgement of that harm; denounces your conduct; and deters you and any other person from committing similar offences in future. The sentence I impose must also reflect the gravity of your offending, the seriousness of this type of offending and the desirability of consistency with appropriate sentencing levels.
[6] On the other hand, I must be mindful of the need to assist in your rehabilitation and reintegration into the community. Accordingly, I must impose the least restrictive outcome that is appropriate in the circumstances.
1 Misuse of Drugs Act 1975, s 6(1)(c).
2 Section 6(2)(a).
Starting point
[7] In my sentence indication I said that a starting point of three years and two months’ imprisonment was appropriate in your case.
[8] R v Fatu is the applicable guideline judgment for sentencing for supply of methamphetamine.3 The starting point indicated is at the lower end of Band Two (five to 250 grams) of the R v Fatu bands. This is appropriate, taking into account the amount of methamphetamine involved, the moderate commercial nature of your offending and penalties in analogous cases (discussed in my sentence indication).
[9]There are no mitigating factors relevant to the offending.
Personal circumstances
[10] I have received the Provision of Advice to the Court (the PAC report), which was not available to me at the sentence indication.
Medical condition
[11] I first turn to your medical condition as a personal mitigating factor. This factor was discussed in my sentence indication. Given that I now have the PAC report along with an updated medical certificate dated 11 June 2019 and a report dated 27 May 2019 from the ADHB (Adult Community Services), both provided by Mr Ryan, I am in a position to consider this factor more fully.
[12] Ms Geldard, you have type one diabetes. In late November 2018, due to your diabetes, you underwent a below-the-knee amputation of your right leg. As a result, you have been attending rehabilitation and psychological counselling. The amputation has had a significant impact on your life. It has limited your ability to leave the house and you are now dependent on your partner.
[13] Accordingly, as foreshadowed in my sentence indication, I allow a discount of six months for your medical condition.
3 R v Fatu [2006] 2 NZLR 72 (CA).
Previous convictions and good character
[14] I turn now to your two previous convictions (in 1993 and 1995). These are not relevant to the present offending. Neither conviction is related to drugs and occurred more than two decades ago. I do not consider your limited criminal history as a personal aggravating factor.
[15] Nor am I prepared to allow a discount for previous good character, as submitted by your counsel, Mr Ryan. He says that, apart from your two previous convictions (which he describes as historical and which relate to driving), you have been regarded as a responsible and contributing member of the community. He characterises your present offending as “a fall from grace”. However, as noted in my sentence indication, the courts have consistently held that personal circumstances have limited relevance in sentencing for offending such as yours (that is, serious class A drug offending).4
[16] Thus, I am not prepared to allow any reduction for previous good character, nor do I make any uplift for your previous convictions.
Remorse
[17]Mr Ryan seeks a further discount for your remorse.
[18] The PAC report observes that while you stated you were remorseful, you minimised and down-played the seriousness of your offending by portraying your offending as simply transactions among friends.
[19] Remorse is to be treated differently from a guilty plea.5 Separate discounts are to be given for each.6 However, remorse is not necessarily demonstrated by a guilty plea. One might plead guilty for various reasons unrelated to remorse, including to receive a lower sentence. For there to be a separate discount, the remorse must be genuine. This may be evidenced by voluntary efforts to engage in rehabilitation programmes before sentencing, for example.7
4 R v Wang [2014] NZCA 409 at [28].
5 See, for example, McArthur v R [2013] NZCA 600 at [13]–[14].
6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63]–[64].
7 See, for example, Hansch v Police [2014] NZHC 2438.
[20] However, little weight may be placed on even genuine expressions of remorse or rehabilitative efforts in circumstances where deterrence is the principal sentencing concern, such as in cases of serious drug offending (as is the case here).8
[21] Nevertheless, I acknowledge your efforts at rehabilitation. You attend weekly Narcotics Anonymous meetings; you sought the support of a psychologist for relapse prevention; you started attending Destiny Church; and you moved suburbs across Auckland away from the particular group of friends to prevent temptation. In your own words, you have made an effort to surround yourself “with a new network of caring, supportive and loving friends”. I accordingly allow a small discount of two months for your remorse.
Time spent on bail
[22] Finally, I consider whether some discount should be allowed for the time you spent on bail pending determination of these charges. The offending occurred between August 2015 and March 2016. Your trial was severed from the trials of others and was set for later this year due to the serious problems with your health. You have been on bail since 4 April 2016. Mr Ryan seeks a five per cent discount to reflect your time spent on restrictive bail conditions. However, I add that in oral submissions to me this morning, Mr Ryan acknowledged this was not a strong argument he was presenting on your behalf.
[23] Where a defendant is released on restrictive bail conditions (other than electronically monitored bail), compliance with those conditions may (but need not) be taken into account in mitigation of sentence.9 A sentencing discount is usually only warranted where the bail conditions are “very restrictive”.10 Alternatively, I may take into account your time spent on bail when considering whether to impose a non- custodial sentence such as home detention.11
[24]Ms Geldard, you were released on bail with the following conditions imposed:
8 See R v Williams [2005] 2 NZLR 506 (CA) at [79]; and R v Chen [2009] NZCA 445, [2010] 2 NZLR 158 at [174].
9 R v Cristia [2008] NZCA 19 at [14]; and Filoa v R [2010] NZCA 588 at [9].
10 Winkelmann v R [2010] NZCA 215 at [21]; and BB (CA732/12) v R [2013] NZCA 139 at [16].
11 See, for example, R v Edwards [2008] NZCA 205 at [15].
(a)You were to reside at [address], Auckland;
(b)You were not to consume drugs (other than prescribed or legal drugs);
(c)You were not to associate or have contact directly or indirectly with any witnesses; and
(d)You were not to apply for any travel documentation (with your passport already having been surrendered).
[25] Your bail conditions allowed considerable freedom of movement and activity. In such circumstances, very limited or no reduction in sentence may be warranted.12 I do not consider a reduction is warranted here.
Guilty plea
[26] You pleaded guilty on 12 April 2019. I am satisfied that a 20 per cent discount is appropriate for the guilty plea, as I set out in my sentence indication.
Home detention
[27] I have set a starting point of three years and two months’ imprisonment and have allowed a discount of six months for your medical condition and two months for your remorse. With an additional 20 per cent discount for your guilty plea, the end sentence is two years’ imprisonment. This means a sentence of home detention may be available.
[28] However, a short-term period of imprisonment should not always be commuted to a sentence of home detention. I must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence.13 I must identify which of them is the least restrictive sentence to impose taking into account the purposes of sentencing.14
12 See Hall v R [2015] NZCA 249; and BB (CA/732/12) v R, above n 10.
13 Fairbrother v R [2013] NZCA 340 at [30]; and R v Iosefa [2008] NZCA 453 at [41].
14 Fairbrother v R, above n 13, at [30].
[29] Ms Geldard, as I said in my sentencing indication: some leniency may be shown in sentencing, as prison would constitute a more severe punishment for you due to your medical condition.15 You have also demonstrated a willingness to change (as discussed at [21] above). Moreover, whilst I have not allowed any discount for your time spent on bail, I acknowledge that you have been on bail since 4 April 2016 and have complied with the conditions of your bail. Those factors all weigh in favour of home detention.
[30] The Department of Corrections has interviewed the occupants of the proposed address and they have consented to your serving an electronically monitored sentence at the address. You have also given your consent. The address is technically feasible. You have a limited criminal history. You have not been previously subject to a community-based sentence. You are assessed as being at low risk of non-compliance.
[31] The PAC report recommends a sentence of home detention. For the above reasons, I agree that home detention is appropriate in your case.
[32] I did have a residual concern which was your admission to the writer of the PAC report that you had used both methamphetamine and cannabis recently. However, this morning Mr Ryan tells the Court that his instructions are that while you have used cannabis within the last six months as pain relief for your medical condition, you have not used methamphetamine recently.
Conditions
[33]I refer to the following from the PAC report.
[34] While you are assessed as being at a low risk of re-offending, this risk is expected to increase if you do not address your drug addiction. You are also assessed as being at a medium risk of harm to others. While you do not have any convictions for violence, the harm is your dealing in a substance that causes harm to your buyers, their friends and family, and to the public.
15 R v Verschaffelt [2002] 3 NZLR 773 (CA) at [22].
[35] I will impose a condition that you are not to possess or consume any non- prescription drugs or alcohol. As a consequence, you will be subject to random testing.
[36] To address any addiction issues, you are to be assessed for a substance abuse programme, including a residential programme if assessed as suitable. Additionally, you are not to associate with or contact Ms Nikora (whom you apparently regard as a friend).
Sentence
[37] Ms Geldard, on the representative charge of supplying 10 to 15 grams of methamphetamine, I sentence you to 12 months’ home detention at [address], Auckland.
[38] The conditions of your sentence are the standard conditions contained in s 80C(2) of the Sentencing Act 2002 and the further conditions recommended in the PAC report as follows. You are to:
(a)Travel directly from the court to [address] immediately following sentencing and to await a representative of the monitoring company to attach the electronic monitoring equipment.
(b)Remain at [address] 24 hours a day, seven days a week unless granted an absence in writing from a Probation Officer.
(c)Not possess, consume or use any alcohol or drugs not prescribed to you.
(d)Attend an assessment for a substance abuse programme as directed by a Probation Officer. You are to also attend and complete any counselling, treatment or programme as recommended by the assessment as directed by, and to the satisfaction of, a Probation Officer.
(e)Undertake and complete appropriate assessment, treatment/counselling as directed by, and to the satisfaction of, a Probation Officer.
(f)Not associate with or contact Toni Clare Nikora without the prior written approval of a Probation Officer.
Gordon J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KOT I MATUA O AOTEAROA TAMAKI MAKAURAU ROHE
CRI-2017-404-277 [2019] NZHC 576
THE QUEEN
NADINE GELDARD
Hearing: 26 March 2019
Appearances: E Woolley for the Crown
M Ryan for the Defendant
Judgment: 26 March 2019
SENTENCE INDICATION OF GORDON J
Solicitors: Crown Solicitor, Auckland Counsel: M Ryan, Auckland
R v GELDARD [2019] NZHC 576E [26 March 2019]
Introduction
[1] Ms Geldard, you appear for a sentence indication on one representative charge of supplying 10 to 15 grams of methamphetamine pursuant to s 6(1)(c) of the Misuse of Drugs Act 1975. The maximum penalty is life imprisonment.'
Factual background
[2] You were charged following termination of an investigation by the Organised and Financial Crime Agency New Zealand called “Operation Bunk”.
[3] The Operation involved obtaining surveillance device warrants to allow the interception of private communications of Gerrard Parkes, Toni Nikora and others. As a result of those interceptions, call and text data involving you was obtained. You were also captured on CCTV visiting Ms Nikora’s home.
[4] As a result of the intercepted communications and CCTV footage, you are alleged to have dealt in around 10 to 15 grams of methamphetamine with 13 individuals between 1 August 2015 and 31 March 2016.
Approach to sentence indications
[5] A sentencing indication is not the same as a sentencing. A three-stage approach is taken to sentencing. First, the Court identifies a starting point which reflects the gravity of the offending. Secondly, allowance is made for personal aggravating and mitigating factors. Finally, there is a discount for a guilty plea.
[6] In a sentence indication a Court may have no, or limited information on personal aggravating or mitigating factors. In this case I have some information in relation to your health. I will refer to that in due course.
[7] I must also have regard to the purposes of sentencing. It is well recognised and not in contention that the primary purpose of sentencing those convicted of dealing
' Misuse of Drugs Act 1975, s 6(2)(a).
commercially in controlled drugs is deterrence of others who may be minded to engage in such activity.'
[8] In determining an appropriate sentencing indication, I must also consider the principles of sentencing. Those that are of particular relevance in your case are the need to take into account the gravity of your offending; the seriousness of this offence
(as indicated by the maximum penalty in comparison with other offences); and the
general desirability of consistency with appropriate sentencing levels. I must also impose the least restrictive outcome that is appropriate in the circumstances.3
Starting point
[9] fi v Fatu is the applicable guideline judgment for sentencing for supply of methamphetamine.‘ The relevant sentencing band is Band Two (five to 250 grams), which corresponds to a starting point of three to nine years’ imprisonment. 5
[10] Ms Woolley, for the Crown, submits that there are a number of aggravating factors in relation to your offending. These include the quantity of methamphetamine which carries the presumption of commercial dealing, premeditation, number of sales, period of offending, sophistication and your role in the dealings as a direct interface between your supplier and customers. Mr Ryan, on your behalf, on the other hand, submits that these factors are routinely found in offending of this nature and were taken into account in setting the relevant bands in fi v Fatu.
[11] I will take into account the factors referred to by Ms Woolley in determining where, in the relevant band, your offending should be placed.
[12]There are no mitigating factors relevant to the offending.
[13] Both counsel agree that Band Two of fi v Fatu applies.6 The Crown submits, taking into account the factors that it has referred to, that the offending falls into the
R v Terewi [1999] 3 NZLR at [13]. Misuse of Drugs Act, s 8.
4 R v Fatu [2006] 2 NZLR 72 (CA).
At [34].
At [34].
lower end of Band Two, and the starting point “in the vicinity of three years” is appropriate. Mr Ryan submits that a starting point of three years is appropriate.
[14] The Crown refers to fi v Haeta’ and Coker vfi' as broadly analogous cases. In Haeta, the Court adopted a starting point of three years’ imprisonment. In that case the total amount of methamphetamine involved in the offending was 15 grams. However, it is clear that the sentencing Judge placed emphasis on the aspect of self- use and that the offending was related to Ms Haeta’s addiction. There is no information to suggest that this is the case here.
[15] In Coker v R, Mr Coker had supplied 15 grams and made offers to supply another 29 grams. On appeal, the High Court did not disturb a starting point of three years and six months’ imprisonment.
[16] Ms Geldard, where you sit in Band Two (whether towards the lower or higher end of the band) depends not only on the quantity and purity of the drugs involved but also your role in the offending. I consider that your offending was of a moderate commercial nature. You were effectively operating as a street dealer. You purchased from the supplier, Ms Nikora and then on-sold.
[17] I consider that a starting point of three years and two months’ imprisonment is appropriate in your case taking into account the amount of methamphetamine involved, the moderate commercial nature of your offending and penalties in other cases. This starting point is consistent with the need to deter and denounce your offending.
Guilty plea
[18] A reduction of up to 25 per cent is available for a guilty plea.'0 Both the Crown and Mr Ryan agree that 20 per cent is appropriate in your case. You were originally charged on 4 April 2016 and were due to stand trial in August 2017. Because of
R v Haeta [2017] NZHC 959.
Coker v R [2017] NZHC 2927.
At [31].
'° Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74]—[75].
ongoing medical issues, Davison J severed your charges and a new trial date is set for 5 August 2019. I accept the submission that 20 per cent is the appropriate discount for a guilty plea, if you were to enter a guilty plea at this stage. The full 25 per cent discount would not be available because the earliest opportunity for a guilty plea has already passed.
[19] This would bring the sentence down to two years and six months’ imprisonment.
Personal circumstances
[20]I now consider your personal circumstances.
[21] At this stage, I do not have the benefit of a Provision of Advice to the Court. The Crown says that it is not aware of any aggravating factors personal to you.
[22] A significant personal mitigating factor that is known to the Court at this stage are the health complications arising from your diabetes. This is well documented in a minute of Davison J on 18 August 2017, when he severed your trial. You suffer from type one diabetes and have a history of osteomyelitis which affects both your feet. One of the reports provided to Davison J advises that you were admitted to hospital on 15 August 2017 and on presentation had “severe life-threatening hyperglycaemia” and required an intravenous insulin infusion and specialist hospital-based assessment and management. At that time, you required specialist footwear to aid in the healing of a fracture in your left foot. The doctor said that you “require[d] specialist podiatry input to attend to [your] diabetic foot disease with active ulceration”. It was clear at that time there was a need for on-going treatment.
[23] This morning Mr Ryan has filed a letter from your GP dated 25 March 2019 which reads as follows:
Nadine is an insulin dependent Diabetes Mellitus. She has recently undergone a right leg below knee amputation in late November 2018. This was mainly due to osteomyelitis in her right lower limb secondary to a poorly controlled blood sugar.
Due to the process of the surgery and major life changes that it brings with it in terms of recovery, healing and moving forward in the future. It is in my
medical opinion that Nadine should not be considered for a judicial sentence based at a corrections faculty [sic] but rather to be considered for a home dentention [sic], should she be found to be guilty.
There are a few key factors contributing to the recovery of Nadine’s future including her health. These are a stablised [sic] blood sugar control, her better living situation, her ability to attend specialist appointments as required and a few months of intensive physiotherapy/rehabilitation while she prepared to adjust with prosthelic [sic] leg in the future (a long term goal).
[24] At this stage you are in a wheelchair and Mr Ryan advises the Court that there is potential for your left leg to also be amputated.
[25] I accept that some leniency may be shown in sentencing, as prison would constitute a more severe penalty for you due to your medical condition.'' I would be prepared to give you a discount of six months for your medical condition.
Home detention
[26] The starting point of three years, with reductions for both your health complications and a guilty plea, would leave an end sentence of two years’ imprisonment. Although such a sentence means that an electronically-monitored sentence may be available, I make it clear that the Court, at this stage, is not in a position to address the suitability or otherwise of home detention.
[27] You need to be aware that courts have consistently taken the position that personal circumstances have limited relevance in sentencing for offending such as yours. In the absence of a Provision of Advice to the Court, the Court is not in a position to decide whether your particular circumstances would mean that a sentence of home detention is appropriate. However, in that regard I note that the Crown takes the position that, subject to the contents of the Provision of Advice to the Court, the Court may consider that, in the particular circumstances, a sentence of home detention is appropriate.
[28] My indication to you at this stage, Ms Geldard, is that I would sentence you to a period of imprisonment of two years with the possibility of home detention,
" fi v be rschaffelt [2002] 3 NZLR 773 (CA) at [22].
depending on the contents of the Provision of Advice to the Court and any other personal matters raised on your behalf at sentencing.
[29]This sentence indication will remain open until 5 pm on Tuesday 2 April 2019.
Gordon J
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