R v Grant

[2016] NZHC 2680

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-008179 [2016] NZHC 2680

THE QUEEN

v

JASMINE ANN GRANT

Hearing:	9 November 2016
Counsel:	B R Northwood for Crown A M M Ives for Defendant
Judgment:	9 November 2016

SENTENCING NOTES OF DOWNS J

Solicitors/Counsel:

Meredith Connell, Auckland. A M M Ives, Auckland.

R v GRANT [2016] NZHC 2680 [9 November 2016]

[1]      Before sentencing Ms Grant, I grant the Crown leave to withdraw a total of five charges of supplying methamphetamine and they have the charge numbers 40,

104, 110, 129 and 164.

Background

[2]      Ms Grant, you appear for sentence after pleading guilty to 14 charges of supplying the Class A controlled drug, methamphetamine.   Your pleas follow my sentence indication of 16 September 2016.  So, much of what I am about to say you will already know.  But, it is important we go through this process.  You have a right to know the reasons for your sentence, and the public has a right to know too.

[3]      Your offending, including that of your co-defendants, came to light through Police  interception  of  communications  under  warrant.    The  main  offender  was Mr Jiang.   He dealt methamphetamine to Mr Vernon on a wholesale basis.   Both Mr Jiang and Mr Vernon were on bail at the time, so drivers were used to supply methamphetamine  from  Mr  Jiang  to  Mr  Vernon,  from  Mr  Jiang  directly  to customers, and from Mr Vernon to customers.   You were in a relationship with Mr Vernon. And, you were one of the drivers.

[4]      You supplied methamphetamine on 14 occasions and dealt in not less than

269 grams of the drug. You did so between 18 June and 5 August 2015.

Starting point

[5]      Dealing at this level would ordinarily warrant a starting point of eight years’ imprisonment.1   But for one factor I will come to, that would have been the starting point.  You knew what you were doing.  You knew the offending was commercial in nature.  And, you knew you were facilitating offending by Mr Vernon while he was on bail. The seriousness of that speaks for itself.

[6]      The sentences imposed upon two of your co-defendants also suggest eight

years’ imprisonment would have been an appropriate starting point.  Mr Fry pleaded guilty  to  supplying  not  less  than  240  grams  of  methamphetamine  over  18

1      R v Fatu [2006] 2 NZLR 72.

transactions.  He was a driver too.  Wylie J adopted a starting point of seven and a half years’ imprisonment, which His Honour increased to eight years’ imprisonment because of personal aggravating factors.2    A final sentence of five years and nine months’ imprisonment reflected guilty pleas and other mitigating features.

[7]      Another of your co-defendants, Mr Boreham, pleaded guilty to supplying at least 320 grams of methamphetamine over 19 transactions.  Lang J adopted a starting point of eight and a half years’ imprisonment.3    The final sentence was five and a half years’ imprisonment.  That term reflected pleas of guilty and other mitigating features.

[8]      Your offending is less serious than Mr Boreham’s.  But it is more serious in my view than Mr Fry’s  in that  you supplied more methamphetamine.   That his offending involved four more transactions is of little consequence; you dealt more drugs.

[9]      However, the circumstances of your offending are materially different in one respect.  Mr Vernon exploited your use of methamphetamine.  He would refuse to give  you  methamphetamine  for  your  own  use  unless  you  continued  to  deal methamphetamine for him. You and he were then in an unhealthy relationship.

[10]     You will recall this issue arose at the sentence indication hearing.  There was then no evidence before me, or at least admissible evidence directly on point.  You have since sworn an affidavit. The Crown does not contest its contents. You say you were vulnerable to being used in this way by Mr Vernon, and committed these offences, at least in part, to feed  your dependence on methamphetamine.   Your evidence   has   some—albeit   tangential—support   from   a   clinical   psychologist, Dr Jon Nuth.  He says you were vulnerable to being treated in this way.    I refrain from elaboration.

[11]     In light of the Crown’s stance, I assume your evidence is true or at least

possibly true.

[12]     Mitigation of this nature is available in law.   In R v Hasan,4  the House of Lords held coercion falling short of compulsion could be relied upon to mitigate an otherwise proper sentence.  Similarly, in a case called Zheng v R the Court of Appeal allowed a sentence appeal on the basis the defendant was particularly vulnerable and had been manipulated by the primary offender.5

[13]     So, I conclude your culpability is somewhat diminished.  I say “somewhat” because you still exercised a choice.  And in the absence of appellate prescription, I settle upon a discount of 10 per cent because:

(a)       It is not unheard of for drug users to supply drugs in order to fuel their own habit.

(b)      General deterrence is especially important in this area.

(c)       As a user of methamphetamine,  you cannot claim moral panic in relation to your actions.

(d)What  you  describe  in  your  affidavit  falls  short  of  compulsion  or coercion.

[14]     The adjusted starting point is seven years and two months’ imprisonment.

Mitigating features

[15]     The Crown contends there are none.

[16]     You   invite   attention   to   your   age   (28   years);   your   efforts   towards rehabilitation; prospects of reform more generally; and associated family support.  I acknowledge the presence of your mother and grandfather in court today.  I have no doubt their support will be important.

[17]     Some discount should  be made for these factors.   You have taken steps towards reform, for example, by completing a number of courses.   You wish to attend another drug rehabilitation programme.  That is encouraging.  At the sentence indication hearing,  I said  I would deduct six months from the starting point to recognise these features.  But in light of your progress, I increase the deduction to eight months.  These are early days for you, but you appear to be trying.  And the community will be better off if you succeed.

[18]     Ms Ives asked for me to make a deduction for what was said to be a lengthy period of time on restrictive conditions of bail.  But your compliance was poor.  A deduction in those circumstances would be contrary to principle.

Guilty pleas

[19]     There  is  some  disagreement  here.    You  contend  the  discount  should  be

20 per cent  for  your  guilty  pleas;  the  Crown  contends  15  per  cent,  essentially because your pleas were not early.

[20]     I accept the Crown position.  The charges were laid in August 2015, so now over a  year ago.   You  pleaded  guilty on 28 September 2016.   I do  not accept disclosure played a material role here.  You did not need it to tell you what you had done.   And, you challenged the admissibility of the prosecution evidence, some

successfully.6

The sentence

[21]     To recapitulate, I adopt an adjusted starting point of seven years and two months’ imprisonment.   From this, I deduct eight months for your rehabilitative efforts and a further 15 per cent in recognition of your pleas of guilty.

[22]     The resulting sentence is a term of five and a half years’ imprisonment.  Your sentence is a little less than that imposed on Mr Fry, but the same as that imposed on Mr Boreham.  Each of those cases has similarities to yours, but differences too.  The

point, however, is that each of you has been sentenced in accordance with law.

6      R v Grant [2016] NZHC 1308.

[23]     Ms Grant please stand.

[24]     On each charge of supplying methamphetamine I sentence you to a term of five and a half years’ imprisonment.  All terms are to be concurrent, meaning your effective sentence is five and a half years’ imprisonment.

[25]     Ms Ives said that you hope this is the end of the chapter.  I hope so too. [26]  Please stand down.  I wish you well for the future.

……………………………..

Downs J