R v Guthrie

[2008] NZCA 439

IN THE COURT OF APPEAL OF NEW ZEALAND

CA375/2008
[2008] NZCA 439

THE QUEEN

v

GINA GUTHRIE

Hearing:16 October 2008

Court:Arnold, Randerson and Hugh Williams JJ

Counsel:M Pecotic for the Appellant

M D Downs for Crown

Judgment:24 October 2008 at 10.30 am 

JUDGMENT OF THE COURT

A        The appeal is allowed.

BOn the charge of possession for supply a sentence of two years and six months is substituted for the sentence of three years and three months.  The concurrent sentence of six months on the charge of possession of pipes is undisturbed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Randerson J)

Introduction

[1]       The appellant Ms Guthrie was found guilty by a jury of drug related offending that occurred in June 2006.  She was convicted of one count of possession of methamphetamine for supply and one count of possessing two pipes for the purpose of the commission of an offence against the Misuse of Drugs Act 1975.  She was sentenced by Wylie J on 24 June 2008 to an effective term of imprisonment of three years and three months.  She now appeals against her sentence.

[2]       The matter is complicated by Ms Guthrie’s subsequent sentencing by Stevens J on 31 July 2008 for other drug related offending which occurred in 2005: HC AK CRI 2007-090-39989.  In respect of the 2005 offending, Ms Guthrie was convicted after trial on five charges: three relating to the possession of equipment and materials for the manufacture of methamphetamine; one of possessing methamphetamine; and one of possession of methamphetamine pipes.  Ms Guthrie was acquitted on a charge of possession of methamphetamine for supply.  At the time Ms Guthrie was sentenced for the 2005 offending, she was already serving the term of imprisonment imposed by Wylie J for the 2006 offending.  Taking into account the totality of the offending, Stevens J imposed an effective term of nine months imprisonment cumulative upon the term of three years and three months imprisonment imposed by Wylie J.  There is no appeal against the sentence of Stevens J.

[3]       On Ms Guthrie’s behalf, Ms Pecotic submitted that the sentence imposed was manifestly excessive.  She relied particularly on the finding by the Judge that there were no personal mitigating circumstances which could properly be taken into account in reducing the sentence.  Ms Pecotic submitted there were truly exceptional personal circumstances which should have been taken into account.  In her submission, the appropriate sentence was one of home detention.

[4]       The Crown opposed the appeal submitting that the term of imprisonment was appropriate and that the appellant’s personal circumstances were not so unusual as to justify a discount on that account.

Background facts

[5]       Ms Guthrie was searched while visiting the Mt Eden Prison on 13 June 2006.  She was found in possession of approximately 4.8 grams of methamphetamine, cash of around $7,500, a set of digital scales and other items of equipment associated with the use of methamphetamine.  Her defence at trial was that the methamphetamine was for personal use and that the cash was unrelated to drug dealing.  Plainly, the jury rejected those explanations.

The Judge’s approach to sentencing

[6]       The Judge was satisfied that Ms Guthrie’s offending fell within band one of the guideline judgment of this Court in R v Fatu [2006] 2 NZLR 72. This band relates to low level supply (less than five grams) and suggests an appropriate sentencing range of between and two and four years imprisonment.

[7]       The Judge adopted a starting point of three years and three months.  Although the starting point was challenged by Ms Pecotic, we are satisfied that a starting point of three years was available to the Judge although it was at the higher end.  We are also satisfied that it was appropriate to add an uplift of three months to reflect the fact that the 2006 offending occurred while Ms Guthrie was on bail for the 2005 offending. 

[8]       The Judge rejected submissions made to him that there were mitigating factors justifying a reduction of the starting point.  He stated:

[31]     In considering these various matters, I have to take into account the fact that personal circumstances in relation to this kind of offending should generally be given little or no weight in sentencing.  I also note that there are discrepancies between the evidence you gave at trial and discussions you had with the Probation Officer, in particular in relation to the extent of your drug habit.  Your remorse has only been expressed after you were found guilty following trial.  You have only expressed a wish to rehabilitate yourself following your conviction and until very recently, you had taken no positive steps in that regard and notwithstanding that you have been involved with methamphetamine for some considerable time and since at least August 2005.

[32]     There is a clear need to deter others from dealing in drugs, given the potential harm to those in the community who are vulnerable to drug abuse.  Methamphetamine is a curse on the wider community and it is responsible for much related offending and social misery.

[33]     In my view there are no mitigating factors sufficient to justify discounting the starting point.

[9]       In the result, Wylie J imposed a sentence of three years and three months imprisonment on the charge of possession of methamphetamine for supply and a concurrent term of six months imprisonment in relation to the charge of possession of pipes. 

Ms Guthrie’s personal circumstances

[10]     In submitting that the Judge wrongly declined to discount the sentence for personal mitigating factors, Ms Pecotic relied on a favourable pre-sentence report prepared by a probation officer and a further report prepared by a clinical psychologist Ms Anne Raethel.  Both these reports were available to the sentencing Judge.

[11]     There can be little doubt that Ms Guthrie has had a tragic life.  She was sexually abused as a young child, suffered the loss of various family members, and has been physically abused in several relationships.  At the end of 2004, she ended a relationship with a man who is the father of her two children aged 13 and nine years respectively at the time of sentencing.  She then became involved in another relationship with a man whom she says introduced her to methamphetamine.  She became a serious drug addict using up to one gram per day of methamphetamine.  It was during her relationship with this second man that she committed the 2005 and 2006 offending.  She has now severed her relationship with him.

[12]     Ms Raethel’s report described Ms Guthrie’s relationships in some detail and confirms a diagnosis of battered woman’s syndrome.  Her report concludes:

It is my opinion that Ms Guthrie suffers from Battered Woman’s Syndrome and from the ongoing effects of childhood sexual abuse that has never been addressed.  Her sense of self worth, her judgment, and her responses to situations have been seriously affected by these conditions.  She does not have an underlying mental illness but she has major psychological issues, as well as previous drug use, that have seriously impacted upon her decision making processes.  She has been particularly vulnerable to and oblivious of serious emotional manipulation and control presenting as kindness in an apparently non violent relationship.  Ms Guthrie expresses a keen desire to be able to access rehabilitation.  She is showing a greater sense of understanding of the factors that have shaped her life up until the present than it is likely she has ever achieved before and appears highly motivated to address her underlying issues.

[13]     The probation officer assessed Ms Guthrie as having an extremely low risk of reoffending. Ms Guthrie’s offending was described as “situational” and it was considered that it could reasonably be seen in the context of her relationship with the man whom she says introduced her to methamphetamine. Ms Guthrie was considered likely to benefit from intervention and from a drug treatment programme. Given her cessation of drug use, the probation officer’s opinion was that Ms Guthrie could reconstruct her life, gain control of her affairs and care for her children.  The recommendation was for a term of imprisonment but with conditions relating to rehabilitation for drug abuse.

[14]     Other material before Wylie J disclosed that Ms Guthrie had been in responsible work for a period of approximately two years until her arrest in August 2005.  Since then, although she has been on bail, she has not been able to undertake full-time work but Ms Pecotic understood she had undertaken some part‑time work.

Appellant’s submissions

[15] Ms Pecotic correctly noted that home detention was an available sentence because the case was covered by the transitional provisions in s 57 of the Sentencing Amendment Act 2007. Relying on this Court’s decision in R v Hill [2008] 2 NZLR 381, Ms Pecotic submitted that Ms Guthrie’s personal circumstances were such that the Judge should have taken them into account in reducing the sentence and that those circumstances were sufficiently exceptional to rebut the presumption of imprisonment under s 6(4) of the Misuse of Drugs Act.

[16]     It was submitted for Ms Guthrie that her failure to pursue rehabilitation prior to sentencing was due to her addiction and the fact that she was suffering from the syndrome identified by Ms Raethel.  Since she has been in prison, we were told she has had the opportunity of reflecting on her position and has obtained approval for assessment by Odyssey House for drug rehabilitation.  Ms Pecotic submitted that home detention was an appropriate sentence and that Ms Guthrie could either be placed at Odyssey House or at the home of the father of her children.  In that case, her former partner would move out and she would look after the children.  It seems Ms Guthrie is now on friendly terms with the father of her children despite their earlier difficulties.

Discussion

[17]     While there is ample authority for the proposition that the personal circumstances of drug offenders will normally be subordinated to the statutory purpose of deterrence, that does not mean personal circumstances can never be relevant as the Supreme Court has recently confirmed in Jarden v R [2008] NZSC 69 at [12]. The Supreme Court added at [14] that the personal circumstances of an offender may be relevant either because they contributed in some way to the offending or on purely compassionate grounds. And, as Ms Pecotic correctly submitted, s 8(h) and (i) of the Sentencing Act 2002 oblige the Court to take into account the particular personal circumstances of the offender.

[18]     Mr Downs for the Crown referred us to the decision of this Court in R v Whiu [2007] NZCA 591 where the effect of a diagnosis of battered woman’s syndrome was considered. This Court stated at [32]:

The critical point is that, whatever label is used, there must be evidence which supports the view that prolonged abuse suffered by an offender materially contributed to her offending.

[19]     This Court held that the existence of the syndrome may be taken into account either as reducing the culpability of the offending or as a mitigating personal circumstance.

[20]     In the present case, we accept the submission made by the Crown that Ms Raethel’s evidence does not establish that the syndrome suffered by Ms Guthrie contributed materially to her offending.  Nevertheless, given her total personal circumstances as already described, we consider this was a case in which the Judge ought to have given some weight to the appellant’s personal circumstances.  They were sufficiently unusual to warrant a modest discount from the starting point but we are not persuaded that Ms Guthrie’s circumstances were such as to make a term of imprisonment inappropriate.

[21]     In any event, there is a practical difficulty in the way of the submission that a term of home detention should be substituted on appeal.  If we were to adopt this course, the sentence of Stevens J would have to be revisited since it was clearly reduced to reflect the sentence of imprisonment imposed by Wylie J.  The absence of an appeal against the sentence of Stevens J precludes that course.

[22]     We agree with the Judge that deterrence had to be the predominant factor in sentencing Ms Guthrie.  We are satisfied she is a woman of some ability who, upon her release from prison, has reasonable prospects of rehabilitation.  But her failure to take advantage of opportunities for rehabilitation during the lengthy period from her arrest in August 2005 until her trials in May this year means that she cannot be placed in the same category as the appellant in Hill.

Conclusion

[23]     In all the circumstances, we consider that a discount of six to nine months was appropriate to reflect Ms Guthrie’s personal circumstances.  Bearing in mind that the starting point adopted by Wylie J was at the upper end of the available range, a sentence of two years and six months is substituted for the sentence of three years and three months on the charge of possession for supply.  The concurrent sentence of six months on the charge of possession of pipes will be undisturbed.

Solicitors:

Crown Law Office, Wellington