R v Guthrie HC Auckland CRI 2007-090-3989

[2008] NZHC 2466

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-090-3989

THE QUEEN

v

GINA GUTHRIE

Hearing:         31 July 2008

Appearances: K Glubb for the Crown

M Pecotic for the prisoner

Judgment:      31 July 2008

SENTENCING NOTES OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

M Pecotic, PO Box 6379, Wellesley Street, Auckland 1141

R V GUTHRIE HC AK CRI 2007-090-3989  31 July 2008

[1]      Gina Guthrie, you appear for sentence today having been found guilty by jury on 2 May 2008 of charges under the Misuse of Drugs Act 1975.   Your offending gave rise to: one charge of possessing a precursor substance for the manufacture of methamphetamine; one charge of possessing equipment for the manufacture of methamphetamine; one charge of possessing materials for the manufacture of methamphetamine, one charge of possessing the Class A controlled drug methamphetamine; and one charge of possession of pipes.

[2]      For the purposes of sentencing today, I have been assisted by helpful written submissions together with oral submissions in Court from your counsel and from the Crown.  I also have a supplementary pre-sentence report annexing the earlier report of the Probation Service, a report from Ms Raethel of Psychological Services Ltd dated 23 June 2008 and a personal letter from you, which was handed to me this morning and which I have read.

Facts

[3]      On  9  August  2005,  the  Police  searched  your  address  at  Hulme  Place, Henderson.     They discovered methamphetamine, plastic containers with methamphetamine residue and a number of methamphetamine pipes.   They also discovered a link to a storage facility in your name.

[4]      A search of that facility followed, in the course of which the Police found 1.6 kilograms of ContacNT in tablet and granule form, along with equipment and materials commonly used for the manufacture of methamphetamine.  An amount of the finished product was discovered.  Police also located security equipment which was set up to monitor people who approached the premises.

[5]      In the storage facility Police found pseudoephedrine, acetone, hydrochloric acid, iodine, caustic soda, reaction flasks, condensers, a filter, a distillation column and other assorted glassware.  The ESR report concluded that methamphetamine had been manufactured with this equipment.

[6]      In evidence you accepted that there were containers and at least one pipe at your address, along with methamphetamine found in a bedside drawer and on your person.  However, you stated that the other pipes and containers were the property of visitors from the previous night.  Additionally, you denied knowledge of the contents of  the  storage  facility,  although  you  accepted  that  you  had  shifted  property previously  stored  at  your  address  to  the  facility  for  an  associate,  Ms  Whitley. Ms Whitley gave evidence about the ownership of the property which suggested that you knew about the contents of the property in issue and knowingly stored it at the facility.  The fact that there were fingerprints of yours found on some of the items in the facility puts the matter beyond doubt.

[7]      The jury rightly rejected your claims and found that you knew about the property, its purpose and what it was intended for.  Moreover, you had possession of the methamphetamine and a total of six pipes located at your home and in the storage facility.   You were acquitted of the charge of possession for supply.   I must now sentence you for your offending on the basis that you were in possession of the precursor substances, equipment and materials.

Personal circumstances and presentence report

[8]      You are 41 years of age.  You were born and raised by your mother in West Auckland as the second of three sisters.  Your younger sister died when she was 21 years of age.  You did not know your father as a child.  You have since met him and have a half-sister.   Apparently you were withdrawn as a child and suffered from shingles.  You believe this was connected with sexual abuse you suffered from the age of 10 to 13 at the hands of a partner of a relative.

[9]      You completed your secondary education at Kelston Girls High School, but left in the fifth form and gained employment as an office worker with the New Zealand Herald.   You remained in this job for three years before working intermittently over the next eight years assisting with the business of your mother and your mother’s partner.

[10]     Following the death of your sister in 1992, along with the death of a friend, you sought security and entered into a relationship with Waiponga Nepia.   Your relationship lasted until late 2004.  You have two sons from that relationship.  They are now aged 13 and 9 years respectively and are being cared for by their father.

[11]     At the end of your relationship with Mr Nepia you said that you were an “emotional wreck”.  You then entered into a relationship with Justin Osborne.  As a result you became involved with methamphetamine in 2004.  You have stated that your methamphetamine use increased over the course of this relationship, to the point where you were using up to a gram a day.  You record that initially consuming methamphetamine took away your worries, but that your drug use later became a crutch.  You state that you now have a good relationship with Mr Nepia and he is caring for your children.

[12]   With reference to your letter, you refer to the “destroying world” of methamphetamine and I agree with that observation.  The drug is pernicious.  It has devastating consequences and your world basically has been brought to the point of collapse because of it.

[13]     You have stated that, at the time you were apprehended for this offending, you were trying to set up a hairdressing business.   But now, through various circumstances, you have no savings, assets or income.  Apparently you owe $5,344 in outstanding fines resulting from various traffic offences.   You have expressed remorse for your offending, but have no means of making amends.  You are said to be in good health.

[14]     According to the report from Ms Raethel,  you suffered Battered Woman Syndrome and were still suffering the effects of childhood sexual abuse which had never been addressed.   She described you as being particularly vulnerable to, and oblivious  of,  serious  emotional  manipulation  by  others.    She  noted  that  you expressed a keen desire to be able to access rehabilitation.  I will refer to this point later in my notes.

[15]    The probation officer, to your credit, has assessed you as presenting an extremely low risk of re-offending.  The report writer suggests that your offending was situational and occurred in the context of your relationship with Mr Osborne. Alcohol and drug tests suggest that you do not have a significant alcohol problem, but you scored highly in relation to drug abuse.  The report writer recommends some form of intervention and treatment as part of your sentence.  As already noted, you have demonstrated a willingness to participate in some form of rehabilitation.   In light of the fact that you have now stopped using drugs and have ended the relationship with Mr Osborne, the report writer considers that you are well placed to rebuild your life in a useful way.

Prior convictions

[16]     You have previously appeared before the Court.  There was a traffic matter in

1993 and in 2007 you faced two charges of possession of cannabis.   In 2008 you were convicted of possession of utensils for methamphetamine and possession of methamphetamine for supply.  I will refer to the sentence you received in respect of this matter later.

Crown submissions

[17]     The Crown submits that a starting point of two to three years’ imprisonment on the lead offence of possession of precursor substances would be appropriate before aggravating and mitigating features personal to you are taken into account. Mr Glubb helpfully referred to the case of R v Andersen HC AK CRI 2005-084-577

21 February 2006, Allan J and the various cases cited in it.

[18]     The Crown submitted that there are no mitigating features related to your offending.  In terms of aggravating features relevant to the offending, these include an element of premeditation and the large amount of precursor substances involved. The Crown emphasised the damage to the community that results from the manufacture of methamphetamine.

[19]     The Crown also referred to the risks involved in storing dangerous chemicals in a commercial storage facility and pointed to the evidence as a whole as indicating your active involvement in methamphetamine offending.  A considerable volume of methamphetamine was capable of being manufactured from these precursor substances: in excess of 330 grams.   This amount is large by any measure and certainly suggests a degree of commerciality.  But I do take account of the fact that you were a custodian and take into account the evidence that you were looking after these precursor substances, material and equipment for others.

Defence submissions

[20]     Ms Pecotic realistically acknowledged that, as you are already a sentenced prisoner, the only sentence open to the Court is a sentence of imprisonment.   She referred to the key features of the pre-sentence report.   She also emphasised your role  as  a  custodian  of  the  items  founds  in  the  storage  unit.    She  noted  that Ms Whitley had admitted to being the principal offender.

[21]     That role, however, is serious nevertheless.  In a sense, you provided a safe haven away from your home for all of these items and were thus able to, at least until the Police made the connection, evade detection.  Plainly, Ms Whitley was aware of the threat of detection and sought you out to give you the various items to look after.

[22]     Ms Pecotic submitted that I should not impose a sentence which is crushingly long, bearing in mind the fact that your children and family will suffer.  I accept that it is important, as submitted by Ms Pecotic in her conclusion, that I should take into account  the  totality  principle.    Ms  Pecotic  recognised  that  a  short  cumulative sentence of imprisonment would be appropriate and she suggested a figure of around six months’ imprisonment.  She also noted that the sentence imposed by Wylie J on

24 June 2008 did include a small uplift of three months’ imprisonment to take into account the fact that you had offended in that case whilst on bail for this offending.  I do take that into account that when fixing your sentence.

[23]     The Sentencing Act 2002 requires that I keep a number of purposes and principles in mind when deciding on an appropriate sentence.  In your case, I have specific regard to the following purposes of sentencing as set out in s 7 of the Act: the need to hold you accountable for the harm done to the community; the need to promote in you a sense of responsibility for, and an acknowledgement of, that harm; the need to denounce your conduct; the need to deter you and others like you from committing the same or a similar offence; the need to protect the community from you; and the need to assist in your rehabilitation and reintegration.

[24]     In  sentencing  you  I  also  take  into  account  the  principles  of  sentencing according to s 8 of the Sentencing Act 2002, including: the need to take into account the gravity of your offending, including the degree of your culpability; the need to take into account the seriousness of this type of offence in comparison with other types of offences; the need to consider the general desirability of consistency with appropriate sentencing levels in respect of similar offences committed in similar circumstances;  and  the  need  to  impose  the  least  restrictive  outcome  that  is appropriate in your circumstances.

Features of the offending

[25]     The Court of Appeal in R v Taueki [2005] 3 NZLR 372 set out the orthodox approach to sentencing. Accordingly, I will first set a starting point based on the features of the offending, and then adjust the starting point according to any mitigating and aggravating features relating to you, the offender.

Aggravating features

Section  9(1)  of  the  Sentencing  Act  sets  out  the  factors  that  are  considered aggravating.  These have been set out in the Crown submissions as outlined above.

[26]     Section 9(2) of the Sentencing Act sets out the mitigating factors that may apply  in  sentencing.     In  your  case  the  only  mitigating  feature  is  that  your involvement with methamphetamine is most likely to have been motivated by drug addiction.  I also take into consideration the way in which you became involved in this offending and that your role was one of a custodian, in the manner which I have already described.

Features of the offender

Aggravating features

[27]   I could take into account your previous convictions, and I note that unfortunately the seriousness of your offending has been increasing.  However, I do have to take a step back and deal with the matter on a totality basis as described.

Mitigating features

[28]     In your case the only mitigating factors personal to you are your remorse and the fact that finally you seem to have been recognising the need to address your very serious problems.  That is to your credit.

Sentencing principles

[29]     Section 16 of the Sentencing Act 2002 establishes a presumption against imprisonment.    However, your case meets the relevant criteria to justify imprisonment, which realistically is the only option.

[30]     In terms of applicable cases, I have considered the decision of the Court of Appeal  in  R  v  McLean  CA102/05  18  August  2005;  along  with  the  cases  of R v Joseph HC AK CRI 2006-057-1237 31 July 2007, Priestley J; R v Anderson

CA425/06 23 April 2007; and R v Johnston CA448/05 16 May 2006.  There were also the cases referred to by Ms Pecotic and the case of Andersen cited by Mr Glubb.

Analysis

[31]     Based on the various cases I have referred to, but in particular referring to the case of Andersen and the cases cited there, had I been sentencing you on a stand alone basis the starting point would have been between two and three years’ imprisonment,  especially  when  considering  the  lead  charge  of  possession  of precursor substances and the substantial amount of product concerned.

[32]     However, in light of the sentence of imprisonment that was imposed on you by Wylie J on 24 June 2008, I propose to adopt the submissions of counsel and impose a cumulative sentence of imprisonment.   I consider that such a sentence would be consistent with the principles in ss 84 and 85 of the Sentencing Act, and would appropriately reflect the totality of your offending.

[33]     I   therefore   conclude   that   a   cumulative   sentence   of   nine   months’ imprisonment would be appropriate on the charge of possession of precursor substances.  This sentence reflects your overall role as a custodian, together with the extent of the product involved.   It is slightly less than might normally have been imposed due to the three months uplift in the sentence of Wylie J mentioned earlier.

[34]     A sentence of six months’ imprisonment will be imposed on the charge of possessing equipment for the manufacture of methamphetamine, together with a sentence   of  six   months’   imprisonment   for   possession   of   materials   for   the manufacture of methamphetamine.   Further sentences, each of three months’ imprisonment, will be imposed for possession of the Class A controlled drug methamphetamine and possession of pipes.  All those sentences are to be concurrent.

[35]     I go on to make the point that the sentences which I have imposed would not be appropriate had I been dealing with these charges as a stand-alone matter.  The sentences reflect, as best as I have been able to do, the totality of the offending both in the matters before me and the matters before Wylie J.

[36]     I have also referred to your need for treatment for your drug addiction.  This is mentioned both in the probation report and in the report from Ms Raethel.  It is to be hoped that such treatment will be available to you during the balance of your sentence.   In particular, I commend to the Parole Board the need for ongoing counselling and treatment.   No doubt when the time comes the Parole Board will take into account the need for an up-to-date assessment of your drug abuse and the need for you to undertake drug education and treatment programmes as directed.

[37]     For the sake of completeness, Mr Glubb has requested that there be an order pursuant to s 32 of the Misuse of Drugs  Act, for destruction of the drugs and associated paraphernalia found at the house and in the storage unit.  I make such an order without objection from Ms Pecotic.

[38]     You may stand down and I wish you well in your future efforts.

Stevens J