R v H HC Auckland Cri-2008-004-26262

[2010] NZHC 733

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-004-026262

THE QUEEN

v

H
P
A

Charges:        Michelle H  :

Conspiring to import pseudoephedrine; Selling methamphetamine (5); Conspiring to sell methamphetamine (2); Conspiring to sell pseudoephedrine; Possession of pseudoephedrine for supply

Angela P 

Possession of methamphetamine for supply; Conspiring to sell methamphetamine (2); Selling methamphetamine (2)

Frank A 

Selling methamphetamine (4); Offering to sell methamphetamine; Possession of methamphetamine for supply

Plea:              Guilty

Appearances:   David Johnstone for Crown Simon Lance for H   Matthew Goodwin for P   Jonathan Wiles for A 

Sentenced:      18 May 2010

H   - one year home detention

P   and A   - eight months home detention

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown Simon Lance (Auckland) for H   Matthew Goodwin (Auckland) for P   Jonathan Wiles (Auckland) for A 

R V H AND ORS HC AK CRI-2008-004-026262  18 May 2010

Introduction

[1]      All three of you have pleaded guilty to serious drug dealing offences:

•Ms H  , you have pleaded guilty to one charge of conspiring to import pseudoephedrine, five charges of selling methamphetamine, two charges of conspiring to sell methamphetamine, one charge of conspiring to sell pseudoephedrine, and possession of pseudoephedrine for supply;

•Ms P  , you have pleaded guilty to one charge of possessing methamphetamine for supply, two charges of conspiring to sell methamphetamine, and two charges of selling methamphetamine;

•Mr A  , to complete this depressing recitation, you have pleaded guilty to four charges of selling methamphetamine, one charge of offering to sell methamphetamine, and one charge of possessing methamphetamine for supply.

[2]      So that each of you and those of your whanau who are present understand the seriousness of these offences, I record that the maximum terms of imprisonment which I could impose on each of you are life imprisonment.

[3]      Before dealing with the formal aspects of sentencing, I acknowledge the quality of the written and oral submissions made by your counsel.   In particular, though, I acknowledge the fairness and responsibility of the oral submissions made today by Mr Johnstone.   You heard what he had to say.   His concessions and his clarification of the Crown written synopsis have made my task easier and your fates more humane.

Facts

[4]      I deal first with the relevant facts.

[5]      In June 2008, Ms H  , you flew to China.  Your purpose was to carry out a plan to import Contac NT, pseudoephedrine, into New Zealand.  While in China you imported from the United States a form of Handcrank Can Sealer.  Its purpose was to make  sealed  tin  cans  containing  consignments  of  Contac  NT  to  be  sent  to New Zealand.   When you returned you were searched by customs officers.   You were found to be in possession of two mobile telephones containing numerous text messages which proved your plan to import Contac NT into New Zealand.

[6]      Based on the data retrieved from your cellphones the police commenced a surveillance operation.  They discovered that you, Ms H  , began arranging for the tin can component parts to be sourced within New Zealand and then sent to China. There  they  were  to  be  filled  with  the  Contac  NT  and  imported  back  into New Zealand.      At   that   stage   Ms P     and   Mr A     appeared   as   your accomplices.  Each assisted in making inquiries with canning manufacturers and in providing addresses within New Zealand for the tin cans containing the Contac NT to be sent to.

[7]      In August and September 2008 you exchanged many text messages between yourselves and with unknown third parties.  Their subject was the supply and sale of methamphetamine.   You organised meetings with unknown people on various occasions to supply them with methamphetamine.   From the text messages which were intercepted, the police were able to uncover offers to supply methamphetamine, arrangements to supply, purchasers inquiries, confirmation of possession of methamphetamine or the ability to source it, and the prices at which the drugs were to be bought.   Similarly you, Ms H  , were involved in obtaining and supplying pseudoephedrine through text messages to unknown people in October 2008.

[8]      In November the police executed search warrants at the addresses of all three. In Ms H  's handbag was found a small plastic bag containing what was believed to be methamphetamine.   At Ms P  's home address the police found a cellular phone that you had been using to transact business.  And at Mr A  's home the police found a set of electronic weighing scales, a number of snaplock plastic bags, and other items commonly used in the distribution of methamphetamine.

[9]      Before coming into Court today, I assumed that the only contested factual issue   was   the   amount   of   methamphetamine   which   each   of   you   supplied. Mr Johnstone has very properly accepted that was in the range of three to five grams. I proceed on that basis accordingly.

Starting Point

[10]     Having recited the facts, I must fix the starting point for your sentences.  The starting point is the term of imprisonment which is appropriate to reflect the circumstances of your offending before account is taken of any favourable features. The starting point is fixed by reference to the lead or index or most serious offence, which in this case is selling methamphetamine.  The totality of your offending, that is the number of offences, will be reflected within the actual starting point fixed for one of them.  Once that stage is fixed, credits will be allowed for mitigating features.

[11]     It is unnecessary to repeat what we all know, except to summarise it for the benefit of your whanau who are here today.   Methamphetamine is a highly destructive, highly addictive drug.   You know, because you are responsible, intelligent adults, that its use destroys families, careers and relationships.  You know also that for anybody to deal in methamphetamine is a particularly black mark against their character.   Each of you has offended in a way which has contributed towards the social destruction that I have just described.  Your children in particular, Ms H  , must understand what you have done.

[12]     In fixing the starting point here, I take into account a number of factors.  First and foremost, as Mr Johnstone accepts, you were operating at a low level.  You were functionaries or foot soldiers at the bottom of the distribution chain.   You sold or distributed small amounts over the period.  Nevertheless, what counts against you is the mere fact of commerciality; you traded on other people's misery; the multiplicity of offending; its pre-planning and its duration.  I do not need to say more, other than to record Mr Johnstone's acceptance that the offending carried out by each of you falls variously along what is known as the sentencing band one; that is, the range of two to four years imprisonment appropriate for low level supply that is less than five grams.

[13]     It  will not surprise  you  to know that this subject has  given me anxious consideration.  I should never have been considering it for three people such as you. After taking into account all those factors and considering what your counsel have said,  I propose  to  fix  a  starting  point  for  you,  Ms H  ,  of  two  years  for  the methamphetamine offending but uplift it, as Mr Johnstone submits, by one year for your pseudoephedrine activity.  Your adjusted or final starting point is three years imprisonment.  For each of you, Ms P   and Mr A  , the task is a little easier. The appropriate starting point for your sentences is two years imprisonment.

Mitigation

[14]     I now come to the positive factors.  First and foremost there are your pleas of guilty.  They mean a number of things.  They are signs of remorse and contrition; they are an acknowledgement of the harm that you have caused to others.  And they save the state, of course, the cost and inconvenience of a trial.  When I refer to the harm inflicted on others, in particular with you, Ms H  , it is not just those who used the drugs you supplied but your whanau, your children who are here in Court today with you.

[15]     Second, you are each entitled to a significant credit for your good character. Each of you is treated as a first offender.   In days past, good character was not a mitigating factor when sentencing for drug dealing.  Times have changed.  I accept that it should be taken into account.  Each of you is entitled to proper credit for that feature.

[16]     The question then is how to quantify those two significant factors - the pleas of guilty and good character.  I could adopt the arithmetical step-by-step approach proposed recently by the Court of Appeal.   Or I could apply a global approach. Whichever route is followed, the result will be the same.  I am satisfied that each of you is entitled to a discount against your starting points of 33%.   In arithmetical terms, and I must do that here, it means your final imprisonment figure, Ms H  , is two years imprisonment.  For you, Ms P  , it is 16 months.  For you, Mr A  , it is 16 months.

Home Detention

[17]     Each of you is eligible for consideration for a sentence of home detention. As you know, Ms H  , you are the one who is on the cusp.  For better or for worse, you are now eligible.

[18]     I  want  to  say  a  little  about  home  detention  so  you  and  your  whanau understand what it means.   It is not a soft option.   It is an effective alternative to imprisonment.  It amounts to a serious infringement on your liberty.  It is of a special value where there are prospects of rehabilitation, a low risk of re-offending, the offender shows remorse, and there is a motivation to change.  In each of you, without indulging in detail, those factors are present.

[19]     For the record, Ms H  , you are a 46 year old person without previous convictions.   You have led an exemplary life.   You have been a fine mother and strong member of your family.  I accept that you suffered a difficult or a black period in your life three or four years ago.   Its manifestation was a gambling addiction. While I do not excuse you, I understand where that led you to offend.

[20]     Ms P  , you are 34 years of age.  You have been raised by your aunties, and in particular I acknowledge in Court today your aunty, Ms McCluskey, who has written a very moving letter on your behalf.  You are the mother of two children. You have, as I have said, otherwise conducted yourself blamelessly.  I accept that in your  case  a  critical  factor  was  the  formation  of  an  abusive  and  destructive relationship with a man.  Fortunately that is at an end.

[21]     Mr A  ,  you  are  39  years  of  age.    You  have  some  minor  previous convictions.  I do not intend to take them into account against you today.  You are, as Mr Wiles said, a man with an excellent employment record.  You have otherwise made a significant contribution to the community.

[22]     None of the three of you should be in front of me today on these offences.

[23]     Home  detention  appendices  have  been  prepared  for  each  of  you.    I  am satisfied  that  suitable  addresses  are  available.    In  the  event,  Ms H  ,  you  are sentenced to a term of one year home detention, the maximum that can be fixed, with the following special conditions:

1.You are to travel directly from Court to the home detention address of 11 Franklin Avenue, Papatoetoe, and remain at the address to be met by the supervising probation officer and security officer;

2.You are to reside at 11 Franklin Avenue, Papatoetoe, and not to move address without the prior written approval of the probation officer;

3.You are to abstain from the consumption of alcohol and drugs for the duration of home detention;

4.You   are   to   undertake   and   complete   appropriate treatment/counselling to the satisfaction of the probation officer and treatment provider.  The details of the treatment or counselling to be determined by your probation officer;

5.You are to comply with the requirements of electronic monitoring as directed by the probation officer.

[24]     You,  Ms P  ,  are  sentenced  to  eight  months  home  detention,  with  the following special conditions:

1.You are to travel directly from Court to 30 Magnolia Drive, Waiuku, and  there  await  the  arrival  of  the  probation  officer  and  security guard;

2.You are to reside at 30 Magnolia Drive, Waiuku for the duration of home detention;

3.You are to comply with the requirements of electronic monitoring as directed by the probation officer;

4.You are to attend and complete a drug abuse programme as directed by the probation officer;

5.You are to attend and complete relationship counselling as directed by the probation officer;

6.You  are  to  participate  in  an  assessment  and  complete  to  the satisfaction of your probation officer any assessments and any treatment/programme as directed by the probation officer;

7.You are to notify your probation officer prior to starting, terminating or changing your position or place of employment;

8.You are not to associate with any person or persons as directed in writing by the probation officer;

9.You are not to consume or be in possession of alcohol or non- prescription drugs for the duration of home detention.

[25]     You, Mr A  , are sentenced to eight months home detention, with the following special conditions:

1.You are to travel directly from the Court to 7A Edmonton Avenue, Onehunga, Auckland and await the probation officer and installation of the electronic monitoring equipment;

2.You are to remain at 7A Edmonton Avenue, Onehunga, Auckland at all times unless an absence from that residence has been authorised by a probation officer, and to comply with all the requirements of the standard and special conditions of your sentence of home detention;

3.You are not to purchase, possess or consume alcohol or illicit drugs for the duration of your sentence of home detention;

4.You are to attend a Community Alcohol and Drug Service (CADS) assessment.   You are to attend and complete an appropriate drug treatment programme if and as recommended by the assessment to the satisfaction of your probation officer and programme provider. Details of the appropriate programme to be determined by your probation officer;

5.You  are  not  to  communicate  or  associate  with  any  of  your  co- accused, or any other person(s) as nominated in writing by your probation officer, unless you have the prior written consent of your probation officer.

[26]     Before you stand down, I want each of you and your whanaus to understand that home detention will impose real hardship, particularly on you, Ms H  .  It is a term of imprisonment to be served at home.  Unless you find employment and are authorised by your probation officer to work in that employment within fixed hours, you will be effectively a prisoner at your home for one year.   That will, as I say, impose real burdens on your whanau and you.  The same can be said for the others but to a lesser degree.

[27]     All of you have committed serious offences.  It gives me no pleasure to be sentencing you in this Court.   You know that you have, as I said before, inflicted harm on people you do not know and on your own whanau.  I trust that we never see

any one of you before a Court of law again.  Please stand down.

Rhys Harrison J