R v Hayman
[2021] NZHC 642
•26 March 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-085-001094 CRI-2019-085-001849
CRI-2020-004-008811 [2021] NZHC 642
THE QUEEN v
JAZINDA LEE HAYMAN
Hearing: 26 March 2021 Counsel:
T G Bain for the Crown
B Crowley for Ms Hayman
Sentencing:
26 March 2021
SENTENCING NOTES OF GWYN J
Introduction
[1] Jazinda Lee Hayman, you appear for sentence having pleaded guilty to eight charges in total: six charges of possession of methamphetamine for supply;1 one charge of possession of cannabis;2 and one charge of failing to carry out obligations in relation to a computer system search.3
1 Misuse of Drugs Act 1975, s 6(1)(f) and 6(2)(a) and Crimes Act 1961, s 66; maximum penalty life imprisonment.
2 Section 7(1)(a) and (2); maximum penalty three months’ imprisonment or fine of $500.
3 Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.
R v HAYMAN [2021] NZHC 642 [26 March 2021]
[2] You came before me for a sentence indication in November 2020.4 I indicated a maximum end sentence of three years’ imprisonment. At that time I did not have all relevant reports before me that might indicate a further discount is warranted.
[3]You accepted that sentence indication and pleaded guilty on 6 November 2020.
[4] I now have a Provision of Advice to Courts (PAC) Report dated 13 March 2021 and a Psychological Assessment from Dr Duncan Thomson, dated 22 February 2021. Those reports have given me more relevant information to decide on a final sentence. I emphasise at the outset that your sentence will not be higher than the three years I indicated in November, so please do not worry about that.
[5] Although you heard the comments I made in my sentence indication in November, I will repeat those comments which explain the way in which I reach the sentence. Because sentencing is a public function I will also describe the background facts that are relevant to the sentencing process.
[6] When Judges look at a case, they do not simply pluck a sentence out of thin air. There is a law called the Sentencing Act 2002. That law sets out the principles and purposes of sentencing.5 In each case, a Judge looks at the Sentencing Act and then looks at what the offender has done and decides how to give effect to the Sentencing Act in the particular circumstances of the case.
[7] The purpose of sentencing in your case is to hold you accountable for the harm you have done to the community through your offending; to promote a sense of responsibility for, and acknowledgment of, that harm; to denounce and deter the criminal conduct; to protect the community; and to assist in your rehabilitation and reintegration into society.6
[8] What it means in practice is that I have to look at the whole situation and do what I can to both mark what you have done but also to fully recognise who you are.
4 R v Hayman [2020] NZHC 2866.
5 Sentencing Act 2002, ss 7 and 8.
6 Section 7.
[9] I will first set out your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I set a starting point based on the offending. At that stage I will talk about a case called Zhang, which is what we call a “guideline” judgment for offences involving methamphetamine,7 and other cases which are similar. Second, I will apply uplifts and discounts to reflect your personal aggravating and mitigating circumstances.
The offending
[10] Seven of the charges you face result from two police operations – Operation Superdry in relation to Wellington-based offending, and Operation Maddale in relation to Auckland based offending. Your co-offender, Mr McMillan, was the main individual targeted in the Wellington-based offending. You were an associate of Mr McMillan and assisted his drug business in various ways.
[11] Five of the methamphetamine charges arise from Operations Superdry and Maddale. Between December 2018 and March 2019, you were involved in the transport of five shipments of methamphetamine from Auckland to Mr McMillan in Wellington. In all five instances, you were accompanied by your co-offender, Mr Philip (who is also your partner). On two occasions, you were also accompanied by another co-offender, Mr Minns. The methamphetamine was concealed in cars, driven by yourself, or Mr Philip, or Mr Minns.
[12] The fifth methamphetamine charge arises from Operation Superdry, when you drove with Mr Philip and Mr Minns to Auckland to collect two kilograms of methamphetamine in March 2019. The methamphetamine was concealed within a car by a sophisticated method, and Mr Minns then drove it back to Wellington. However, Mr Minns was stopped by Police along the way, and the car was impounded in Taupō for an unrelated driving offence. The methamphetamine was subsequently discovered by Police.
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[13] The first four methamphetamine charges arise from Operation Maddale, and follow a similar fact pattern. However, the methamphetamine on those occasions was never seized, so the exact amount transported is unknown. Police estimate a total of 6–10 kilograms of methamphetamine was transported across all five incidents. As I did in your sentence indication,8 for the purposes of sentencing I proceed on the basis that six kilograms of methamphetamine in total was transported.
[14] The cannabis charge arises from the termination phase of Operation Superdry. Police executed a search warrant at your parents’ house in Taihape on 10 May 2019, and you and Mr Philip were located at the address in possession of 28 grams of cannabis.
[15] The charge of failing to carry out obligations in relation to a computer system search also arises from the termination phase of Operation Superdry. You were arrested and the Police seized your cell phone. The Police requested you provide your passcode pursuant to s 130 of the Search and Surveillance Act 2012, but you declined to do so.
[16] The final methamphetamine charge arises from an incident unrelated to the commercial operations targeted by Operations Superdry or Maddale. On 18 October 2018 you attempted to sell methamphetamine on your own account. You went into a post shop in Palmerston North carrying a cosmetics organiser, which contained a bag of methamphetamine. You purchased a courier bag, placed the drugs inside, and sent it to an address in Cromwell. The package was not delivered to the intended recipient and was handed to the Police.
Personal circumstances
[17] I turn now to consider your personal circumstances, based primarily on three reports I have received for the purpose of sentencing you today – a provision of advice to courts (PAC) report dated 8 December 2020, another PAC report dated 13 March 2021, and a psychological assessment from Dr Duncan Thomson dated 22 February 2021.
8 R v Hayman, above n 4, at [7].
[18] Since your arrest, you have given birth to a son. You currently live with Mr Philip and your son in Taihape, near your parents. In his report, Dr Thomson explained that he visited you at your home, together with Mr Philip and your son, for approximately three and a half hours in February 2021. He also spoke to your parents, and your maternal grandmother.
[19] You told Dr Thomson that you had “the best” childhood, but you started drinking and smoking cannabis socially around the age of 15 or 16, before moving to methamphetamine at the age of 18. Dr Thomson noted your drug use seems to have been precipitated and maintained by a combination of your decision not to pursue further education, and association with a large social group who used methamphetamine. You also told Dr Thomson that several of your close friends died by suicide, and Dr Thomson suggested these traumatic bereavements may have contributed to your drug use.
[20] The PAC report identifies various factors in your life that led to your offending. Since your arrest, it appears you have addressed all of these factors. You have accepted culpability for your offending and acknowledged its impact on others, and displayed genuine remorse. You have demonstrated an in-depth understanding of the social implications of your actions, and the continued circulation of drugs within the community. You have also expressed deep regret for the impact your drug use has had on your family. Although Mr Philip has a gang connection, you have acknowledged this and confirmed there is no gang presence at your home.
[21] You have completed comprehensive alcohol and drug treatment through a residential facility at the Salvation Army Bridge Programme. You spoke very positively of the Bridge Programme to the report writers, saying it helped you find yourself again. Dr Thomson also spoke to your parents; they praise your rehabilitative efforts, saying they feel like they have got their daughter back. Importantly, you acknowledge the risk of relapse, and maintain monthly contact with the aftercare team of the Bridge Programme. You also receive significant support from Mr Philip and your family.
[22] You have described becoming a parent as “the best thing that has ever happened”. Dr Thomson’s report paints a picture of you as a dedicated mother, and he observed that your son appears happy and safe. You must be very pleased with this report and how it reflects on you. Dr Thomson’s assessment that your son is happy and safe is confirmed by your son’s “health book”, which records he is a healthy and “happy boy”. Your parents and maternal grandmother, who I understand have very regular contact with you and your son, also spoke highly of your parenting skills, and your father has described you as an “awesome mother”.
[23]Finally, I note you have no previous criminal convictions.
Submissions
[24] Mr Bain, counsel for the Crown, submitted it is appropriate to adopt a global starting point for the six methamphetamine charges. Mr Bain did not seek an uplift for the remaining charges, and submitted that these can be dealt with by way of a concurrent sentence. Mr Bain has acknowledged the Court’s indication at the sentencing indication that six years was an appropriate starting point, and he has also said to me this morning that the Crown would not oppose a discount of up to 30 per cent for your previous good character and for your commitment to rehabilitation. The Crown’s submission was that a 25 per cent discount for guilty plea is also available.
[25] Your counsel, Mr Crowley referred to the sentence indication I gave,9 where I adopted a starting point of six years’ imprisonment, and gave a discount of 25 per cent for your guilty plea, and a discount of 25 per cent for your previous good character, the effect of your addiction, and rehabilitation work. He submitted a further separate discount of 15-20 per cent from the starting point is appropriate, and that your sentence should be converted to one of home detention, to reflect the harm that would be caused to your son if you were imprisoned.
9 R v Hayman, above n 4.
Starting point
[26] I agree with the Crown that the appropriate approach is to adopt a global starting point for the six methamphetamine charges. I do not consider an uplift to reflect the remaining charges is necessary, and I agree with the Crown that they should be dealt with by way of a concurrent sentence.
The law
[27] The Court of Appeal decision in Zhang v R provides guidance on sentencing in methamphetamine-related cases, by establishing five sentencing bands by reference to the quantity of drugs involved.10 Based on quantity alone, your alleged offending falls in band five, where more than two kilograms attracts a sentence of between 10 years’ and life imprisonment.11 However, quantity alone does not determine the appropriate sentence – the Court explained that a lesser role deserves a less severe sentence than a significant or leading role, and a lesser role may result in an offender moving not only within a band but also between bands.12
[28] The Court provided guidance on what constitutes a “lesser” or “significant” role.13 Factors that indicate a “lesser” role are:
(a)performed a limited function under direction;
(b)engaged by pressure, coercion, intimidation;
(c)involvement through naivety or exploitation;
(d)motivated solely or primarily by own addiction;
(e)little or no actual or expected financial gain;
10 Zhang v R, above n 7.
11 At [125].
12 At [10(e)].
13 At [126].
(f)paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved;
(g)no influence on those above in a chain;
(h)little, if any, awareness or understanding of the scale of operation; and/or
(i)if own operation, solely or primarily for own or joint use on non commercial basis.
[29]Factors that indicate a “significant” role are:
(a)operational or management function in own operation or within a chain;
(b)involves and/or directs others in the operation whether by pressure, influence, intimidation or reward;
(c)motivated solely or primarily by financial or other advantage, whether or not operating alone;
(d)actual or expected commercial profit; and/or
(e)some awareness and understanding of scale of operation.
Starting point
[30]For the sake of parity, I note the starting points adopted for your co offenders.
(a)Mr Paulo was sentenced in July 2020 on a single charge of supplying methamphetamine as a party, and Cooke J adopted a starting point of three years’ imprisonment with an end sentence of home detention.14
14 R v Paulo [2020] NZHC 1797.
(b)Mr Philip accepted the sentence indication I gave in February 2021 for almost identical offending, where I indicated a starting point of eight years’ imprisonment.15
(c)Mr Minns accepted a sentence indication I gave in February 2021 for his role in the transportation that gave rise to the fifth methamphetamine charge you face, where I indicated a starting point of four years, six months’ imprisonment.16
(d)I sentenced Mr Stone today for his role in assisting Mr McMillan, on the basis of a starting point of three years, six months with an end sentence of home detention.17
(e)Mr McMillan rejected the sentence indication I gave in December 2020 for charges arising from his role as the alleged leader of the Wellington based offending, where I indicated a starting point of 17 years’ imprisonment.18
[31] The primary issue in setting an appropriate starting point for you is determining whether you played a lesser or significant role in the drug business. Mr Bain submitted at the sentence indication hearing that you played a significant role, as you must have been aware of the scale of Mr McMillan’s operation, your role was operational as you directed others (primarily Mr Minns), and you were dealing methamphetamine on your own account.
[32] I find you played a “lesser” role. In particular, in terms of the factors in Zhang, I accept that you performed a limited function under direction; were motivated primarily by your own addiction; received limited or no financial gain; were paid in drugs to feed your own addiction, or cash significantly disproportionate to the quantity of drugs or risk involved; and had no influence on those above you in the chain. I note there is no evidence before me as to payment for your involvement, so I cannot draw
15 R v Philip [2021] NZHC 42.
16 R v Minns [2021] NZHC 93.
17 R v Stone [2021] NZHC 636.
18 R v McMillan [2020] NZHC 3392.
any conclusions as to whether you received any cash payment or not for your role. In terms of your co-offenders, I find you played a greater role in Mr McMillan’s business than Mr Paulo, Mr Stone, and Mr Minns.
[33] You would have heard me talk earlier about Mr Philip’s role, but of course he will have his own sentencing hearing and I am not intending to pre-empt in any way what will happen at that hearing, but you will recall that when I gave you a sentence indication in November last year, and at the sentence indication I gave to Mr Philip in February this year, my view was that Mr Philip’s greater age and the fact he is a patched gang member, might indicate that he was more culpable for the offending than you. Both sentence indications were provided before the five week trial of Mr McMillan. During the course of that trial the court heard extensive evidence of Mr McMillan’s methamphetamine dealing, including the involvement of you, Mr Philip, and the other defendants. As a result of that assessment, my view now is that, broadly speaking, you and Mr Philip operated together and neither one of you could be described as the “leader” as between you. That change in my assessment of respective responsibility does not impact on your sentence, but it is a matter on which I will hear submissions when Mr Philip appears for sentence.
[34] The dispute then is the extent to which your limited role should reduce the starting point in your case. Both counsel pointed to a number of cases, with a range of starting points.
[35] The highest starting point Mr Bain relied on was in Smith v R,19 where the Court of Appeal declined an application for an extension of time to appeal the High Court’s starting point of 17 years’ imprisonment.20 Mr Smith delivered approximately 15 kilograms of methamphetamine from Auckland to Wellington, at the direction of an Auckland based supplier. This case can be distinguished as more serious than yours for two key reasons: the amount of methamphetamine involved was more than double; and Mr Smith displayed all of the indicia of playing a significant
19 Smith v R [2020] NZCA 221.
20 R v Smith [2018] NZHC 2118.
role,21 including the accumulation of serious wealth.22 In contrast, you received little financial gain for your role, and no assets have been found or seized since your arrest.
[36] I also consider that other cases the Crown relied on with high starting points, ranging from 11 to 15 years’ imprisonment,23 are distinguishable on the basis they involved defendants travelling internationally to New Zealand for the purpose of assisting in the importation of class A drugs, indicating they played a more significant operational role than you did.
[37] I consider your case to be more similar to R v Phillips, where the High Court adopted a starting point of five years.24 Ms Phillips drove between cities with her partner on two occasions and supplied a total of six kilograms of methamphetamine, and was also a low-level supplier in her own right of an undetermined quantity. The Court found she was merely following her partner and was not the lead offender.
[38] Given the lesser role you played, in particular the fact that you appear to have been motivated almost entirely by your own addiction, I adopt a starting point of six years’ imprisonment.
Personal aggravating and mitigating circumstances
[39] Turning to your personal circumstances – you have no aggravating personal factors, so I now consider your personal mitigating factors.
Good character, effect of addiction, rehabilitation prospects
[40] I consider a discount of one year, six months (25 per cent) is appropriate for your previous good character,25 the effect your addiction had on your offending, the remorse you have shown,26 and your rehabilitation work. As I have already noted, you have no criminal history, and it appears your offending was driven by your addiction.
21 Smith v R, above n 19, at [15].
22 At [6].
23 Wan v R [2020] NZCA 328; Zhang v R, above n 7; de Macedo v R [2020] NZCA 132.
24 R v Phillips [2018] NZHC 2119.
25 Sentencing Act, s 9(2)(g).
26 Section 9(2)(f).
The reports I have read note how challenging rehabilitation is, and they all record that you continue to put in the hard work needed to maintain your drug-free status.
[41] Thank you for your letter, Ms Hayman, which I have read. One of the things that struck me in what you said, was your recognition that addiction is an ongoing battle. Recognising that means you will be better prepared to get help if and when you recognise the signs.
Impact on dependent child
[42] I also consider a further separate discount is necessary, to take account of the impact your sentencing will have on your son. In other cases, a discount of 10-20 per cent has been appropriate, where a sentence of imprisonment would impact on an offender’s dependent children.27
[43] Dr Thomson’s report says that your son has a secure attachment with both you and Mr Philip. That is an important and positive indicator. Dr Thomson is a very experienced clinical psychologist and he has noted in his report that the quality of infant-parent attachment is a powerful predictor of a child’s social and emotional outcomes later in life. He also advised that children who are exposed to the imprisonment of a household member are at a heightened risk for poor health-related quality of life into adulthood. He confirmed that if you were to be imprisoned it would disrupt your son’s healthy development and sense of security. Dr Thomson also highlighted that separation from your son would of course be distressing for you and could inhibit your ability to re-establish your relationship with your son on release. Not surprisingly, Dr Thomson concluded that it would be in your son’s best interest for him to remain in your care.
[44] I do acknowledge the Crown’s submission that for serious offending, less weight may be placed on this factor and Mr Bain has referred me to two Court of Appeal decisions;28 but as Mr Crowley notes, first McGregor v R predates the main authority that I am relying on, and also both involved a very different type of
27 Section 8(h); R v Theodore [2018] NZHC 2364 at [39].
28 McGregor v R [2015] NZCA 565; Fukofuka v R [2019] NZCA 290.
offending. Having regard to your particular circumstances, the nature of your offending and the young age of your child, I consider a discount of one year, two months (approximately 20 per cent) is appropriate.
Guilty plea
[45] The last thing I need to consider for discounts is a discount for your guilty plea. Mr Bain has acknowledged that you should receive a full 25 per cent guilty plea discount and I see no reason not to give you the full 25 per cent discount (one year, six months).
[46]I therefore arrive at an end sentence of one year, 10 months’ imprisonment.
Home detention
[47] As your sentence of imprisonment is one of less than two years, I am able to convert it to home detention if I consider that appropriate.29 There is a presumption of imprisonment for offending relating to the supply of methamphetamine,30 which can be displaced in “exceptional circumstances”, for example where an offender has accepted responsibility by pleading guilty and has real prospects of rehabilitation that would be better supported by a sentence of home detention.31
[48] Given the obvious benefits associated with you continuing to care for your son, and the prospects of maintaining your rehabilitation, I consider home detention is appropriate.
[49] The PAC report dated 13 March 2021 confirms your current address in Taihape is suitable for home detention.
Result
[50] On six charges of possession of methamphetamine for supply, I sentence you to 11 months’ home detention.
29 Section 15A(1).
30 Misuse of Drugs Act, s 6(4).
31 Zhang v R, above n 7, at [55].
(a)You are to reside at your address in Taihape as recorded in the PAC report dated 13 March 2021.
(b)You are subject to the conditions outlined in the PAC report dated 13 March 2021.
[51]The conditions are as follows:
(a)You are to travel directly from the Wellington High Court to the specified address and await the arrival of a Probation Officer and/or a representative from the monitoring company.
(b)You are to reside at the specified address for the duration of the home detention sentence.
(c)You are not to possess and/or consume alcohol or illicit drugs for the duration of the home detention sentence.
(d)You are to attend and complete a full assessment for Drug and Alcohol counselling as well as any recommended treatment, programme, counselling (inclusive of a relapse prevention group) as and when directed by and to the satisfaction of the Probation Officer and attending clinician.
(e)You are to attend and complete an assessment for a Departmental Programme as well as any recommended treatment, programme, counselling as and when directed by and to the satisfaction of the Probation Officer and attending programme facilitators.
(f)After the completion of a Department programme, you are to attend and complete a Maintenance Programme and to adhere to the rules of such group.
(g)You are to attend and complete any other treatment, programme, or counselling to reduce your risk of re-offending as and when directed by and to the satisfaction of the Probation Officer.
(h)You are not to associate directly or indirectly with your co-offenders (other than Jason Philip) unless you have the prior written approval of the Probation Officer.
[52]On one charge of possession of cannabis, I convict and discharge you.
[53] On one charge of failing to carry out obligations in relation to a computer system search, I sentence you to one month home detention to be served concurrently.
[54] In relation to the ancillary orders sought by the Crown, I order the destruction of:
(a)all drug related utensils and paraphernalia and items including cell phones used to facilitate the drug offending; and
(b)all controlled drugs seized.
Gwyn J
Solicitors:
Crown Law, Wellington
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