R v Hendry HC Auckland CRI-2010-029-004750
[2011] NZHC 1849
•10 November 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-029-004750
THE QUEEN
v
LISA ANN HENDRY
Hearing: 10 November 2011
Counsel: F M T Culliney for the Crown
M N Pecotic for the Prisoner
Judgment: 10 November 2011
SENTENCE OF DUFFY J
Counsel: M N Pecotic P O Box 6379 Wellesley Street Auckland 1141 for the Prisoner
Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Crown
R v HENDRY HC AK CRI-2010-029-004750 10 November 2011
[1] Lisa Ann Hendry, on 29 August 2011, a jury found you guilty of one count of possession of methamphetamine for supply under s 6(1)(f) of the Misuse of Drugs Act 1975.
[2] In the course of a police search of your home address on 31 March 2010, the police located 4.4 grams of methamphetamine in a plastic container located in your bedroom. In another container in the bedroom, the police found 68.6 grams of a crystal substance, which can be used as a cutting agent. Also found in the bedroom in another location was a small amount of methamphetamine, which the Crown conceded both at the time and today did not form part of their case against you. There was also a glass pipe used for smoking methamphetamine.
[3] At the trial, the Crown accepted that you were a user of methamphetamine, and the case they put to the jury is that the 4.4 grams of methamphetamine found in the bedroom could well have been in your possession for the dual purposes of personal use and supply.
[4] Before working my way through the principles of sentencing and providing the reasons for the sentence I will arrive at, I will say now that I do not intend to impose a sentence of imprisonment.
[5] The supply of class A drugs is far more serious than the supply of other classes of drugs within the Misuse of Drugs Act. Indeed, Parliament in s 6(4) of the Act has indicated that, generally, possession of methamphetamine for supply should result in a sentence of imprisonment. However, in your case, Ms Hendry, there are factors which support you receiving a sentence of home detention.
[6] The pre-sentence report writer is of the view that there are several issues underlying your offending, which can appropriately be addressed in the community. The recent pre-sentence report recommends a sentence of home detention, and reports that there will be no difficulty in you serving a sentence of home detention from the proposed address. The report writer has assessed you as posing a low risk to the community and having a low risk of reoffending; hence, you are seen as a good candidate for an electronically monitored sentence. You are recognised by the
report writer as having, to date, successfully addressed your long-standing drug addiction, having abstained from drug use for some 18 months.
[7] You are the mother of two boys, aged six and eight. They need you to care of them. There is every indication that you can provide them with a good and caring home. One of your sons has mental health and behavioural issues. He has attended Maunu Health Camp for four weeks, while you attended a two day parenting course at the same location. He has a particular need of you at home, and a community- based sentence will enable you to be there for him.
[8] The pre-sentence report reveals that you have had a difficult life. This started when you were a young child and continued into early adulthood. You were in a 15 year relationship with someone who was a drug addict and who is responsible for introducing you to methamphetamine. This man has spent time in prison for his involvement in methamphetamine. Your contact with him has led to a 10 year addiction, which you have managed to overcome only in the last 18 months. Your earlier efforts to end your relationship with this man were unsuccessful. However, as he is now in custody for further methamphetamine offending, you are unlikely to be troubled by him in the near future.
[9] You suffer severe health problems, which on occasion have led to you being hospitalised, and you must now carry medication with you at all times to remedy any life threatening attack. Your health problems, whilst able to be catered for in prison, would make serving a sentence of imprisonment unduly harsh and hard on you.
Needs assessment and motivation to change
[10] I consider that you have demonstrated a strong motivation to change. With the support of your mother, you have sought the help of various counsellors in recent times and, in doing so, you have managed to overcome your addiction. You have attended a considerable number of counselling sessions and are willing to continue with such counselling if it is needed.
[11] You have expressed your willingness to continue to address addiction issues, as well as your emotional issues, and further parenting skills courses. Your motivation appears genuine and is corroborated by your counsellors.
[12] I have been assisted today by the report that Mr Webb has provided me with, as well as by a report from Ms Wells. Also, I note that Mr Webb has taken the time to attend the sentencing today, so that he could assist the Court with any further information, should that have been required. The Court is grateful to Mr Webb for his attendance.
[13] In your letter to me, and also in the expressions you have made to the pre- sentence report writer, you have expressed great remorse for the impact of your involvement in drugs on your family and on yourself, and for your offending.
[14] Since the earlier pre-sentence report was written, you have been successfully living at a rural property near Kaiwaka, and reporting to the police at Mangawhai. Senior Constable Graham Gough, who is based at Mangawhai, has witnessed what he has reported as considerable positive changes in you. He considers that you pose little risk to the community. He has provided you with a letter which records your compliance with reporting and bail conditions. The letter reveals a measure of goodwill towards you, which can only have been engendered by good conduct on your part.
Home detention
[15] Your risk of reoffending is low. Though when first interviewed for a pre- sentence report, you were then aware of the likelihood of imprisonment, you stated your commitment to comply with the requirements of home detention. The probation officer considered that the issues underlying your offending could appropriately be addressed in the community, and that you were a good candidate for home detention and, accordingly, a further remand was sought to find a suitable location.
[16] The second probation report reiterated the above and recorded that you have found a suitable address from which to serve a sentence of home detention. Your children will visit you on weekends while they finish their current school term, and would live with you and attend Wellsford Primary School next year, which is directly opposite your proposed address. No other adult will be residing with you, though you have the support of your mother in Kaiwaka.
[17] The probation officer also recommends that you undergo relapse prevention counselling, and states that there are other helpful programmes available in the area in which you propose to reside.
[18] I note in that regard that in his report, Mr Webb has identified a number of those programmes. They are the C.B.T Anger and Relapse Prevention with Mieneke Wells, Relationship Counselling at Relationship Services in an area where you will reside, parenting courses with Triple P Parenting Programmes and Education in Ellerslie, assessment at Community Alcohol and Drug Service in Mount Eden, and Narcotics Anonymous and Alcoholics Anonymous groups.
[19] I recommend to the probation service that when it comes to determining counselling for you they consider Mr Webb’s recommendations and implement them, where possible.
[20] In summary, therefore, there are factors in your case which, for the reasons I will later express, have led to an outcome where I can consider I can impose a sentence of community detention. Those factors, in short, are as follows:
(i)The strong recommendation from the probation officer favouring a sentence of home detention;
(ii) The supportive comments from your counsellors and from
Senior Constable Gough;
(iii)The fact that you have abstained from methamphetamine use for 18 months;
(iv) Your actions in seeking out help for your drug addiction;
(v)The prospect that your move to Northland, coupled with the support from your mother and counsellors, will help you to refrain from a return to your former lifestyle;
(vi) You do not have a history of drug offending;
(vii) The testimonials I have read from your family and counsellors; (viii) The special need your children have for you, particularly your
eldest son; and
(ix) Your health problems.
Recommendation
[21] As you pose a low risk to the community and of further offending, I propose to adopt a sentence of home detention, with the following special conditions, and that is:
(i)To travel to 32 School Road, Wellsford, immediately following sentencing, and await the arrival of the probation officer and the electronic monitoring company representative;
(ii)To remain at that address for the duration of the sentence, unless otherwise authorised by the probation officer;
(iii)To comply with any direction given by the probation officer for a home visit to be undertaken, including allowing the officer access to the residence;
(iv)Not to purchase, possess, or consume alcohol or non- prescription drugs for the duration of the sentence;
(v)To undertake and complete alcohol and drug counselling or treatment to the satisfaction of the probation officer and counsellor; and
(vi)To undertake and complete any other counselling, treatment, or programme to the satisfaction of the probation officer and counsellor.
Statutory purposes and principles
[22] I now turn to the statutory purposes of the Sentencing Act 2002. The purposes of holding the offender accountable, promoting a sense of responsibility, and denouncing and deterring the conduct of the offender are usually emphasised in serious drug offending, which is the type of offending you have committed (s 7(1)(a), (b), (e) and (f)). In this case, I also take into account the importance of your rehabilitation and reintegration into the community (s 7(1)(h)), both for yourself and your children, and bearing in mind that this is directly related to the protection of the community (s 7(1)(g)), as your successful rehabilitation will ensure that the community is protected from further offending by you.
[23] Further, I must impose the least restrictive outcome possible (s 8(g)), taking into account the gravity of your offending and your culpability, the comparative seriousness of the offence and desirability of consistency, and weighing this against your personal background (s 8(a), (b), (e), and (i)).
Crown submissions
[24] The Crown places your offending within the top of band one of the lead tariff case, R v Fatu [2006] 2 NZLR 72 (CA), and submits that your offending is slightly less serious than in the cases of R v Savage HC Auckland CRI-2007-092-0806, 21
April 2009, and R v Hill [2008] NZCA 41; [2008] 2 NZLR 381, in which starting points of three years and three and a half years, respectively, were adopted. The Crown suggests a starting point of between two years and nine months and three years and two months’ imprisonment.
[25] The Crown does not seek an uplift to reflect your previous driving convictions, but submits that they preclude a discount for previous good character.
Defence submissions
[26] Defence counsel notes that there was no evidence of actual supply, and that the manner in which the substance was stored (with a pipe beside it), the evidence of recent consumption of methamphetamine, as well as the lack of the usual paraphernalia associated with drug dealing, indicate that the methamphetamine was intended for personal use. As you will have already heard me say today in my exchange with Ms Pecotic and with the Crown, I do not accept the submission from your counsel insofar as it may suggest that all the methamphetamine was for personal use. It was open to the jury on that basis to find you not guilty of that offence. That the jury did not do so shows that they considered that one of the purposes of possession of the methamphetamine was for supply.
[27] I accept, however, that in your case, no scales and no tick books were found. The cash that was found on the property could not readily be associated with the drug offending; there were other innocent explanations for it. So I accept that any supply on your part would have been what I will describe as a low level form of supply, and that the methamphetamine had at least the dual purpose of consumption by yourself, as well as supply to others.
[28] Your counsel suggests an appropriate starting point is in the vicinity of 18 months to two years, with a final sentence of home detention or community detention, coupled with intensive supervision.
[29] I propose to adopt a starting point of two years and 10 months’ imprisonment, as this falls within the lower end of the range of starting points suggested by the Crown. I consider it appropriately reflects the level of your offending when compared with that in Savage and in Hill.
[30] Cases which I have found comparable and helpful in arriving at a starting point are: R v Savage; R v Hill; R v McGee HC Whangarei CRI-2010-088-2612,
6 July 2011; R v Kissling HC Rotorua CRI-2009-070-1557, 30 April 2010; and
Preston v R [2010] NZCA 27.
[31] Cases I have found particularly helpful regarding the imposition of a sentence of home detention are: R v Ashby HC Whangarei CRI-2010-027-0143, 6 July 2011; R v McGee; and R v Jones HC Whangarei CRI 2007-088-2320, 16 November 2007.
[32] I do not accept the Crown’s argument that you should receive no credit for good character, given your two previous convictions. Both are traffic convictions. The more serious conviction was entered in 1994, being a conviction for driving with an excess blood alcohol level. The charge in 2002 of operating a motor vehicle carelessly resulted in you being convicted and discharged. This suggests to me that the offence was of a low level of seriousness. I consider, therefore, that you are entitled to some credit for what I consider to be a relatively unblemished history when it comes to criminal offending. I propose to give you a five per cent discount for good character.
[33] I consider that you have expressed genuine remorse. You have demonstrated insight into your offending and the need to change your ways. Whilst you can receive no credit for a guilty plea, I consider the fact that you were acquitted of other offences, and discharged pursuant to s 347 on one of the offences, reflects the fact that your involvement in criminal offending was not as serious as the Crown presented. I do not, therefore, see the not guilty pleas you entered as indicating no remorse on your part (see also Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 at [64]). I propose to give you a full credit for remorse and assess that at 20 per cent.
[34] I propose to add a further five per cent credit to reflect the extreme difficulties that a sentence of imprisonment would impose on you, due to your health problems and your children’s need for you to be with them. In this regard, I note that your own difficult childhood contributed to your low self-esteem and resulted in you mixing with the type of bad company that led to your drug addiction. To remove you from your children’s lives at this time would leave them vulnerable and perhaps only lead to them going down the same pathway that you did earlier in your life.
[35] The discounts I have arrived at come to a total of 30 per cent, which equates to approximately 10.2 months. When this is taken from the starting point of two years and 10 months, that brings me to the end sentence of just under two years’ imprisonment and thus makes you eligible for a sentence of home detention. I have already said that this is the sentence I intend to impose. When I stand back and look at your offending and your circumstances in the round, I consider that it makes no sense to send someone like you to prison. You have not offended seriously before and there is every likelihood that now that you have your drug addiction under control, you will not do so in the future. The Court of Appeal in R v Hill has recognised that the same factors that can lead to a low sentence of imprisonment can also be relevant to and indicate in favour of a sentence of home detention. Further, as was recognised in R v Hill at [36]:
Where the giving of a significant discount to reflect an offender’s personal circumstances produces an end sentence that is sufficiently low to raise the possibility of home detention, those personal circumstances will also be relevant to the question of whether home detention should be imposed.
[36] And later, at [37]. it was said:
Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.
[37] I think both those passages in Hill apply completely to you.
[38] In terms of home detention, lest anyone think that this is dealing with your offending too lightly, I refer to the Court of Appeal’s other comments in R v Hill at [33] where it said:
The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment.
[39] I consider that someone who is the mother of young children, who has overcome her drug addiction, who is genuinely doing all she can to rehabilitate herself, and who is seen by those knowledgeable in the area as being at a minimal risk of reoffending, is better suited to serving a sentence of home detention than to serve a sentence of imprisonment. However, given the gravity of the offending, I
consider that I should sentence you to 12 months’ home detention, and I will also impose the conditions recommended in the report on your suitability for home detention, which I read out earlier and which are set out at [21] of the sentencing notes, and which are also to be found at the end of the second pre-sentence report recommending home detention.
[40] Ms Hendry, would you please stand.
[41] On the charge of possession of methamphetamine for supply, you are sentenced to 12 months’ home detention. You are to comply with the conditions to which I referred earlier on in the sentencing and which are set out in the pre-sentence report.
[42] You may stand down.
Duffy J
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