R v Hurring

[2009] NZCA 577

IN THE COURT OF APPEAL OF NEW ZEALAND

CA478/2009
[2009] NZCA 577

THE QUEEN

v

ANGIE LEE HURRING

Hearing:26 November 2009

Court:Arnold, Potter and Heath JJ

Counsel:R G Glover for Appellant

M J Inwood for Crown

Judgment:9 December 2009 at 10 am 

JUDGMENT OF THE COURT

AThe appeal against sentence on the charge of supplying the Class A controlled drug methamphetamine is dismissed.

BThe appeal against the sentence imposed on the charge of conspiring to supply the Class A controlled drug methamphetamine is allowed.  The sentence imposed of eight years imprisonment is set aside.  A sentence of six years imprisonment is imposed.  That shall be served concurrently with the sentence imposed on the supply charge.

CThe concurrent sentence of two months imprisonment on the charge of possessing the Class B controlled drug, morphine, and the order that the sum of $3347.00 be forfeited remain.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

[1]        Ms Hurring pleaded guilty, in the District Court at Christchurch, to one charge of supplying the Class A controlled drug, methamphetamine, one charge of conspiring to supply that drug and one charge of possessing the Class B controlled drug, morphine.  The offending occurred between 20 October 2008 and 3 February 2009. 

[2]        On 24 July 2009, Judge Philip Moran sentenced Ms Hurring to an effective term of eight years imprisonment.  Sentences of eight years imprisonment were imposed on each methamphetamine charge and two months imprisonment on the morphine charge.  All sentences were concurrent.  A sum of $3347, seized by the Police, was ordered to be forfeited.

[3]        Ms Hurring appeals against the sentence imposed, on the grounds it is manifestly excessive.

The facts

[4]        Ms Hurring’s offending resulted from the activities of a serving prisoner, Mr Nathan.  Mr Nathan was at the apex of a conspiracy to supply methamphetamine in Christchurch.  The plan involved sourcing methamphetamine from Auckland and taking it to Christchurch for distribution.

[5]        The sentencing Judge described Ms Hurring as playing “a pivotal role” in the conspiracy.  During the period 20 October 2008 to 31 January 2009, she travelled to Auckland on a number of occasions.  With cash taken with her, she would purchase, in Auckland, up to ten ounces of methamphetamine at a cost of between $12,000 and $13,000 per ounce.  She then acted as a courier to return the drugs to Christchurch, taking responsibility for handing them to a third person whose job was to hold them for a few days, before distribution to dealers.

[6]        Over the period in question, at least seven return air trips were made to Auckland and at least one other by road.  There was also one aborted trip, in which Ms Hurring was entrusted to take $100,000 to buy methamphetamine from an Auckland supplier.  The supplier became suspicious of Police surveillance.  While that transaction did not proceed, it is relevant to the conspiracy charge.

[7]        The quantity of methamphetamine obtained for supply totalled 1960 grams, with a street value of nearly $2,000,000.

Sentencing in the District Court

[8]        Holding that the offending fell into band four of R v Fatu [2006] 2 NZLR 72 (CA), Judge Moran took a starting point for sentence of 10 years imprisonment, on the supply charge. However, in calculating the end sentence, the Judge took an unorthodox path.

[9]        First, Judge Moran considered that an uplift of two years should be added to the starting point to reflect the conspiracy charge, saying at [8] that this “was really yet one more trip to Auckland that had to be aborted, a failed attempt to acquire up to another 10 ounces”. 

[10] The Judge considered personal factors relevant to the offender, noting that that they were unable to be given a great deal of weight. Judge Moran was alive to Ms Hurring’s age (32 years) and the fact that she was “still bedevilled by long-term addiction to hard drugs”. He described Ms Hurring as “vulnerable and able to be taken advantage of by people who were really controlling” the drug distribution network: at [9].

[11]       Having referred to those personal factors, Judge Moran stated that the offending had been committed while Ms Hurring was subject to release conditions, on a sentence of imprisonment imposed in 2007 for conspiracy to supply methamphetamine.  He considered that called for a further uplift in sentence of two years, making a final starting point of 14 years. 

[12]       While no specific credit was articulated for the personal factors to which the Judge had referred, he seems to have reduced the final starting point by two years, to reflect Ms Hurring’s addictions and her role as “a follower” rather than “a leader”. 

[13]       From 12 years imprisonment, a one-third discount was given for the entry of early guilty pleas, leaving an effective end sentence of eight years imprisonment. 

Analysis

[14]       Mr Glover, for Ms Hurring, submitted that the Judge had erred in his construction of the sentence and that too much weight had been given to the conspiracy offence, when identifying the appropriate starting point.  Ms Inwood, for the Crown, accepted that the calculation of the effective sentence did not accord with the approach set out in R v Taueki [2005] 3 NZLR 372 (CA). She submitted, however, that the end sentence imposed was not manifestly excessive. The need to focus on the end sentence is emphasised in R v Xie [2007] 2 NZLR 240 (CA) at [16].

[15]       In terms of Taueki (at [8]) the first step is to identify a starting point. In the context of the offending in issue, the acts that gave rise to the conspiracy charge may be taken into account in assessing the seriousness of the overall offending, by reference to the lead charge of supply.

[16]       The overall offending involved (or anticipated) the purchase and transportation of nearly two kilograms of methamphetamine over the relevant period.  That level of offending falls within the highest band in Fatu, justifying a sentence of between 10 years and life imprisonment. 

[17]       The level at which that band starts is 500 grams.  Nearly four times as much as that was involved in this case.  In addition, the fact that Ms Hurring acted as a trusted lieutenant, authorised to take $100,000 to Auckland to buy drugs, supports the Judge’s view that she was “pivotal” to the operation.

[18]       Viewing the supply and conspiracy offending together, it was open to the Judge to adopt a starting point of 12 years.  Indeed, a higher starting point could easily have been justified.

[19]       The next step is to take account of aggravating and mitigating features relating to the offender.  An uplift of two years was factored in to reflect Ms Hurring’s prior offending and the commission of the present offences while on parole.

[20]       So far as mitigating factors are concerned, the Judge appears to have given a credit of two years for the offender’s addiction and other relevant personal circumstances, which neutralised any uplift for aggravating factors relating to the offender.  That allowance was generous, given that generally there is limited scope for consideration of personal factors in relation to commercial drug offending: see R v Jarden [2008] 3 NZLR 612 at [12] (SC). Despite that, we are not prepared to interfere with it.

[21]       From the period of 12 years imprisonment, we agree with the Judge that a credit for early guilty pleas of one-third was appropriate.  While the sentencing occurred before the guideline judgment of this Court on credit for guilty pleas (R v Hessell [2009] NZCA 450), the credit accords with the principles set out in that judgment. The reduction of the sentence by one-third provides a credit of four years imprisonment.

[22]       On that basis, a sentence of eight years imprisonment on the lead charge of supply of methamphetamine was well justified. 

[23]       However, the Judge did err in imposing a sentence of eight years imprisonment on the conspiracy charge.  Having regard to the inchoate nature of that offence, we consider that a concurrent period of six years imprisonment more aptly reflects Ms Hurring’s culpability for that offence.  That conclusion does not, however, affect the effective end sentence imposed.

Result

[24]       The appeal against sentence on the charge of supplying methamphetamine is dismissed.

[25]       The appeal against the sentence imposed on the charge of conspiracy to supply methamphetamine is allowed.  The sentence of eight years imprisonment on that charge is set aside and in substitution a sentence of six years imprisonment is imposed.  The sentences on the supply and conspiracy charges shall be served concurrently.

[26]       The concurrent sentence of imprisonment imposed on the Class B offence and the forfeiture order remain in place.

Solicitors:

Crown Law Office, Wellington