R v Hyde

[2012] NZHC 3355

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-092-17056 [2012] NZHC 3355

THE QUEEN

v

JAIME CLARE HYDE

Hearing:         12 December 2012 (Heard at AUCKLAND)

Counsel:         A Gordon for Crown

I Farquhar for Prisoner

Judgment:      12 December 2012

SENTENCING REMARKS OF LANG J

R V JAIME CLARE HYDE HC ROT CRI-2011-092-17056 [12 December 2012]

Introduction

[1]      Ms Hyde, you appear for sentence today having pleaded guilty in this Court to five charges.  They are charges of being in possession of methamphetamine for supply, supplying methamphetamine, offering to supply methamphetamine, offering to supply Ecstasy and conspiring to be in possession of methamphetamine.

[2]     The charges of supplying methamphetamine, being in possession of methamphetamine for supply and offering to supply methamphetamine all carry maximum sentences of life imprisonment.   The charges of conspiring to possess methamphetamine for supply and offering to supply Ecstasy carry maximum sentences of 14 years imprisonment.

Facts

[3]      Your offending came to light after police received information to the effect that you were involved in dealing drugs.  They then obtained search warrants of your cellphone,  and  very  soon  thereafter  they  discovered  that  you  were  involved  in dealing in methamphetamine and other drugs in a very substantial way.   It is not necessary for present purposes to go into the facts of your offending in any great detail.  The summary of facts, with which you take no exception, makes it clear that you were an extremely busy dealer in methamphetamine between 1 September and

25 October 2011.   On a virtually daily basis, you would send text messages to persons whom you thought might be interested in purchasing drugs, and receive text messages from persons who were interested in obtaining drugs from you.

[4]      You were not selling at street level, because you were not dealing in “point” amounts.  Rather, you were dealing in ounce, half ounce and quarter ounce lots. You would also sell methamphetamine in grams.  This means that you were operating at one level above a street dealer.

[5]      On  several  occasions,  also,  you  were  prepared  to  become  involved  in discussions about the supply of Ecstasy.  This means that you dealt in more than one type of illegal drug.

[6]      In all, the summary records that you were involved in discussions relating to the supply of approximately 400 grams of methamphetamine.

[7]      The police terminated the operation on 2 October 2011.  On that date, they searched your apartment and discovered paraphernalia suggesting involvement with the supply and use of methamphetamine.  These included tick lists and hypodermic syringes, two of which had traces of methamphetamine left inside them.  In addition, the police found items such as straws and spoons that are commonly associated with the consumption of methamphetamine.

[8]      You were arrested on the same date at Auckland International Airport.  You were on your way to spend a two week holiday in Perth.  When the police arrested you, they found the cellphone you had been using during the course of your drug dealing activities.

Sentencing Act 2002

[9]      As I am sure you now know, any case involving substantial dealing in methamphetamine requires a deterrent sentence.   It also requires a sentence that holds you accountable and responsible for your offending, and that denounces it to the public at large.  Any case of this type must result in a sentence of imprisonment, as your counsel responsibility recognised.

Lack of pre-sentence report

[10]     I record, before I begin the sentencing process proper, that I do not have a pre-sentence report.   Normally, of course, a pre-sentence report is a prerequisite before an offender is sentenced.   It provides the Court with valuable information regarding the circumstances of both the offender and the offending.   In your case, however,  I have received  substantial  assistance  from  material  provided  by  your counsel.  The summary of facts is also comprehensive, and there is no suggestion that you have any criminal history of any relevance to the sentencing process.

[11]     For those reasons, your counsel has confirmed that you have expressly agreed that you wish to be sentenced today notwithstanding the fact that I do not have the advantage of a pre-sentence report.

[12]     I record, also, that your sentencing has been delayed since you entered your pleas on 28 June 2012.  This has been due to the fact that you gave birth to a child in October 2012.  The Crown accepted that your sentencing should await the birth of your child, and also the passage of a reasonable period of time in order to enable your child to become settled before you began serving an inevitable sentence of imprisonment.

Starting point

[13]     I propose to fix a starting point that encapsulates all of your offending.

[14]     Although you pleaded guilty to five charges, they are really no more than examples of the different types of offending in which you were engaged.  I take the lead charges to be those of supplying methamphetamine and being in possession of the supply of methamphetamine.   I do that simply because those charges carry maximum sentences of life imprisonment.   I consider the charge of offering to supply methamphetamine to be slightly less serious because it is not necessarily known whether or not supplies ultimately took place.

[15]     In fixing the starting point, the guideline judgment of the Court of Appeal in R v Fatu comes into play.[1]   In that case the Court of Appeal identified starting points to be applied in respect of different bands of offending relating to methamphetamine. The lowest band relates to offending involving the supply or manufacture of up to five grams of methamphetamine.   The next band relates to offending involving between five and 250 grams of methamphetamine.  Band three relates to offending involving large scale commercial supplies of methamphetamine of up to 500 grams. The starting point to be applied in relation to this band, which clearly applies to your

offending, is a sentence of between eight and 11 years imprisonment.

[1] R v Fatu [2006] 2 NZLR 72.

[16]     The Court of Appeal also made it clear in Fatu that the amount supplied is not the only criteria to be taken into account.  The Court must instead have regard to the overall circumstances of the offending. As I have said, you were a busy dealer in methamphetamine.   You  offered  to  supply methamphetamine  on  numerous,  and regular,  occasions  and  those  supplies  were  actually  consummated  on  many occasions.  Your activity resulted, as I have said, in the actual supply of somewhere in the region of 400 grams of methamphetamine.

[17]     On that basis, your offending falls towards the upper end of band three, as the Crown submits.  I therefore take an overall starting point of nine years six months imprisonment to reflect your overall culpability.

Aggravating factors

[18]     There is no suggestion that I should add any uplift as a result of aggravating factors personal to you.

Mitigating factors

[19]     It is now necessary to have regard to factors personal to you that operate to reduce the starting point I have selected.

[20]     The obvious factor for which I can give you credit is that of your guilty pleas. I will return to those in a moment.  Your counsel submits, and I accept, that I should also give you a limited discount to reflect three other factors personal to you.

Previous good character, remorse and prospects of rehabilitation

[21]     You appear for sentence at the age of 30 years.   It is clear that you are a person of many talents.  In the past you have held down worthwhile jobs, and you have shown yourself to be an industrious worker in our society.  At one stage you bought into a Lotto shop owned by your mother, and you assisted in running that. You also opened another shop on your own account and you ran it yourself.  You also obtained a job with a bank, and your talents were such that you were promoted

very quickly.   Unfortunately, you lost that job when you took maternity leave following the birth of your first child three years ago.   This meant that you were unable to return to work at the bank at the end of your maternity leave.   This coincided with business problems for the shops in which you had an involvement. Ultimately, you were forced to close these.

[22]     This then led you to become involved with a group of people with whom you had had no previous involvement.  You began to use drugs, and to use them in a significant way.  Given your financial situation, it was only a matter of time before you began selling drugs to finance your habit.  The text messages make it clear that by September 2011, your drug dealing business was in full cry and must have been consuming all of your available time.  Having said that, there is no suggestion that your drug dealing activity resulted in massive gains that enabled you to lead a lavish lifestyle.  Your lifestyle appears to have operated much as it always did during this period.  I draw from that the inference that you were plowing all of your profits back into buying more drugs for on-sale.

[23]     You are extremely fortunate to have the support of a very caring family.  You have brought great distress to them, and I am sure you have turned your family’s life upside down.  Your father and brother are here today to support you in your hour of need.  You are extremely lucky, as I have said, that you have their support because you will need it in the coming years.

[24]     You have no previous convictions of any substance, and you have given to society in the past by becoming involved in fundraising activities.  You have also contributed to our society through  your talented work as a fashion designer.   I consider your previous good character must be recognised in a discrete, if moderate, way.

[25]     Secondly, I am satisfied that you are truly remorseful.  You have written me a detailed letter outlining your remorse.  It is not surprising that you are remorseful, because you have effectively ruined your own life.  You have also placed incredible strain on your two young children.  They will be growing up over the next few years

without any proper access to their mother at a time when they are obviously in their most formative years.

[26]     Thirdly,  the material  before me  makes  it  clear  that  you  have  very good prospects of rehabilitation.  Your previous worthwhile status in society means you ought to be able to return to society and to take your place in the workforce in a legitimate sphere.   These factors combined enable me to apply a discount of 12 months, thereby reducing the starting point I have selected to eight years six months imprisonment.

Guilty pleas

[27]     It is then necessary to have regard to your guilty pleas.   These were not entered at the earliest stage, because you were arrested, as I have said, on 2 October

2011.    You  were  then  committed  for  trial  in  this  Court  on  5  January  2012. Thereafter, your case was called on a number of occasions before your pleas were ultimately entered.

[28]     Having said that, the Crown did not file an indictment until May 2012.  At that time, the indictment contained 68 counts.  This was subsequently reduced to five charges, to which you entered guilty pleas as soon as an amended indictment was filed.  For that reason the Crown takes no issue with the maximum discount being applied to reflect your guilty pleas.  That is appropriate, because you have saved the Crown the very real cost of a trial involving the transcription and dissection of numerous text messages.   I therefore propose to apply the maximum discount available of two years two months, or 25 per cent, to reduce the sentence further.

Minimum term of imprisonment

[29]     In any case where the Court imposes a sentence of more than two years imprisonment, it has the power to require the offender to serve a minimum term of imprisonment before being permitted to apply for parole.[2]    It can do that when the

[2] Sentencing Act 2002, s 86(1).

usual  parole  provisions  would  not  be  sufficient  to  reflect  factors  of  deterrence,

denunciation, accountability and the need to protect the community.  Usually, large scale drug dealing such as this would engage all of those factors.

[30]     In the present case, however, the Crown has not sought a minimum term of imprisonment and I do not, in any event, consider a minimum term would have been appropriate.   I consider that the sentence I have imposed, coupled with your acknowledgement of wrongdoing, is sufficient to reflect the sentencing principles to which I have referred.   I also do not see you as a threat to the community in the future.  For that reason, no minimum term of imprisonment is imposed.

Sentence

[31]     On the charges of supplying methamphetamine and being in possession of methamphetamine for supply, you are sentenced to six years four months imprisonment. Those sentences are to be served concurrently.

[32]     On the charge of offering to supply methamphetamine, you are sentenced to five years imprisonment.

[33]     On the charge of offering to supply Ecstasy you are sentenced to three years imprisonment.

[34]     On the charge of conspiring to be in possession of methamphetamine you are sentenced to three years imprisonment.

[35]     The sentences imposed on those three charges are to be served concurrently with each other, and concurrently with the sentences imposed in relation to the first two charges.

Order for destruction

[36]     I make orders for the destruction of the paraphernalia that the police found at your house.

Lang J

Solicitors:

Crown Solicitor, Rotorua

Counsel:

I D Farquhar, Taupo