R v Jolley HC Rotorua CRI-2011-063-321
[2011] NZHC 192
•9 March 2011
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2011-063-321
THE QUEEN
v
JULIE LOUISE ELIZABETH JOLLEY
Hearing: 9 March 2011
Counsel: S Simmers for the Crown
M Hine and T Braithwaite for Ms Jolley
Judgment: 9 March 2011
SENTENCE OF WOODHOUSE J
Solicitors:
Mr S Simmers, Gordon Pilditch, Office of the Crown Solicitor, Rotorua
Mr M Hine, Families Matter Law Practice, Rotorua
R V JOLLEY HC ROT CRI-2011-063-321 9 March 2011
[1] Ms Jolley you may remain seated while I explain the sentence I am going to impose. And as I have made clear in discussions with counsel, and without opposition from the Crown, I do intend to impose a sentence of home detention subject to particular conditions.
[2] You are for sentence on one charge of supplying methamphetamine, five offences of selling cannabis and five offences of possession of cannabis for supply. The maximum penalty for supplying methamphetamine is life imprisonment, and you should reflect very seriously on that. The maximum penalty for the cannabis offences is 8 years imprisonment.
The facts
[3] A brief outline of the facts is as follows.
[4] Between 25 November and 17 December 2010 police officers went to a house in Rotorua where you were living with your sister, Karlene, and your children. These visits by undercover police officers were part of a wider operation in the district. On five occasions an officer was sold a cannabis tinnie, that is approximately one gram of cannabis, and on each occasion for $20. On two occasions the sale was by you; on the other occasions the sale was by your sister, Karlene Jolley. On each occasion the police officer was shown more tinnies which were available for supply ranging from one to about 10.
[5] On 17 December, which was the final visit made by an undercover officer, that officer asked you whether you could supply methamphetamine. There was no indication that prior to that you had given any indication that you could or would or wanted to supply methamphetamine. Mr Simmers has acknowledged that the initiative in relation to the enquiry came from the undercover police officer. Nevertheless, you told him that you could supply methamphetamine and indicated it partly by a gesture that you could get it from the Black Power gang – that is what he said. You were not in any way forced to do that, so you did that quite voluntarily.
[6] On 18 December you supplied 0.1 gram of methamphetamine for $100. The police operation, as a whole, was terminated on 22 December and I am left with the impression that the enquiry about methamphetamine was made on 17 December knowing that the operation was about to end.
[7] You were arrested, it appears, on 23 December 2010. You admitted selling cannabis and the quantity of methamphetamine. You were remanded in custody on that date and you have remained in custody since then. So you have been in custody for 2 ½ months. And I accept that that fact has had a real impression on you and brought home to you the gravity of what you have been involved in – and your response to me as I was saying that makes sufficiently clear that it has.
[8] You pleaded guilty on 19 January 2011 to all of the charges, accepting by that plea that you were a party and actively involved with your sister in the whole operation.
Personal circumstances
[9] I deal with your personal circumstances. You are aged 44. You are one of 12 children. You were the fourth child and the eldest girl. You told the probation officer that you became a stand-in mother for your siblings – that you became their main support person – and also supported your parents in their late years. You have
11 children by two partners. You formed a relationship with your second partner, Mr Rameka, in 1997 and you married him in 2001. You and Mr Rameka have six children.
[10] The pre-sentence report says that you and Mr Rameka were estranged but I have been advised today, including by you directly to me, that there is a serious reconciliation being attempted and, I apprehend, in considerable measure because of the responsibility each of you feel towards the children. Mr Rameka is presently looking after five of the children who are aged between 7 and 15. And he is looking after them in a new home that he has rented and to which it is proposed that you go for the period of home detention.
[11] You do have previous convictions for offences against the Misuse of Drugs Act. However, these were over 10 years ago and, it appears, for three related offences in June 2000. There was one conviction for possession of cannabis for supply and that was the main offence. You were sentenced to 100 hours community service and this was satisfactorily completed. The pre-sentence report indicates that this offending occurred because of family connections, including family connections with Black Power criminal activities.
[12] From all of the information available to me I am satisfied that these adverse influences include adverse influences of your sister, Karlene. You have not said that directly but it is reasonably apparent. I also note that Karlene Jolley has pleaded not guilty to these same offences [charged] against her, except that she is not charged with the methamphetamine offence. In relation to what I am talking about at the moment the probation officer said this, and I quote:
In the course of discussion with Ms Rameka at interview it became clear that the significant factor underpinning her present offending was her susceptibility to the behaviour of her associates and relatives, particularly her sister Karlene. It appears that this susceptibility derives in part from the role she has played historically in her large group of siblings, whereby she is often at the centre of whatever is going on, often passively rather than actively involved.
[13] You have shown remorse for your offending and I accept that it is genuine and I also accept that you understand the gravity of what you were involved in. You are assessed at very low risk of re-offending and in the pre-sentence report there is a recommendation for home detention.
Sentencing
[14] I come now more specifically to the sentence.
[15] Mr Simmers, understandably, submitted that the lead offence – the most serious offence – can be taken to be the supply of methamphetamine. And if that offence is taken as the lead offence a Court of Appeal decision indicates that the starting point would be around 2 to 3 years imprisonment before allowing for any personal factors that might reduce it. And that is the Crown’s submission – of a
starting point in respect of all of the offending. Mr Simmers acknowledged that you are entitled to a discount of the maximum of 25% for your very early guilty pleas. And to the extent that other personal matters can be brought into account, they will be.
[16] Mr Hine, on your behalf, submitted in essence that this is a case where home detention can properly be imposed.
[17] I note that although in one respect the supply of methamphetamine is the most serious offence it does appear that this simply would not have occurred had the police officer not taken the initiative. As I indicated before, that does not excuse you in any way. No-one was forcing you to contact these people where you knew you could get it. Nevertheless it is apparent that what you were involved in was a tinnie house and I accept, as I have also indicated, that the initiative there was principally that of your sister.
[18] There are no particular aggravating features of the offending other than what is inherent in all of that offending. To an extent a mitigating factor in relation to the offending can be seen in these adverse family influences and the role you have in this family in fact, I apprehend, from quite a young age. In the end whether that is brought into account, to the extent that it can as a mitigating factor of the offending or a mitigating factor of a personal matter, does not matter, but it is a consideration.
[19] You are entitled to a discount from a prison sentence – if a prison sentence was to be imposed – for personal factors, in addition to the guilty plea. There is the family influence, if it is brought in as a personal consideration. There are the responsibilities you have for five young children, in particular. There is the fact that at the age of 44, and in spite of seriously negative background influences, you have offended before only once, in effect, and that was over 10 years ago. As best as these matters can be assessed Ms Jolley, I accept that there is genuine remorse and genuine understanding of the need for you to take a grip on your own life and resist these adverse influences.
[20] Having regard to these matters, and noting that this is not a science, if I was considering a sentence of imprisonment I would take a starting point slightly below 2 years. Mr Simmers had submitted that it should be around 2 to 3 years and on that basis one might start at about 2. I would reduce it to about 20 months if those adverse influences on you are taken as relevant to the offending itself. In respect of other personal considerations that I referred to, and including your guilty plea, I would further reduce a prison sentence by around 30-35%. That allows for the guilty plea at 25%, and Mr Simmers acknowledged that you are entitled to that much of a discount. The end of all of that would be – if it was prison – a sentence of around 13 to 14 months.
[21] On the question of home detention I note that in general home detention will not be imposed if the offence involves offending from the home and particularly if it involves drug offending from the home. And that, of course, is precisely what you were doing. And the reasons for not having sentences of home detention in those cases are obvious. What I have just referred to comes from comments from the Court of Appeal but it is important to observe that the Court of Appeal is not seeking to lay down some rigid rule – although I think sometimes it is treated as such. Because of that I think it is relevant to read from what the Court of Appeal said in
Paki[1]. The Court there was dealing with an appeal against refusal to grant leave to
[1] R v Paki CA165/05, 5 September 2005.
apply for home detention and it said:
[12] We accept that the declining of leave to apply for home detention is usual in cases involving offending over a period of time and where that offending has occurred in a home environment. This is particularly so in cases of drug offending. The possibility of returning home, to the scene of offending, a relatively short time after conviction, could tend to undermine the deterrent aspect of sentencing in such cases, and detract from the authority of the judicial process in the eyes of the public. But the judicial discretion must not be fettered, even if sparingly exercised in the types of cases we have mentioned.
And I do not need to go into this further.
[22] But there are cases where, notwithstanding the general observations, home detention may be an appropriate sentence. Having regard to all of the matters that I
have referred to, and one other that I will come to, I consider that home detention is the appropriate sentence.
[23] The remaining consideration is essentially practical. The proposal is that you live in another house that I understand has been rented by Mr Rameka following your arrest. Some understandable concerns were expressed in the home detention report about the environment for the children, bearing in mind what happened before, and also in respect of Mr Rameka. The concern related to Mr Rameka is that he too has convictions very similar to yours – or perhaps the same as yours – which occurred 10 years ago. The advice I have, and I understand confirmed by the Crown, is that it was offending of the same nature and there has been no further offending by Mr Rameka since then. I am also advised, and I accept, that some associations Mr Rameka had with the Black Power gang 10 to 11 years ago were severed 10 to 11 years ago – and with some adverse consequences for him – and that he has not renewed them. And you, Ms Jolley, in a personal statement to me have assured me that you and your husband want to do the best you can to try and repair your marriage and to do that for all of the reasons that are obvious. You are directing it in particular to the interests of the children, but this will also assist in your rehabilitation. I am therefore satisfied that the proposal for home detention is one that can be accepted by the Court.
Formal sentence
[24] Would you please stand.
[25] For each of the offences you are sentenced to 9 months home detention. This home detention is subject to the following conditions:
(a) You are to travel directly from Court to 96B Kawaha Point Road, Kawaha Point, Rotorua.
(b)You are to reside at 96B Kawaha Point Road, Kawaha Point, Rotorua for the duration of your home detention.
(c) You are not to consume or be in possession of alcohol or non- prescription drugs for the duration of your home detention and you are not to be in possession of or consume illicit drugs at any time in the future.
(d)Pursuant to s 112 of the Sentencing Act, there is an order that you do not associate with Karlene Jolley or any member of Black Power.
(e) You are to undertake relationship counselling as may be directed by the probation officer during the course of the sentence of home detention.
[26] Obviously I am not able to impose conditions on Mr Rameka in relation to relationship counselling, but I do record that he indicated to me in the course of submissions that he too is determined to engage positively in relationship counselling.
[27] Ms Jolley, this is a turning point and it is a chance, and I really hope both of you can really make the most of it.
[28] Stand down please.
Peter Woodhouse J
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