R v K HC Rotorua CRI-2009-070-1557

[2010] NZHC 557

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-070-1557

THE QUEEN

v

K

Appearances: S E Simmers for the Crown

C R Horsley for the prisoner

Sentence:       30 April 2010

SENTENCING NOTES OF PRIESTLEY J

Counsel:

S E Simmers, Crown Solicitor, P O Box 740, Rotorua 3040.  Fax: [phone]. C R Horsley, P O Box 699, Seventh Avenue, Tauranga 3140. Fax: [phone]

R V K HC ROT CRI-2009-070-1557  30 April 2010

[1]      Sentencing this prisoner has been a complex task which has needed, on my part, some careful choices.  I have been immeasurably assisted by Ms Simmers for the Crown and Mr Horsley for the prisoner, who have worked in a co-operative fashion to ensure that the sentence crafted for Ms K   is the best possible, designed to help her turn her life around and keep her from future offending.

[2]      I have also been greatly assisted by a letter to the Court from the prisoner’s mother  Ms  Robyn  Furlong with  whom  I have  had,  with  counsel’s  consent,  the opportunity of a useful dialogue, as I have with the prisoner.

[3]      These sentencing notes will be abbreviated because, in essence, the outcome is one which both counsel consider is appropriate in the circumstances.

[4]      I am sentencing the prisoner today on eight counts of offering to supply methamphetamine, four counts of conspiracy to supply methamphetamine, and one count for possession of utensils.

[5]      The offending was detected as a result of interceptions of texts and telephone calls of the prisoner which were part and parcel of a much wider police investigation involving a homicide launched in November 2007.  The relevant telephone traffic of the prisoner between 4 March and 27 April 2008 was in the main to and from a Mr Tawhiri, who was a major offender who has pleaded guilty,

[6]      At that time the prisoner was in a de facto relationship with a Mr Castle who has also pleaded guilty.

[7]      The intercept operation which caught up the prisoner has resulted in a large scale methamphetamine related drug trial in which the prisoner is one of 10 accused. Two have already pleaded guilty.   The prisoner and Mr Fraser have also pleaded guilty.  In respect of the others the trial is still afoot with a projected trial date in this Court of November 2010.

[8]      It is unnecessary for me to specify the text traffic involved.   The offer to supply   on   the   Crown’s   assessment   probably   related   to   4.1   grams   of

methamphetamine.  All offences relate to offers to supply, or conspiracy to supply with Mr Tawhiri and others.

[9]     What is highly relevant in sentencing this prisoner are her personal circumstances and some powerful mitigating factors.  She is a 32 year old mother of three.  Regrettably an older brother is imprisoned for drug offending as indeed is the father of two of her children.  One of her brothers is, I am told, a member of the Bay of Plenty Filthy Few  gang.   The age range of her children is from 11 to two. Significantly the prisoner has been in receipt of a Domestic Purposes Benefit for some 11 years which is highly unsatisfactory.  A younger brother is a youth pastor.

[10]     The presentence report assessed her risk of re-offending as low but indicated that this would escalate once her current stringent bail restrictions are removed and particularly if she were to resume contact with gang associates.  A home detention report was prepared and her current home is suitable.   The report recommended imprisonment.

[11]     The prisoner has no previous criminal history with the exception of one driving offence in 2001.

[12]     Mitigating factors which strike me as being relevant include the fact that she is a low risk of re-offending; that she has, on a voluntary basis attended a Get Smart drug and alcohol counselling programme.  I notice she previously has attended this at an earlier stage and had not persevered.   This time she appears to be persevering. She is clear of drugs and alcohol.  The Achilles heel of the prisoner is clearly her gang association and, as her mother put it, a number of bad choices she has made in the past, particularly in the area of unsuitable relationships.

[13]     Another mitigating factor is that since 28 April 2008, the date of her arrest, the prisoner has been subject to stringent bail conditions.  In that period of just over two years there have been no breaches of bail.

[14]     For sentencing purposes I need to indicate what I would have done were I to impose a period of imprisonment.  I agree this sits somewhere in band 1 of R v Fatu1 with a two to four year range.  I note that the prisoner’s de facto partner at the time, Mr Castle who was sentenced to prison by Harrison J, was faced with a three and a half year start point.

[15]     Although there is some material to suggest that the prisoner here was in it for commercial gain (whereas her partner was feeding his own addiction), the commerciality as such seems to be limited to putting money into a family kitty for household purposes.   I take the view that Ms K   was very much under the influence  of  Mr  Castle  at  the  time.    Although  with  some  enthusiasm  she  was prepared to assist him with his drug dealing she did so as the more junior of the two partners involved.   Nonetheless what she did was wrong, dangerous, capable of feeding other people’s addictions.  You are lucky that you yourself have not become addicted to this dreadful drug.

[16]     In general terms what I would do is fix a start point of three years four months imprisonment.   I would give a discount of nine months to reflect relevant mitigating factors including the fact that she is a first offender; that she has endeavoured to turn her life around and is committed to rehabilitation; and the fact that her obligation to her young children would make a term of imprisonment disproportionately severe.  A nine month discount would bring me to 31 months.

[17]     I would then apply, in terms of R v Hessell2  a 25 per cent discount.   This offending was part of a complex trial.  The Crown was not in a position to present an indictment  until  4  June  2009  on  which  date  Ms  K    was  arraigned.    The summary of facts, I am told by Ms Simmers, was not available until late January of this year and a guilty plea was entered on 4 March 2010.  Although the guilty plea was entered eight months after arraignment, given that this was a complex multi- accused trial, and that disclosure and finalising the summary of facts would have made a guilty plea at an earlier stage problematic, I consider the 25 percent discount, for the reasons I have articulated, is appropriate.

[18]     That discount would bring me down to a shade under two years, twenty three and a quarter months, so home detention is an option.

[19]     I consider that the major weakness, or Achilles heel as I have described it, here correctly identified by the probation officer, is the risk that the prisoner will be led astray by association with gang members.   That risk can to some extent be tempered by a non-association order under s 112 of the Sentencing Act.

[20]     On the charge of possession of utensils (Misuse of Drugs Act s 13(1)(a) and

13(3)) I convict the prisoner and discharge her.   There will be an order for the destruction of the utensils.

[21]     On the remaining 12 charges which have maximum periods of imprisonment to life imprisonment (offer to supply) and 14 years imprisonment (conspiracy to supply) respectively.  I see no point in differentiating between those 12 charges.

[22]     The sentence imposed on all those 12 charges is one of 10 months home detention.   I combine that home detention sentence with a sentence of 150 hours community work.

[23]     The prisoner in respect of the home detention sentence is ordered to travel directly  to  298  Darraghs  Road,  Tauranga,  and  remain  at  that  address  until  a probation officer and security officer arrives.  She is to reside at that address for the duration of her sentence.  She is not to possess or consume alcohol or illicit drugs.

[24]     The prisoner is also to undertake such courses as may be approved by the probation officer.  I direct that such courses are to include: courses on relationships; on parental and family responsibilities; and a continuation of the Get Smart programme.

[25]     In respect of the community work sentence I direct, to the extent that I am able,  that  this  community  work  is  to  be  an  involvement  with  some  form  of community based activity involving, perhaps, children or other community based

charitable organisations.  I would be unhappy if the community work sentence was to involve menial or manual work such as scrub cutting, et cetera.

[26]     I also make pursuant to s 112 of the Sentencing Act 2002 a non-association order which will take effect from today.   I am satisfied a non-association order is necessary to ensure that this prisoner does not commit further imprisonable offences. The non-association order is to extend generically to all members of the Black Power, Mongrel Mob, and Filthy Few gangs.  The only exception to that order is her brother Mr Benjamin Martin.   The non-association order is also to extend to all people specified in her current bail conditions.

.......................................… Priestley J