R v Kearns HC Auckland CRI-2007-004-017810

[2008] NZHC 2602

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-004-017810

QUEEN

v

RAGAN MARIE KEARNS

Hearing:         30 September 2008

Appearances: SA Mandeno for Crown

RW Kee for Offender

Judgment:      30 September 2008

SENTENCING NOTES OF JOHN HANSEN J

Solicitors:

Meredith Connell, PO Box 2213 Auckland

RW Kee, Barrister, PO Box 3620, Shortland Street, Auckland 1140

R V KEARNS HC AK CRI-2007-004-017810  30 September 2008

[1]      Ms Kearns you have pleaded guilty to one offence under the Misuse of Drugs Act 1975, and that is offering to supply a Class A controlled drug methamphetamine to person or persons unknown between 1 March 2007 and 21 April 2007.

[2]      On 21 April 2007 a patrol officer approached your vehicle parked in Grafton Road near the hospital.   You were asked to step outside and as you emerged the officer noted a small plastic ziplock bag with white powder inside.   You and the vehicle were subsequently searched.  There was located a pink silk purse containing three plastic ziplock bags, a set of digital scales and a large amount of unused plastic ziplock bags.  A plastic ziplock bag containing 8 grams of white powder was found in another purse.  You made several admissions to the police, of most importance is the fact that rather than being methamphetamine the powder was MSM, a type of pain reliever which comes in capsule form and is used to reduce joint pain.   It is something  that  is  sometimes  used  to  cut  methamphetamine  and  to  increase  the amount of supply, but in your case it is clear that there was no methamphetamine present.

[3]      You are aged 33 years.  You have two daughters.  I am told that you are five months pregnant to your present partner.  You have difficulty with access over one of your children and you have anger towards the father of that child.  For the past five years you have been living with your partner at the address in Birkenhead, which is the proposed residence for home detention.  Higher Ground confirms you have attended a rehabilitation programme, but you did not complete it due to non- compliance which is of some concern.  It was reported that as part of the compliance with the children’s counsel, you participated in random drug tests when directed.  A drug assessment screening test administered at interview indicated that you do not use drugs or drink alcohol.  It is said you have also completed an anger management course with North Harbour Living without Violence, to deal with some anger issues towards your ex-partner.   It appears that it may be of some use if you and your present partner underwent a similar course because you have had difficulties in that relationship as well.

[4]      You say you have been self-employed for most of your working life, but due to the current bail regime you have been claiming an unemployment benefit.  You now fully regret your actions and understand the consequences of them.  Your risk of reoffending is considered to be low.  You are considered suitable for a sentence of home detention subject to concerns the report writer had about your present address. You have no previous convictions due to the fact that matters that were dealt with earlier this year led to a s 106 discharge of two counts and a withdrawal of another. What that does suggest, however, Ms Kearns, is that you have been living close to the edge with the criminal community, and if you want to rehabilitate yourself that is one of the first things you need to address.

[5]      Under s 7 it is important for the Court to consider the following purposes of sentencing: accountability, responsibility and acknowledgement of harm, denunciation, deterrence, and protection of the community.   Under s 8 the Court must take into account the following principles of sentencing: the gravity of the offending, including your degree of culpability; the seriousness of the offence in comparison with others; the desirability of consistency in sentencing; imposing the least restrictive outcome that is appropriate, and taking into account any particular circumstances that mean that an otherwise appropriate sentence would be disproportionately severe.

[6]      There are the following aggravating features.  You tried to pass off MSM as a Class  A  drug  methamphetamine.     The  dangers  of  methamphetamine  in  the community are well documented.  Secondly, there is the premeditation on your part. Although not intricate it involved planning and organisation, reflected in the packaging.  In mitigation is the fact that no methamphetamine was actually involved. You have pleaded guilty, and you have no previous convictions.

[7]      It is submitted on your behalf that cases of this sort are more akin to cases of fraud.  In terms of methamphetamine offending the test would be whether or not you fell within any of the bands of R v Fatu [2006] 2 NZLR 72. It seems to me that cases such as R  v  Brown  [1978] 2 NZLR 174; R  v  Johnson  HC  AK  T188/91

31 March 1992, Fisher J; R v Paul HC AK  CRI-2006-057-000001 20 June 2006, Frater J;  R  v  Wilson  HC  AK  CRI-2006-404-294  17 April 2007,  Harrison J  and

others, show that where someone is attempting to pass something else off as a drug it is more appropriate to look at this almost as fraud offending.  On the facts in this case your culpability is low, and while the seriousness of this offending is normally very serious, in the circumstances of there being no methamphetamine it is limited.

[8]      However, it is still  necessary to  deter  offending relating to  dealing with Class A drugs such as methamphetamine.  The closest cases by comparison are R v Thompson HC AK 2 March 2007, Andrews J and R v Johnson HC NAP CRI-2006-

020-2719  14 November 2006,  Allan J.    They  were  cases  were  substances  were passed off as being a controlled drug with full knowledge that they were not.   In those circumstances based on those cases I consider an appropriate starting point is one of ten months’ imprisonment.

[9]      I take into account your guilty plea, but given that it was entered relatively late only a modest allowance can be made for it.  The matter was set down for trial on 5 May 2008.  You failed to attend and it was rescheduled to 8 May 2008, when your then counsel was not in Court.  The matter was then placed in the callover list on 14 May 2008 and it was only at that stage that you pleaded guilty.  In that sense it must be said to be a late plea.   It seems to me an appropriate allowance for that would be one of two months’ imprisonment giving a new result of eight months’ imprisonment.

[10]     I turn then to consider home detention, which the Crown accepts is available. Indeed the Crown seems to me to go so far as to accept the recommendation in the probation report subject to the concerns expressed by the  report  writer.    Those concerns have been addressed today by your counsel and they revolve around the presence of your partner’s sister who was with you on the day of this offending.  She has since reoffended and has been bailed to this address for drug offending.  I am told, and I accept, that neither you nor your partner knew that she had used this address as a residential condition for bail, and in fact I accept also that she has not been residing at that address.  She has now failed to turn up in Court and a warrant to arrest is in place.  Quite clearly if she is arrested and comes before the Court and claims that as a residential address, the police will not doubt vehemently oppose it.

That, subject to a condition I will come to, seems to me sufficient to safeguard the problem created by her presence.

[11]     The length of home detention is something that has caused some debate between various Judges.  The Court of Appeal in R v Bischopp [2008] NCA 229, said that they do not accept that there is any mathematical process which should be adopted, stating that while the maximum term that can be imposed equates with the maximum period an offender sentenced to a short term of imprisonment is required to serve, it does not automatically follow that the appropriate term of home detention would be half the appropriate sentence in every case.   Once the jurisdiction to impose home detention exists through what would otherwise have been a short-term prison sentence, then the home detention term, if granted, is to be fixed after an overall assessment of all factors relevant to the offender, and consistent with the purposes  and  principles  of  the  Sentencing  Act,  including  imposing  the  least restrictive sentence appropriate.

[12]     I  bear  in  mind  in  your  case,  as  I  have  said  earlier  in  considering  and sentencing you to home detention, that you are five months pregnant, which is a powerful factor in your favour.   In the circumstances, you are sentenced to five months’ home detention.  The standard conditions of home detention will apply to you.

[13]     There will be an additional condition that Christine Plews is not to reside at that address at any time during your home detention.

[14]     There will also be an order, as sought by the Crown, for the destruction of the drug paraphernalia seized pursuant to s 32 of the Misuse of Drugs Act 1975.

………………………….

John Hansen J