R v Keogh HC Whangarei CRI 2005-029-001274

[2007] NZHC 1805

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2005-029-001274

THE QUEEN

v

MORAG KEOGH

Appearances: A L Hyndman for the Crown

C Cull for the Prisoner

Sentence:       7 June 2007

SENTENCING NOTES OF PRIESTLEY J

Counsel:

A L Hyndman, Crown Solicitors, P O Box 146, Whangarei Email:[email protected]

C Cull, 212 Waipapa Road, RD 2, Kerikeri. Email: [email protected]

R V MORAG KEOGH HC WHA CRI 2005-029-001274  7 June 2007

[1]      Ms Keogh, it is my job to sentence you today on three counts.  You pleaded guilty to those three charges in March 2007, after committal but at the first callover, in this Court.

[2]      You have pleaded guilty to a charge of conspiracy to supply the precursor drug pseudoephedrine.  On that charge you are jointly charged with your husband Roland Keogh who is now a serving prisoner.   You also face two more serious charges of supplying methamphetamine.   The first charge stipulated a deal on 5

November 2005.   The second charge in respect of which  you were also jointly charged with your husband was three days later on 8 November.    The pseudoephedrine count carries a maximum term of seven years imprisonment.  As I am  sure  you  have  been  told  the  supply  of  methamphetamine  counts  carry  a maximum of life imprisonment.   You are not,  of  course,  today exposed  to  my sentencing you to jail for life but I stress that maximum to bring home to you these charges,  relating to supplying and dealing with  methamphetamine,  are  seriously regarded by Parliament.  Fortunately you are at the lower end of the scale.

[3]      I have been hugely assisted by memorandum and submissions from both counsel.  In particular Ms Hyndman for the Crown has alerted me to all the relevant principles and authorities.   Her submissions to me today have been careful, conscientious, and appropriately restrained.  Your counsel, Mrs Cull, too has raised every possible point, and in an extremely helpful and informative way which can be raised in your favour.   As a result I have a very clear picture of your personal circumstances and background and also the backdrop to this offending.

[4]      The amount of methamphetamine involved is significant.   On 5 November

2005 charge you supplied 1.1 grams and 1.15 grams respectively, where money changed hands to the extent of $1,400.  On the 8 November count you supplied four half gram bags of methamphetamine, being a total of two grams.  Again there was an exchange of $1,500.   Special force police officers were involved, but these were people who were strangers to you.

[5]      On  the  pseudoephedrine  count  it  is  clear  that  you  were  involved,  in conjunction with your husband, and against a backdrop of text messages, in uplifting some Coldral tablets which are notorious as a pseudoephedrine source.

[6]      Ms Keogh, you are a first offender.  You are clearly living with an extended family in the Far North in what I understand to be a rural area.  Quite candidly it is tragic to see somebody of your background, your abilities, and your good track record offending in this way.  I think you have got sucked into this offending but you were of sufficient intelligence and responsibility to know exactly what it was that you were doing.  I think you have to a large extent succumbed to whanau pressure.  I accept that you were in an abusive relationship at the time and I also accept that those people in wider circles around you, who I think were more responsible for the offending than you were, would have influenced you to some extent.  I suspect, for domestic and personal reasons, you found yourself not able to stand up but you should  have.   Your  position  was  not  assisted  by the  fact  that,  regrettably,  you yourself had become a methamphetamine user and, as is so frequently the case, become addicted to that substance and prone to all the mood changes which methamphetamine entails.

[7]      The presentence report is extremely helpful.  You are 39 years of age.  You are the mother of one adult son who seems to be employed.   You also have responsibility for two daughters aged five and three respectively.  You have been in an abusive relationship.  Your husband, who is now a serving prisoner, has written a letter to me from which it seems that he may have realised the error of his ways and exactly what it is that he has put you through.  He has told me, and I have no reason to question it, that he was solely responsible for your offending; that he loves you and your daughters; and that you would not be in Court today if it were not for what he has done.  I have read that and taken it on board.

[8]      I remind myself that I must not give much weight, if any, to personal circumstances, however, when imposing sentences for offending under the Misuse of Drugs Act.

[9]      I accept that  you have not  benefitted  financially from  this.    The  $2,900 involved appears to have gone to a more major offender, a Mr Rankin, who has been dealt with.

[10]     Returning to the pre-sentence report, the details contained in there indicate that you are currently employed part time in a shop.  You are also the fulltime care giver of your invalid mother-in-law.  I have mentioned your responsibilities to your two daughters.  It is gratifying to note that you have, on your own initiative, taken steps to try and deal with your former drug addiction.  You made a self-referral to mental health services.   You have made contact with other professionals and you have tested clean for recent drug tests.

[11]     Your counsel has supplied me with a letter from the Salvation Army from which it appears, that as a result of your involvement in that organisation’s Intensive Therapy Alcohol and Drug Programme, you have displayed a natural caring ability, communication abilities, and that you are a resource which that group is anxious to use.    I  have  also  received  a  report  from  a  social  worker  at  Kaitaia  Hospital Community Health Services.   That makes it clear that you have had emotional problems in the past, with low self-esteem, financial difficulties, anxiety, and depression.   Alcohol abuse and drug abuse have been past difficulties.   You have exhibited in many areas all the characteristics of a victim of domestic violence.

[12]     So the problem I need to address against that tragic background is what to do. I am of the view that I have to, in terms of ss 7 and 8 of the Sentencing Act, give appropriate weight to the purposes of deterrence and denunciation.   It is also important  for  me  to  give  as  much  weight  as  I  can  to  s 7(1)(8)  to  assist  your rehabilitation and re-integration which is well advanced.

[13]     Looking at the appropriate sentence I am satisfied you are in the upper range of the Court of Appeal tariff case R v Fatu [2006] 2 NZLR 72 band one, which suggests, for supply, I should be looking at a sentence ranging between two and four years. In terms of R v Taueki [2005] 3 NZLR 372 I need to come to a start point that properly reflects your culpability and aggravating features. I note that the four grams involved is edging close to the upper point of Fatu band one of five grams.  I note

also that you offended by supplying methamphetamine not once but twice.   And there is added to that the conspiracy to supply pseudoephedrine charge.

[14]     Other factors, however, which are to your credit so far as your culpability is concerned are the fact that I do not believe you were a prime instigator, although you were certainly closely associated with the prime offender, and that you have not benefited financially from this.  As Ms Hyndman properly observes, however, it is clear from various comments you made at the time that you were well aware of what was going on.   I am sure you have a full knowledge of the operation and other offending in which you were assisting.

[15]     Being in the start point area as lenient as I can, I consider both supply charges should be treated as lead sentences and should attract a start point of three years imprisonment.

[16]     Mitigating factors are important in your case.  Mrs Cull has rightly pointed out that in addition to your guilty plea there are mitigating factors which include your previous good record; your good character in the community; your relationship, which was abusive, although I can give you little credit for that;  the fact that you are remorseful;  and  the  fact  that  you  have  taken  steps  to  address  your  addiction problems.

[17]     I would regard an appropriate discount for your early guilty plea on the three year start point as being in the order of 30%.  I would be entitled to add probably another  three  or  four  months  to  that  to  reflect  other  mitigating  factors.    An appropriate end sentence, in my view, totally consistent with the various Sentencing Act purposes and principles I have outlined, would be one of one year and ten months imprisonment.

[18]     Thus on the two counts of supplying the Class A drug, methamphetamine, I sentence you to one year and ten months imprisonment.  Both those terms are to be served concurrently.   On the charge of conspiracy to  supply pseudoephedrine  I sentence  you  to  12  months  imprisonment.     That  term  too  is  to  be  served concurrently.

[19]     In  terms  of  s 97(3)  of  the  Sentencing  Act  and  leave  to  apply for  home detention I need to turn my mind to the nature and seriousness of your offence, your circumstances and background, and other relevant matters.   I do not consider, although this is serious offending, that there is anything in your background which would move me towards declining leave.  Ultimately whether or not you are granted leave for home detention is not a matter for me but a matter for the Parole Board.

[20]     Accordingly I grant you leave to apply for home detention.

[21]     Your counsel has raised s 100 of the Sentencing Act.  Section 100(1) allows me to defer the start date of your sentence for a period of up to two months on humanitarian grounds and in particular in terms of s 100(1)(b) by giving you leave to apply for home detention.  I am satisfied there are exceptional circumstances which justify that deferral.   I regard the predicament of your infirm mother-in-law, for whom you are the prime caregiver, and also the need for you to make at least some interim arrangements, if home detention is not granted, for your daughters and the fact that you are currently their caregiver, as falling inside the ambit of that section.

[22]     Accordingly your sentence is deferred to enable you to apply for leave for home detention until Friday 3 August 2007 which is just under the two month maximum period permitted.

[23]     Your bail will be continued on the same terms pending a final decision of the

Parole Board.

[24]     I also impose standard release conditions under the Parole Act.

[25]     Finally let me say this.  What you have done is, I think, out of character.  But I also think what you have done was partly because of the environment in which you have been living and the weaknesses which you and other members of your whanau have succumbed to.  You are not going to get a second chance in this area.  You have taken steps to do the best you can.  I wish you well in that.  But let me make it very clear to you; if you get involved in any form of criminal offending again the chances of you going inside jail are high.  I am sure you will appreciate that.  You need to

think long and hard about your life and your relationships over the next one year and ten months.  I wish you well.

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