R v Keyte
[2022] NZHC 1063
•13 May 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-6031
[2022] NZHC 1063
THE QUEEN v
CAMILLE DOREEN KEYTE
Hearing: 13 May 2022 Appearances:
K Whyte for the Crown
M N Sturm for the Defendant
Judgment:
13 May 2022
SENTENCING NOTES OF GORDON J
This judgment is delivered by me on 13 May 2022 at 1pm.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
Kaleb Whyte, Crown Solicitor, Hamilton Mark Sturm, Barrister, Hamilton
R v KEYTE [2022] NZHC 1063 [13 May 2022]
Introduction
[1] Ms Keyte, you appear before the Court for sentencing on the following charges:1
(a)Supplying Class A drug (methamphetamine);2
(b)Offering to supply Class A drug (methamphetamine);3
(c)Supplying Class A drug (gamma-butyrolactone aka GBL);4 and
(d)Participation in an organised criminal group.5
[2]The maximum penalty for supply of methamphetamine is life imprisonment.
[3] The facts of your offending are set out in my sentence indication.6 I will not repeat them here. My sentence indication will be attached to these remarks and form part of them. In brief, you acted as a street level dealer and supplied just over 10 grams of methamphetamine on 14 separate occasions; you offered to supply methamphetamine on seven separate occasions; you supplied GBL on two separate occasions; and you attempted to assist a co-defendant retrieve a parcel containing
2.04 kilograms of methamphetamine.
[4]At a sentence indication hearing on 24 March 2022 my indication was:
(a)A term of imprisonment of two years and two months, on the lead charges of drug supply.
(b)An uplift of six months for the charge of participating in an organised criminal group.
1 The defendant was charged with two charges of supplying methamphetamine. The two charges have been amalgamated for sentencing purposes.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2): maximum penalty life imprisonment.
3 Misuse of Drugs Act 1975, s 6(1)(c) and (2): maximum penalty life imprisonment.
4 Misuse of Drugs Act, s 6(1)(c) and (2): maximum penalty 14 years’ imprisonment.
5 Crimes Act 1961, s 98A.
6 R v Keyte [2022] NZHC 561.
(c)An uplift of two months (just over 6 per cent) to reflect your previous criminal convictions.
(d)A discount of 20 per cent for pleading guilty at an early stage.
[5] This resulted in an adjusted starting point of two years and three months' imprisonment.
[6] At the hearing, I noted that any mitigating factors personal to you would be considered at sentencing: these include commitment to rehabilitation, family support, rehabilitative prospects and time spent on restrictive bail.
[7] I left open the question of whether the sentence of imprisonment could be commuted to one of home detention or a community-based sentence.
[8]On 1 April 2022 you accepted the indication and pleaded guilty to all charges.
Approach to Sentencing
[9] Ms Keyte, in sentencing you today, I am required to take into account the purposes and principles of sentencing as contained in the Sentencing Act 2002 (the Act).7 In particular, I must impose a sentence which: holds you accountable for the harm methamphetamine offending does to the community; promotes in you a sense of responsibility and acknowledgement of that harm; denounces your conduct; and deters you and any other person from committing similar offences in future. The sentence I impose must also reflect the gravity of your offending, the seriousness of this type of offending and the desirability of consistency with appropriate sentencing levels.8
[10] On the other hand, I must be mindful of the need to assist in your rehabilitation and reintegration into the community. Accordingly, I must impose the least restrictive outcome that is appropriate in the circumstances.9
7 Sections 7 and 8.
8 Section 7(1) (a),(b),(e) and (f).
9 Sections 7(1)(h) and 8(g).
Personal circumstances
[11] I have been provided with a Provision of Advice to the Court (PAC report), dated 22 April 2022. This is a report prepared by the Department of Corrections (Corrections). It was not available to me at the sentence indication.
[12] I note that the report is generally very favourable and recommends a sentence of home detention.
[13] The report identifies offending-related factors in your case as drug use, relationships, transient lifestyle, and associates. However, the report makes clear that none of these factors are still present. In particular, the report says that you have:
(a)Tested substance-free for 17 months;
(b)Completely disconnected from anti-social peers and associates, including your co-offender and former partner Mr I;
(c)Rebuilt close relationships with your mother, father, stepfather and two young daughters;
(d)Built a network of new, positive relationships through engagement with addiction recovery groups;
(e)Established domestic routines in a stable and secure residential environment, while complying with restrictive bail conditions since December 2020.
[14] The report tells me that you have taken full responsibility for your actions and you understand the seriousness of the charges against you. You have stated “I never want that life again” and you have said that you will never return to drugs or to your former associates. You now participate in a “high volume” of regular rehabilitation programmes, including individual therapy sessions and addiction recovery groups through Narcotics Anonymous (NA). You have successfully completed various rehabilitation programmes, including 12 Steps, Seeking Safety, and budgeting. You
have also been elected to a number of administrative and co-ordination roles within NA, and you have even set up an NA branch in Matamata which you chair yourself.
[15] You are now 31 years old. You have two daughters, now aged nine and 11 years, who are under the day-to-day care of your mother (with whom you also live) for part of each week. They live with their father for the rest of the week under a shared care agreement. Their father lives in Mount Maunganui, and both girls attend school in that general area. They are reported as being well-settled in their current routine, participating at school and enjoying various after-school activities.
[16] I understand from the report that you have a history of ADHD10 and in 2017 you were diagnosed with a significant brain lesion11 and seizure disorder. Your father believes that the stress of the diagnosis triggered your recent substance abuse.
[17] The PAC report recommends a sentence of Home Detention but also considers Community Detention or Intensive Supervision with special conditions as other options. The recommendation is based on the belief that you have made good rehabilitative progress since December 2020, while living under restrictive bail conditions, and that your current routines should be maintained in order to enable you to continue with your rehabilitation.
[18] I have also been provided with various documents which confirm your compliance with a sentence of Intensive Supervision imposed at sentencing on 7 January 2021 and your engagement with rehabilitative programmes over the last 17 months. These include your Judicial Monitoring Report (which details your conduct between 7 January 2021 and 7 January 2022); personal letters of support from your parents, professional letters from your therapists and support team, and various letters of commendation from your fellow addicts and course colleagues. These letters were not available to me at the sentence indication.
[19] The Judicial Monitoring Report is overwhelmingly positive. Your probation officer says:
10 Attention Deficit Hyperactivity Disorder.
11 Specifically, a cavernous haemangioma.
Since commencing her sentence of Intensive Supervision on 7 January 2021, Ms Camille Keyte's compliance has not faulted throughout the past 12 months. She remains without any concern or issues regarding any substance use or a return to previous offending behaviour. Ms Keyte's sentence is considered fully satisfactory [and she has been] highly motivated [and] engaged throughout this time with her managing Probation Officer, and she has shown the ability to fully comply with her Court imposed bail conditions.
[20] Both your parents have provided long and sincere letters, which provide details about your past difficulties and your recent recovery. It is clear that you are a cherished daughter; your parents have complete faith in you and want you to lead the best life that you can from this point on. You have rebuilt close relationships with your young daughters; I am sure they are extremely glad to have you back in their lives.
[21] The common themes in the letters of support from your peers are respect and admiration for your commitment to making a complete recovery from addiction and transforming your life. You are described as “warm”, “kind”, “open, honest and willing to be better”. In terms of the voluntary work you have done for various addiction groups your peers say that you are “exceptional, dependable, and compassionate”, inspiring, dedicated, selfless, indispensable, “loved and valued”, and a “pillar of strength”. I acknowledge all these letters and take them into account.
[22] I note also there are a large number of people present in Court today to support you including your mother, stepfather, family members and members of your support group.
Discussion
Addiction
[23] The Court of Appeal in its decision in Zhang v R held that the impact of addiction as a trigger for drug offending should be carefully considered as a mitigating factor at sentencing.12 I accept that your addiction to methamphetamine was causative of your offending. As I noted in your sentence indication, you had a lesser role in the offending and dealt in small quantities at street level. You offended to pay for your
12 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [139] – [150].
own drug use and there is no evidence that you expected or achieved any financial gain from your dealing.
[24] The documentary evidence provided by Mr Sturm – including letters from your therapists and peers – confirms that your offending was driven by your addiction and that your otherwise strong pro-social tendencies were overwhelmed by the effects of methamphetamine during your period of drug use. The Court of Appeal said that “addiction may logically give rise to a discount of up to 30 per cent of the sentence depending on the extent to which it mitigates moral culpability for the offending”, and commented that this figure was not necessarily to be regarded as an upper limit.13
[25] Mr Sturm on your behalf refers the Court to R v Carnachan.14 This is a recent decision of this Court which allowed a discount of 25 per cent for addiction-based offending in the context of street level methamphetamine dealing.15
[26] In Zhang, the Court allowed a discount of 30 per cent for personal circumstances in relation to the lowest level offender in the group, Ms Crighton. This discount reflected a combination of factors which the Court found were interconnected: childhood trauma and abuse; intimate partner violence; mental health issues, including depression, anxiety and PTSD,16 and methamphetamine addiction.
[27] In your case, Ms Keyte, there is no indication before the Court that you suffered abuse as a child, or that you were exposed to drug or alcohol abuse by the adults in your life. You had the benefit of a stable childhood and a strong, supportive family. However, you suffered distress as a result of your parents’ separation and your father’s absence, you struggled with ADHD as a teenager, and your brain lesion diagnosis in 2017. At the time of your offending, you were in a dysfunctional relationship with your co-defendant Mr I, who was also an addict. In this context, I consider that a discount of 25 per cent is appropriate, to reflect the extent to which your personal circumstances, including addiction, were causative of your offending.
13 At [149].
14 R v Carnachan [2019] NZHC 3025.
15 At [49].
16 Post-Traumatic Stress Disorder.
Rehabilitative prospects
[28] Ms Keyte, it is frankly not common to read such a positive PAC report in the context of drug offending. I commend you on your efforts over the past 17 months to rebuild your life.
[29] It is clear from the PAC report and supporting documentation that you have done much more than simply participate in rehabilitation programmes as a requirement of your bail conditions. I can see that you have fully engaged with NA, individual therapy sessions and other recovery programmes. It appears that you have not only successfully completed programmes provided by NA, but you have volunteered your time and energy to take on administrative, co-ordination, leadership and fundraising roles within the NA network, and – even more importantly – you have supported and inspired others to commit to addiction recovery as well.
[30] This indicates that your prospect of rehabilitation and social reintegration is high, which is one of the factors that the Court considers when setting your sentence. The reports and letters before me show that you are capable of leaving your addiction and addiction-related offending behind you. You have clearly acknowledged responsibility for the harm caused by your offending, and you are consciously choosing a different future for yourself and your children. You have shown that you are willing to give back to the recovery groups which have supported you and, in time, I believe that you will also be in a position to give back to your parents, and your community, by taking on the responsibilities associated with parenting, employment, leadership and community work.
[31] The letters of support which have been submitted on your behalf, show that you are a highly valued member of your family and community. At times a Court will say that someone in your position has “strong family support”. I think that would be an understatement in your case. Your family appear to be completely dedicated to your recovery and willing to organise their own lives around your needs, in order to support your recovery, routines and relationships with your daughters. You are fortunate to have such a resilient and caring whānau. Their support has made a significant difference to the Court’s decision today.
[32]The discounts I give for mitigating factors personal to you are:
(a)Addiction: 25 per cent
(b)Rehabilitative efforts and prospects for rehabilitation: 15 per cent
Restrictive bail conditions
[33] I am also going to allow a small discount to acknowledge the time you have already spent under restrictive bail conditions, since December 2020. You were under a 24-hour curfew and only allowed to leave the two addresses in the company of either your mother or stepfather. However, you were permitted to live at two bail addresses to enable you to deliver your daughters to their school on Monday morning, after which they would live with their father until Wednesday, when you and your mother would collect them after school to live with you for the balance of the week. You were also granted numerous variations over time to enable you to attend rehabilitative courses which your mother or stepfather did not wish to attend. Although conditions were restrictive, the arrangement was ultimately quite flexible. In these circumstances, I consider that a discount of three per cent is appropriate.
Sentencing calculation
[34] If I were to impose a sentence of imprisonment the length of the term would be calculated in this way. The starting point of two years and eight months would be adjusted as follows to take into account matters personal to you: six per cent uplift for previous convictions; 20 per cent discount for your guilty plea; 25 per cent discount for addiction; 15 per cent discount for your rehabilitative efforts and prospects for rehabilitation; and three per cent discount for restrictive bail conditions. That is an overall discount of 57 per cent. When that discount is applied to the starting point of two years and eight months the end sentence would be just under 14 months’ imprisonment.
[35] I next need to consider whether the purposes and principles of sentencing can be met by a sentence other than a sentence of imprisonment.
Type of sentence
[36] Ms Keyte, in considering the type of sentence to be imposed, I need to consider (amongst other matters) your current domestic circumstances and your rehabilitative needs. Your bail arrangements have been a little unusual in that they involve two bail addresses: one in Matamata and one in Mount Maunganui. The Matamata address is the home of your mother and your stepfather. Your mother also lives in the Mount Maunganui address.
[37] The bail arrangements permitted you to move between the Matamata and Mount Manganui addresses for the purposes of parenting your daughters and attending rehabilitation programmes, which are mostly located in and around Tauranga. Your current arrangement on bail is that you primarily live in Matamata, with your daughters, mother and stepfather. You transport your daughters to school in the Mount Maunganui area on Monday morning. The girls are in their father’s care until Wednesday afternoon. You and your mother live at the Mount Maunganui address from Wednesday to Friday, have care of the girls and take them to school. The family returns to Matamata on Friday night.
[38] I understand from information contained in the PAC report that the addresses in Matamata and Mount Maunganui were both proposed for the purposes of Home Detention. However, this request cannot be facilitated because the two addresses are in two different Community Corrections catchment areas, and your files would have to be transferred between the two sites each time you relocated. This presents a logistical problem for Corrections. The PAC report writer recommends the Matamata address as your sole address for the purposes of Home Detention. You accept that, if the Court were to impose such a sentence.
[39] However, Mr Sturm submits that a sentence of Home Detention in your case will present challenges in terms of your ongoing rehabilitative needs and your parenting role. He submits that this Court might consider imposing the six month maximum level of Community Detention at the Matamata address and between one and two years of Intensive Supervision.
[40] Mr Sturm suggests that the less restrictive sentence of Community Detention with Intensive Supervision would enable you to (mostly) continue your current routine, including taking your daughters to school on Monday, and attending the four scheduled rehabilitative programmes you currently attend during the daytime. You have informed the Court through Mr Sturm that you will be able to reschedule the two evening programmes which you currently attend on Monday and Friday.
[41] Mr Whyte for the Crown acknowledges that the likely outcome would be a sentence short of imprisonment. However he submits that a sentence of Home Detention is appropriate rather than a sentence of Community Detention and Intensive Supervision.
[42] A Court may sentence an offender to a sentence of either Home Detention or Community Detention, subject to certain considerations set out in the Act.
[43] The relevant factors in your case, Ms Keyte, are whether or not a sentence of Community Detention would adequately fulfil the sentencing purposes of accountability, denunciation, deterrence,17 and whether it will sufficiently reduce the likelihood of further offending by restricting your movements.18 In regard to sentencing principles, I must consider consistency with sentences for similar offending, impose the least restrictive outcome that is appropriate in the circumstances, and take into account any particular personal circumstances that mean a sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe.19
[44]The Court of Appeal in Zhang said:20
… addiction in particular calls for consideration of a rehabilitative response as part of sentencing. We encourage sentencing judges to explore rehabilitative options in sentencing addicted offenders.
17 Sentencing Act, ss 7(1)(a),(b),(e),(f), and 69C(1)(a)(ii).
18 Sentencing Act, s 69C(1)(a)(i).
19 Sentencing Act, s 8(e),(g) and (h).
20 At [150].
[45] Following Zhang, I am minded to impose the sentence which will best support your complete rehabilitation, without losing sight of the necessary punitive dimension of a sentence for serious drug offending.
[46] In view of your rehabilitation progress to date, I consider it very important that the sentence imposed enables you to continue making progress towards full rehabilitation. It is clear that a sentence of imprisonment would impede your rehabilitation. In your particular circumstances, a sentence of Home Detention will also frustrate your efforts to participate in actively parenting your daughters and attending therapy and rehabilitation programmes. Therefore, I consider that a sentence of Community Detention of six months will hold you to account for your acknowledged wrongdoing without disrupting your rehabilitation. Intensive supervision for a period of two years will provide further oversight and guidance in terms of your ongoing journey of rehabilitation.
Result
[47]Ms Keyte would you please stand.
[48] I sentence you to six months’ Community Detention which will be subject to the standard conditions in the Act and the following further conditions:
(a)Your sentence of Community Detention is to be served at 136 Moore Road, Matamata with a curfew period from 8 pm until 7 am on each day of the week with the first curfew to begin today, 13 May 2022;
(b)You are to attend alcohol and other drug programme/counselling/treatment to the satisfaction of the Probation Officer and programme provider;
(c)You are to attend and complete any other appropriate programme to the satisfaction of the Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer;
(d)You are not to associate or have contact directly or indirectly with any co-offenders of your offending, unless you have the written permission from a Probation Officer; and
(e)You are not to possess or consume alcohol or drugs unless prescribed to you.
[49] I further sentence you to a period of two years’ Intensive Supervision which will be subject to the standard conditions in the Act and the following special conditions:
(a)You are to attend alcohol and other drug programme/counselling/treatment to the satisfaction of the Probation Officer and programme provider;
(b)You are to attend and complete any other appropriate programme to the satisfaction of the Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer;
(c)You are not to associate or have contact directly or indirectly with any co-offenders of your offending, unless you have the written permission from a Probation Officer; and
(d)You are not to possess or consume alcohol or drugs unless prescribed to you.
[50] Finally, the Crown offers no evidence against you on charge 13. (I note that charge remains on foot against other defendants). You are discharged on charge 13 (which was one of the two supply charges which were amalgamated into one charge).
[51]Stand down please Ms Keyte.
Gordon J