R v Kissling HC Tauranga CRI 2009-070-1557

[2010] NZHC 2254

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2009-070-1557

CRI-2010-070-6000

THE QUEEN

v

DONNA TALELE KISSLING

Hearing:         14 December 2010 (Heard at ROTORUA)

Appearances: Ms T Bayley for Crown

Mr C Horsley for Prisoner

Judgment:      14 December 2010

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Tauranga

Mr C Horsley, Tauranga

R V KISSLING HC TAU CRI-2009-070-1557  14 December 2010

[1]      Ms Kissling, you appear today on a range of matters.  First, you have pleaded guilty to a number of charges in the District Court and been committed to this Court for sentence.  Secondly, the charges in respect of which you now appear for sentence were committed whilst you were already serving a sentence of home detention on other drug-related charges.  As a result, the Department of Corrections has filed an application to cancel the existing sentence of home detention.  This obviously has to be granted because it no longer remains possible for you to serve your sentence of home detention.  I am therefore required to cancel the sentence of home detention and to effectively re-sentence you on the charges in respect of which you were serving that sentence.

[2]      In addition, you pleaded guilty to a charge of breaching the terms of your home detention.  I need to impose a sentence in respect of that charge also.

[3]      I propose to deal first with the charges for which you have been committed to this Court for sentence by the District Court.  These are the latest charges that you face.  Having imposed an end sentence on those charges, I will then re-sentence you on the earlier charges.   Finally, I will deal with the breach of the terms of the sentence of home detention.

The new charges

[4]     You now appear for sentence on charges of being in possession of methamphetamine for supply and selling methamphetamine.  Both of those charges carry a maximum sentence of life imprisonment.  You are also charged with being in possession of utensils, for which the maximum sentence is one year imprisonment and you appear for sentence on a charge of receiving which carries, in this case, a maximum sentence of seven years imprisonment.

The facts

[5]      All of these charges arise out of a search that the police carried out of your residential address on 15 July 2010.  When the police arrived, you were seen in the living  area  and  then  you  ran  into  the  hallway  and  disappeared  from  sight.

Ultimately, however, you came back into the living room and unlocked the front door to allow the police staff to enter.   When they searched your bedroom, they found a small camera case that was zipped open to reveal a number of small self- sealing plastic bags and cash totalling $2,005.00.  That cash was bundled up using black elastic hair bands.  In the bedroom, the police found a number of other similar hair bands as well as 50 unused self-sealing plastic bags inside the camera case. Those plastic bags are commonly found in the possession of persons who deal in small quantities of methamphetamine.  Also in the camera case were three identical self-sealing plastic bags, each of which contained approximately .1 of a gram of methamphetamine.

[6]     In an open bedside drawer in the same room were two used glass methamphetamine pipes, together with a set of electronic digital scales.  The police also found a second set of digital scales in a drawer in the kitchen.

[7]      In the lounge of the address the police found a 42 inch Sanyo flat-screen television.   That television, it transpires, had been stolen during a burglary of a holiday unit in the Papamoa Beach Top 10 Holiday Park on or about 4 June 2009.

Sentencing Act 2002

[8]      In sentencing you on all these charges, issues of deterrence and denunciation are obviously to the forefront.    As you must now realise, dealing in methamphetamine is a very serious offence.   That is recognised by the fact that Parliament has selected a maximum sentence of life imprisonment on that type of charge.  The only way in which the courts can be seen to be contributing to the fight against methamphetamine is by imposing deterrent sentences on such charges.

[9]      Having said that, it is important that I impose a sentence that is in line with current sentencing authority, and which also provides the least restrictive outcome that is possible in the circumstances.  In your case, this means selecting the shortest possible sentence that is appropriate having regard to both your offending and your personal circumstances.

Starting point

[10]     The first step in the sentencing process is the selection of a starting point. That is the sentence that would be imposed having regard to the circumstances of the offending, but putting to one side your personal features.   All of the indicia here point to the fact that you were selling at street level, probably in point bag quantities. You were therefore at the lowest step of the selling chain.

[11]     Having said that, it is clear from messages that the police found on your phone that you were a reasonably active dealer at street level.  Your offending falls to be assessed in terms of the first band identified in the Court of Appeal decision in R v Fatu [2006] 2 NZLR 72. That case involves dealing in methamphetamine in quantities up to five grams. A starting point of between two and four years imprisonment is to apply in these cases. Your counsel and counsel for the Crown agree that you fall in the middle of this category, and I propose to select a starting point of three years imprisonment on the lead charges of being in possession of methamphetamine for supply and selling methamphetamine.

[12]     I note that the sum of $2,005.00 was found in your possession.  This clearly comprises the proceeds of past sales, and firmly establishes you as a dealer in the middle of the range identified.

[13]     I propose to deal with the utensils charge by way of conviction and discharge. I do not propose, having regard to the other sentences that are to be imposed upon you, to increase your sentence on the receiving charge.  Rather, I propose to impose a concurrent sentence in relation to it.

Aggravating factors

[14]     I need now to consider the extent to which the starting point that I have selected should be increased to reflect aggravating factors relevant to you.

[15]     There is one such factor here, and it arises from the fact that you were serving a sentence of home detention at the time of your arrest.  This is a matter of some

significance, because I have read the sentencing notes of Priestley J when he sentenced you to home detention on 30 April 2010.  It is clear from those sentencing notes  that  the  Judge  and  counsel  put  considerable  thought  and  effort  into constructing a sentence that they hoped would enable you to rehabilitate yourself from this type of offending.  You could easily have been sentenced to a sentence of imprisonment at that time.   Ultimately, the Judge was entrusting you to adhere strictly and faithfully to the sentence that he imposed.   Sadly, that trust has been misplaced in the worst possible way, because you have continued to deal in methamphetamine notwithstanding the fact that you were serving a sentence of home detention.

[16]     That is an aggravating factor that I am satisfied needs to be recognised by an uplift to the starting point that I have selected.  That is not to punish you again in respect of your earlier offending.  Rather, it recognises that your current offending is made that much more serious by the fact that it was committed whilst you were serving a sentence of home detention.  You must know that, from now on whenever you  offend  in  this  way,  it  is  likely that  the  starting  point  will  be  increased  to recognise the fact that you are a repeat offender in relation to drugs.

[17]     I propose to apply an uplift of six months imprisonment to reflect that fact. This means that I am left with an end sentence of three years six months imprisonment on the lead charges.

Mitigating factors

[18]     I now need to take into account mitigating factors personal to you.  In reality, the only mitigating factor is the fact that you pleaded guilty at a very early stage.  At the  time  that  you  pleaded  guilty,  the  discount  to  be  given  to  guilty pleas  was governed by a decision of the Court of Appeal in R v Hessell [2009] NZCA 450. The Court of Appeal said in that case that offenders who pleaded guilty at the first opportunity, and you fall into that category, were entitled to a discount of 33 per cent. You pleaded guilty on the understanding that you would receive that discount.

[19]     Subsequent to your guilty pleas, the Supreme Court has issued a decision in which it has found that the approach adopted by the Court of Appeal in Hesssell was wrong:  R v Hessell [2010] NZSC 135. The Supreme Court has said that the timing of a guilty plea is now just one factor to be taken into account when assessing the discount to be given. The Court must look at all prevailing circumstances, including the strength of the Crown case and the extent to which the offender shows remorse. The Supreme Court has also said that a discount of no more than 25 per cent is available to reflect guilty pleas alone.

[20]     That being the case, if you were being sentenced now on the basis of the Supreme Court decision, you would receive a discount of no more than 25 per cent. I am satisfied, however, that the interests of justice require you to be sentenced in accordance with the regime that you understood to be operating at the time that you entered your guilty pleas.  The Crown does not objection to that occurring.

[21]     For that reason I propose to allow a discount of 33 per cent, or one year two months, on the lead charges to reflect your guilty pleas.  This leaves me with an end sentence on the charges to which you pleaded guilty in the District Court of two years four months imprisonment.

The earlier charges

[22]     I now need to determine the extent to which that sentence should be increased to reflect your earlier offending for which you are now to be re-sentenced.

[23]     You pleaded guilty to, and were sentenced by Priestley J on, eight counts of offering to supply methamphetamine, four counts of conspiracy to supply methamphetamine and one count of being in possession of utensils.   The Judge convicted and discharged you on the latter charge so I do not need to take that into consideration.   Priestley J selected a starting point of thee years four months imprisonment on all 12 remaining charges.  He gave a discount of nine months to reflect a number of mitigating factors, leaving an end sentence of 31 months imprisonment.  He then applied a 25 per cent discount to reflect your guilty pleas and that brought it down to an end sentence of 23 months imprisonment.  Having regard

to the matters that had been advanced in your favour, he then elected to impose a sentence of home detention.

[24]    I therefore start from the presumption that a 23 month end sentence is appropriate in respect of your earlier offending.

[25]     I need to factor into the equation the fact that you have already served four months on home detention, which equates roughly to eight months imprisonment. This means that an end sentence of 15 months imprisonment is indicated.

[26]     Given the fact that I am imposing a cumulative sentence, however, I need to stand back and ensure that the overall sentence accords with the principles of totality. This means that I need to be careful not to impose an end sentence that is disproportionate  to  your  overall  offending.    Another  way of  looking at  it  is  to ascertain what sentence I would have imposed had I been sentencing you on all charges at the same time, but taking into account the fact that you have already served the equivalent of eight months imprisonment.

[27]     When I undertake that exercise, I am satisfied that the cumulative sentence that I should impose in respect of your earlier offending should be reduced from 15 months to ten months.

Sentence

[28]     On the charges of being in possession of methamphetamine for supply and selling methamphetamine to which you pleaded guilty in the District Court, you are sentenced to two years four months imprisonment.

[29]     On the charge of receiving you are sentenced to three months imprisonment. That sentence is to be served concurrently, as are the two sentences imposed in relation to the possession and selling of methamphetamine.

[30]    On the charge of being in possession of utensils you are convicted and discharged.

[31]     I impose a cumulative sentence of ten months imprisonment on each of the charges to  which  you  pleaded  guilty and were sentenced to home detention by Priestley J.  In passing that sentence, I cancel the sentence of home detention that he imposed  and  impose  the  new  sentences  in  their  place.    They are  to  be  served concurrently with each other.

[32]     On  the  charge  of  breaching  the  terms  of  your  home  detention,  you  are convicted and discharged.

Forfeiture and destruction orders

[33]     I  make  an  order  for  the  forfeiture  of  the  cash  that  was  found  in  your possession, and the destruction of the drugs and drug-related paraphernalia that were found in your possession when you were arrested on the charges for which you have been sentenced today.

[34]     I also cancel the sentence of community work that Priestley J imposed on you when he sentenced you to home detention.

Lang J