R v Lloyd
[2014] NZHC 1373
•13 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-000226 [2014] NZHC 1373
THE QUEEN
v
TANIA MARIE LLOYD MARIO INES RUBIN
Hearing: 13 June 2014 Counsel:
B Finn for the Crown
R Thomson for defendant Lloyd
D Bell for defendant RubinJudgment:
13 June 2014
SENTENCING NOTES OF ASHER J
Solicitors/Counsel:
Crown Solicitor, Auckland.
R Thomson, Auckland. D Bell, Auckland.
R v LLOYD & RUBIN [2014] NZHC 1373 [13 June 2014]
[1] Today I am to sentence Mario Rubin and Tania Lloyd. Mario Rubin has pleaded guilty to one count of conspiring to manufacture methamphetamine. Ms Lloyd has pleaded guilty to one count of supplying methamphetamine.
[2] The charges arise out of a Police inquiry known as Operation Trixie. There are three other persons who have pleaded guilty in relation to Operation Trixie, Messrs Tatana, Wensor and Nimot. They face more serious charges than those faced by Mr Rubin and Ms Lloyd. Their sentencing has been adjourned today because of disagreement on matters of fact that may have to be resolved by a disputed facts hearing.
[3] Although it would have been convenient to have sentenced all the defendants together I am prepared to sentence Mr Rubin and Ms Lloyd today. They both wish to be sentenced. Their supporters are here. There is no particular dispute about their role and the points of distinction between their relatively minor involvement and the involvement alleged in relation to the other defendants.
[4] The summary of facts states that Darin Tatana, who at the time was Ms Lloyd’s partner, was manufacturing methamphetamine. Prior to Mr Tatana being released from prison, Mr Wensor had set up a potential methamphetamine manufacturing ring to be operated with Mr Tatana.
[5] Mr Rubin was an associate of, it would seem, Mr Wensor. The summary of facts says that he would occasionally visit Mr Wensor’s premises. It also says that he had a close connection with the other defendants. Text messages showed that Mr Rubin assisted in the manufacture of methamphetamine in a minor way. He visited the workshop, assisted in getting iodine on one occasion and had some involvement in trafficking of the drug. He assisted in the manufacture of methamphetamine on at least one occasion. In another text he said that he was going to bring a “big sack” of methamphetamine home with him although there is no evidence that he did so.
[6] Mr Finn for the Crown described his involvement as “a hanger on” and I
consider that description to be accurate. He clearly had a methamphetamine habit
and such rewards as he got for his help were in methamphetamine and not in money. The Crown does not suggest that he profited from his assistance by any payments other than by methamphetamine.
Sentencing of Mr Rubin
[7] In sentencing Mr Rubin I am mindful of the four sentencing bands set out in R v Fatu1 and the observation in R v Te Rure that conspiracy involves less criminality.2
[8] The Crown suggest a starting point of three years’ imprisonment. Ms Bell for Mr Rubin proposed a starting point in the same region. Given that Mr Rubin’s involvement in the manufacturing operation was at a very low level, but also noting that this was a conspiracy which was actually implemented and there was manufacturing, I consider that a starting point of three years is appropriate.
[9] I now turn to Mr Rubin’s personal circumstances. He has a supportive pre- sentence report and a number of supportive statements from his partner and others who know him well. He has held a regular job as a roofer, although that has been on hold since his arrest. He is 39 years old and is the father of two children who reside with him and his partner. He is remorseful and I accept that his remorse is sincere. He has completed seven sessions of the Mount Eden Intensive Outpatient Programme and is currently attending step two of that programme. He is assessed as being a low risk offender and his risk of harm to others is considered low. He also has no previous convictions, save for driving charges where he was fined and, on one occasion, received a six month disqualification.
[10] He is therefore entitled to have his sentence reduced on account of a number of factors. He is entitled to a discount for his good character. He is a 39 year old man who has not been involved in criminal conduct before. A real discount under the good character heading is appropriate. He is also entitled to some discount in my
view for his very genuine remorse and for the efforts he has made to rehabilitate
1 R v Fatu [2006] 2 NZLR 72 (CA) at [34].
2 R v Te Rure [2008] NZCA 305, [2008] 3 NZLR 527 at [25]–[26].
himself and defeat his addiction to methamphetamine. I also note that he has been the subject of onerous EM bail conditions.
[11] Looking at all these factors in the round it is my view that a substantial discount is appropriate and I fix that discount at 20 per cent. This reduces the end sentence to approximately 28 months’ imprisonment or two years and four months.
[12] Mr Rubin pleaded guilty. Discussions were commenced by his counsel late last year quite some time before the trial. He was at the time charged with manufacturing methamphetamine. Ultimately as a consequence of the discussions that charge was withdrawn and the guilty pleas were entered.
[13] The Crown suggested a percentage discount for the guilty plea of 15 per cent but Mr Finn clearly recognised that there could be some flexibility in that area. I am prepared to accept Ms Bell’s submission that a 20 per cent deduction is appropriate, given that negotiations were begun in a timely way and they did result in a real change to the charges faced by Mr Rubin. That reduces the end sentence to 23 months’ imprisonment.
[14] I must now turn to consider whether home detention is an appropriate sentence. Given the sentence of imprisonment that would otherwise be imposed home detention is available. There is a home detention report which indicates that there is an appropriate address. I bear in mind the statement of the Court of Appeal in R v Hill that:3
Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.
[15] I consider that Mr Rubin is motivated to change and has already shown some change. He has been a good member of our community and I hope and indeed believe that he will become so again. I am therefore prepared to sentence him to home detention. Given the potential imprisonment sentence I consider the appropriate duration of home detention to be 11 months.
Sentencing of Ms Lloyd
[16] I turn to the sentencing of Ms Lloyd. She was the partner of Mr Tatana who was manufacturing the methamphetamine. I will be considering her character as a separate item in due course but it is worth noting that she is a 40 year old female who has no previous convictions. She does appear to have been drawn into offending through her addiction to methamphetamine and her relationship with Mr Tatana. I am therefore prepared to accept the submission made by Ms Thomson that her involvement essentially in supplying methamphetamine was something that arose out of her relationship. She was not an initiator and her involvement should be seen as at a low level.
[17] The facts as outlined in the summary of facts show that she was found in possession of a small amount of methamphetamine, electronic scales, a small saleable plastic bags and a chemistry text book. The text messages show that she was involved in 10 drug dealing transactions involving very small amounts of methamphetamine, being half gram or quarter gram units. There were some references to greater quantities in some texts.
[18] It is accepted that she can be shown to have supplied about 4.25 grams of methamphetamine. Given that degree of involvement she falls in band one of R v Fatu where a sentence of up to five years’ imprisonment can be appropriate for amounts of up to five grams.4 However in my view it would be inappropriate to place Ms Lloyd’s offending simply at the top of band one of R v Fatu given the very low level of dealing that she carried out and the circumstances of her involvement. The offending was not for personal gain but to support her drug habit and maintain her relationship.
[19] The Crown propose a starting point of three and a half years’ imprisonment. Ms Thomson suggested two to two and a half years. It is my assessment given the piecemeal and minor nature of the dealing and the fact that I have no doubt she was acting at Mr Tatana’s behest that a starting point of two years and nine months should be adopted.
[20] I turn to factors relating to her personally. Like Mr Rubin her pre-sentence report is remarkably positive. She has five children all of whom, bar the eldest, are in her full time custody. She shows a high level of insight into her offending. After her arrest she referred herself to the Salvation Army and completed the 12 week Bridge Programme. After that she referred herself to the Ngati Hine Health Trust, and the Te Whaiwhenua Women’s Alcohol and Drug Residential Rehabilitation Service. She completed their 14 week residential programme in January 2014. She has now moved to a town near Kaitaia where she continues her rehabilitation through the Kaitaia Women’s Refuge, completing their 10 week programme which focuses on domestic violence in relationships. She continues to volunteer with Women’s Refuge. Her remorse and insight in the assessment of the probation officer places her at a low risk of reoffending.
[21] Given that she has no previous convictions she, like Mr Rubin, is entitled to a significant discount for good character. I judge her remorse as sincere and meaningful and she is also entitled to a discount for that. She has not however been subjected to the same rigorous bail conditions as Mr Rubin. In the end I make a slightly smaller deduction of 18 per cent on account of these factors and reduce the starting point for sentence to 27 months’ imprisonment.
[22] I then turn to her guilty plea. Her position is the same as that of Mr Rubin. Counsel’s efforts that began late last year resulted eventually in the charges she faced being considerably reduced. In all the circumstances I consider a 20 per cent reduction to be appropriate. This means that the sentence of imprisonment will be
21 months’ imprisonment.
[23] I turn to the question of home detention and the factor I have already referred to of the considerable benefits to the community when persons who show genuine remorse and efforts at rehabilitation and where there can be some realistic confidence in them becoming fully integrated into the community again, of home detention being an appropriate sentence. The home detention address that she has given has been approved. Just as I assessed Mr Rubin as a person who was well suited to home detention so do I assess Ms Lloyd. I give her the slightly lower end sentence than I picked for him. I will sentence her to 10 months’ home detention.
[24] So could you stand up please Mr Rubin and Ms Lloyd.
[25] I speak to both of you. These end sentences that I have decided on are lenient sentences. To an extent I and the community, given that they are very serious charges that you have been convicted of, have placed trust in you. Trust in who you say you are now and in your feelings of remorse and I have personally accepted those. I do believe that you both have every chance of being good members of our community and good members of your respective families and I hope very much that you are, that you do that and never have to put your families through the ordeal that they have been through with you in facing these charges.
[26] So Mr Rubin on the count that you face you are sentenced to 11 months’
home detention. The conditions are as follows:
(a) Following sentencing you are to go directly to 72 Davies Road, Ramarama. It can be expected that you will be there no later than
1.30 pm. You will then await the arrival of the probation officer and a representative of the electronic monitoring company.
(b)You will reside at the approved address at 72 Davies Road for the duration of the home detention.
(c) You are to attend and complete any appropriate programmes as may be directed by your probation officer.
(d)You are not to possess, purchase or consume alcohol and/or illicit drugs for the duration of the home detention.
(e) You are to undertake and complete the alcohol and drug assessment and if found suitable attend the programme administered by the Community Alcohol and Drugs Service and abide by the rules of the programme to the satisfaction of the probation officer and Community Alcohol and Drugs Service.
[27] I turn to you Ms Lloyd. You are sentenced to 10 months’ home detention.
The conditions are as follows:
(a) Ms Lloyd on 17 June 2014 you are to present at the address of
248 Diggers Valley Road, Herekino, Kaitaia and await the arrival of the probation officer and a representative of the monitoring company.
(b) You are to reside at 248 Diggers Valley Road, Herekino, Kaitaia.
(c) You are not to purchase, possess or consume alcohol and/or illicit drugs for the duration of the home detention sentence. You are to submit to a passive breath test as requested by the Police or your probation officer. You are to continue to engage with mental health to the satisfaction of your probation officer and your support worker. You are not to admit alcohol and/or illicit drugs at the detention address and you are to undertake any other counselling programmes as directed by your probation officer.
(d)As a post-detention condition you are to attend any other programmes, counselling, or treatments as directed by your probation officer.
(e) You are to submit to a passive breath test as requested by the Police or your probation officer and you are not to permit alcohol and/or illicit drugs at the post detention address.
[28] Ms Lloyd you are on bail on previous terms until that sentence commences on 17 June 2014.
[29] Mr Rubin and Ms Lloyd, you may stand down.
……………………………..
Asher J
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