R v Lyndon HC Hamilton CRI-2006-419-167

[2007] NZHC 1710

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-419-167

THE QUEEN

v

CARRIE DAWN LYNDON

Hearing:         30 March 2007

Appearances: Ms L Dunn for Crown

Mr S Ellis for Prisoner

Judgment:      30 March 2007

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Hamilton

Mr S Ellis, Hamilton

R V LYNDON HC HAM CRI-2006-419-167  30 March 2007

[1]      Ms Lyndon, you appear for sentence on the following charges:

a)       Conspiring to defeat the course of justice between 12 November 2004 and 24 July 2005 – maximum penalty 7 years imprisonment.

b)       Wilfully attempting to defeat the course of justice on 7 June 2005 –

maximum penalty 7 years imprisonment.

c)        Supplying the Class A  controlled drug methamphetamine  between

3 and 6 July 2005 – maximum penalty life imprisonment.

d)Being in possession of the Class A controlled drug methamphetamine on 14 July 2005 – maximum penalty six months imprisonment or a fine not exceeding $1000 or both.

e)        Being in possession of a methamphetamine pipe on 14 July 2005 –

maximum penalty one years imprisonment or a fine not exceeding

$500 or both.

Factual background

[2]      The offending for which you appear for sentence today arises out of a police operation known as Operation Seal.     That operation was mounted in order to recapture Mr Smith, a fugitive who successfully evaded capture by the authorities between November 2004 and August 2005.    For a considerable part of this period you were Mr Smith’s partner.

[3]      Whilst on the run Mr Smith lived in several remote rural locations.   One of these was a farm property in the Waingaro area, near Ngaruawahia.   Mr Smith fled from that address in the early hours of 7 June 2005 following an incident in which another person was fatally wounded when a firearm was discharged.     You were present when that occurred, and you allowed Mr Smith to leave the property in the vehicle that you had been using prior to the point at which the ambulance and the police arrived.

[4]      Although you obviously knew that Mr Smith had been at the address and, in fact, you had been in the room at the time the firearm was actually discharged, you failed to advise the police of Mr Smith’s presence when they interviewed you upon their arrival on 7 June 2005.   You also omitted to tell them that Mr Smith had left the property in your motor vehicle.    Not only did you omit to tell them about Mr Smith’s presence in an oral interview at the property, but you also failed to make any mention of these matters in a written statement that you made at the Huntly police station and in a videotaped interview.    Your omission to tell the police about Mr Smith’s presence at the property when the fatal shooting occurred has led to the charge of wilfully attempting to defeat the course of justice.

[5]      Your plea makes it clear that these omissions were deliberate and intentional, and  that  you  thereby  intended  the  police  to  continue  their  investigation  of  the shooting without knowing of facts that were clearly material to their investigation. Your failure to say anything to the police about Mr Smith’s presence enabled him to escape and to continue to be at large.     It also meant, however, that the police investigation proceeded in a completely different direction to that which it would have taken had they been aware of the true facts.

[6]      As his partner, you also provided Mr Smith with emotional support during the time that he was at large.   You stayed with him for a period in early July in a hut in the Franklin area and during this time you were a party to the supply of the Class A controlled drug methamphetamine to Mr Smith.    Your part in that act was to contact another of Mr Smith’s associates, Mr MacPherson, so as to arrange for him to provide drugs to provided on to Mr Smith.    As a result of your requests and intervention Mr Smith was provided, through Mr MacPherson, with a quantity of methamphetamine on 5 July 2005.

[7]      When  the  police  arrested  you  in  Huntly on  14  July 2005,  they  found  a number of items in your handbag.   First, they found a shopping list of supplies that were intended for Mr Smith.   These included generator, batteries, cutlery, gas fillers, groceries, containers, first aid equipment, radio scanner, walkie-talkie  and  guns. Also in your handbag the police located  a small quantity of methamphetamine, together with a methamphetamine pipe.

[8]      The general support that you provided to Mr Smith has led to the charge of conspiring to defeat the course of justice.   Your assistance in enabling Mr Smith to obtain methamphetamine has led to the charge of being a party to the supply of that drug.   The discovery of the pipe and methamphetamine in your handbag has led to the charges of being in possession of those items.

[9]      You are, however, a known user of methamphetamine and I approach those charges on the basis that the pipe and methamphetamine that were in your handbag were for your own use.

Sentencing Act 2002

[10]     Counsel have reminded me of the principles that I need to take into account under the Sentencing Act 2002.   In the present case these include the need to hold you  accountable  for  the  harm  that  you  have  done  to  the  community  by  your offending.   Had you and others like you not assisted Mr Smith, the police would not have been required to devote the massive amount of time and resources that they did towards his capture.    It was only through people like you, Ms Lyndon, who were prepared to assist Mr Smith that he was able to remain at large for as long as he did.

[11]     For that reason it is important to promote in you a sense of responsibility for what you have done and acknowledge of the harm that you have done.   Importantly, the sentence also needs to deter both you and other people from committing similar acts in the future.    That is important in the context of a case like this.    If people know that there is no sanction or punishment for those who harbour and assist fugitives, then they will continue to protect them.     If, however, they know that punishment will follow then it is more likely that they will turn away from fugitives and not offer them the kind of assistance that you offered here.

[12]     The Court is, however, also required to assess the overall seriousness of your offending and to ensure that the sentences that you receive are broadly consistent with sentences imposed in similar cases.   It must also do what it can to assist in your rehabilitation and reintegration into the community and it must impose the sentence that has the least restrictive outcome in the circumstances.

The approach to be taken

[13]     I need first to determine whether the sentences that are to be imposed upon you should be concurrent or cumulative.     In considering this issue I derive considerable assistance from the approach taken by Ellen France J when she sentenced Mr MacPherson, another of the persons who provided assistance to Mr Smith  whilst  he  was  at  large.      In  selecting  a  starting  point  of  four  years imprisonment on the charge of conspiring to defeat the course of justice she said (at [35]):

Your offending in terms of these counts is serious.   It continued over a lengthy period of time acknowledging the lack of information about the nature of the earlier assistance.  You clearly assisted in Mr Smith being able to continue to be on the run and there has been a resultant cost to the Police. Whatever your initial knowledge about what Mr Smith had done, you knew you were assisting someone evading the Police.  In these sorts of cases, you take a risk on who you are helping.  In any event, at some point you clearly came to know exactly what is involved and continued on.  It was sustained involving the aggravating features I have identified.  In terms of setting an appropriate starting point s 116 covers a broad range of conduct.  What you have done is not the worst example but it is a serious case of its type. Accordingly, while I do not accept the Crown submission this is in the most serious category warranting a sentence near the maximum, a starting point of

4 years imprisonment on the first count of conspiracy to defeat [the course of justice] is appropriate.

[14]     In adopting a starting point of four years imprisonment on the charge of conspiring to defeat the course of justice, the Judge put to one side the fact that Mr MacPherson had provided drugs to Mr Smith as part of the overall assistance that he gave him.   She then imposed a cumulative sentence of one year’s imprisonment on the charge that Mr MacPherson faced of being in possession of methamphetamine for supply.   Viewed in that way, it can be seen that the actual starting point that the Judge selected in relation to all aspects of the assistance that Mr MacPherson had given to Mr Smith was one of five years imprisonment.

[15]     I propose to adopt broadly the same approach.   I will therefore fix a sentence in respect of the charge of conspiring to defeat the course of justice, which I consider to be the lead charge, and then impose a cumulative sentence on the charge of being a party to the supply of the methamphetamine.

[16]     I also consider that the charge of wilfully attempting to defeat the course of justice by omitting to tell the police about Mr Smith’s presence at Waingaro is a serious matter, and it is quite different in nature to the other charges.   For that reason I consider that it, too, should attract a cumulative sentence.

[17]     I propose, however, to impose concurrent sentences on the charges of being in possession of the methamphetamine and the pipe in 14 July 2005.   Although this is separate offending, I do not consider that it is of such seriousness that it would warrant a cumulative sentence being imposed.

[18]     I must now fix starting points in respect of each of the categories of offence for which you appear for sentence.

Starting points

Conspiring to defeat the course of justice

[19]     I accept that your offending was obviously at a much lower level than that of Mr McPherson.   For the most part the support that you provided Mr Smith was in the form of companionship, albeit companionship that had to be provided in a covert way.   Nevertheless, you provided that support in the knowledge that he was on the run from the authorities and that your assistance was of real value to him.    Your assistance also, it seems to me, went beyond the provision of mere companionship. The discovery of the shopping list shows that you were prepared to assist Mr Smith in material terms as well.   Of particular concern, of course, in relation to that item was the fact that one of the things that was on the shopping list was guns.   For this reason, and bearing in mind that  your culpability is much less than that of Mr MacPherson’s, I consider that the overall seriousness of  your offending will be adequately recognised by adopting a starting point of six months imprisonment on the charge of conspiring to defeat the course of justice.

[20]     In reaching that conclusion, I bear in mind the matters that Mr Ellis has pointed out to me during the course of submissions.    I accept that you may well have been in an abusive relationship and that Mr Smith was no doubt a person who

was domineering in nature.   Nevertheless, you were prepared to remain with him for a considerable period.   Once you left the Waingaro property on 7 June there was no need for you to go into the bush and meet with him in the hut.   There was no need, in my view, for you to take a shopping list of supplies for him.   Once he disappeared from the scene on 7 June, Ms Lyndon, I take the view that it was open to you to cease your contact with him and that you should at that point have made efforts to stay away.   Once you decided to visit him covertly at the hut, however, and to take the shopping list, I take the view that you were providing assistance to him in his endeavours to remain beyond the reach of the law.

Party to supply of methamphetamine

[21]     I accept that your offending did not involve a commercial element so far as you personally were concerned.   The drugs were also supplied to Mr Smith for his personal consumption rather than for any commercial purpose.    Nevertheless, the fact that you were prepared to become involved in that supply meant that, upstream of your involvement, there was some commercial activity.

[22]     I take the view that in many ways your situation is similar to that of Mr Smith’s sister Kirsty.  She, too, faced a charge of conspiring to defeat the course of justice.     Her offending consisted principally of providing Mr Smith with moral support, but she also provided him with cellphone top-up cards.    She was also, on one occasion, prepared to act as an intermediary in the supply of methamphetamine to Mr Smith.    Although she did not face a discrete charge of being a party to the supply of drugs to Mr Smith, I took that factor into account in selecting an overall starting point in her case of 15 months imprisonment.

[23]     In his submissions to me today, Mr Ellis contended that this was one of those rare cases in which the presumption that is contained in the Misuse of Drugs Act

1975 in favour of imprisonment should be displaced.     He submitted that  your offending was at the very lowest level and that, if you had not been prepared to help Mr Smith, then he would have made arrangements directly himself with Mr MacPherson to obtain drugs.    That may be the case, but the fact remains that you were prepared to be a conduit, you were prepared to get on the telephone and contact

Mr MacPherson and thereby to start the ball rolling.     I take the view that notwithstanding the dominance that Mr Smith may have had over you, you made a conscious and voluntary decision to become involved in the supply of drugs to Mr Smith and in doing so you clearly committed an offence for which the presumption applies.

[24]     As I have said, I consider your culpability to be broadly similar to that of Kirsty Smith.   Given that I took an overall starting point of 15 months imprisonment in her case, I propose to take a starting point of nine months imprisonment in relation to the charge of being a party to the supply of methamphetamine.   In reaching that conclusion I bear in mind the submission for the Crown that this offending fell towards the top end of the range in Band 1 in R v Fatu CA415/04 18 November

2005.     That range relates to the supply from 0 to 5 grams of methamphetamine and provides for a starting point of two to four years imprisonment.

[25]     The difficulty that I have is that I have no real way of knowing exactly what quantity of drugs was supplied to Mr Smith on or about 5 July.   All I know is that he paid “five quid” for them.    It seems to me that you were a conduit in a situation where there was no commercial element for yourself or for the person to whom the drugs were to be supplied.     For that reason I consider that you fall within the exception referred to in Fatu of offending that bears no commercial character and which permits the Court to go below the bands of imprisonment identified in Fatu. As I have said, however, that sentence will be cumulative upon the sentence that I have imposed in relation to the charge of conspiring to defeat the course of justice.

Wilfully attempting to defeat the course of justice

[26]     As you knew, the police were involved in an inquiry that potentially related to a culpable homicide.   You had been in the room at the time that the firearm was discharged.    You were accordingly a vital witness to the police investigation.    In any homicide, and particularly in a homicide involving the death of a person by shooting, it is important that the police have available to them all of the available facts  as  soon  as  they commence  their  enquiry.      As  I have  already said,  your omission to the police about Mr Smith’s presence meant that their enquiry took a

completely different course than it would have taken had they known of the true situation.

[27]     In submissions today your counsel pointed out that you had gone to the police voluntarily some  two  weeks  later  and  made  a  detailed  statement  in  which  you disclosed the true position.   That may be the case, but two weeks later was too late. The police needed to know the true situation on the night they arrived and not two weeks later.   Once two weeks had passed any information that you had to offer was stale.   By that stage the car and the firearm had already been found, so what you had to tell them was already known to the police.   They also knew about the presence of Mr Smith because Ms Cobb told them about it on 8 June 2005.    For this reason I place only limited weight on the submission that you voluntarily made a detailed disclosure to the police.

[28]     When I sentenced Ms Cobb this morning I indicated that, in my view, this offence would ordinarily attract a short term of imprisonment.     In my view, an appropriate  sentence  reflecting  your  culpability  of  this  charge  is  a  cumulative sentence  of  three  months  imprisonment.      This  means  that  I  have  adopted  an effective starting point overall of 18 months imprisonment on all charges.

Possession charges

[29]     I said earlier that I considered that the two possession charges could be adequately dealt with by means of a concurrent sentence.     My starting point in relation to those charges is a concurrent sentence of one months imprisonment each.

Aggravating features

[30]     The aggravating features of your offending are adequately dealt with by the starting points that I have selected.   You have no previous convictions and there are no other aggravating features about you personally that would operate to increase the starting points that I have adopted.

Mitigating factors

[31]     You appear for sentence at the age of 25 years.     It is clear from all the material that has been provided to me that you had a  relatively stable upbringing and that it was not until intermediate or high school years that trouble arose.    Trouble appears to have arisen because of your choice of associates and your headstrong nature.   The real trouble, though, seems to have begun when you became involved with two things.   Drugs and Mr Smith.

[32]     It is quite clear from the material that I have read that once you became involved with drugs your personality changed.   This was exacerbated when you met Mr Smith because he continued to supply you with methamphetamine.   It is obvious that during the period that you were with him your family barely knew you.    You appear to have had no concern whatsoever about the effect that your actions might have on other people.    It seems that you were completely off the rails during that period.

[33]     The fact that Mr Smith had a hold over you and that you were in an abusive relationship with him is confirmed, not only by you and your counsel, but also by the Probation Officer and other people who were able to observe the effect on you at the time that you were associating with him.    Thankfully, however, it seems that you have now made a major turnaround in your life.    You now have a stable partner. He recently suffered a serious accident and at present your occupation is that of ACC caregiver for him.   Not only that, but you have mended the rifts that were created so far as your family were concerned.

[34]     The  Probation  Officer  expresses  the  view  that  you  have  indicated  a motivation and readiness to change.    You have turned your back on the associates who led you astray.   You have also stopped taking drugs and you have endeavoured to rehabilitate yourself from all evil influences in your life.   The Probation Officer assesses you at being at low risk of re-offending.   The report records, however, that this risk will increase if you are placed in an environment which impacts on you in a negative manner and  you have not developed any safety plans to utilise if  you encounter the urge to reoffend.

[35]     I consider that the efforts that you have made to rehabilitate yourself and to break  away  from  your  former  lifestyle  are  important.      They  really  mark,  Ms Lyndon, the only hope that you have of leading a normal life in the future, of having a normal partner and of having a strong relationship with your family.   The fact that you have very strong support from your family is marked by the fact that they are here today in your hour of need.

[36]     You are clearly entitled to credit for the fact that  you have no previous convictions.  You are also entitled to credit for the fact that you pleaded guilty to the charges against you.   I record that you indicated that the pleas would be forthcoming prior to your arraignment on 30 January 2007.     I have given other offenders a discount of 25 per cent from their sentences to mark those guilty pleas.   The matters to which I have referred in relation to your present situation, namely your previous trouble-free record and the fact that you have now rehabilitated yourself, persuade me that I should grant an extra indulgence to you.   I therefore propose to reduce the sentences that I impose upon you by a third to recognise those facts.

Sentences

[37]     I now impose the following sentences upon you:

a)       On the charge of conspiring to defeat the course of justice you are sentenced to four months imprisonment.

b)On the charge of being a party to the supply of methamphetamine you are sentenced to six months imprisonment.    That sentence is to be served cumulatively upon the sentence that I have imposed in relation to the charge of conspiring to defeat the course of justice.

c)       On the charge of wilfully attempting to defeat the course of justice you are sentenced to two months imprisonment.   That sentence is to be served cumulatively upon the sentences that I have imposed on the charges of conspiring to defeat the course of justice and being a party to the supply of methamphetamine.

[38]     On each of the charges of being in possession of methamphetamine and the pipe you are sentenced to one months imprisonment.   Those charges are to be served concurrently with all other sentences.

Home detention

[39]   Given the fact that I have imposed a sentence of less than two years imprisonment I am required by s 97(1) of the Sentencing Act 2002 to consider whether you ought to be granted leave to apply to serve your sentence by way of home detention.

[40]     You are fortunate, Ms Lyndon, because all of your offending (other than the possession charges) occurred prior to 7 July 2005.    As a result, a different home detention regime applies in your case than would be the case had your sentencing occurred after 7 July 2005.

[41]    Under the previous regime, which I am required to apply, there was a presumption in favour of home detention.   In the circumstances of your case I have no doubt that leave to apply to serve your sentence by way of home detention should be granted.   I make an order accordingly.

Deferral of start date

[42]     I have also been asked to defer the start date of the sentence of imprisonment. Under the previous regime the Court could defer the start date of a sentence of imprisonment if there were special reasons entitling it to make such an order.   Under the new regime the Court may only defer the start date of a sentence in the event that there are exceptional circumstances justifying deferral.    This is a very high hurdle indeed and it is one that I do not consider would be met in the circumstances of your case.    I am satisfied, however, that the matters to which I have referred, and in particular  the  fact  that  you  are  a  first  offender,  that  you  have  taken  steps  to rehabilitate yourself and to cut off your contact with your previous associates, mean that deferral should be granted.   I consider, in fact, that there is a very real risk that if you are required to go to prison at this point all of the good work that you have

done to date would be wasted.   I do not think that the community would thank me for such an outcome.   For that reason I make an order under s 100(1)(b) of the Act deferring the start date of the sentences of imprisonment that I have imposed.

[43]     The start date is deferred for a period of two months or until the date upon which  the  New  Zealand  Parole  Board  determines  your  application  for  home detention, whichever is the sooner.

[44]     In the meantime you remain on bail on the same conditions that applied up until today.

[45]     Ms Lyndon, you need to know that this does not mean that you will serve your sentence by way of home detention.   What it means is that you have a chance to persuade the Parole Board that you should do that.    I note Mr Ellis’ submission that this may be difficult given the length of your sentence.   Really it is a matter for you to put forward proposals to the Parole Board that will persuade the Board that you are able to serve your sentence by way of home detention.

[46]     Stand down.

Lang J

Postscript

[47]     It is important that I note two events that became apparent following the conclusion of the  formal  sentencing process.     The  first  is  that  Crown  counsel indicated her belief that the changes to ss 97(1) and 100(1) of the Act came into effect on 7 July 2004.   I indicated at the time that the sentencing process had been

completed and that I could not revisit my earlier decision.   I have now checked the position and note that Crown counsel is correct.   I therefore applied an incorrect test in considering both the application for leave and the issue of deferral.   That would have had no practical effect in relation to the issue of leave but it may well have affected the issue of deferral.

[48]     Following  sentencing  I  also  discovered  that  my  recording  device  was switched off during that part of the sentencing process in which  I outlined my conclusions in relation to the application for leave to apply for home detention and the application for deferral of the start date of the sentence.    For that reason it has been necessary for me to recreate my remarks from memory.   If counsel took notes of this part of the sentencing process and can assist with other matters that ought to be included in the sentencing remarks I reserve leave to them to raise that issue with me.