R v M HC Auckland CRI 2006-004-17181
[2008] NZHC 1067
•8 July 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-004-017181
QUEEN
v
M
Hearing: 8 July 2008
Appearances: B Finn for Crown
JEM Lethbridge for Offender
Judgment: 8 July 2008
Sentence imposed: Conspiracy to supply Class A drug, methamphetamine
Six months’ community detention;
225 hours’ community workSENTENCING NOTES OF ASHER J
Solicitors:
Meredith Connell, PO Box 2213 Auckland
Grove Darlow & Partners, PO Box 2882, Auckland
R V M HC AK CRI 2006-004-017181 8 July 2008
Introduction
[1] Sheree M you appear for sentence today having pleaded guilty to a charge of conspiring to supply methamphetamine under s 6(2A)(a) of the Misuse of Drugs Act 1975. You face a maximum sentence of 14 years’ imprisonment under that provision.
[2] The charge arose from a police investigation known as Operation Needle, which investigated the activities of a Motueka-based group of individuals in March 2006. The group was involved in methamphetamine dealing. A principal supplier of that group was identified as your co-offender, Douglas Gordon Hay. He lived in the Nelson district.
[3] Mr Hay met you when you were living and working in Auckland in late June 2006. You were at that time working for an escort agency. You had regular contact with him and Mr Hay employed you as a driver for several days, paying you a thousand dollars at a time. It was not alleged that that driving involved methamphetamine dealing. Mr Hay introduced you to an Auckland-based supplier of methamphetamine and to some of his associates.
[4] The charge against you centres on one occasion in mid-July 2006 when you were asked to be the go-between in the purchase of some methamphetamine from an associate of Mr Hay’s. Your involvement appears to have been making a telephone call which assisted the transaction. The amount involved was described in the summary of facts as an ounce. However, when sentencing your co-offender Mr Hay after he was found guilty at trial of a number of drug-related charges, Miller J considered that the amount was less than an ounce: R v Hay HC NEL CRI-2006-042-
2601 20 June 2008, Miller J at [14].
[5] Miller J sentenced Mr Hay on the conspiracy to supply methamphetamine charge to two years’ imprisonment to be served concurrently with the lead sentence of three years and six months’ imprisonment for conspiracy to manufacture methamphetamine. It was common ground between counsel that Miller J’s decision
indicated a starting point of two-and-a-half years’ imprisonment in relation to the conspiracy to supply charge, and a reading of the judgment supports this conclusion.
[6] The Crown in its initial submissions suggested a starting point of three years’ imprisonment. However, Mr Finn in his oral submissions fairly acknowledged such a starting point would be inconsistent with the decision of Miller J in sentencing Mr Hay. He suggested that in the end a starting point in the region of eighteen months to two years’ imprisonment would be appropriate. Your counsel, Ms Lethbridge, adopted a similar position.
[7] The Crown, taking into account statements of the Court of Appeal in R v Hill CA559/07 29 February 2008, fairly acknowledged that a sentence of home detention could well be appropriate. Ms Lethbridge, while putting forward home detention as a sentencing option, submitted that the Court could consider a combined sentence of community detention and community work of 250 hours.
The starting point
[8] The particular need for deterrence and denunciation must be taken into account given that methamphetamine is a class A drug and the very serious social problems it causes. The sentencing tariffs set out for supply of methamphetamine in R v Fatu [2006] 2 NZLR 72 (CA) provide a rational and convenient preliminary framework for evaluating the present offending.
[9] However, R v Fatu did not purport to set out tariffs for conspiracies to deal with methamphetamine. R v Fatu concerned the more serious substantive offences of supply and manufacture, which carry a maximum penalty of life imprisonment. The maximum penalty for conspiracy to supply is 14 years’ imprisonment. This differential suggests that the starting point to be applied must therefore be lower than that set out in R v Fatu. This is the approach that has been taken in many cases, including: R v Walters HC AK CRI-2005-488-000013 17 May 2005; R v Savage HC WHA CRI-2005-029-1267 21 July 2006, Lang J; R v Johnson HC WHA CRI-2006-
088-001233 27 September 2006, Asher J; R v Lockart-Blundell HC ROT CRI-2006-
063-4690 11 March 2008, Cooper J; R v Howard HC AK CRI-2006-004-001208
12 February 2008, Winkelmann J and R v Haumaha HC AK CRI-2007-092-11143
1 April 2008, Wylie J. In these cases a range of starting points were adopted, which all involved shorter periods of imprisonment than the equivalent R v Fatu starting point. In a number of cases the conspiracy starting point can be seen as being approximately 30 percent lower than the equivalent supply starting point.
[10] It is also relevant when considering the starting point to consider the general approach to sentencing for conspiracy set out by the Court of Appeal in R v Henry (1997) 1 NZLR 150. The Court there emphasised that in assessing culpability or blameworthiness, the nature and scope of the conspiracy and the extent to which the offender participated and assisted in it must be relevant considerations: at 152. These are also, of course, relevant matters when assessing culpability under the R v Fatu bands.
[11] Turning to the appropriate starting point in this case, I must assume that the amount of methamphetamine involved was in the region of 14 to 20 grams. I note that if this were a supply charge, in terms of band two in R v Fatu the likely starting point would have been in the area of about three-and-a-half years. Given that this is a charge of conspiracy to supply, the starting point reduces to approximately two years and four months.
[12] However, in assessing the starting point your particular role must also be considered. Your role was minor both in terms of the level of responsibility, your limited single action in making the phone call, and the limited duration of your involvement. Thus, your role can be summarised as that of a minor and temporary facilitator. It is therefore at the lower end of culpability. It is also to be noted that there was no evidence that you were to receive any particular reward for what you did.
[13] It is also relevant in reaching a starting point to note that a starting point of roughly two-and-a-half years was apparently adopted in relation to Mr Hay, who had a far more significant role in the conspiracy than you did, and indeed he was the one responsible for your limited involvement.
[14] Taking these factors into account, I agree with the submissions of counsel that the appropriate starting point is somewhere between 18 months and two years’ imprisonment.
Personal aggravating and mitigating factors
[15] I have the benefit of a detailed pre-sentence report and a number of testimonials that are supportive of you and descriptive of your character and actions. It is clear from the material before me that at the time you committed this offence you were at a very low point in your life. You were using methamphetamine and working at an escort agency. Since then, however, you have turned your life around. You are now aged 33. You work full-time stacking supermarket shelves. Prior to this position, you held various jobs as a bar manager and packer-driver. You have lived on your own at the same rental address since July 2007, meeting all your rental payments regularly. Your employers have been supportive of you and friends also support you. Clearly you are an independent person who is capable of being reliable and trustworthy.
[16] The probation officer assesses your risk of further offending as low. The pre- sentence report notes that you have accepted your offending and are remorseful for it. The probation officer discusses the options of home detention and community detention and notes your preference for community detention as you are fearful that you will be required, at least temporarily, to stop working if you are sentenced to home detention.
[17] Your previous convictions have been only minor and I do not consider one minor conviction for wilful trespass for which you received a suspended sentence after this charge was laid to be of any significance in this sentencing exercise. There are therefore no aggravating factors relating to you personally.
[18] In addition, of course, your guilty plea is a very significant mitigating factor. Although it was entered shortly before trial, the previous history had been marked by a successful pre-trial application and a late change of lawyer because the case was to be heard in Nelson rather than Auckland. I accept that this would have delayed a
final decision on plea until close to trial. In the circumstances a discount in the 25 to 30 percent area for the guilty plea is appropriate. The full arithmetical discount would be in the area of 45 percent.
[19] Given the various significant mitigating factors that I have referred to and the low starting point and final sentence, the issue of alternatives to imprisonment arises and must be considered.
Alternatives to imprisonment
[20] Mr Finn for the Crown has emphasised s 6(4) of the Misuse of Drugs Act 1975. The section states that in relation to offending of this type the Court shall impose a sentence of imprisonment unless having regard to the particular circumstances of the offence or the offender or the age of the offender, the Court is of the opinion that the offender should not be so sentenced.
[21] In R v Hill, the Court of Appeal imposed a sentence of home detention in relation to an offender convicted of possession of methamphetamine for the purposes of supply. In that case, despite a starting point of three years and six months and s 6(4) of the Misuse of Drugs Act 1975, the Court concluded that a sentence of home detention was appropriate given the offender’s good prospects for rehabilitation. It was noted that the amendments in 2007 to the Sentencing Act creating a new range of sentences reflected a perception that society’s interests could be better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment: at [33]. Indeed, the explanatory note to the Criminal Justice Reform Bill noted that the Bill’s purpose was to introduce “a range of measures” to arrest the sharp increase in the prison population in recent years.
[22] Section 10A now sets out a new hierarchy of sentences and orders. The Court must also be mindful, while not overlooking s 6(4) of the Misuse of Drugs Act 1975, of the sentencing principle that the least restrictive outcome that is appropriate should be imposed: s 8(g) of the Sentencing Act 2002.
[23] I conclude that there are particular circumstances relating to the offence and the offender here which warrant a sentence less than imprisonment. The question then arises as to whether, as the Crown suggests, home detention is the appropriate sentence or whether community detention plus community work is the appropriate sentence. In terms of s 15A of the Sentencing Act 2002 I would be hesitant in this case to impose a short term sentence of imprisonment, and I am not satisfied that the purpose for which sentence is being imposed could not be achieved by any less restrictive sentence.
[24] I consider that your very low level of involvement in the conspiracy, coupled with your guilty plea and your excellent efforts at rehabilitation and re-establishing your life, warrant a less restrictive sentence than home detention. It must be borne in mind that home detention involves a significant interference with liberty, as the offender is entirely confined to his or her home unless the probation officer directs otherwise. Community detention, while involving a curfew, gives an offender a greater opportunity to lead a normal life by permitting the offender freedom during the course of the day. While not accepting that a sentence of home detention here would necessarily mean that you will lose your job (the probation officer may well give you permission to continue your work under s 80C(3)(ii)), I do accept that there is likely to be at least some delay before permission could be given for work to be resumed. This will not be a problem if community detention is the sentence, as you will be free during the day.
[25] In this case, a sentence of community detention must be combined with a sentence of community work to reflect the seriousness of the offending. That should be for a considerable period.
Summary
[26] You have been convicted of very serious offending in respect of which you would normally be sent to prison. However, as I have indicated, given your low level of involvement, its short duration, your efforts at rehabilitation and the very good character you have shown since, you should receive a lesser sentence than
imprisonment. I am also persuaded that in all the circumstances I can impose a sentence at a lower level than home detention.
[27] I sentence you therefore to a sentence of community detention for a period of six months and to community work for 225 hours.
[28] I note that you have consented to a sentence of community detention and raise no objection to a sentence of community work. You have signed an agreement relating to a sentence involving electronic monitoring.
[29] I impose a curfew on you in accordance with the recommendation of the probation officer from 7:00 pm to 6:00 am each day, being a total curfew of 11 hours for every day of the sentence. I realise that until now you have been starting work somewhat earlier than 6:00 am. Your counsel indicates that you should be able to secure a change in your hours. I consider that the sentence does require a lengthy curfew of this order.
[30] So Ms M , you will now have to serve this sentence and I know it will impose a hardship on you. It is, however, the minimum response that could be made by the Court to your very serious offending. However, obviously there are now many positive things in your life. It would appear that you are going to seize those. Please do so. Get through this period of sentence and lead the good life in your community that you are obviously capable of achieving.
ADDENDUM
[31] I referred to s 6(4) in the course of this decision. I note that s 6(4) does not in fact apply in relation to a charge of conspiring to supply. Reference was also made to s 15A of the Sentencing Act 2002, which I note did not in fact apply to the charge, given the date of the offence. This was also the case in R v Hill.
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Asher J
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