R v McPherson

[2009] NZCA 487

IN THE COURT OF APPEAL OF NEW ZEALAND

CA403/2009
[2009] NZCA 487

THE QUEEN

v

YVONNE ANNE MCPHERSON

Hearing:12 October 2009

Court:Glazebrook, Potter and Wild JJ

Counsel:M D Downs for Applicant

R Brown for Respondent

Judgment:20 October 2009 at 9.00 am

JUDGMENT OF THE COURT

AThe Solicitor-General’s application for leave to appeal the sentence is granted.

B            The sentence of home detention for 11 months is quashed.

C            We substitute a sentence of three and a half years imprisonment.

DIn order to commence her sentence of imprisonment, Ms McPherson is to present herself at a time and place, as instructed by the Crown, before 5.00 pm on Wednesday 21 October 2009.  Failing such instructions, she is to present herself at the Auckland High Court, Criminal Registry Office, at 10.00 am on Thursday 22 October 2009 to commence her sentence of imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1]        After a jury had found the respondent guilty of being in possession of, or selling, a total of approximately 40 grams of methamphetamine, Judge Sharp sentenced her to home detention for 11 months.  The sentence was imposed in the District Court at Auckland on 26 June 2009.

[2]        The Solicitor-General applies for leave to appeal that sentence.  He submits the offending was too serious for any sentence other than imprisonment, as the Judge was obliged to emphasise denunciation and deterrence of Class A drug dealing.

The facts

[3]        Since 10 October 2006 the police, pursuant to an interception warrant, had been intercepting the respondent’s cellphone communications.  The Crown summarised the key parts of those communications in a table for the sentencing Judge.  The table was also provided to us.  We accept it established a pattern of the respondent purchasing quantities of methamphetamine from her supplier, and on-selling smaller quantities of methamphetamine to a range of customers.  She purchased up to an ounce (approximately 28 grams) from her supplier and on-sold in various quantities ranging from 14 grams down to half a gram.  She offered to on-sell larger amounts – up to an ounce.  The Crown put to the sentencing Judge that “a conservative estimate of the total amount sold over the period is about 27 grams”.

[4]        On 13 February 2007 the respondent was stopped at a checkpoint outside Mt Eden Prison.  A search of her car uncovered 11.76 grams of methamphetamine, some 20 empty snaplock bags, digital weigh scales, a notebook containing a tick list and a little over $1,200 in cash.  The respondent claimed the cash was hers, but gave evidence that the drugs and the drug-dealing paraphernalia must have been “planted” in the boot of her car.  The respondent was subsequently charged with possession of methamphetamine for supply, and with selling methamphetamine.  The jury’s verdicts of guilty on both counts indicated they rejected her defence that the drugs had been planted in her car, and also her explanation that the intercepted communications were not about controlled drugs.

Sentencing starting point

[5]        Before the Judge counsel were agreed the offending fell into the band two category prescribed in R v Fatu [2006] 2 NZLR 72 (CA), the guideline case for Class A drug dealing. Band two covers drug dealing involving 5 to 250 grams of illicit drugs, for which it indicates a sentencing starting point in the range of three to nine years imprisonment. The Crown contended for four years, and counsel for Ms McPherson allowed that the starting point should be three and a half to four years. In determining that three and a half years was the appropriate starting point, the Judge said this:

[49]       The Crown submits (and I cannot demur from this) that it may be that the jury found you guilty of dealing frequently during the month of interception and of selling in amounts ranging from a quarter of a gram to 7, 10, 12 or possibly 14 grams.  The Crown says that a conservative estimate of the total amount sold by you over the three week period is about 27 grams.

[50]       This is of course all in the area of pure conjecture and speculation on both the Crown’s part and my part and I cannot and will not be drawn into sentencing you for a finite amount of a finite value.  It is enough to say that a jury found you guilty of selling on more than one occasion.

[6]        We accept Mr Downs’ submission that the Crown had not invited the Judge to speculate.  Ms McPherson was apprehended with almost 12 grams of methamphetamine plus the equipment indicating she was dealing:  digital scales, tick list, snaplock bags and cash.  At trial, the Crown called a misuse of drugs specialist police officer.  Having analysed Ms McPherson’s intercepted telecommunications, that officer expressed the expert view that the communications recorded sales of at least 27 grams of methamphetamine. 

[7]        Given that the Fatu bands are based on amounts of drugs, the Judge had to determine the amount of drugs involved in Ms McPherson’s offending on the basis of the evidence given at her trial.  The Judge had evidence Ms McPherson was in possession of, or had sold, some 40 grams.  Therefore, our view is that the minimum sentencing starting point was four years.  Mr Downs was on firm ground in submitting to us that this was not a case falling just within band two. 

Mitigating and aggravating factors relating to Ms McPherson

[8]        Having determined her sentencing starting point, the Judge then needed to identify mitigating factors relating to Ms McPherson as the offender which she considered should reduce the sentence from her starting point, and aggravating considerations that should uplift it.  A balancing of those would have led her to the appropriate end sentence.

[9]        Mr Downs submitted that “it is not entirely clear” how, from her starting point of three and a half years imprisonment, the Judge ultimately settled on the term of home detention for 11 months.  We have considered the Judge’s sentencing notes carefully.  It is not clear to us either how the Judge got from her starting point to the end sentence she imposed.  At one point in her sentencing the Judge said:

[45]       I accept that this is a case where it is a stretch to get from a starting point down to a sentence of home detention of 11 months ...

In his submissions opposing the Solicitor-General’s application, Mr Brown conceded that the Judge had made “a quantum leap”.  As we cannot follow this part of the Judge’s sentencing, we must undertake it afresh.

[10]       The Judge seems to have identified two mitigating factors.  She placed most importance on Ms McPherson’s efforts to rehabilitate herself.  The Judge recorded that, after she was apprehended for this offending, Ms McPherson attended the Kaitaia Hospital Addiction Services Drug Rehabilitation Programme while on bail.  The Judge said:

[23]       She is willing to undertake further drug rehabilitation  She has been accepted into Higher Ground for the initial treatment period of 18 weeks; thereafter she will be accepted into post care treatment courses and can also be taken by Odyssey House at an appropriate point.

...

[43]       ...  I am completely satisfied that Mrs McPherson is one of a few people who has extensively used methamphetamine, and indeed dealt in it, that is capable of complete rehabilitation and of being a very useful member of society again.  She is completely self-motivated.  That is proved by the over one year that she has spent drug free with only minimal assistance.

[11]       Secondly, the Judge was plainly sympathetic to Ms McPherson’s personal circumstances.  Following the untimely death of her husband in an accident, Ms McPherson had brought up two children on her own.  She had worked as a grader driver, and then studied toward a Bachelor’s Degree in Health Science.  She started using cannabis and later methamphetamine after her children left home, which she claimed was to fill the space left by their absence.  The Judge advanced what she acknowledged was “a supposition”:

[42]       ... I consider it extremely likely that her descent into serious drug use and addiction causing her to begin to offend in the way that has brought her before the Court so consistently over the last few years may well have been as a result of lingering and bottled up grief never appropriately dealt with in the past, this being due to the fact that there was only she to look after her children and to be the breadwinner of the family so there was no time or opportunity for her to dwell on her grief.

[12]       Ms McPherson’s efforts to rehabilitate herself from drugs comprise attending one programme, and indicating to the Court a willingness to undertake further drug rehabilitation.  We comment further about this in [18] to [22], when dealing with R v Hill [2008] 2 NZLR 381 (CA). Our view is that Ms McPherson’s rehabilitative efforts and intentions, while commendable, are not a mitigating factor of any significance.

[13]       In R v Jarden [2008] 3 NZLR 612 at [12] and [14] the Supreme Court offered guidance as to how a Court should deal with the offender’s personal circumstances, when sentencing for commercial drug dealing. It reiterated that the personal circumstances of the offender must be subordinated to the importance of deterrence. It added that the offender’s personal circumstances may be relevant either because they contributed in some way to the offending, or on purely compassionate grounds.

[14]       We do not share the Judge’s view that Ms McPherson’s circumstances could be treated as having contributed to her offending.  Many New Zealanders have to deal with the untimely death of a spouse or partner.  Most parents must come to terms, sooner or later, with the departure from the family home of their children.  We do not accept that these things can seriously be offered as explanations, let alone justifications, for drug offending, and particularly not for drug dealing.  

[15]       In short, we see no significant mitigating factors here.

[16]       An aggravating factor is Ms McPherson’s previous convictions.  They are conveniently described in the pre-sentence report in these terms:

Previous Offending

Ms McPherson has made four previous Court appearances.  In 1984 she was fined for driving carelessly.  In February 2006 she was fined $200 for growing cannabis; she says of this “I thought I would grow some and didn’t even think of the legal aspects”.  Later in the same year, in September, she appeared in the District Court at Waitakere and following conviction for possession of methamphetamine and possession of utensils for drug use was fined $200 on one offence and $300 on the other.  She says “I had it in my bag ... stopped to visit a friend ... while there the place was raided [by the Police]”.  Most recently she appeared in the District Court at Waitakere in July 2008 and following conviction on a raft of cannabis-related offences and breach of bail was sentenced to home detention for three months.

[17]       Patently, the last sentence imposed on Ms McPherson for drug offending ‑ three months home detention – did not deter her from further drug offending.

[18]       The Judge justified her sentence of home detention with heavy reliance on R v Hill.  For example, she said:

[39]       In the case of Mr Hill the trial Judge applied a discount of 35% to the starting point to reflect the appellant’s efforts at, and prospects for, rehabilitation.  The Court of Appeal made a note that such rehabilitative considerations will be important in determining whether to sentence to home detention.  The Court of Appeal said, where an offender is motivated to change and where there is a realistic prospect that 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.

[19]       As in R v Hill, the offending here occurred before s 80A Sentencing Act 2002 came into force on 1 October 2007.  It follows that R v Hill is authority that the Judge had jurisdiction to impose a sentence of home detention.  The question for the Judge was whether the facts and circumstances of Ms McPherson’s offending permitted a sentence of home detention.

[20]       The facts of R v Hill need to be compared to those here.  Following the search of a gang house, Mr Hill was found with 6.3 grams of methamphetamine, a generous supply of snaplock bags, and approximately $5,500 in cash. 

[21]       The Court in R v Hill was persuaded to substitute sentences of 12 months home detention and 200 hours community work because Mr Hill had broken away from the gang, moving to a new address where he had sound support.  He had also re-established contact with his family, notably with his father.  Additionally, he had also completed an intensive Community Alcohol and Drug Service (CADS) drug rehabilitation programme, and had since remained drug free.  The judgment does not record Mr Hill’s age, or whether he had previous convictions, in particular for drug offending.  However, it is apparent that he was a young man. 

[22]       In Hill, the Court viewed those facts and circumstances as sufficient to rebut the presumption, in s 6(4) Misuse of Drugs Act 1975, that those convicted of dealing in Class A drugs must be sentenced to imprisonment.  The facts and circumstances of this case are markedly different.  We assess it as a significantly more serious one than Hill, and one where the s 6(4) presumption is not rebutted.  Foremost, is the fact that Ms McPherson had been dealing in methamphetamine in a committed way, and on a significant scale, for some time.  The seriousness is exacerbated by the fact that she had previous convictions for drug offending, and had foregone the rehabilitative opportunity afforded her by the sentence of home detention imposed on her in July 2008. 

[23]       Our conclusion is that the sentence of home detention for 11 months cannot stand.  We indicated that the proper starting point was four years imprisonment.  We are unable to accept that any reduction either to reflect Ms McPherson’s commendable efforts to rehabilitate herself or her personal circumstances is warranted.  We reiterate that we do not see those as significant mitigating features, and they are more than offset by the aggravating consideration of Ms McPherson’s previous convictions for drug offending. 

[24]       Ms McPherson has served approximately three and a half months of the sentence of home detention the Judge imposed on her.  Credit for this must be given in fixing the sentence of imprisonment we intend substituting.  We are also mindful that this is a Crown appeal.  To reflect both those matters, we fix the appropriate sentence of imprisonment at three and a half years.

Result

[25]       The sentence of home detention for 11 months imposed by the District Court is quashed.  A sentence of three and a half years imprisonment is substituted.

Solicitors:

Crown Law Office, Wellington