R v McRae HC Hamilton CRI 2006-019-3830
[2007] NZHC 1879
•20 June 2007
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2006-019-3830
THE QUEEN
v
CHIQUITA JASMINE MCRAE
Hearing: 20 June 2007
Appearances: P Crayton for the Crown
S Ellis for the prisoner
Sentencing: 20 June 2007
SENTENCING REMARKS OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 19 173, Hamilton
S Ellis, PO Box 19 138, Hamilton
R V MCRAE HC HAM CRI 2006-019-3830 20 June 2007
[1] Chiquita McRae, you have been found guilty of three charges under the Misuse of Drugs Act 1975. One of these is for the supply of the Class A controlled drug methamphetamine and another is possession of methamphetamine for supply. The maximum penalty for both of these offences is life imprisonment. The third charge is possession of a pipe which has a maximum penalty of one year imprisonment.
[2] For the purposes of your hearing today, I have been assisted by the written submissions from the Crown and from your own counsel, oral submissions which you have heard discussed in Court this morning, a pre-sentence report from the Probation Service and letters from yourself, your partner and your mother, which I have read carefully.
Factual background
[3] On 25 May 2006, you were in the back seat of a vehicle stopped by the Police. Next to you was a black backpack containing 13 point bags. These point bags contained a total of 86 milligrams of a powder containing methamphetamine, the purity of which is unclear. The backpack also contained the methamphetamine pipe. You admitted having sold a point bag of methamphetamine for $60. You said that “you only sold the stuff when you needed the money”.
[4] You are 20 years of age, a solo mother with two daughters, one aged two years and the other aged six months. Until this offending you lived in rental accommodation in Hamilton. You were in receipt of a domestic purposes benefit and you had completed several work skills training courses. You wanted your partner to do likewise in order to successfully relocate your family to the South Island for a fresh start. That is commendable, but you have to be careful about relocating because you do not want to be in a sense running away from your troubles. You really have to face up to the issues that confront you and, at least from what I have read, you appear to have started that process in a mature way.
[5] Your mother has been caring for the children while you have been in custody, but the Probation Officer reported that your mother has in the past suffered an
alcohol dependency. Your father had gang connections apparently and your family was dysfunctional. You spent time in foster care during your teenage years and you have four brothers and two sisters.
[6] Sadly, you began using alcohol and drugs at a very young age. You say that any admissions you made when talking to the Police after the methamphetamine had been discovered was brought about by your being talkative from having consumed methamphetamine. You also expressed a desire to protect your boyfriend.
[7] You told the Probation Officer you did not intend to go near drugs again and I commend you for that. However, the Probation Officer expressed the opinion that you are not seriously motivated to change given the pressures of your background and connections. Well that is a big challenge for you, I appreciate that. You will need to take advantage of any assistance you can get while in prison to deal with your use of drugs and alcohol. I was heartened from your letter to see that you were attending some courses and taking advantage of the support that is available to you and your family through the social services. Because I can tell you this, and it is important your family are here to hear what I am about to say, that methamphetamine is a pernicious controlled drug. It is devastating our society and if you do not put it, and other controlled drugs, behind you, then you are standing at the top of a very big cliff.
[8] You have nine previous convictions dating back to 2004. One, the relevant one for this matter today, is possession of cannabis. Three are for property offences. One is for aggravated assault. Four are for breaches of conditions of supervision and that will be a concern to the Parole Board. I accept that the cannabis offence is really the only one of relevance and seems to have been relatively low level offending. You have previously been subject to sentences of supervision, reparation, community work and fines – none of which seem to have worked.
Submissions of counsel
[9] The Crown submits that there are no particular statutory aggravating or mitigating factors that relate to your case. Crown counsel emphasises that while
your supply of methamphetamine was small scale, it clearly had a commercial element in that you admitted selling on one occasion and intended to sell on two further occasions. As a result, in reliance on the guideline judgment in R v Fatu [2006] 2 NZLR 72, the Crown submits that the appropriate starting point is two years’ imprisonment. That, I agree, is a very generous intimation from the Crown.
[10] Your counsel filed helpful and focussed submissions. Mr Ellis, who pleaded very well on your behalf today, accepted that the lowest band of Fatu is applicable. He submitted that the Court should opt for a starting point at the bottom end, that is two years. So in a sense he was aligned with the submission from the Crown.
[11] In terms of the mitigating factors, Mr Ellis drew attention to your relative youth and the remorse that you have shown. He elaborated by saying that the fact that you have spent time in prison has really brought home to you the realisation that you have to turn your life around. It is encouraging to see that has been the reaction you had to the time you have spent in custody.
[12] He also drew attention to the degree of involvement in this matter and your commitment to reform. He noted the fact you had been separated from your young children has had the effect of focussing your goals on putting this matter behind you and then reuniting with your family. Accordingly, Mr Ellis submitted that a sentence of two years’ imprisonment or less be imposed and he has made an application on your behalf for leave to apply for home detention.
Purposes and principles
[13] There are a number of purposes and principles in the Sentencing Act 2002 that I am required to keep in mind. I refer to the need to hold you accountable for the harm done to the community through methamphetamine offending and to promote a sense of responsibility in you for that harm. On behalf of the community, as sentencing Judge, I must also denounce your conduct and reflect the need to deter you and others from committing the same or a similar offence. In fact, deterrence is the key purpose of sentencing drug offenders.
[14] In terms of the relevant principles, I need to take into account the gravity of the offending and your degree of culpability, the seriousness of your offending, and bear in mind the maximum penalties prescribed. Then I must take into account the desirability of consistency in sentencing and impose the least restrictive outcome appropriate in the circumstances.
Features of the offending
[15] The Court of Appeal in R v Taueki [2005] 3 NZLR 372 set out the correct approach to sentencing. It requires me to set the starting point based on the features of the offending, and then adjust the starting point according to any mitigating and aggravating features.
Aggravating features
[16] Under s 9(1) of the Sentencing Act your previous convictions could be regarded as aggravating the present offending. However, these are generally low level offences, though I note that you have previous drug related offending.
Mitigating features
[17] I accept that under the Sentencing Act your youth is a mitigating factor. Although personal circumstances cannot feature to a significant extent in the context of sentencing for drug offending, especially with Class A controlled drugs, nevertheless I am able, to a limited extent, to take into account the family situation that you have, including where applicable the wellbeing of your two young children.
[18] Under s 64 of the Misuse of Drugs Act there is a presumption in favour of imprisonment and that is the point Mr Ellis was referring to earlier. That applies in cases of persons convicted of supplying methamphetamine and generally overrides the presumption against imprisonment that is referred to in the Sentencing Act.
Discussion
[19] I accept that in terms of sentencing this case falls at the lower end of band 1 of Fatu. Having regard to the submissions of the Crown and your counsel, I propose to take as a starting point a generous figure of two years’ imprisonment. Normally, it might well have been higher.
[20] As for mitigating factors, I take into account the various matters referred to by Mr Ellis and as outlined above, in particular your youth and, to the extent I can, your personal and family circumstances. Taking into account the aggravating and mitigating factors, I impose a final sentence on counts 2 and 3 of one year nine months’ imprisonment. Both terms are concurrent. I add that is very generous.
[21] In relation to the charge of possession of a methamphetamine pipe, a concurrent term of three months’ imprisonment is imposed. This is on the basis that it is methamphetamine related offending, part of the same course of conduct and a concurrent is appropriate.
Home detention
[22] That leads me on to the question of home detention. Where I have imposed a final term of not more than two years’ imprisonment the issue of home detention arises under s 97(3) of the Sentencing Act as follows:
(3) The court may grant the offender leave to apply to the New Zealand Parole Board under section 33 of the Parole Act 2002 for home detention only if the court is satisfied that it would be appropriate to grant leave, taking into account-
(a) the nature and seriousness of the offence; and
(b) the circumstances and background of the offender; and
(c) any relevant matters in the victim impact statement in the case.
[23] The problem I have that is dealing in Class A controlled drugs is serious offending. It is really only the fact that your offending is at the lower end of the scale, which is one of the factors that I must take into account, that I am able to consider the issue of home detention.
[24] There are other features too that make it difficult for me, including your previous convictions and the fact that you do have convictions for breaches of supervision. But you do have a two year old daughter and a six month old daughter and in terms of the question of grant of leave to apply for home detention, I am able to take into account the circumstances and background of you and your family.
[25] There will be issues for the Parole Board to consider when your application is heard and it will be particularly important for you to demonstrate that your remorse is genuine, that you are absolutely and completely committed to putting controlled drugs and methamphetamine and alcohol abuse behind you. I encourage you to do that, not just for you, but for the little girls because you would be wrecking three lives if you do not put this dreadful dependency behind you.
[26] I am going to grant you leave to apply for home detention. As I have said, and you have heard me discuss this earlier today, whether you are in fact granted home detention is a matter for the Parole Board. But I am sure Mr Ellis will assist you in terms of preparing for that and in particular to assist the Parole Board with the factors relating to where you might live with your daughters, if the Parole Board were to grant you home detention.
[27] This is not a case where it is appropriate for a deferral for various reasons. I can only grant a deferral if there are exceptional circumstances and that does not arise in this case as far as I can determine. There will be no deferral of the start date.
[28] That is the sentence of the Court.
[29] You may stand down.
Stevens J
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