R v Muir
[2016] NZHC 2447
•14 October 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2015-019-6211 [2016] NZHC 2447
THE QUEEN
v
ANNA MERIANNE MUIR
Hearing: 14 October 2016 Counsel:
J N Foster for Crown
M J Dyhrberg QC and P Barrowclough for DefendantJudgment:
14 October 2016
SENTENCING NOTES OF HEATH J
Solicitors:
Crown Solicitor, Hamilton
Counsel:
M J Dyhrberg QC, Auckland
P Barrowclough, Auckland
R v MUIR [2016] NZHC 2447 [14 October 2016]
Introduction
[1] Anna Merianne Muir, you appear for sentence today having pleaded guilty, following a sentence indication given on 12 August 2016,1 to representative charges of supplying the Class A controlled drug methamphetamine, offering to supply methamphetamine, possessing methamphetamine for supply and possessing the Class C controlled drug cannabis for supply. Your guilty pleas were entered on 20
September 2016.
[2] You were remanded for sentence on 7 October 2016. At that time, further information was provided to the presiding Judge that was relevant to your mitigating circumstances. As a result your sentencing was deferred until today. As the Judge who conducted the sentence indication, I was asked to preside.
[3] I have now read the additional information provided. Having heard from your counsel in open Court and read the relevant submissions, I now proceed to sentence you on the charges to which you have pleaded guilty.
[4] The lead offence for sentencing purposes is that of supplying methamphetamine. The maximum penalty is life imprisonment.
Facts
[5] Your offending was identified as a result of a covert Police operation known as Operation Daydream. That was an investigation into alleged drug offending in rural areas surrounding Te Aroha and Paeroa. The investigation began in August
2015 and was terminated on 4 November 2015.
[6] You have acknowledged that in the period between 1 January and 4
November 2015 you were involved in the prolific supply of methamphetamine. You worked together with an alleged co-offender. Regularly, you obtained for distribution methamphetamine in quantities of two ounces, one ounce and half an ounce from a variety of sources. You distributed the drug for financial reward in
both wholesale and retail quantities.
1 R v Muir [2016] NZHC 1874.
[7] Joint purchases would be divided into agreed amounts so that you were each in a position to supply the drug independently to third parties. While you pooled resources on many occasions with your alleged co-offender, you each engaged in your own independent sales. You would keep the proceeds of sale of such sales, but the two of split the proceeds from joint enterprise transactions.
[8] During the Police operation, four separate cellular telephone numbers were identified that you had used in the period between 1 July and 4 November 2015. Analysis of back-captured text messages for the period between 29 July and 13
October 2015 revealed that, either jointly with your alleged co-offender or separately, you obtained 245 grams of methamphetamine for supply. In the period between 14 October and 4 November 2015, a further 284 grams was sourced, on the same basis. A total of four grams of methamphetamine was identified as having been sourced by you independently for supply. You accept that, over the relevant period, you supplied methamphetamine regularly to a number of customers.
[9] On the evening of 3 November 2015, you and your alleged co-offender were speaking with each other on the telephone regularly. Those calls were intercepted. Arrangements were made for you to obtain a quantity of methamphetamine from an associate, and for the two of you to meet at a petrol station in Bombay after you had procured the drug. Your alleged co-offender left his home address in Te Aroha and drove towards Bombay to meet you there. In a telephone discussion that took place while he was en route to Bombay, your alleged co-offender told you that he was bringing a quantity of cannabis with him that you could sell to a common associate.
[10] Once you had procured the methamphetamine, you contacted your alleged co-offender by telephone. You confirmed one ounce had been purchased. In the early hours of 4 November 2015 you met in the truck park area of the petrol station in Bombay, as arranged. Shortly afterwards, police officers terminating the operation approached your vehicles and arrested each of you.
[11] At the time of arrest, three separate bound piles of cash containing $1000 in each were located on the driver’s seat of your car. Inside a cooler bag, on the front passenger seat of your vehicle, was a black plastic screw top container inside of
which was a plastic film container holding four small clipseal plastic bags. Each contained one gram of methamphetamine. A further plastic container was located. That contained 14 grams of methamphetamine.
[12] You accept that a screw top plastic container was found in the vehicle that your alleged co-offender was driving. It contained two plastic clipseal bags with seven grams of methamphetamine inside. Also located in that vehicle were a number of plastic bags, each containing dried cannabis head material totalling 132 grams. You acknowledge complicity in the possession of the drugs found in your alleged co-offender’s vehicle.
[13] Later on 4 November 2015, police officers executed a search warrant at your home. They located a set of digital scales and a number of cut straws, together with other paraphernalia that could be used for purposes consistent with the supply and use of methamphetamine.
Basis of sentencing
[14] I sentence you on the basis that you were involved in a substantial drug dealing business. I treat the cannabis offending as part of that, rather than providing a separate uplift as an aggravating factor. The amount and nature of the cannabis found in the motor vehicle would be at the lowest end of Band 2 of the Court of
Appeal’s guideline sentencing decision in R v Terewi,2 around two years. On that
basis I have fixed a starting point for sentence in the manner required by the Court of
Appeal’s guideline sentencing judgment in R v Fatu.3
[15] In accordance with the sentence indication that I gave on 12 August 2016, I assess the amount of methamphetamine located as bringing the offending at the lower end of Band 4 for supply. That band involves supply of 500 grams or more of methamphetamine; described by the Court of Appeal as “very large commercial quantities”. Offending falling within Band 4 can attract starting points for sentence
of between 10 years and life imprisonment.4
2 R v Terewi [1999] 3 NZLR 62 (CA), at para [4].
3 R v Fatu [2006] 2 NZLR 72 (CA).
4 Ibid, at para [34](d).
[16] As with any sentencing for offending involving such a pernicious drug as methamphetamine, the most significant sentencing goals are denunciation, deterrence and accountability. The offending was planned and continued as a commercial operation from start to finish. I take a starting point for sentence of 10 years and six months imprisonment.
[17] Ms Foster, for the Crown, submits that an uplift of six months is justified to reflect the fact that the offending occurred while you were serving a sentence of community work for offences involving (among other things) the cultivation of cannabis. Also, you were subject to bail conditions on another charge of receiving stolen property. I agree with Ms Foster that an uplift is required. Given the nature of the charges involved and the fact that you were both on bail and on community work, I consider an uplift of six months is appropriate. That makes the adjusted starting point one of 11 years imprisonment before I take account of mitigating factors.
[18] I must now consider what further adjustments should be made to take account of the mitigating factors. They are also relevant to the question whether, and if so, what length of minimum non-parole period should be imposed.
Mitigating factors
[19] I have read the advice provided by a probation officer. I acknowledge the difficult family circumstances in which you grew up. I also acknowledge the absence of any continuing relationship between yourself and your parents and your siblings. It is not appropriate for me today to go through that background. It is probably enough for me to say that I understand.
[20] Before I consider the particular mitigating circumstances, I must tell you that, in serious drug offending, personal circumstances are rarely given significant weight. Even in cases where home detention is a possible sentence (it is not, of course, in this case) there is a presumption in favour of imprisonment to ensure offending of
this type is marked adequately.5
5 Misuse of Drugs Act 1975, s 6(4)(c).
[21] I have read your letter that you wrote to me and the letters of support that have been provided by Mr Barrowclough on your behalf.
[22] Initially, I must say, after reading the pre-sentence report I was somewhat sceptical about your insight into the consequences of your offending and the true extent of your sorrow for what you had done, as opposed to for the position in which you find yourself in today. Having considered the additional material, I am now persuaded that you are truly remorseful. You understand the need to rid yourself of an addiction for the drug and intend to do brave and tangible things in an attempt to put things right, at least to some minor degree.
[23] You are mindful, as far as that is concerned, of the wrongs you have done in the past and the harm you have caused to the community by your offending. You deserve significant credit for those features. I understand that you have co-operated with the authorities. That too will be taken into account.
[24] You were arrested on 4 November 2015. Initially, you were remanded in custody. Since 23 November 2015 you have been under strict bail conditions. Until
28 June 2016, you were subject to a 24 hour curfew at your home. Thereafter you were permitted, on specified terms, to leave the property at particular times to transport your children to and from school. There have been no reported problems with compliance with that less restrictive requirement.
[25] I deal with all of those mitigating factors together except for the guilty pleas. I consider the level of remorse alone justifies a discrete credit of five percent. I give a credit of three months to reflect efforts at rehabilitation and a further three months to recognise the strict bail conditions under which you were remanded which were akin to home detention requirements. For remaining mitigating features, I consider that a significant credit should be given, representing a further 20 percent of the starting point. On my calculation the total credits, excluding those for guilty pleas, amount to three years and three months.
[26] Mr Barrowclough also seeks a credit of 25 percent for the guilty pleas, even though they were not entered until September, following the sentence indication that I gave on 12 August 2016.
[27] Reference has been made to the circumstances in which you made a decision not to participate in earlier sentence indication hearings in which others charged with offending arising out of Operation Daydream were involved.
[28] Given the time that has passed from charging until the entry of your guilty pleas6 I cannot provide a credit of more than 20 percent. You made an informed choice at the time not to participate in the earlier sentence indications. In my view, a credit of 20 percent is appropriate. That translates into a period of one year and seven months, meaning that the end sentence will be one of six years and two months imprisonment.
Minimum non-parole period
[29] The Crown seeks a minimum non-parole period, on the basis of the seriousness of the offending. Ms Foster points to decisions of the Court of Appeal which have consistently indicated that a minimum period will be required in cases involving serious drug dealing.7
[30] While I accept what Mr Barrowclough says about the discretion reposed in this Court to decline to impose a minimum period or to have that term fixed at less than 50 percent, I am not aware of any case which has fallen into Band 4 of Fatu and which involves serious quantities of methamphetamine being dealt with on a commercial basis providing a basis for that submission. To meet the purposes for which a minimum non-parole period is required, I consider that you must serve at
least 50 percent of the effective sentence I impose.
6 Hessell v R [2011] 1 NZLR 607 (SC), at paras [60] and [65].
7 For example, R v Anslow CA182/05, 18 November 2005, at para [27] and, more recently, R v
Wong [2009] NZCA 332, at para [21].
Result
[31] On each of the charges of supplying the Class A controlled drug methamphetamine, offering to supply methamphetamine, possessing methamphetamine for supply, you are sentenced to a term of imprisonment of six years and two months.
[32] On the charge of possessing the Class C controlled drug cannabis for supply, you are sentenced to a term of two years imprisonment.
[33] All of those sentences will be served concurrently so that the effective term of imprisonment is six years and two months. You will serve a minimum of three years and one month’s imprisonment to reflect the minimum period of 50 percent that I have imposed.
[34] Ms Muir, from what I have read you have turned a corner. It is time now to put your offending behind you. You need to do everything you can now to redeem what you have done in the past. You are young enough to come out after serving a sentence of this length to do good in the community, to have a good relationship with your children and to have a fulfilling life thereafter. Please do not squander the opportunity you have to do that.
[35] Stand down.
[36] I will formally make an order suppressing the name of the co-offender from publication on the grounds that he is about to be tried as an alleged co-offender. The suppression order is made to ensure that fair trial rights are not prejudiced. In my
sentencing notes he will be referred to as an alleged co-offender.
P R Heath J
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