R v N HC Auckland CRI-2007-004-10053

[2010] NZHC 1359

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-004-10053

THE QUEEN

v

N

Hearing:         5 August 2010

Appearances: J Jelas for the Crown

J R F Anderson for the Prisoner

Judgment:      5 August 2010

SENTENCING NOTES OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland

Counsel:       J R F Anderson, PO Box 155012, Auckland 1141

R V N HC AK CRI-2007-004-10053  5 August 2010

[1]      Miss  N    on  25  June  2010  a  jury  found  you  guilty  on  one  count  of possession of methamphetamine for supply, two counts of possession of precursor substances, two counts of possession of precursor material, two counts of possession of pipes, one count of possession of a restricted weapon, one count of possession of precursor equipment and one count of possession of methamphetamine.  On the first morning of your trial you also entered guilty pleas to three charges of altering a document with intent and for the avoidance of future doubt, I hereby convict you on those three counts.

[2]      The maximum penalty for the possession of methamphetamine for supply (and I am sure you know) is life imprisonment.   The maximum penalties for the other offences range from six months and/or a fine not exceeding $1000 for the simple possession charge to five to ten years imprisonment for the alteration of document charges.   The precursor offences each carry maximum penalties of five years imprisonment.

[3]      I  am  sure  that  your  lawyers  will  have  explained  to  you  that  for  drug convictions of this kind there is a presumption in favour of a sentence of imprisonment.    You  will know  that  the  pre-sentence  report  also  recommends  a lengthy term of imprisonment.  Also relevant, and this is a matter I will come back to later, is the fact that you have previous convictions for similar offending and on that occasion the sentencing Judge dealt with you leniently.

[4]      Before getting to the actual sentence that I am going to impose there are certain things that are relevant to how that sentence has been determined and which I am required to say to you.

Facts

[5]      The offending for which you are being sentenced occurred over two distinct periods of time.   The first was between June and July 2008 when you lived with Lee Bell at 6 Denby Lane, Northcote Point.  The second is after you and he had been arrested for the offences committed during that first period.  At that point Mr Bell

was on the run, and you were bailed to an apartment in Nelson Street in Central

Auckland.

[6]      As to the first period, on 25 July 2008 the police executed a search warrant at the Denby Lane property where you were living with Mr Bell.  On occasions your daughter Angel stayed at that address as did Mr Bell’s sons.  One of his sons was present  that  morning.     The  house  was  fitted  with  extensive  external  video surveillance and there were weapons found inside, including a can of OC spray that was found on the headboard of your bed.   Police found a total of 67.6 grams of methamphetamine at the address on that day. A considerable amount of cash was also found inside the house, as were substances and materials used for manufacturing methamphetamine.    Three  pipes  used  for  smoking  methamphetamine  were  also found.

[7]      Following the search of Denby Lane and the arrest of you and Mr Bell, the Police became aware that you had rented a storage unit in Penrose.  When a search warrant was executed there on 5 and 6 August 2008 a large quantity of precursor materials and equipment were found.  Your fingerprints were found on certain of the items and there was video surveillance footage showing that you had moved many of the  containers  in  which  the  materials  and  equipment  were  found  from  another storage unit previously rented by you in Cook Street.   In my mind there is no question you knew what was there and what it could, and would, be used for and I think you have now accepted that.

[8]      After you were released on bail you lived at Nelson Street.   On 18 March

2009, when the police, in the course of a routine check, came to your apartment they found a small bag of methamphetamine and two more pipes which had been pushed down the side of the sofa.  They also found the results of your attempts to forge New Zealand and American driver licenses with photos of you and Mr Bell who, as I have said, was then on the run from Police.  You have been in custody since your arrest on that day.

Personal Circumstances and Pre-sentence Report

[9]      Miss N   you are 28 years old.   I have read the Pre-Sentence Report.   I understand  you  were  born  in  Saudia  Arabia  and  grew  up  in  the  United  Arab Emirates, although you are Egyptian by heritage.  You moved to New Zealand with your parents and two older sisters when you were 12.  Although you were sent to expensive private schools you did not particularly flourish, although you are plainly intelligent.  After leaving school, you found employment running a massage parlour and, through that, became involved with the criminal underworld.   Through your association with a prominent gang member you became involved in drugs and other criminal activity and in 2005 you were found guilty by a jury of a number of charges involving the manufacturing of methamphetamine, the selling of cannabis and possession of cannabis for supply.   You were also convicted of knowingly participating in an organised criminal group, being the Sindi chapter of the Black Power gang.

[10]     In  sentencing  you for that offending in April  2005, Baragwanath J  was, unusually, prepared to take particular account of your personal circumstances, the fact that you continued to enjoy the love and support of your parents and what he saw as your potential for rehabilitation.   Rather than sentencing you to five years imprisonment, which he said would ordinarily have been warranted for offending of that kind, he imposed a sentence of 14 months imprisonment with leave to apply for home detention.

[11]     Almost immediately following your release from jail in 2005 you married Sacha De Graaf.  You have said he was abusive.  He also had criminal connections and it seems he is now in prison.   Although Mr De Graaf is the father of your daughter Angel, who was born in 2006, your relationship with him ended in 2007. Angel is now in the care of your parents who are her legal guardians.  You are, as I understand it, presently still in a relationship (to the extent that is possible) with Lee Bell who was, during your trial, sentenced to 12 years imprisonment for his drug offending.

[12]     As I have said, at the time you were sentenced by Baragwanath J in 2005, your parents remained supportive of you, and wished, as they have always wished, simply for you to recover from your addictions and to address the other problems that led to your offending.  They have similarly supported you through your recent trial before me.  But you have let them down and your mother has said in the pre- sentence report that they will disown you and prevent you from contacting your daughter Angel unless you can rehabilitate yourself.  But on that front I have also just read the letter that she wrote today and it is plain to me that she wants to keep on supporting you if she possible can.

[13]     The pre-sentence report has assessed you as being at comparatively low risk of reoffending provided you are able to stay drug free and to forego your previous criminal associations.  That is unfrotunately a big proviso.  As the report says, there can be little doubt that your apparent inability to keep away from people like that has played a significant part in both your previous and current offending.

[14]     The report also states that although you have clear insight into your situation you had not, at the time the report was written, shown remorse for your offending.  It says  that  your  daughter  is  your  prime  motivation  to  break  free  of  your  old associations and to stop your involvement in drugs.  While Angel is certainly a very good reason to do that, you need also to accept and acknowledge that what you have done has not only hurt her and your family, but others as well.  As your mother says you are a victim too and as you must surely know, methamphetamine is a truly damaging and dreadful drug and the harm that people like you cause to society by being willingly involved in its potential manufacture and supply cannot be underestimated.

[15]     As I have already said, the pre sentence report recommends a lengthy period of imprisonment.    I have read the letter you have written to the Court.   It is well written and appears to be sincere.  You wrote a similar letter to Baragawanth J and I need to be careful for that reason about what weight I give to it.  That said, in the letter you do acknowledge your offending and the harm you have done and you do express remorse and of course, I accept that you love your daughter and your parents

very much.  As I have also said, I have read your mother’s letter which is consistent with what I understand to be your parents’ unfailing love and support of you.

Purposes and Principles

[16]     In sentencing you for these offences I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim.  As I said before, this is far from victimless offending.   Any involvement in the methamphetamine trade requires denunciation and all feasible steps must be taken to deter you and others like you from such involvement in the future.    So far as it is compatible with these other purposes, I must also, however bear in mind the need to assist you in your rehabilitation and reintegration into the community.

[17]     In sentencing you I must also have regard to the gravity of your offending, the need to be consistent with sentences in other cases and the need to impose a sentence near to the maximum if that is warranted.  Equally, I must take into account the contrasting principles:

a)        The need to adopt the least restrictive outcome appropriate;

b)The need to take into account anything that would make an otherwise proper sentence inappropriately severe; and

c)        The need to recognise you and your personal background.

[18]     Where drug offending is as serious as yours, personal circumstances and the more positive purposes and principles of sentencing normally have little part to play. As I have said, this is reflected in the fact that for offending of this nature, the presumption against imprisonment is reversed; the presumption under the Misuse of Drugs Act  is that  you  will go to  prison.   While Baragwanath J  (in  2005) was prepared effectively to disapply the presumption and to have more regard than is

open to me.

Submissions

[19]     The lead offence for sentencing purposes is necessarily the most serious, namely the possession of methamphetamine for supply.  As the Crown submits the quantity of methamphetamine found at Denby Lane clearly indicates commercial dealing; it means that you fall squarely within what is known as Band 2 of this kind of methamphetamine offending.  The Court of Appeal has said that Band 2 offending warrants a sentencing starting point of between three and nine years imprisonment and the Crown has said that in your case a starting point of between five and six years should be adopted.

[20]     The Crown then submitted that the starting point should be uplifted by at least one year to take account of the totality of your offending and other aggravating features.   Because you did not plead guilty to the document charges until the beginning of your trial, the Crown submits that little, if any, discount is appropriate in relation to that.  Your previous convictions for similar offences, the Crown says, requires a further uplift.

[21]     Mr Anderson accepted that your offending fell within Band 2 but said it should be placed at the lower end of that band because Mr Bell, rather than you, was the prime mover in the offending.  He said a distinction should be drawn between sole and joint possessors.  However, I have to say that I largely accept the Crown’s submissions that joint possession does not significantly reduce your culpability in the circumstances of this case.

[22]     In deciding what starting point is appropriate it is also necessary for me to have regard to other like cases, to the extent they exist.  The Crown has helpfully referred me to some involving quantities of methamphetamine and circumstances having some similarity to your case.  Your counsel has not been able to refer me to any others.

Starting Point and End Sentence

[23]     Having considered the facts of your offending, the cases referred to by the Crown together with the statutory matters that I am required to consider and which I have mentioned earlier, I largely accept the Crown’s submission and consider that a starting point of five years is appropriate in your case. While I acknowledge that you were not necessarily the prime mover in relation to the methamphetamine operation that existed at and around Denby Place, the very large quantities of precursor materials and equipment that were there, the presence of the OC Spray and the fact that there were young teenagers present at the Denby St address are all aggravating features.   And I remind myself that the gentler, rehabilitative sentencing approach employed by Baragwanath J plainly did not work; you were not deterred.

[24]     I also agree with the Crown that an uplift to reflect the totality of your offending and the fact that the Nelson Street offending occurred while you were on bail is necessary and I add a further nine months for that.  I impose a further nine months to take account of your previous convictions but give you a discount of six months for your guilty plea on the document charges and to take account of your commitment to Angel, which I have said is very difficult in these circumstances for me to do.

[25]     Accordingly, and in terms of your final effective end sentence, Miss N   I sentence you to six years imprisonment on the possession for supply charge.  I will attach a schedule to my sentencing notes that sets out the concurrent sentences that I impose for the other offences.

[26]     Notwithstanding the sentence I have just imposed I believe that you still have a good chance for a good life, Miss N  .  You certainly have far more opportunity for that than most people who are sentenced by this Court.  You are smart.  You have Angel; you have your parents.  Your parents love you and will help you if you let them, and are also willing to help yourself.  Don’t let them down again.

[27]     Your outstanding fines of $4,730 are remitted and there is a destruction order in relation to the restricted weapons.

Rebecca Ellis J

SCHEDULE

Possession of methamphetamine for supply	Six years imprisonment.
Possession of precursor substances x 2	One years imprisonment on each charge to be served concurrently.
Possession of precursor material x 2	One years imprisonment on each charge to be served concurrently.
Possession of pipes x 2	Three months imprisonment on each charge to be served concurrently.
Possession of a restricted weapon (OC spray)	Six months imprisonment to be served concurrently.
Possession of precursor equipment	Two years imprisonment to be served concurrently.
Possession of methamphetamine	Two months imprisonment to be served concurrently
Altering a document with intent x 3	One years imprisonment on each charge to be served concurrently