R v Petersen

[2024] NZHC 3738

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-085-1214

[2024] NZHC 3738

THE KING

v

FRANCES PETERSEN

Hearing:	9 November 2024
Appearances:	R G Buckman for Crown P H Mitchell for Petersen
Judgment:	10 December 2024

SENTENCING REMARKS OF McQUEEN J

[1]    Ms Petersen, you appear for sentence in relation to three charges of being a party to the importation of Class A drugs, namely methamphetamine.1 In July 2024, I provided a sentence indication to you, which you accepted, and you have pleaded guilty to those charges, although no convictions were entered at that time.

[2]    I must now sentence you on those charges. Your counsel, Mr Mitchell, submits that you should be discharged without conviction and granted permanent name suppression. Both applications are opposed by the Crown. Counsel for the Crown, Ms Buckman, submits that a sentence of home detention is appropriate. I am going to address all these matters in my remarks today.

1      Misuse of Drugs Act 1975, s 6(1)(a) and subs (2)(a): maximum penalty life imprisonment; and Crimes Act 1961, s 66(1).

R v PETERSEN [2024] NZHC 3738 [10 December 2024]

[3]    There is a preliminary matter to address about the two pre-sentence reports provided to the Court. At the initial sentencing hearing, which was adjourned until today, I raised with your counsel my concern about the statements you were said to have made to the writer of the first report, where you reiterated your innocence and said you contested the summary of facts. Mr Mitchell described those comments as unfortunate and confirmed that you were proceeding to sentence on the basis of a guilty plea to the charges and the agreed summary of facts.

[4]    The second pre-sentence report records some comments you are said to have made to the report writer that you were unaware of your involvement in any crime and had no knowledge of the importation of drugs by your co-defendants. The report writer suggested that you view yourself as a victim of your co-defendants rather than being responsible for the charges.

[5]    I considered that once again, I needed to clarify with your counsel on what basis this matter was proceeding, and you have heard that discussion. Mr Mitchell has helpfully confirmed the position is as he advised at the first sentencing hearing although he did make some comments about the pre-sentence reports which I will come back to later.

[6]    Accordingly, I proceed to sentence you Ms Petersen following your guilty pleas to being a party to the importation of methamphetamine, in accordance with the summary of facts, and I will disregard the comments recorded in the pre-sentence reports that do not reflect this position.

[7]    My written remarks will be available to you and counsel after the hearing. They will include some footnotes I might not necessarily refer to in my oral remarks, and there may also be some minor editing corrections but nothing of substance will change from what I say now.

The offending

[8]    I now briefly describe the offending that led to your charges, drawing on the agreed summary of facts.

[9]    Your charges arose out of a significant New Zealand Customs and Police investigation into a criminal syndicate importing methamphetamine and cocaine into New Zealand. The investigation was code named Operation Bali.

[10]   The packages all contained similarities in either delivery agent, consignee address, consignor address, country of export, declaration, waybill number or tracking number.

[11]   The criminal syndicate included your co-defendants, Mr Sergio Vargas Gonzalez, Mr Peter Wellman, Mr Juan Galicia Romero and Ms Claudia Romero Lopez. Each defendant was involved in the criminal syndicate and played an essential part in the importation of Class A drugs and other drug dealing activity.

[12]   Your co-defendants, except for Mr Wellman, were from South American countries and much of the communication between them was in Spanish. You do not speak Spanish. At the time of the offending, Mr Vargas Gonzalez was your partner.

[13]   You, Ms Petersen, were directed by Mr Vargas Gonzales and were involved in receiving importations of Class A controlled drugs. Your role involved providing addresses for the Class A drugs to be imported to and collected from. This included providing two of your own addresses. You also provided and directed contact with a friend of yours (who I refer to as Mr V as he has permanent name suppression).2 Mr V was primarily a “catcher” of Class A drugs for the syndicate. Mr V provided three addresses to you for the syndicate to send Class A drugs to and received multiple packages of methamphetamine that he then passed onto you. There is, however, no direct evidence that you ever opened the packages or knew of their contents.

[14]   One of the packages, labelled package Z46, was consigned to the address you were subletting at the time and was to be delivered to “Teresa Hendricks”. A person with that name was not living at the address. However, your middle name is Teresa and your mother’s maiden name is Hendricks. Package Z46 was intercepted by

2      R v [V] [2024] NZDC 12728. In the sentence indication I gave I referred to Mr V as Mr L but as the citation for the District Court name suppression decision uses the initial V it is appropriate to also use that initial in my sentencing remarks.

Customs once it arrived in New Zealand on 27 February 2021. It was found to contain 0.1969 kilograms of methamphetamine.

[15]   The second package, labelled package Z56, was consigned to the home address of Mr V. It was declared as a “diplomatic package” and was to be delivered to a “Steve Mckenzie”. There was no person with that name residing at the address at that time. The package was intercepted once it arrived in New Zealand on 20 May 2021. It was found to contain 0.9934 kilograms of methamphetamine.

[16]   A package labelled Z76 was consigned to the address of Mr V and was to be delivered to a “Roger McKenzie”. Customs intercepted the package. A trace test showed a positive result for methamphetamine, but a subsequent search of the package did not locate any usable quantities of methamphetamine and it was released for delivery. After the package was delivered to the address, you tried to get in contact with Mr V by texting and calling him, indicating that it was urgent that you speak with him. When he did not answer, you went to his address and finally met with him. You and Mr V then collected the package and put it in your vehicle. You returned to your home address. The following day, two of your co-defendants unloaded the same package which contained a roading compactor. They expected that the package contained methamphetamine and were surprised to find the base part of the roading compactor was missing.

[17]   The third package, labelled Z78, arrived in New Zealand on 4 March 2022. It was also consigned to the  address  of  Mr V  and  was  to  be  delivered  to  a  “Roger McKenzie”. It was intercepted and searched by Customs on 14 March 2022. The package contained the missing base plate of the roading compactor that the syndicate had attempted to import in package Z76. The base plate contained

6.1 kilograms of methamphetamine.

[18]   At the time of the offending, you were unemployed and receiving a benefit. You periodically received small amounts of cash from Mr Vargas Gonzalez. Between December 2020 and March 2021, you paid $2,330 in rent in relation to one property, and between March 2021 and April 2022 you paid rent of around $400 fortnightly for a new rental address. Your bank statements show that on frequent occasions cash

would be deposited into your account prior to payments being made from the account, including payment of rent.

[19]   Ms Petersen, you were involved with 7.22 kilograms of methamphetamine dealt with by the syndicate.

[20]   You spoke to the Police and denied any knowledge of participation in the criminal syndicate. Rather, you said that you were carrying out tasks as instructed by Mr Vargas Gonzalez which you described as favours to him. You said you had no knowledge of what was in any of the packages and never opened any of them. You also stated to Police that you had “learned not to ask questions” when the men in your life instructed you to do things and that you did not organise any importation.

[21]It is convenient now to summarise the sentence indication I gave you.

The sentence indication

[22]   In giving you a sentence indication, I said that I must have regard to the purposes and principles of sentencing contained in the Sentencing Act 2002. This includes the purposes of needing to hold you accountable for the harm done by your offending, to denounce your conduct and to deter you and others from committing similar offences. It also includes the purpose of assisting in your rehabilitation and reintegration. I noted that the Act also requires me to take into account the gravity of the offending (including the degree of your culpability) and the seriousness of the type of offending. I said that there is no question that the importation of Class A drugs is serious offending. I also said that I must have regard to the general desirability of consistency with appropriate sentencing levels and I must impose the least restrictive sentence that is appropriate in the circumstances. These matters remain highly relevant in today’s sentencing exercise.

[23]   At the sentence indication I explained the two steps I needed to address in reaching a sentence. The first is setting a starting point that offending of this nature attracts. This involves identifying any aggravating or mitigating features of your offending and comparing your offending to other similar cases. I said that the appellate courts have provided sentencing guidelines for Class A drug offending and explained

their approach.3 After I found a starting point, I said that the second step in sentencing is to consider any relevant circumstances personal to you which may be of an aggravating or mitigating effect to arrive at an appropriate sentence.

[24]   Ms Petersen, I indicated to you that your offending placed you in band five in Zhang, which generally attracts a starting point range of 10 years to life imprisonment.4 Counsel agreed that you had a lesser role in the importations and therefore suggested it was open to me to adopt a starting point below the entry point in band five.5 I considered that you had a lesser role,6 and I accepted that you performed a more limited function under the direction of Mr Vargas Gonzalez. You provided addresses to which the packages could be delivered to and collected from. While you involved your friend, Mr V, in the offending as a “catcher”, I concluded that this did not significantly change the nature of your role, as it is best understood as reflecting the direction you were receiving from Mr Vargas Gonzalez.

[25]   I considered the Court of Appeal’s observations that it may be problematic to treat quantity of methamphetamine as a primary determinant of sentence where the defendant had no knowledge of the nature or quantity of the Class A drugs involved in the offending.7 In the circumstances, where you had limited participation in the offending and there was no direct evidence that you ever opened the packages or knew of their contents (rather you were wilfully blind or reckless as to their contents), and you did not receive a benefit that was linked in any way to the quantity of drugs involved, I considered it was appropriate to adopt a starting point below the entry point in band five.

[26]   I also considered other cases that counsel referred to me.8 I found the sentencing decision in relation to Mr V to be of some assistance in identifying an appropriate starting point. Mr V was involved in 15 packages,9 containing a total of

3      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509; and Zhang v R [2019] NZCA  507, [2019]

3 NZLR 648.

4      Zhang v R, above n 3, at [125].

5      At [118] and [123].

6      Berkland v R, above n 3, at [71].

7      Martin v R [2022] NZCA 285 at [92]–[93]. See also Zhang v R, above n 3, at [104] and [118].

8      R v Stone [2021] NZHC 636; R v Akehurst [2020] NZHC 1880; R v [V] [2024] NZDC 7056.

9      One package did not have usable quantities of methamphetamine, and another was intercepted before it could be delivered.

14.3 kilograms of methamphetamine and he received less the $2,000 for his assistance in the importation. His role was accepted to be in the lesser category and the Judge proceeded on the basis that Mr V was reckless to what was contained in the packages. The Judge adopted a starting point of three years and three months’ imprisonment for Mr V. Having considered counsel’s submissions on the point, I concluded that your offending could be assessed as of similar seriousness to that of Mr V for the purpose of setting a starting point.

[27]   I indicated a starting point for all your offending as three years and three months’ imprisonment. I also indicated that on the information available to me at that time there would be sufficient credit available to you that imprisonment would not be imposed, and instead would be substituted by an electronically monitored sentence of some kind. Accordingly, I indicated that the sentence you would receive would not be one of imprisonment.

[28]   As you seek a discharge without conviction for your offending, and this was the focus of your counsel’s submissions, I now turn to consider this application.

Application for discharge without conviction

Principles

[29]   An application for discharge without conviction is made under s 106 of the Sentencing Act. A defendant may be discharged without conviction only if the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.10 It is well-established that the assessment involves a three-stage test.11

[30]   First, I must determine the gravity of your offending by reference to aggravating and mitigating factors relating to the offending and to you personally as the offender. Second, I must identify the direct and indirect consequences of conviction. Finally, I must undertake a proportionality assessment to determine

10     Sentencing Act 2002, s 107.

11     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]. See also Scott v R [2019] NZCA 261 at [79] citing Prasad v R [2018] NZCA 537 at [11].

whether those consequences are out of all proportion to the gravity of the offending. If the Court determines that the consequences are out of all proportion to the gravity of the offending, it must still consider whether it should exercise its residual discretion to grant a discharge, although it will be a rare case where a court will refuse to grant a discharge in such circumstances.12

[31]   When determining whether something is a consequence of conviction, I need not be satisfied that it will be an inevitable or probable outcome, rather, what is required is a real and appreciable risk of the consequence occurring.13 A court may require evidence of matters of which it is not prepared to take judicial notice.14 However, it is not enough for the consequences to simply outweigh the gravity of the offending—“significantly more” is required.15

Gravity of the offending

[32]   As counsel for the Crown submits, offending involving the Class A drug methamphetamine is inherently very serious. This is reflected in the fact that offending of this kind carries a maximum penalty of life imprisonment. It is important to realise the harm caused by serious drug offending. Here, the quantity of drugs you were involved with is approximately 7.22 kilograms. Even though there is not a direct victim, the distribution of methamphetamine has many victims in the community.16 However, while accepting that drug offending is serious, Mr Mitchell correctly submits that I am required to assess the gravity of your offending in this particular case.17

[33]   It is accepted by the Crown that with reference to the Zhang bands, you had a lesser role in the importation. However, the Crown says that just because your role was relatively lesser does not mean your offending is not also serious. Ms Buckman emphasises that your role was to provide addresses and collect packages as directed by Mr Vargas Gonzalez and that you were wilfully blind to the contents of the

12     Z (CA447/12) v R [2012] NZCA 599; [2013] NZAR 142 at [27].

13     DC (CA47/13) v R [2013] NZCA 255 at [43].

14     Sok v R [2021] NZCA 252 at [41].

15     R v Smyth [2017] NZCA 530 at [12].

16     Zhang v R, above n 3, at [78]–[79].

17     Alfonso v R [2024] NZHC 1868 at [21] citing Taylor v R [2018] NZHC 688 at [46].

packages. She draws attention to, for example, the situation with the base plate and the situation with the diplomatic package, suggesting that it must have been apparent in  those  kinds  of  situations  that  what  was  being  imported  was  not  what      Mr Vargas Gonzalez had told you, namely jewellery and luxury items.

[34]   Ms Buckman says that your offending is properly regarded as serious given its aggravating features, which are:

(a)The Court of Appeal has said that the quantity of drugs involved remains relevant even when an offender was reckless, and did not know the quantity of drugs involved “because it is usually a reasonable proxy for the social harm that has been or could be done by the drug”;18

(b)your involvement with three different importations over a period of approximately one year; and

(c)your involvement of your friend Mr V where you acted as a conduit between him and the rest of the syndicate, enabling serious offending to occur.

[35]   Mr Mitchell submits that there are significant personal mitigating factors that reduce the gravity of your offending to the lowest end of the spectrum, including your guilty pleas, remorse, vulnerability, relative youth, mental health issues, coercion suffered and previous good character.

[36]   You have provided the Court with material to support this submission, including:

(a)a letter from a psychologist, Ms Brent, with whom you have been having therapy for slightly over two years;

(b)a report from a psychiatrist, Dr Menkes, providing a psychiatric evaluation;

18     Martin v R, above n 7, at [93].

(c)a report pursuant to s 27 of the Sentencing Act from Ms Maaka;

(d)your medical notes from your general practitioner for the last four and a half years; and

(e)an    affidavit    from    your     former     partner     and    co-defendant, Mr Vargas Gonzalez.

[37]   I also have two pre-sentence reports prepared by Corrections. I agree with  Mr Mitchell  that  there  are  some  difficulties   with   these  pre-sentence  reports. Mr Mitchell says that the suggestion that you were “entitled”, for example, is inaccurate—this is something recorded in the pre-sentence report and, rather, is an indication that the report writer did not really understand you and your history of vulnerability. I also found the reports to be of relatively little assistance in this case. Finally, I have an affidavit from you which attaches character references from three friends and a letter from the director of a recruitment firm.

[38]   Ms Buckman accepts that your guilty pleas and previous good character have a mitigating effect, and I agree that is the case. You have no previous convictions, and the comments in the character references describe you as a kind and caring person.

[39]   I am satisfied from the material before the Court that you experienced a traumatic childhood and young adulthood due primarily to the violent and abusive behaviour of your father and the inability of your mother to intervene and protect you. I accept that you have faced ongoing mental health challenges. The psychologist’s report identifies that themes of trauma, neglect and insecure and abusive relationships seem to be a pattern in your life. The psychiatrist’s report describes you as having followed a well-recognised pattern, known as “repetition compulsion”, of dysfunctional relationships with controlling and violent men. Dr Menkes states that such dysfunctional relationships recur and persist largely because of a victim’s liability to become emotionally dependent on an intimate partner, enabling intensification of the abuse and manipulative control of the victim. Your medical records also confirm that you have sought assistance in relation to mental and physical health issues on many occasions. The Crown acknowledges that these factors may have had some

causative contribution to your offending and that you have taken steps to address them through your commitment to therapy.

[40]   Dr Menkes has also diagnosed you as having Foreign Accent Syndrome (FAS), a rare speech disorder that causes a sudden change in speech, making a native speaker sound as if they have a foreign accent. The Crown does not accept this diagnosis.   Dr Menkes does not suggest that this diagnosis has contributed to your offending and Mr Mitchell does not make such a submission. For this reason, I do not consider it necessary for me to reach any conclusion about the diagnosis for the purpose of sentencing you.

[41]   I consider that your culpability for the offending is diminished due to your past trauma, coercive relationships with men and ongoing mental health issues. These factors increase your vulnerability and I consider that overall, this has a mitigating effect on the gravity of your offending.

[42]   I do not consider that either youth or remorse are established as relevant mitigating factors. You were 29 years old when the offending occurred and I agree with Ms Buckman that, rather than age, more relevant are the difficult and traumatic relationships you have been in over the last decade and more. While Mr Mitchell has expressed in his written submissions that you are remorseful, none of the material before me contains expressions of remorse from you for your offending. Most notably, the affidavit you have filed does not express remorse, and does not recognise the harm caused by the distribution of methamphetamine in the community.19

[43]   Counsel disagree as to the overall effect of these factors on the assessment of the gravity of your offending. Mr Mitchell says the overall gravity of your offending can be assessed as low. Ms Buckman says it is still properly characterised as moderately serious.

[44]   I have considered the sentencing decision relating to Mr V.20 The Crown makes the point that Mr V entered guilty pleas at an early stage to all charges. In that case,

19     Zhang v R, above n 3, at [78]–[79].

20     R v [V], above n 2.

the District Court Judge considered the 109 hours of voluntary community work Mr V had completed, his donation of $2,000 to the New Zealand Drug Foundation, the counselling he attended to deal with his cannabis addiction, and that he had given up consuming cannabis. While the Judge considered the offending itself to be of moderate to serious offending, once taking these matters into account, together with Mr V’s guilty plea, good character and remorse, the Judge concluded that the gravity of his offending was best characterised as low to moderate.

[45]   I have also found the recent decision of this Court in R v Otero to be of assistance.21 As Ms Buckman notes, this decision is more recent than Mr V’s sentencing decision and Ms Buckman goes on to submit it is of greater relevance here. That case has similar facts to your offending, Ms Petersen, in that Ms Otero provided addresses at the request of her partner, in relation to the importation of cocaine. Although I note Ms Otero had, at a later stage, confronted her partner to ask what was in the packages. The sentencing Judge, Eaton J, accepted that Ms Otero’s offending could be described overall as naive and borne out of loyalty, trust and love for her then partner. However, the Judge went on to emphasise that he must proceed on the basis of Ms Otero’s guilty plea, which meant at the very least Ms Otero was wilfully blind as to the contents of the packages for which she was providing addresses to permit their importation. The Judge ultimately concluded that the gravity of Ms Otero’s offending was moderately serious.

[46]   Mr Mitchell submits that Otero can be distinguished as there is direct evidence here which shows your former partner and co-defendant, Mr Vargas Gonzalez, abused his position of trust and subjected you to coercion and manipulation whereas, in Otero, there was no such evidence of coercion or intimidation by Ms Otero’s partner.

[47]   I do not agree that is an accurate comparison. First, while I accept that you trusted Mr Vargas Gonzalez and he did abuse that trust to involve you in the drug offending, the affidavit from Mr Vargas Gonzalez does not demonstrate coercion and manipulation beyond that. Nor do you suggest any coercion or manipulation in your affidavit. Rather, I see a similarity between the relationship between you and

21     R v Otero [2024] NZHC 2778.

Mr Vargas Gonzalez and what is said about the relationship between Ms Otero and her partner. The Judge describes Ms Otero as feeling pressure to provide addresses, with that pressure arising from the context of an intimate relationship with a man who treated her kindly, who she trusted and with whom she could see a future. Nonetheless, I do accept that you were likely more vulnerable to direction than was the case for Ms Otero, given your background, which I have already canvassed.

[48]   Ms Buckman submits that Otero could be even seen as less serious than your case, Ms Petersen, arguing that you do not have the naivety that existed for her, referencing the work that you have done over the last decade.

[49]   Ms Petersen, as was also said for Ms Otero, you are plainly an intelligent person, despite the challenges you have faced in your life. Your offending was not a one-off occurrence. You involved Mr V in the offending. And as I have already mentioned, I must approach your sentencing on the basis you were wilfully blind or reckless as to the contents of the packages which are the subject of your charges to which you have pleaded guilty.

[50]   Having considered all the circumstances and the cases mentioned, I conclude that the gravity of your offending is properly assessed for the purposes of the s 106 application as at the lower end of moderately serious.

Consequences of conviction

[51]   Mr Mitchell submits that there is a real and appreciable risk that you would face several direct and indirect consequences if you were convicted, including that:

(a)your travel plans, including plans to study and complete your psychology degree in Hungary, would be thwarted;

(b)you would be highly unlikely to find work in the field of psychology in New Zealand;

(c)you would be trapped in your current lifestyle of dancing in nightclubs, vulnerable to drug and alcohol abuse and predatory men; and

(d)there would be further negative impacts on your mental health.

[52]The Crown says the consequences advanced are speculative.

[53]   I accept that you have a genuine desire to do better for yourself by completing the psychology degree you started in 2012 and working as a psychologist or counsellor to assist those who have experienced difficulties in life such as you have. However, apart from your assertion that you wish to study in Hungary because the fees are more affordable there and you have a friend you can stay with, you have provided no details to the Court to support the proposition that study in Hungary is a genuine option for you. There is no evidence of the degree available at the University of Budapest, your eligibility to study there or how you would fund the study. In relation to this last point, I observe your affidavit says that you are a yoga instructor and part-time dancer but you told the pre-sentence report writers that you are no longer working but rather are on a benefit and living off savings and money given to you by your former partner.

[54]   As Ms Buckman submits, there is no evidence that this is an imminent step to be taken by you that would otherwise be foiled by convictions, nor is there any suggestion that you could not complete your studies in New Zealand. Ms Buckman says it is relevant that you have not studied or taken steps towards a career in psychology for the past 12 years, as opposed to being well advanced towards entry into employment in that area.

[55]   There is no evidence before the Court that you would be unable to travel to Hungary or anywhere else overseas with a conviction. But I accept that a conviction for being a party to Class A drug importation is likely to pose difficulties when travelling to some countries.

[56]   You have also provided a letter from the director of a recruitment agency that states that if you were convicted of your charges, it would be “virtually impossible to be offered a role in any meaningful role in New Zealand and most likely anywhere else.” The letter further asserts that you would be “virtually unemployable in today’s market”. The Crown accepts that a conviction for importation of Class A drugs could preclude employment in some industries. The Court of Appeal has recognised that

consequences of conviction may be severe if employers are unwilling to look behind the conviction to assess a person’s merits, and that the courts may assume that applicants with convictions are likely to be excluded without inquiry where employers filter applications on that basis.22

[57]   While I accept that a conviction could preclude your employment in some industries or roles, I consider the comments made in the letter provided to be of a broad-brush nature and of limited assistance. For example, it is unclear what a “meaningful role” is. There is no evidence about the impact of a conviction on your aspiration to become a psychologist or counsellor and I am not prepared to assume you would not be able to achieve this. At this stage, there is nothing before me to suggest that the consequence of convictions will be anything more than the general consequences that flow from a conviction.

[58]   From the material provided to the Court, it is clear that you continue to face mental health challenges. However, your now longstanding and, I understand, ongoing therapy with a psychologist shows you are taking positive steps to address these challenges and you are to be commended for this. While Mr Mitchell suggests that if you are convicted you will not be able to move away from your current lifestyle, which he says negatively impacts your mental health, there is conflicting evidence about your current lifestyle at the moment. While I accept that it is likely the mental health challenges will continue if you maintain your past pattern of relationships and lifestyle, I do not agree that this will be caused by a conviction. Neither the psychologist nor the psychiatrist suggests in their reports that there will be negative mental health consequences for you arising from a conviction. Nor am I satisfied more generally that the convictions will have such an effect.

[59]   I do not consider that your situation is comparable to the consequences of conviction established for Mr V. The Court sentencing Mr V was provided with evidence from an immigration lawyer as well as evidence as to Mr V’s very specific and imminent travel plans together with the impact on his attempt to renew his bar manager’s licence. Given that evidence, the Judge concluded that there was an obvious

22     R v Taulapapa [2018] NZCA 414 at [12].

and real risk of serious negative consequences for Mr V’s travel plans and career prospects. You have not been able to provide such evidence here.

[60]   Having considered these matters, I conclude that you have not established real and appreciable risks of the consequences of conviction beyond a general risk that your travel and employment in the future may be affected.

Proportionality assessment

[61]   I turn to consider whether the consequences are out of all proportion to the gravity of the offending.

[62]   I am satisfied that the consequences you have raised about being able to travel and find employment are largely to be regarded as the usual consequences flowing from convictions for Class A drug offending and fall short of satisfying the test of being out of all proportion.

[63]   Overall, I cannot conclude that the direct and indirect consequences of convictions for the charges you have pleaded guilty to would be out of all proportion to the gravity of your offending which I have assessed to be at the lower end of moderately serious offending.

[64]Accordingly, I decline your application for a discharge without conviction.

Personal mitigating factors

[65]   I have already addressed your personal circumstances in the context of considering your application for a discharge without conviction. Having declined your application, I now consider whether those circumstances require an adjustment to the starting point.

[66]   As already mentioned, I identified a starting point of three years and three months’ imprisonment in your sentence indication.

[67]   At the sentence indication hearing, I indicated that a 25 per cent discount for a guilty plea would be appropriate for you (noting this was agreed to by the Crown), and

that any other mitigating factors that may be able to be established would appropriately be dealt with at sentencing when the usual reports and any other material would be available.

[68]   Mr Mitchell submits that alongside a discount for your guilty plea, there are further discounts that are appropriate for your previous good character, your personal background and mental health issues and rehabilitative efforts.

Background factors and mental health

[69]   Mr Mitchell submits that a further discount of 30 per cent for your background and mental health issues is available to you. The Crown acknowledges that these factors have made a causative contribution to your offending, as contemplated by the Supreme Court in Berkland.23

[70]   I agree, and in light of my earlier assessment of your traumatic experiences both with your family background and your difficult relationships with men, and your mental health challenges, I consider that a 20 per cent discount is warranted.

Rehabilitation

[71]   Mr Mitchell submits that a further discount of 10 per cent for your rehabilitation efforts is appropriate. He says that you have continued to attend counselling to deal with your past trauma. From the psychologist’s report it is apparent that you have attended counselling since August 2022.

[72]   The Crown accepts that you have taken steps in this regard to address the trauma you have experienced in violent and coercive relationships.

[73]   You have been committed to undertaking therapy and, as I have already said, this is to be commended. Alongside this you are plainly a person with potential. I consider that a five per cent discount is appropriate for your rehabilitative efforts and prospects.

23     Berkland v R, above n 3.

Previous good character

[74]   You have no previous convictions, and this operates as a mitigating factor.24 Mr Mitchell says a discount of 10 per cent is warranted in the circumstances.

[75]   The Crown accepts some discount is appropriate. In the circumstances, my view is that a five per cent discount is warranted for your previous good character.

Remorse

[76]   Mr Mitchell did not seek a discount for remorse, and I do not consider one appropriate given the absence of any direct expression or other evidence of remorse.

[77]   Overall, I consider that a discount of 30 per cent for these inevitably inter- related matters is within range.

Guilty plea

[78]   As already mentioned, you also receive a 25 per cent discount for your guilty plea.

End sentence

[79]   Accordingly, from a starting point of three years and three months’ imprisonment, I apply a combined discount of 55 per cent and fix an end sentence of one year and five months’ imprisonment.

Short term sentence of imprisonment

[80]   The end sentence I have arrived at is below two years’ imprisonment. This is what is known as a “short-term sentence” of imprisonment.25 It means that I am then required to consider a sentence of home detention,26 or a less restrictive community- based sentence.27

24     Taylor v R [2017] NZCA 574 at [24].

25     Parole Act 2002, s 4(1).

26     Sentencing Act 2002, s 15A.

27     Sentencing Act 2002, s 15.

[81]   A decision whether to convert a sentence of imprisonment to one of home detention involves the exercise of a discretion that is only fettered by the purposes and principles contained in the Sentencing Act.28 While Class A drug dealing offending is inherently serious and carries a presumption of imprisonment,29 that presumption may be displaced in “exceptional circumstances” such as where an offender has accepted responsibility by pleading guilty and where their rehabilitative prospects would be better supported by a sentence of home detention.30

[82]   I gave you an indication of a non-custodial sentence. The pre-sentence report writer of the first report was unable to make enquiries as to the address provided for the purposes of serving a non-custodial sentence. I adjourned your sentencing to allow a second report to be written to provide guidance on a suggested non-custodial sentence for you. That second report indicates there is an available address for you to serve either a home detention or community detention sentence.

[83]   The Crown says that a sentence of home detention is appropriate. Both counsel accept that if home detention was to be imposed, the special conditions proposed in the pre-sentence report are appropriate.

[84]   I consider that the sentencing purposes of denunciation and deterrence, and of holding you accountable for your role in this offending, may be met by a sentence of home detention in your case, Ms Petersen. I have concluded that a lesser sentence would not be justified. This is consistent with my conclusion that a discharge without conviction is not available to you.

[85]   Aside from the present offending, you are otherwise a person of good character, having no previous convictions, and you are taking steps towards your rehabilitation including through counselling. A sentence of home detention will allow you to continue to undertake counselling and enable you to be supported by friends at the address. This is not to suggest however that home detention is not a difficult and highly

28     Smit v Police [2016] NZHC 2518 at [16]; and Manikpersadh v R [2011] NZCA 452 at [15]–[16].

29     Misuse of Drugs Act, s 6(4).

30     Zhang v R, above n 3, at [55].

restrictive sentence; it is. It is second in the hierarchy of sentencing options only to imprisonment.

[86]   Because in short-term sentences offenders are released after serving half their sentence, it is customary (although not a requirement) to halve the end sentence if either home detention or community detention is imposed.31 In my view, such an approach is appropriate in your case.

[87]   I consider that a sentence of home detention for the term of eight and a half months to be appropriate and to be the least restrictive sentence to reflect your offending.

[88]   I consider that standard conditions and the special conditions proposed in the pre-sentence report are appropriate and I am satisfied they should be imposed.

Permanent identity suppression

[89]   Ms Petersen, you have also applied for permanent name suppression, relying on the grounds that publication of your name and identifying details would cause you extreme hardship.32 The Crown opposes your application, submitting that the evidence does not establish that extreme hardship is made out, and the presumption of open justice prevails.

Legal principles relating to name suppression

[90]   Courts may suppress the identity of a defendant under s 200 of the Criminal Procedure Act 2011. The starting point of such an application is the principle of open justice,33 meaning that publication of a defendant’s name is the norm. Suppression orders can be made in restricted circumstances, but the threshold is high.34 There is a two-stage test:35 First, you must satisfy the Court that one of the consequences listed in s 200(2) would be likely to follow if no order were made, and here you rely on

31     See Burton v Police [2017] NZHC 664 at [29].

32     Criminal Procedure Act 2011, s 200(2)(a).

33     Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
34     Stephens v R [2021] NZHC 1902 at [24].

35     Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; and Robertson v Police [2015] NZCA 7 at [39]–[41].

extreme hardship. This means you must show that there is a real and appreciable risk that you would experience extreme hardship if your name was to be published. If you can establish that this is the case, I must then determine whether to exercise my discretion to suppress your name and identity.36 To do this, I must weigh the competing interests of you and the public, considering matters including whether you have been convicted, the seriousness of your offending, and the public interest in knowing your character.37

Discussion

[91]   Turning to the first stage, Mr Mitchell submits that if you were granted a discharge without conviction, and there was media coverage of the offending, then it would be ineffective. Mr Mitchell submits that any future employers or education providers would be able to search your name on the internet and this would cause you adverse consequences.

[92]   I have declined your application for  a  discharge  without  conviction,  but Mr Mitchell still advances the submission that you will suffer extreme hardship in the circumstances addressed.

[93]   Ms Buckman submits that the evidence does not establish that you will experience extreme hardship beyond what normally is experienced by a defendant convicted of offending of this nature. Ms Buckman accepts that future employers or education providers may conduct an internet search of your name but submits that this alone does not equate to extreme hardship. She notes that the case law requires something more than loss of employment to meet the high threshold.38  Further,     Ms Buckman says there is a lack of evidence to establish that you will suffer particularly adverse publicity, nor evidence suggesting your mental health would suffer to the extent that would amount to extreme hardship.39

36     Above n 35.

37     Robertson v Police [2015] NZCA 7 at [41].

38     Stephens v R, above n 34, at [26], citing Blackwood v R [2017] NZHC 1262 at [10] and [12].

39     R v Wilson [2014] NZHC 32 at [39].

[94]   I agree with the Crown submissions on this point. There is no evidence provided to the Court which satisfies me that there is a real and appreciable risk that publication of your name would cause you extreme hardship. The consequences which your counsel put forward can be seen as ordinary consequences of someone charged with being a party to the importation of methamphetamine. Your application would fail at this first stage.

[95]   In case I am wrong in that assessment, I briefly consider the second stage of the test. Mr Mitchell says that the principle of open justice is outweighed by the need to protect you from extreme hardship if your name was to be published in relation to the offending. Mr Mitchell submits that there is minimal interest in the public knowing about your identity as you are not the primary offender, and the gravity of your offending is low. Mr Mitchell asserts there is a risk that publication may be sensationalised and misguided by uninformed views, and this goes beyond the legitimate public interest in open justice.

[96]   I do not accept this submission. I agree with Ms Buckman that there is legitimate public interest in your offending given that importation of Class A drugs has a significant social impact on the community. The principle of open justice should prevail.

Result

[97]Accordingly, I decline your application for permanent name suppression.

Imposition of sentence

[98]I will now pass sentence on you for your offending.

[99]Ms Petersen, please stand.

[100]   Ms Petersen, you are now convicted on three charges of being a party to importing a Class A drug, namely methamphetamine.

[101]I sentence you as follows:

(a)for being a party to the importation of methamphetamine on or about 4 March 2022, I sentence you to eight and a half months’ home detention on the standard and special conditions and at the address specified in the pre-sentence report dated 29 November 2024.

The remaining sentences I am about to pass are to be served concurrently with that sentence.

(b)for being a party to the importation of methamphetamine on or about 20 May 2021, I sentence you to six months’ home detention on the standard and special conditions and at the address specified in the pre- sentence report dated 29 November 2024; and

(c)for being a party to the importation of methamphetamine on or about 27 February 2021, I sentence you to six months’ home detention on the standard and special conditions and at the address specified in the pre- sentence report dated 29 November 2024.

[102]You may stand down.

McQueen J