R v Phillips HC Whangarei CRI-2010-027-143

[2011] NZHC 228

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-027-143

THE QUEEN

v

JONELLE PHILLIPS

Hearing:         18 March 2011

Appearances: Mr M B Smith and Ms M Jarman-Taylor for Crown

Ms C Cull for Prisoner

Judgment:      18 March 2011

SENTENCING REMARKS OF LANG J

R V PHILLIPS HC WHA CRI-2010-027-143 18 March 2011

[1]      Ms Phillips, you appear for sentence today having pleaded guilty in this Court to 13 charges of conspiring to supply the Class A controlled drug methamphetamine.  You have also pleaded guilty in the summary jurisdiction to a charge of being in possession of LSD.  You have been committed to this Court for sentence on that charge also.

[2]      The maximum sentence on the charges to which you have pleaded guilty in this Court is 14 years imprisonment.  The maximum sentence for the charge relating to the LSD is six months imprisonment.

The facts

[3]      Your offending arose out of a police operation that was originally targeted at burglars in the Northland area.   In an effort to discover who was behind these burglaries the police obtained warrants enabling them to intercept cellphone conversations and text messages.  This very quickly alerted them to the fact that the burglaries  were  tied  up  with  a  larger  issue  involving  drug  distribution  on  a reasonably major scale. You became identified as a person of interest because of the fact that you were involved in cellphone conversations and text messages with others who were involved in the distribution and, clearly, consumption of drugs and, in particular, methamphetamine.

[4]      During the course of the investigation the police inctercepted messages that indicated that on no fewer than 13 occasions you were involved in the acquisition or potential supply of methamphetamine. Generally speaking, I take this to have been in quantities of .1 of a gram, because by and large you were seeking or offering to sell methamphetamine for $100 or $200, and $100 is the standard street price for a point bag.

[5]      You dealt with methamphetamine in this way on a reasonably regular basis. You were clearly a person who was active in the local methamphetamine scene.  I accept, however, that for the most part you were acquiring methamphetamine for your own consumption, and that such supplies as you may have made were to associates probably for little in the way of monetary profit.  Nevertheless, you were a

person who was prepared not only to acquire methamphetamine for your own use, but also to supply it on to others.  All in all, the Crown estimates that approximately two grams of methamphetamine was involved.

[6]      The LSD charge arises out of the termination of the operation, when the police found a single tab of LSD in your possession.  I therefore take you to be a user of methamphetamine prepared to acquire it in small quantities and, on occasions, to supply it to your associates for minimal monetary gain.

Sentencing Act 2002

[7]     In any case involving Class A drug dealing, issues of deterrence and denunciation are to the forefront.   You must know by now the menace that methamphetamine has become to a large portion of our society.  You yourself are a victim of methamphetamine use.  You must by now have seen the damage that it causes to individuals, to families, to the community and to society as a whole. The only realistic way in which the courts can hope to become involved in combating this scourge is by imposing deterrent penalties on those who are caught.

Starting point

[8]      The starting points for offending involving methamphetamine have been set by a decision of our Court of Appeal in a case called R v Fatu[1].   In that case the Court set bands of penalties for those involved in supplying, manufacturing and importing methamphetamine.   The closest that your offending comes to the bands identified in Fatu is in relation to supplying.  The gravity of your offending is not restricted to an agreement to buy or sell methamphetamine.  It is quite clear that, on

occasions, actual supply occurred and you accept that that is the case.

[1] [2006] 2 NZLR 72

[9]      Had you been for sentence on charges of supplying a total of two grams of methamphetamine at the level that I accept you were operating at, a starting point of

about two years three months imprisonment would have been selected.   This is

because you fall at the bottom end of the commercial chain, and most of your acquisitions were for your own consumption.

[10]     The position is made a little more difficult by the fact that you have been charged, not with supplying, but with conspiring to supply methamphetamine.  The maximum penalty for supplying methamphetamine is life imprisonment, whereas the maximum penalty, as I have said, for conspiring to supply methamphetamine is 14 years imprisonment.  For that reason the courts have historically applied a discount factor to reflect the lesser maximum penalty and hence the lesser gravity of the charge.

[11]     Our Supreme Court in R v Jarden[2]and our Court of Appeal in R v Te Rure[3] and R v Williams[4]have made it clear that the level of discount to be applied in relation to a conspiracy charge will vary.  Where the conspiracy is carried into effect there may be very little distinction at all between the two charges and the penalties

that should be imposed.  In your case, of course, the conspiracy had materialised into actual supply so I draw very little distinction between you and a supplier.

[2] [2008] NZSC 69

[3] [2007] NZCA 305

[4] [2008] NZCA 383

[12]     I am prepared to allow a discount of around 15 per cent to reflect this factor. This means that the starting point that I select is one of one year eleven months imprisonment.

Aggravating factors

[13]     There are no aggravating factors personal to you that operate to increase the starting  point  that  I  have  selected.     You  have  some  previous  convictions, investigation convictions relating to cannabis, but I put those to one side.

[14]     You need to know, Ms Phillips that from now on you will be marked out as a drug dealer.  If you come before the Court again on any charge like this, it is likely that the penalty that the Court imposes will be increased to reflect the fact that the

penalty I am imposing today has not served its purpose.  Subsequent offending will

be made that much more serious by the fact that you have ignored the lesson that is to be handed to you today.

Mitigating factors

[15]     I now need to consider the extent to which I should reduce the starting point to reflect mitigating factors that are personal to you.

[16]     You appear for sentence at 28 years of age.   You have two children.   You became involved in drugs through recreational use in circumstances where all of your friends were using drugs.  It seems that you started with Class C drugs such as cannabis, and then graduated through to the use of methamphetamine, no doubt along with your associates.  The fact that a tab of LSD was found in your possession indicates  that  methamphetamine  was  not  the  only  Class A drug  that  you  were prepared to become involved with.

[17]     It   is   clear   that   you   had   little   insight   regarding   the   effect   that methamphetamine was having on you and those around you.  I put this down to the fact that all of your associates and, in particular your partner at the time, were heavily into the use of methamphetamine.  You probably had little appreciation of the extent to which you were placing yourself and your family at risk.

[18]     Since your arrest, you have undertaken significant rehabilitative efforts.  You have undergone counselling, as well as a parenting course.  The pre-sentence report makes it clear that you have made genuine efforts to rehabilitate yourself and you are to be commended for that.

[19]     The most significant matter for which I can give you credit is the fact that you were prepared to plead guilty at a relatively early stage.  You offered to plead guilty in July 2010.  That was after your committal to this Court for trial, so it is not possible to provide you with the fullest discount under the sentencing regime then available.  That regime was governed by a decision of our Court of Appeal called R v

Hessell[5].  It provided that offenders who pleaded guilty shortly after committal for trial should receive a discount of approximately 25 per cent.

[5] [2009] NZCA 450

[20]     That position has now been changed by the decision of the Supreme Court in R v Hessell[6].  The Supreme Court has made it clear that the maximum discount that is now permissible is 25 per cent, and that the Court needs to adopt a holistic approach when allowing the discount.   One of the factors that the Court is now required to take into account is the strength of the Crown case.   Had you been sentenced under the present regime, the discount that would be available to you

would be considerably less than that which I am going to give you.  I am going to apply the law as it applied at the time at which you indicated you were prepared to plead guilty  I propose to allow a discount of 25 per cent, or six months, to reflect that fact.

[6] [2010] NZSC 135

[21]     This leaves me with an end sentence of one year five months imprisonment. It also brings me to the critical issue in sentencing you, which is whether you should be permitted to serve your sentence by way of home detention.

Home detention

[22]     Home detention is available in your case because the end sentence is one of less than two years imprisonment.

[23]     Judges always  hesitate  to sentence  drug dealers and drug users  to home detention.  This is for several reasons.  First, it is a difficult sentence in many ways, because it restricts a person’s movements within their home environment.  It can lead to  boredom  and  hence  the  temptation  to  use  drugs  to  alleviate  that  boredom. Secondly, it can send the wrong message out to some people, because some people may view home detention as a softer option than imprisonment.  The Court needs to be mindful that a deterrent sentence is important in a case such as this.  Finally, drug

dealing and drug use often occurs within the home environment and, for that reason,

Judges are hesitant to send drug dealers and drug users back to a home environment rather than prison.

[24]     I have concluded that a sentence of home detention is appropriate in your case for several reasons.   First, you acknowledged your guilt at a relatively early stage.   Secondly, you have made significant efforts of rehabilitation since you accepted the seriousness of your predicament.  Thirdly, you will not be returning to the  environment  in  which  you  were  living  at  the  time  the  offending  occurred. Instead, you will be living with your parents, who are present in Court to support you today.   It will be their responsibility, as well as yours, to ensure that you do not become involved in drug use or dealing in any shape or form in the future.

Sentence

[25]     On each of the charges to which you have pleaded guilty I impose a sentence of ten months home detention.  The only exception to that is the sentence involving possession of LSD, on which you are convicted and discharged.   I have added a small uplift to the sentence of home detention to reflect that particular charge.

[26]     You are subject to the following special conditions:

(a)      You are to travel directly from Court to the address of 12B Kokich Crescent, Onerahi, Whangarei immediately following sentencing and there  you  are to  await  the arrival  of  a  Probation  Officer  and  the electronic monitoring company representative.

(b)You are to remain at that address for the duration of the sentence of home detention unless otherwise authorised by the probation officer.

(c)      You are not to purchase, possess or consume alcohol or illicit drugs for the duration of the sentence of home detention.

(d)You are to undertake and complete drug counselling or treatment to the satisfaction of the probation officer and your counsellor.   The

details of the treatment or counselling are to be determined by the probation officer.

(e)      You are to undertake and complete any other counselling or treatment to the satisfaction of the probation officer and counsellor.  The details of the treatment or counselling are to be determined by the probation officer.

(f)      You are not to communicate or associate directly or indirectly with any of the persons who were charged with you in relation to this offending.

[27]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Whangarei

Ms C Cull, Whangarei