R v R HC Auckland CRI 2006-044-7226

[2007] NZHC 1497

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-044-7226

THE QUEEN

v

R

Hearing:         18 December 2007

Appearances: M Wharepouri for the Crown

D Reece for Ms R 

Judgment:      18 December 2007

SENTENCE OF POTTER J

Solicitors:           Crown Solicitor, P.O. Box 2213, Downtown Auckland

D Reece, P.O. Box 4208, Shortland Street, Auckland

R V R HC AK CRI 2006-044-7226  18 December 2007

[1]      Ms R   is before the Court for sentence on charges of possession of equipment and possession of precursor substances of which she was convicted following trial by jury.

[2]      I refer to my sentencing notes of 28 November 2007.  Those sentencing notes set out the factual background, Ms R  ’s history of offending and relevant details from the pre-sentence report.  They also refer to the statutory provisions and judicial authorities relevant to sentencing in this case.

[3]      On 28 November 2007 I imposed a sentence of two years nine months on Daniel Morris Hikaiti, Ms R  ’s co-offender.  His involvement in the offending was more culpable than that of Ms R  .   At [36] of my sentencing notes I adjourned the sentencing of Ms R   for further information as set out in that paragraph.

[4]      I have since received:

a)       An updated pre-sentence report dated 11  December  2007  with  an appendix which, as requested, specifically addresses the suitability of home detention at the proposed address of 12/30 John Jennings Drive, Albany where Ms R   resides with her mother Mrs Kaye R   and her 19 year old daughter Jasmine Shalfoon.

b)A report from Mr Christopher Furneaux, consultant neurosurgeon at Auckland Hospital dated 14 December 2007 which confirms that Ms R   has a life expectancy of 2-5 years.

[5]      The updated pre-sentence report dated 11 December 2007 states that both Mrs Kaye R   and Ms R  ’s daughter have a good understanding of the seriousness of Ms R  ’s situation following the convictions.  The report finds the proposed address to be suitable and notes that the family will assist with transport for Ms R  ’s reporting commitments and attendances for medical treatment.  At the

time of the report Ministry of Justice checks had still to be completed.  There is no further information on that aspect but nor are there any qualifications raised.

[6]      The pre-sentence report notes concerns of the Waitemata Area Police that Ms R   “has a history of extreme volatility”; also a concern of possible coercion on Mrs Kaye R   to consent to having Ms R   residing at her residence.  Mrs R   is present in Court and herself has confirmed to me that there is no element of coercion involved in her agreeing to the arrangements outlined in the pre-sentence report.

[7]      The report notes concerns about the operation of an electronic monitoring bracelet, but it states that with a minimum of three working days notice to facilitate removal of the bracelet, home detention should not hinder Ms R  ’s ongoing treatment.  I will refer to this aspect again later in this judgement.

[8]      At [25] of my previous sentencing notes I referred to the Court of Appeal authority of R v Anderson CA425/06 23 April 2007 and the principle there stated that material involvement in serious drug offending will result in a term of imprisonment  even  where  the  offender’s  involvement  is  limited  and  there  are personal circumstances that call for some leniency.  Exceptional circumstances must be established to depart from that principle.

[9]      I also recorded at [19] of my sentencing notes that s 8(h) of the Sentencing Act is relevant in the circumstances of Ms R  .  It requires the Court to take into account any particular circumstances of the offender that mean a sentence that would otherwise be  appropriate, in the particular instance,  would be disproportionately severe.

[10]     I take a starting point of two years three months.   This reflects the more limited  involvement  in  the  offending  of  Ms  R    compared  with  that  of  Mr Hikaiti.  I add two months for the aggravating features of the offending, including Ms R  ’s offending history, to reach a revised starting point of two years five months.   I then allow a reduction of six months to take account of Ms R  ’s particular  circumstances,  because  I  am  satisfied  that  imprisonment  would  be

disproportionately severe in the circumstances of this case and that the circumstances are exceptional in terms of Anderson.  The resultant sentence is one year 11 months, or 23 months.

[11]     If the sentence is 24 months or less a sentence of home detention may be imposed pursuant to s 15A of the Sentencing Act instead of a sentence of imprisonment.  Section 15A also requires the Court to be satisfied that the purpose or purposes for which the sentence is being imposed cannot be achieved by a less restrictive sentence or combination of sentences (s 15A(1)(a)).

[12]     I am satisfied in the circumstances of this case,  given  the nature of the offending and the clear principle established by Anderson and other authorities, that a less restrictive sentence than home detention would not appropriately achieve the purposes of sentencing.

[13]     The sentence I impose therefore is home detention for a period of 12 months. The standard conditions that apply are set out in s 80C of the Sentencing Act.   In addition I impose pursuant to s 80D the special conditions set out in the pre-sentence report dated 11 December 2007.  I have confirmed with Mr Reece for Ms R   that these special conditions are understood by her.  They are:

a)       To travel directly to 12/30 John Jennings Drive, Albany to await the arrival of the probation officer.

b)To reside at 12/30 John Jennings Drive, Albany for the duration of the home detention sentence.

c)       To abstain from possession and consumption of alcohol and illicit drugs for the duration of the home detention sentence.

d)To have no contact direct or indirect with the co-offender Daniel Morris Hikaiti without the prior written permission of the supervising probation officer.

e)        Not to associate with any person or persons nominated in writing by the supervising probation officer.

[14]     I refer to the standard condition in s 80C(2)(d) of the Sentencing Act which reads:

The  offender  must,  when  required  by  a  probation  officer,  submit  to electronic monitoring of compliance with his or her detention conditions.

[15]     Electronic monitoring is therefore not a standard condition of the sentence of home detention.  It is at the discretion of the probation officer.  I do not intend to impose as a special condition, electronic monitoring.  Given Ms R  ’s medical condition and her need for frequent involvement with medical assistance there would be practical difficulties associated with electronic monitoring.  The probation report makes it clear that these difficulties can to a large extent be overcome.  However, I think the preferable situation is not to require electronic monitoring as a condition of the sentence of home detention which I have imposed, but to leave it at the discretion of  the  probation  officer.    My  anticipation  would  be  that  provided  Ms  R   complies assiduously with all the standard and special conditions of her sentence of home detention, electronic monitoring should not be necessary.  However, that will remain, in terms of s 80C(2)(d), at the discretion of the probation officer.

[16]     I refer also to the matter of fines.   Ms R   has outstanding fines of approximately $13,000.   I have indicated to Mr Reece that I do not consider this Court has jurisdiction to deal with those fines.   Application will need to be made under the Summary Proceedings Act.

[17] The sentence I impose on you Ms R is 12 months home detention, subject to the conditions I have set out at [13].

[18]     I hope you will find it within your capability to comply diligently with all of those conditions so you may serve your sentence peacefully without further intervention by the law.