R v R HC Palmerston North CRI-2008-054-1871

[2009] NZHC 2264

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2008-054-1871

THE QUEEN

v

R

Hearing:         4 December 2009 (Heard at Wellington)

Appearances: E J McCaughan for the Crown

R Stevens for the prisoner

Sentence:       4 December 2009

SENTENCING NOTES OF CLIFFORD J

[1]      Ms R  , you appear here in the High Court today at the age of 25 years and the mother of a one year old son, having been found guilty after a jury trial before me in the High Court at Palmerston North on one count of offering to supply the Class A drug methamphetamine.

[2]      That charge attracts a maximum penalty of life imprisonment, which shows how seriously the community and Parliament regard methamphetamine offending.

[3]      The charge against you followed a covert surveillance operation conducted by the Police into illegal methamphetamine supply activities in the Manawatu and

Horowhenua areas known as Operation Pandora.

R V R HC PMN CRI-2008-054-1871  4 December 2009

[4]     That charge you faced involved an offer to supply two grams of methamphetamine to Mr Kiriona, the principal  target of Operation Pandora, for

$1,500.  You and Mr Kiriona appear to have been fairly well known to each other. Your father, I note, has also been convicted and sentenced for his offending discovered during Operation Pandora.

[5]      At the trial, the defence offered on your behalf – you did not give evidence – was that the jury could not be sure that the relevant text messages, on which the charge   against   you   was   based,   were   referring   to   an   offer   to   supply methamphetamine.  The suggestion was that the offer may have been of some other drugs, perhaps cannabis.  By their verdict, however, the jury showed that they were sure you had, as charged, offered to supply two grams of methamphetamine to Mr Kiriona.

[6]      You now explain matters by saying you offered that amount to Mr Kiriona so that he in effect could pay for it and give it to you for your birthday.   That is a possible interpretation of the text messages.  The fact remains, however, that that is still an offer to supply Mr Kiriona with methamphetamine.

The sentencing process

[7]      In sentencing you today, I first set what is called the starting point for your sentence.   That is a sentence that reflects the seriousness of what you did.   I then have to adjust that starting point to take account of factors personal to you that might call for a higher or a lower sentence than the one first identified.

[8]      In terms of the Sentencing Act 2002, which governs the way I approach your sentence, the factors I consider I need to bear in mind, particularly here, are the need to denounce your offending, to hold you accountable for what you did, and to deter you and, importantly, others from committing similar drug offending.  At the same time, the law says that I am to impose the least restrictive sentencing outcome that is appropriate in the circumstances.

Sentencing discussion

[9]     Methamphetamine supply offending, involving less than five grams of methamphetamine, as here, generally calls for a starting point sentence of between two to four years’ imprisonment [R v Fatu [2006] 2 NZLR 72 (CA)]. The Crown rightly emphasises the seriousness of this sort of offending, and the pernicious impact methamphetamine is having on our communities.

[10]     At   the   same   time   I   note   that   in   setting   sentencing   levels   for methamphetamine offending, the Court of Appeal noted that supply in small quantities where there is no commerciality and no other aggravating factors may call for starting points less than that two to four year imprisonment range identified.

[11]     Also relevant to my consideration of your sentence starting point is s 6(4) of the Misuse of Drugs Act 1975.  That law provides that where a person, as you have been, is convicted of an offence relating to class A controlled drugs like methamphetamine, the Court is required to impose a full time custodial sentence, that is, a prison sentence, unless considering your personal circumstances I am of a mind that you should not be so sentenced.

[12]     As the Crown has submitted, I consider that an appropriate starting point for your offending, given that no supply occurred and there is no evidence to suggest that you had immediate access to the two grams of methamphetamine involved, is in the region of 18 months’ imprisonment.

Personal aggravating and mitigating factors

[13]     I turn now to factors personal to you.

[14]     I acknowledge there are no aggravating factors so I turn to mitigating factors, that is, things in your favour.

[15]     You   have   received   a   very   favourable   pre-sentence   report   from   the

Department of Corrections Probation Service.  The report notes you have been very

open about your addiction to methamphetamine in the past, and how you have been a regular user from the age of 17 years until your arrest in 2007.  You stated to the report  writer,  and  it  has  been  confirmed  by  your  mother  who  is  in  Court  this morning, that since your arrest, which has been a major factor in contributing to your addressing your addiction, you have abstained from illicit drugs and rarely consume alcohol.

[16]     The probation report also comments on your domestic situation.  You live in Foxton.  You are taking responsible care of your one-year old son and you share that parenting care with his father.

[17]     The Probation Service assesses you as being at a low risk of further offending because of the steps you have taken and because of your role now as a responsible mother to your son and assisting in the care of your mother.  For those reasons, they consider you are motivated to address your offending and unusually, in spite of the seriousness of your offending, do not recommend the imposition of a custodial or prison sentence.   Rather, they suggest I impose a sentence of supervision coupled with a lengthy sentence of community work.

[18]     Alternatively,  home  detention  is  suggested.    Your  address  at  Foxton  is deemed suitable for the purposes of home detention.

[19]     The Police do not oppose a sentence of home detention.  This morning before me Mr McCaughan has explained the Crown’s position as being that home detention is  appropriate,  but  were  I  to  sentence  you  to  supervision  I  should  impose  a significant sentence of community work.

[20]     In addition to the formal pre-sentence reports, I have also received a letter from your mother, and I have received very favourable comments from Ngati Raukawa community organisations who have been helping you with your child. Those organisations comment that you responsibly addressed the question of your pregnancy and that, since the baby’s birth, you have been a responsible, committed and, I take it, caring mother.

[21]     In  my  judgment,  considering  both  the  relatively  limited  extent  of  your offending and your circumstances as recorded in the pre-sentence report, and as they have been outlined by Mr Stevens on your behalf, I am of the view that you need not be sentenced to imprisonment.

[22]     The difficult decision for me is whether  I should sentence  you to home detention, or to supervision.

[23]     I note I may only impose a sentence of supervision if I am satisfied that such a sentence would reduce the likelihood of your offending by helping you address your drug problem, and rehabilitate you in the community.

[24]     I also recognise that, as the Court of Appeal has recently confirmed [R v Turner [2009] NZCA 389], there are powerful reasons why limited account can generally be taken of the consideration of the consequences of a methamphetamine offending and subsequent imprisonment on a person’s children. This is because offenders with young children may seek to use their children to escape the imposition of sentences that are otherwise merited, and/or drug suppliers may seek to operate through parents with young children, hoping that more lenient penalties will be imposed should they be caught, thus making it easier for them to recruit such people into their drug supply operations.

[25]     By my assessment of your situation, however, your recent pregnancy and your relationship with your child do not fall into either of those categories.  I accept the explanation that has been provided to me, that you conceived your baby after your arrest in circumstances when you had addressed your drug offending.  For those reasons I am more inclined to a sentence of supervision rather than home detection.

[26]     I think in particular that the ongoing relationship with your Probation Officer, through supervision, will help you address your past problems and the risks of future offending.  It will also, I hope, address the element in your life that has been missing so far, which is steady employment.  I also think that, given that you are the mother of a young child and you are involved in supporting your mother, home detention

does not necessarily make those relationships easy to maintain, although I accept the

Probation Officer could address those concerns by conditions.

[27]     Finally I note the sentence of Ms Baldwin [R v Baldwin HC Palmerston North CRI 2008-054-1871, 10 September 2009] that your counsel has referred to. Unlike you, Ms Baldwin pleaded guilty.  Unlike you also the Judge approached Ms Baldwin’s sentencing on the basis that there was a more significant amount of drugs involved but, like you, Ms Baldwin was a mother with no previous drug related offending.   So I think, in terms of parity or fairness, Ms Baldwin’s sentence is relevant to you.

[28]     After that very long discussion, Ms R  , I have concluded that I will adopt the recommendation of the Probation Officer and sentence you to 12 months’ supervision, together with community work.   The supervision will be on standard terms.  Those standard terms will give your Probation Officer the ability to impose appropriate conditions on you, particularly relating to the people you associate with.

[29]     In  terms  of  the  length  of  community  work,  I  have  listened  to  Mr McCaughan’s submissions.  By my assessment a lengthy term of community work is required, but I think 200 hours will be sufficient for those purposes.

[30]     Ms R  , it is my hope – and I am sure it is the hope of your mother and all those in your whanau – that this sentence will continue you down the path they all say you have embarked upon.

[31]     As Mr Stevens acknowledged, this will be seen by some, perhaps by many, as a lenient sentence.  But it is fairly obvious that if you do not take the opportunity this sentence provides to you, and if you revert to your former behaviour pattern, then were you to appear in Court again for similar offending you could not expect to receive this type of sentence – irrespective of your relationship with your child or your mother or whatever.   So I hope you will take the opportunity and continue down the path that I accept you have now embarked upon.  I thank your mother for being here today and I also thank the Ngati Raukawa community for the words of support they have expressed in your favour.

[32]     Thank you, Ms R  , you may stand down.

“Clifford J”

Solicitors:   The Crown Solicitor, Palmerston North for the Crown ([email protected]) Fanselows, Solicitors, Wellington for Ms R   ([email protected])