R v Shirtliff HC Auckland CRI 2006-092-016818

[2008] NZHC 2271

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-016818

CROWN

v

TIFFANY SHIRTLIFF

Hearing:         24 April 2008

Appearances: N Walker for Crown

E Leary for T Shirtliff

Judgment:      24 April 2008

Sentence

Imposed:        Possession of methamphetamine for supply

Nine months’ home detention

Cultivating cannabis

One month’s home detention (concurrent)

Receiving stolen property

One month’s home detention (concurrent)

Possession of pipes

Convicted and discharged

SENTENCING NOTES OF ASHER J

Solicitors:

Meredith Connell, PO Box 2213 Auckland

E Leary, Barrister, PO Box 941 Auckland

R V SHIRTLIFF HC AK CRI 2006-092-016818  24 April 2008

[1]      Tiffany Shirtliff, after a trial in this Court you were convicted of possession of methamphetamine for supply, the maximum penalty being life imprisonment. You had at the start of the trial pleaded guilty to cultivating cannabis, receiving stolen property and possession of two pipes for the purpose of drug use.

[2]      The charges arose from the execution by the police of a search warrant at a property at 137 Russell Road, Manurewa.  The house was occupied by you and your partner, Kiat Sisavath.   Various items were found at the address.   There was a partially hidden bag in the bedroom, which Mr Sisavath tried to hide, containing

6.7 grams of methamphetamine, a large quantity of plastic bags of the type described as ‘deal bags’, a cannabis plant approximately 30 centimetres in height, a stolen Toshiba laptop, two glass pipes used for the consumption of methamphetamine, and two sets of scales.

[3]      Both you and Mr Sisavath admitted ownership of the methamphetamine and this was reflected in your position at trial.  Possession for the purposes of supply was denied. You admitted stealing the Toshiba laptop and cultivating the cannabis plant, and this was also reflected in your guilty pleas.

[4]      Mr Sisavath was found to have in his jeans quite a large quantity of cash. However, no such cash was found on you or in your possession.

Submissions

[5]      The Crown accepts that you should be sentenced on the basis that there was no commerciality in your supply of methamphetamine.   The Crown accepts your counsel Mr Leary’s essential submission that you were at the time of your arrest a hopelessly addicted methamphetamine user whose interest in methamphetamine was for  your  own  personal  consumption  with  occasional  sharing  with  friends.    The Crown also accepts your counsel’s submission directed to your very unusual efforts to rehabilitate yourself, to which I will refer shortly.

[6]      All these factors have led the Crown to accept Mr Leary’s submission that home detention would be an appropriate sentence, despite its submission that the appropriate starting point would be a term of imprisonment of three to three-and-a- half years.  Ms Walker for the Crown has submitted that the lowest period of that range would probably be the most appropriate for you.

Principles to be applied

[7]      R v Fatu [2006] 2 NZLR 72 applies, which sets out sentencing bands and tariffs for the supply of methamphetamine. More importantly in this case, it sets out certain principles to be applied in methamphetamine sentencing. Band one, which relates to low-level supply, should involve a starting point of two to four years’ imprisonment, while band two, which involves supply in commercial quantities of five to 250 grams, should involve a starting point of three to nine years’ imprisonment. However, the Court of Appeal emphasised that these were only starting points and noted specifically that supply in small quantities where there is no commerciality and no other aggravating features may call for starting points less than those indicated as appropriate for band one at [34].

[8]      I accept Mr Leary’s submission that there was no commerciality in  your methamphetamine dealing, which was giving methamphetamine to friends on odd occasions.   The Crown accepts this.   I must note that this conclusion does not necessarily extend to the activities of your partner Mr Sisavath, and the issue of whether he was involved in commercial dealing is to be determined at a later sentencing hearing.

[9]      The bands set out in R v Fatu assume a degree of commerciality.  The fact that there was no commercial dealing here indicates that a mechanical application of the R v Fatu bands is not appropriate.   Simply concluding that the offending falls within band two because the amount exceeds five grams would be an error.  Despite the fact  that  the  quantity in  your  possession  was 6.7 grams,  I have  approached sentencing on the basis that the methamphetamine was for your own personal consumption and occasional sharing with friends.  However, the fact that the amount located exceeds the amount at which possession is presumed to be for the purpose of

supply,  (five  grams,  pursuant  to  Schedule 5  of  the  Misuse  of  Drugs  Act 1975), persuades me that the starting point must exceed two years.  In all the circumstances I consider the  appropriate  starting point to  be  a  sentence  of  two  years  and  six months’ imprisonment.

[10]    I now turn to matters relating to you personally.   Evidence about your rehabilitative efforts was actually presented at trial.   Immediately after your arrest you enrolled yourself at Odyssey House and undertook courses there for sixteen months.  You have now finished all its courses and have received a most favourable testimonial from Odyssey House as a consequence.   This and other testimonials spoke very highly of you.

[11]     At the time of the offending you were only 17 years old and a drug addict. Although you come from a good home you had clearly gone off the rails.   The probation officer reports that you showed insight and expressed remorse for your offending.  Your mother describes you as a new person.  You are now living with your mother, grandmother and uncle in their home in Auckland.  You are prepared to undertake  ongoing  treatment  for  your  drug  problems  and  the  probation  officer reports no obvious barriers to your participation in various treatments.   You are described as motivated to address your offending issues and recent tests indicate no harmful pattern of alcohol use.  Your risk of reoffending is assessed at low.  You are also a valued full-time employee at a bowling centre.

[12]     In summary you have made rehabilitative efforts which by any judgment are extraordinary and they have been successful to date.

[13]     I note that in the recent decision of R v Hill CAS 59/07 29 February 2008 where there had been a trial and a guilty verdict, the Court of Appeal accepted that a discount of 35 percent was appropriate where the offender had also made impressive efforts at and had good prospects for rehabilitation.  That discount related to more serious methamphetamine offending than yours.   It was stated there that when an offender is motivated to change and where there is a realistic prospect that he or she is able to change there are obvious benefits both from society’s perspective and from that of the offender.  Combining your unusually good rehabilitative prospects with

your young age, I therefore consider that a substantial discount to a final sentence of approximately one year and seven months’ imprisonment is appropriate.

Home detention

[14]     This offending occurred before s 80A of the Sentencing Act 2002 came into force on 1 October 2007.   Therefore, as was noted in R v Hill at [28], the Courts power to impose home detention is not limited to cases where a “short-term sentence of imprisonment” (currently two years or less) would otherwise have been imposed: s 15A.  However, I note in any event that the final sentence of one year and seven months’ imprisonment is a “short-term sentence”.   I am also satisfied in terms of s 15A that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence than imprisonment or home detention.

[15]     I note that the decision of the Court of Appeal in R v Hill is authority for sentences of home detention being imposed on offenders convicted of supplying methamphetamine, even where they have not pleaded guilty.  It is to be noted also that the purpose of the new sentence of home detention, as expressed in the explanatory note to the Criminal Justice Reform bill No. 93-1, was to introduce a range of measures to arrest the sharp increase in the prison population in recent years.

[16]     I am satisfied that a sentence of home detention is the right sentence for you. The pre-sentence report from the probation officer supports this conclusion and there is a specific report stating that the address of your mother is considered suitable.  In considering the proper period of home detention to be imposed as a sentence I do not consider it necessary or indeed always desirable to simply halve the sentence of imprisonment that would otherwise be imposed.   In the end, home detention is a sentence which must be evaluated on its own merits and related to the offending and the offender.

[17]     I conclude that the appropriate sentence in relation to the possession for supply charge is a sentence of nine months’ home detention.

Summary

[18]     Ms Shirtliff, in relation to the possession for supply charge you are sentenced to nine months’ home detention.  In relation to the cultivating cannabis charge you are sentenced to one month’s home detention, that sentence to be concurrent.  On the count of receiving stolen property you are sentenced to one month’s home detention, that sentence to be concurrent.  On the possession of pipes count you are convicted and  discharged.    The  net  overall  sentence  then  is  one  of  nine  months’  home detention.

[19]     The following special conditions will apply:

a)       You are to travel directly to 75 Dunkirk Avenue, Panmure, Auckland, and there await the arrival of the probation officer and the security officer.

b)You are to reside at 75 Dunkirk Avenue, Panmure, or at an address approved by the supervising probation officer.

c)       You are to attend and complete alcohol and drug counselling as may be directed by the supervising probation officer.

d)You are to attend  and complete  any other  counselling as may be directed by the supervising probation officer.

e)       You are not to associate with any individuals named in writing by the supervising probation officer.

f)        You are to attend employment, study or training as approved by the supervising probation officer.

[20]     Ms Shirtliff, you had a close escape.  A close escape in the sense that if the police had not visited you that day and you had stayed in the environment that you were in, the situation would have probably got much worse from the point of view of your personal addiction, your personal health and your involvement in criminality.

To your great credit you have treated your arrest as an opportunity for reform.  You have seized it and you have impressed everyone whom you have dealt with since, including this Court.

[21]     What you did in relation to the methamphetamine was very wrong.   Even giving methamphetamine to a friend can start another person on the road to addiction and the destruction of another life.   However, your efforts, coupled with the low- level nature of your offending and your youth at the time, have meant that this Court has dealt you with very leniently.  If you did ever offend again you would have let down not only the Court but also all these other people who have had faith in you and have supported you.  You have a wonderful opportunity now to make a new life, and I am sure you will.  I wish you all the very best for the future.

…………………………….

Asher J