R v Spijkerbosch HC Rot CRI 2006-063-4690

[2008] NZHC 2357

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-063-4690

THE QUEEN

v

MARIA ANNE SPIJKERBOSCH

Hearing:         30 May 2008

Counsel:         R Bird for Crown

NJ Utting for Prisoner

Judgment:      30 May 2008

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors:           Gordon Pilditch, P O Box 740, Rotorua for Crown

Ms NJ Utting, P O Box 1124, Rotorua for Prisoner

R V SPIJKERBOSCH HC ROT CRI 2006-063-4690  30 May 2008

[1]      Ms Spijkerbosch, you appear for sentence having pleaded guilty to supplying methamphetamine during the period 24 October 2006 to 12 December 2006 and to cultivating cannabis.

Background facts

[2]      The  charges  follow  the  termination  of  a  police  operation  known  as “Avalanche”, which principally involved the interception of private communications. These  established  that  you  operated  what  has  been  described  as  a  business partnership with your co-accused, selling methamphetamine and growing cannabis for sale.   The basic scheme, as described in the summary of facts, was that you would sell methamphetamine, placing the money received from sales into a shared “kitty” from which further supplies of methamphetamine would be purchased.

[3]      Over the period in question, text messages, generally in code, showed that you were directly involved in a number of transactions.   They usually involved quantities of between 1 and 1.5 grams, although one particular transaction was for the sale of 6 and a half grams of methamphetamine for the sum of $5,000.   You admitted selling methamphetamine to one particular person on five to ten occasions. You said that some weeks you would supply nothing; other weeks you would supply four to five people.

[4]      When your house was searched, the police found $5,000 in cash and, in the garage, a purpose-built cannabis-growing operation.   The garage area was divided into two growing rooms, each lined with foil and fitted with artificial lighting and fans.  In the house there was other specialised equipment.

[5]      A total of 56 cannabis plants were growing, ranging in height between 10 and

80 cms.  In the garden, a further five cannabis plants with an average height of one metre were found.   Police  estimate that each plant had a  conservative value  at maturity of $1,000, indicating a total potential yield of $61,000.  You told the police that the cannabis plants belonged to your co-accused but you helped him cultivate them by planting and watering them.

Personal background

[6]      You are a woman of 39 years of age, living in your own house here in Rotorua.   You have a loving and supportive family, as attested by the letter your brother and parents have written and by their presence here today which I acknowledge.  You yourself told the probation officer of your good relationship with the family and the loving upbringing you have had.

[7]      I have also read the references of other friends and colleagues, many of whom also appear to be present here today to support you, who speak of you as warm-hearted, caring, sensitive, a fiercely loyal and honest friend and a loyal and hard-working employee.  I note that you were employed by the same company from

1994 to 2006 and that the reference from your former employer says that you ceased employment because of recurring back problems that caused you considerable pain. The problem that you had with your back injury is a recurrent theme in the material that I have read and seems to be one of the key reasons for your fall from grace and why you are here today.

[8]      I am told that you suffered a serious back injury from a riding accident when you were 15 years old.  The pain was so severe that you contemplated suicide.  You used alcohol as a coping mechanism, moving then to cannabis and, more recently or immediately prior to the offending, to the intermittent use of methamphetamine.

[9]      Your relationship with your co-accused also seems to have been one of the root causes of offending which, in other ways, seems completely inexplicable and contrary to your previous character and what everyone has attested about you.  You met him through your former partner.  He began dabbling and selling drugs to help pay debt and you became caught up in his offending.

Sentencing principles

[10]     I come now to discuss the difficult issue of sentence.  Counsel agree, and I accept, that the methamphetamine offending falls within Band 2 of the case in R v Fatu [2006] 2 NZLR 72 (CA), which covers quantities of between 5 and 250 grams

of methamphetamine.  It provides for a starting point of between three and nine years imprisonment, depending on the quantities involved and other factors.   The total amount  involved  here,  according  to  the  summary of  facts,  is  approximately  50 grams, supplied over a period of some six weeks.  Plainly, this was a commercial operation but, as Mr Bird submits, operating at street level and for the purpose, I accept, of funding your addiction.

[11]     I also accept the submissions of counsel that the appropriate way to deal with the cannabis offending is to treat it as an aggravating feature of the lead offence of supplying  methamphetamine.     The  quantities  involved  and  the  nature  of  the operation indicate that the offending comes within Category 2 in the case of R v Terewi [1999] 3 NZLR 62, which attracts a starting point of between two and four years imprisonment.

[12]     All things being equal, I think Mr Bird is right to suggest a starting point for the methamphetamine offending of three and a half years imprisonment with an uplift of 18 months (having regard to totality principles) for the cannabis offending. That would suggest a starting point of five years imprisonment.

[13]     I said all things being equal, that would be the starting point.  But I do not think that all things are equal in this case.  In particular, I consider your culpability to be materially reduced by two considerations.   First, it is clear that your offending was very much the product of your addiction and your addiction was itself the result of your chronic back injury.   Secondly, I am satisfied that you were very much a secondary party to the offending, which was, on my reading of the summary of facts, largely orchestrated by your co-offender.

[14]     It is clear from the text messages, reproduced in the summary of facts, that he had most of the dealings with those further up the supply chain.  The tenor of the text messages also suggest that you were subservient to him in something of an abusive relationship.   One of the text messages he sent to you is particularly revealing.   I won’t quote it all but it began, “U arrogant dumb bitch!”.  There are clear indications to me that you were manipulated and used by him.   I consider your culpability should be assessed accordingly.

[15]     These considerations persuade me that the starting point of five years that I had earlier indicated should be reduced to three and a half years before account is taken of mitigating factors.   Those mitigating factors are, first and foremost, your guilty plea.  Although it did not come until after depositions, I am told the Crown accepts that some of the delay is attributable to the prosecution.  You made a frank and full statement to the police and cooperated fully from the time the search warrant was executed.  On the basis of what you did at that time and what you have said in your letter to me that I have read, I am satisfied that your remorse is entirely genuine. For that you are also entitled to credit.

[16]     The probation officer says you are motivated to address all of the factors contributing to your offending.  You are assessed as a low risk offender, elevating to medium on sentencing.  I assume that would be the consequence of an anticipated prison sentence.  All the indications are that, with the right sort of support, you are capable of rehabilitating yourself.  These factors – your guilty plea, your remorse, your previous good character, your prospects of rehabilitation – suggest that a generous discount for mitigating factors should be allowed.  I assess that discount at

18 months which would result in a prison sentence of two years.

Home detention

[17]     A sentence of two years is a short-term sentence under s 4(1) of the Parole Act 2002, making you eligible for home detention under s 15A of the Sentencng Act. I note that even if a somewhat higher prison sentence had been merited under the transitional provisions, a sentence of home detention could still have been available under s 57 of the Sentencing Act 2002: see R v Hill CA559/07 29 February 2008 at [28].

[18]     Normally in cases where offending has occurred at home, the option of home detention is excluded.   However, your parents have agreed to make their address available and I have a report confirming the suitability of the address and its occupants.   In such circumstances, the fact that your offending took place in your own home, is of limited weight: see Hill at [41]. The probation officer’s report also

states that you are a suitable candidate for home detention, able and willing to undertake the sentence.

[19]     I acknowledge Mr Bird’s submission that considerations of deterrence may militate against home detention in cases involving drug offending with a commercial element.  However, I consider the circumstances of your offending to be unusual and that they should not, of themselves, preclude a sentence of home detention.

[20]     There are other factors which, in my judgment, weigh positively in favour of a sentence of home detention.   I consider your prospects of rehabilitation will be greatly enhanced if you are detained in the supportive environment offered by your parents’ home.

[21]     This leads me to the view that the sentence I should impose on you is one of home detention.   I see no reason to depart from the usual approach of imposing a sentence of home detention equivalent to half of the prison sentence that would otherwise have been justified, that is, a sentence of twelve months.  It is agreed that I should impose a special condition which would give the probation office power to direct you to undertake drug and alcohol counselling.

Forfeiture

[22]     The Crown has sought an order for forfeiture of the $5,000 cash seized at the time of the execution of the search warrant.  There is an issue as to whether all of that  sum  constitutes  the  proceeds  of  crime.    I  decline  to  make  any  order  for forfeiture.  The fate of that cash will be the subject of separate proceedings under the Proceeds of Crimes Act 1991.

Sentence

[23]     On  each  of  the  charges  of  supplying  methamphetamine  and  cultivating cannabis, you are sentenced to twelve months home detention.  I impose the standard

conditions in s 80C of the Sentencing Act 2002.  I also impose the following special conditions:

a)       To reside at 3A Burn Road, Lynmore, Rotorua for the duration of the home detention sentence.

b)To go straight to the home detention residence and wait for the arrival of the probation officer immediately following sentence.

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

d)To be assessed and, if suitable, participate and complete alcohol and drug counselling to the satisfaction of the probation officer and programme provider.

e)      To undertake an approved programme interview and complete a departmental programme to the satisfaction of the probation officer and programme provider.

f)        To undertake any other counselling treatment programme as may be directed   and   to   the   satisfaction   of   the   probation   officer   and programme provider.

In addition, there is a six months post-detention condition as follows:

g)       To complete all counselling and programmes to the satisfaction of the probation officer and programme provider.

Closing remarks

[24]     Ms Spijkerbosch, as you will have gathered from my sentencing remarks, I see you as a woman of considerable potential and if you are able to take advantage of the support that is available to you from your family and the wider community and

what is provided also by the Probation Service, I am sure that you will come through this and emerge stronger and better equipped to face the demands of life than you were before.