R v Turner

[2012] NZHC 855

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2011-463-56 [2012] NZHC 855

THE QUEEN

v

TINA JESSICA TURNER

Hearing:         1 May 2012

Counsel:         A M Gordon for Crown

W Lawson for Prisoner

Judgment:      1 May 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Rotorua

Lance Lawson, Rotorua

R V TURNER HC ROT CRI 2011-463-56 [1 May 2012]

Introduction

[1]      Tina Jessica Turner, you appear for sentence today having pleaded guilty, on

23 April 2012, to four charges involving the possession and supply of the Class A

controlled drug, methamphetamine.  The offending occurred at Rotorua, between 1

July 2009 and 16 September 2009.

[2]      You were tried on other charges in May 2011.  Towards the end of that trial, Duffy J took away from the jury charges relating to the offending on which you have now been convicted.   At the conclusion of that trial, you were convicted on one count  of  possession  of  methamphetamine  for  supply  and  one  of  the  Class  C controlled cannabis for supply.  On those charges, you were sentenced to an effective

term of imprisonment of three years and 10 months.[1]

[1] R v Turner HC Rotorua CIV 2009-063-5375, 24 June 2011 (Duffy J) at para [41].

[3]      The charges to which you have now pleaded guilty were put to you in an amended indictment after discussions between counsel for the Crown, Ms Gordon, and your present counsel, Mr Lawson.  I accept that a good deal of the discussions that took place in relation to resolving these trials could only have taken place after Mr Lawson was assigned and I am going to take that into account in determining the sentence to be imposed.

[4]      It has been agreed that the amount of methamphetamine actually in your possession and supplied (in addition to those on which you had previously been convicted) was 40 grams.

[5]      Ms Turner  you  asked to be  sentenced  promptly because of  your present position.  I have read the pre-sentence report for the last hearing.   I have read the correspondence you have put before me.  You are clearly an articulate person.  You have clearly had some problems that led to this offending that followed the illness of your long-standing partner.  I am not going to refer to much of that in detail and I am not going to trawl over all the facts that led to this offending but you can take it that all of that has been taken into account by me in reaching a final sentence.

[6]      My task today is to determine what sentence would have been imposed if the Judge who sentenced you last year had had all of the additional information and your pleas of guilty to the current charges.  That means that I am going to be talking about figures that seem somewhat higher than you might think appropriate for this sentencing.  Ultimately, my job is to come to a figure that will effectively increase the sentence you are currently serving so that the overall sentence reflects what you did in offending.

[7]      The starting point for sentence on a standard basis for offending in relation to a quantity of methamphetamine of 40 grams is in the range of three to nine years imprisonment. Your offending falls at the lower end of that band.[2]

[2] R v Fatu [2006] 2 NZLR 72 (CA) at para [34].

[8]      Justice Duffy fixed a starting point of three years and six months.   I agree with counsel that, had sentencing all taken place before Duffy J at the same time, a starting point of four years six months would have been taken.  The same uplift for other relevant aggravating factors of 12 months must be applied.  That would mean a revised starting point of five years six months.

[9]      The  credit  you  were  given  of  15%  (which  I  round  to  10  months)  for mitigating factors such as remorse, would make the overall sentence one of four years eight months imprisonment.   Given the circumstances in which the present pleas were entered, I allow a further credit of 10% (which I round to six months). That would have left an end sentence of four years two months to serve.

[10]     On the last occasion you were before the Court, you were sentenced to an effective term of imprisonment of three years and 10 months.  To reach the sentence that I consider ought to have been imposed if sentenced on matters an additional term of imprisonment of four months is required.

[11]   On each of the charges, you are sentenced to a term of four months imprisonment.  That sentence is to be served cumulatively on the existing sentences imposed by Duffy J but concurrently as between themselves.

Forfeiture application

[12]     An issue has arisen over whether a BMW motor vehicle which was used in the course of the offending should be forfeited to the Crown.   Section 32 of the Misuse of Drugs Act 1975 deals with this issue.   In relation to motor vehicles, s 32(4) requires forfeiture unless in the circumstances of a particular case, the Court considers that course would be unjust.

[13]     The application is opposed by Ms Turner’s long-standing partner, Mr Drury. Mr Drury is in ill-health.  It is fair to say that his condition, due to cardiac illness, is extreme.

[14]     There is a need for him to attend regular medical check-ups.  This has proved difficult without transport.  It does not go too far to say that the absence of a vehicle is putting Mr Drury at greater risk of death than would otherwise be the case.

[15]     I am satisfied that Mr Drury has a contingent interest in the motor vehicle through relationship property rights.  I am also satisfied that the extent of his medical condition and his need for the vehicle renders it unjust to forfeit the vehicle to the Crown.

[16]     I dismiss the application for forfeiture.  The vehicle shall be returned, as soon as possible, to Mr Drury.

P R Heath J