R v Weston
[2014] NZHC 3260
•16 December 2014
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2013-041-2516
CRI-2013-054-3479
CRI-2013-054-3481 [2014] NZHC 3260
THE QUEEN
v
TERRY ANTHONY WESTON KIMBERLEY SARAH MEIHANA-SUA ZANE MICHAEL MARSH
JEREMIAH CHRISTOPHER SUA
Hearing: 16 December 2014 Counsel:
E M FitzHerbert for Crown
E R Fairbrother QC for Mr Weston
S N Hewson for Ms Meihana-Sua and Mr Sua
L C Ord and A Shaw for Mr MarshSentence:
16 December 2014
SENTENCING NOTES OF DOBSON J
[1] I now have to sentence each of you on the convictions for methamphetamine dealing that occurred at various times during 2013. You have all pleaded guilty to a reduced range of charges in return for the Crown not proceeding with other charges that were originally laid in this case.
[2] It goes without saying, but I say it. Methamphetamine is currently the most serious illegal drug in New Zealand in terms of the harm caused by its use and the value generated in the unlawful industry of its manufacture and sale. Those dealing in methamphetamine are trafficking human misery. All of you will have seen its adverse effects and none of you can fool yourselves that your offending did not
contribute to the human misery that this drug causes.
R v WESTON & ORS [2014] NZHC 3260 [16 December 2014]
[3] The seriousness of your offending is reflected in the maximum sentences that the Court can impose. For instance, the maximum sentence for possession of methamphetamine for supply is life imprisonment.
[4] In the cases of Mr Sua and Mr Marsh, all the surrounding circumstances that I am familiar with suggest that the charges you have pleaded to were part of an on-going pattern of offending. In August 2014, an associate of yours, Mr Fraser, pleaded guilty to a range of charges involving 360 grams of methamphetamine, with dealing over two years. In his case, the Judge adopted a nine year starting point and Mr Fraser’s end sentence was six years and 10 months’ imprisonment. He admitted to substantially more serious offending than any of you, but it is one indication of the upper end that I have had regard to.
[5] Messrs Sua and Marsh, you had on-going dealings with Mr Fraser, adding to the likelihood that your offending extended over a longer period than the charges I am dealing with today. Clearly, I am not sentencing you for any offending beyond the specific convictions that I am dealing with, but I am satisfied that this offending did not arise from isolated incidents on your part, and that affects the relative seriousness that I attribute to the offending that is directly involved in those convictions.
[6] In sentencing all of you, I have to have regard to the principles and purposes of sentencing from ss 7 and 8 of the Sentencing Act 2002. I also have had regard to other sentencing decisions, some of which I will refer to in explaining my sentencing analysis.
[7] I now propose to deal with each of you in turn by considering a starting point for the level of offending reflected in your convictions, then considering any aggravating features that justify an increase, and mitigating circumstances that are personal to you that would justify a reduction. In each case I have had to consider among those mitigating factors the appropriate discount for guilty pleas.
Jeremiah Sua
[8] Mr Sua, I will deal with you first. You are for sentence on a representative charge of possession of methamphetamine for supply and one charge of conspiracy to supply methamphetamine. Over a 10 month period, you conspired to supply two ounce lots of methamphetamine and you were involved in the supply, or you were in possession for the purposes of supply, of a further two ounces plus two grams. Looked at overall, your offending involved some 114 grams of methamphetamine. As I have said, the circumstances of those representative charges clearly suggest there was a pattern of involvement in methamphetamine dealing, and your offending cannot be treated as just isolated incidents.
[9] The maximum sentence for conspiracy to supply is less than for supplying. That is because, in many situations, taking part in a conspiracy to supply is treated as less serious than actually supplying. One approach is to fix a starting point for a conviction as if it was for supply, and then apply a discount for it being conspiracy to supply, with the extent of discount depending on how far away from completion the conspiracy was.
[10] The overall volume for the supply and conspiracy to supply of 114 grams puts you in the middle of band two from the guideline judgment of the Court of Appeal in R v Fatu.1 The Crown has contended for a starting point of six years or more. On your behalf, Mr Hewson concedes that on the application of the Fatu guidelines six years could be justified, but he has urged that the circumstances of your offending would justify adopting a somewhat lower starting point.
[11] Finding other cases that are like yours is complicated because half the quantity is for supply, and the other half is for conspiracy to supply where the three instances involved were varying distances away from being completed. Without going through the factual detail available to me, I treat the conspiracy with Mr Wineera as being nearly completed. The conspiracy involving Mr Marsh was relatively undeveloped and the conspiracy with Ms Smith was relatively well
formed. Rounding those circumstances out, I consider a modest discount should
1 R v Fatu [2006] 2 NZLR 72 (CA).
apply from the level of the starting point for the second half of the total of 114 grams that you were involved in. In the end, I am comfortable that six years is an adequate starting point. That is consistent with the indication of starting point that I gave to you immediately before you entered your plea.
[12] Now, your prior convictions are an aggravating factor and I hope you understand that means you are liable for the sentence to go up somewhat because of them. You have troubling convictions for serious drug offending in the past. In
2005, you were convicted of possession of methamphetamine for supply and on that occasion sentenced to seven years and six months’ imprisonment. Earlier, in 2001, you were convicted of conspiring to deal in a class B drug and were sentenced to four years and six months’ imprisonment. That followed convictions in 2000 for conspiring to deal in a class C drug, for which you were sentenced to two years and six months’ imprisonment. Going back to 1998, you were convicted of possession for supply of cannabis plant and sentenced to one year and six months’ imprisonment, and in 1997 you were convicted of selling cannabis and sentenced to one year and six months’ imprisonment.
[13] Of course, Mr Sua, I am not re-sentencing you for those earlier convictions. But it makes the present offending worse when you have served prison terms for what was obviously serious drug offending, and then you offend again. It puts considerations like deterrence, and what constitutes an effective sentence, into a different perspective.
[14] In his earlier submissions, Mr Hewson acknowledged that some uplift might be appropriate for your prior criminal history. The Crown submits it justifies an uplift of one year, because there has been a pattern of serious drug dealing offending which appears to be unaffected by the sentences you have had to serve. Mr Hewson argues that a one year uplift is not warranted and asks me to take into account that the pattern of your convictions suggests your offending is getting less frequent. I have weighed it all up and I am satisfied that a one year uplift is appropriate and that takes the total to seven years.
[15] In terms of your personal circumstances, the pre-sentence report writer considers you have the capability to distance yourself from the circumstances of this offending, but notes that if you continue using methamphetamine, then the risk of re-offending could only be assessed as high, as would be the risk of your causing harm to the community. The report writer does indicate some factors that suggest that with maturity has come an improved resolve to break from a lifestyle that encourages offending, and I note in that regard that Mr Hewson has repeated this morning the business initiatives you have been taking and which it is hoped that you will be able to resume on your release. However, overall there is nothing in the personal circumstances addressed that would warrant any discount for you as a mature offender at the age of 44.
[16] The one recognised ground for a discount is your guilty plea. At the time you and your co-offenders entered pleas, I heard from counsel on the range of approaches to the appropriate discount when your plea was entered effectively at the start of trial. In all the circumstances that pertain, I am satisfied that a 15 per cent discount for each of you is appropriate and that will be applied to your sentence. Taking
15 per cent off seven years results in an end sentence of five years and 11 months.
[17] The Crown has also sought a minimum period of imprisonment under s 86 of the Sentencing Act, submitting that such a condition is necessary to hold you accountable for the harm done to the victims of your offending and the community, to denounce the conduct in which you were involved, and to deter you and to protect the community from you.
[18] In considering a minimum period of imprisonment, the Court must always be very careful not to double up. You will have heard both Mr Hewson and Ms FitzHerbert addressing that concern this morning because I have uplifted the starting point to recognise prior convictions and those prior convictions are part of the influence in assessing whether a minimum period is required.
[19] Having weighed all of that carefully, my view is that the seriousness of the offending and an assessment of it in light of your prior convictions of a similar type persuade me that release in accordance with the usual entitlement to parole would
not be sufficient to achieve the purposes recognised in s 86. I am accordingly imposing on you a minimum non-parole period of 50 per cent.
[20] The upshot, Mr Sua, is that you are sentenced to five years and 11 months’ imprisonment on the conviction for possession for supply, and a concurrent sentence of four years on the conspiracy conviction. You will be required to serve a minimum period of at least three years of that sentence. You may stand down.
Terry Anthony Weston
[21] Mr Weston, I am to sentence you on one conviction for possession of some
29.27 grams of methamphetamine for supply. You probably think it is ironic to state the quantity with such precision when one of Mr Fairbrother QC’s submissions has been that there was no independent assessment of the quantity, but the summary of facts I deal with puts it at that and I proceed with my sentencing on that basis.
[22] As you appreciate, the maximum sentence is life imprisonment. In response to an informal request from your counsel for an indication of the likely starting point and level of uplift, I confirmed, on the information then available just prior to when your trial was due to start, that the starting point and uplift were unlikely to substantially exceed four and a half years’ imprisonment.
[23] I have now been able to reflect in greater detail on both the Crown and the defence submissions on sentencing, and I have the benefit of a pre-sentence report on you. In short, there are no factors making your offending materially more serious than I assessed just before you entered your plea. However, nor do Mr Fairbrother’s submissions attempting to lessen the seriousness of your offending and emphasise personal mitigating circumstances persuade me that there are additional factors entitling you to significant discounts beyond those I contemplated at that time.
[24] As to your offending, you were a passenger in a motor vehicle that was stopped during the night of 17 December 2013 in Napier. There was a driver and one other passenger in the vehicle. A search of the vehicle revealed varying weights of methamphetamine in a number of containers and packages secreted in various
parts of the vehicle. As I have said, when weighed by the Police, the total weight was 29.27 grams.
[25] On this conviction, Mr Fairbrother maintains the stance he has advanced on your behalf throughout that you were not a part of the Manawatu-based methamphetamine dealing activities that were the focus of the Police surveillance operation. Now that is literally true, but the relevant context is that the Police surveillance in this district led them to monitor you. Your prior drug offending does include convictions co-offending with Mr Sua.
[26] Those peripheral circumstances puts your involvement in the present offending into context, but of course they do not operate as requiring me to see the offending on the charge to which you have pleaded guilty as any more serious.
[27] The quantity of 29.27 grams puts you towards the lower end of band two from Fatu. The Crown contends for a starting point in excess of three and a half years. Mr Fairbrother urges that the offending be seen as lacking any commerciality, in that you were a dependent user and the quantities found in the vehicle in which you were travelling were intended for shared use with associates.
[28] The quantity involved, and the history of your offending, together with what is known about your lifestyle at the time, do not enable me to accept that submission entirely. The reality is that you have pleaded guilty to possession for supply, and I rank the relative seriousness of the offending principally by reference to the amount, in reliance on the bands from Fatu.
[29] I have accordingly settled on the starting point at three years and six months’
imprisonment.
[30] In your case, it is possible to measure the appropriate point in band two of Fatu by comparing the circumstances of your conviction with those of others. I have reflected on the similarities and any differences between your case and that of four others. When my sentencing notes are produced, I will include a schedule detailing
those, the upshot of them tending to confirm the appropriateness of the three years
six months’ starting point.
[31] In terms of aggravating features, there is an inevitability of some uplift for your previous convictions. In total, you have 132 previous convictions dating back to 1984. Relevantly, there are previous convictions for serious drug offending and a sufficient pattern to suggest that prison sentences previously imposed have not had the deterrent effect that might be expected. As with Mr Sua, there is no question of re-sentencing you for those earlier drug convictions.
[32] The Crown has contended for an uplift of at least one year. Resisting that, Mr Fairbrother urges, first, that you should not be treated as part of the Manawatu methamphetamine dealing scene, to the extent that that would add anything to the seriousness of your offending. Secondly, Mr Fairbrother urges me to see this as less serious than your previous offending so that it can be sufficiently distanced from it to enable me to disregard that earlier offending. Thirdly, he treats you as having a serious dependence on methamphetamine, but says that you realise the harm it does and that you were, at the time of the offending and remain now, keen to change your ways. I have read two letters of support from the mother of your children and from a social worker with whom you have interacted in an attempt to get your addiction to methamphetamine under control. Those letters tend to confirm that you appreciate the harm it does, and would like the opportunity of reducing your dependence. I have also read the letter you have written to me and considered its contents this morning.
[33] Whether those personal circumstances are seen as limiting the aggravating impact of your serious criminal record, or as a mitigating circumstances on their own, there is a limit to the weight I can give them. At 46, you have been here before. I cannot ignore the aggravating influence of your prior convictions, but because the sentence for you is somewhat less than Mr Sua, and because of your personal circumstances, a somewhat shorter uplift is sufficient. The uplift I apply for your previous criminal record is 10 months.
[34] As to other mitigating circumstances, there is your guilty plea. Consistently with the others, I will apply a 15 per cent discount to what would otherwise be the final sentence. That produces an end sentence of three years and eight months.
[35] The Crown has raised an issue as to forfeiture of a sum of some $2,500 that was found in your possession at the time you were apprehended. Quite properly, the Crown has conceded that it should not press for forfeiture of that sum, given Mr Fairbrother’s explanation of the circumstances of it. So it follows that no issue of forfeiture of that amount is raised.
[36] I now impose on you a sentence on the single conviction of three years and
eight months’ imprisonment. You may stand down.
Zane Marsh
[37] Mr Marsh, you have pleaded guilty to one charge of supplying methamphetamine, one of offering to supply methamphetamine and one of conspiracy to supply methamphetamine. Your offending over a period in 2013 was monitored as part of a Police surveillance operation and in particular conversations intercepted at a garage used by Mr Fraser. The circumstances of the charges to which you have pleaded guilty suggest an on-going association with Mr Fraser, and a much more limited connection with Mr Sua.
[38] Assessing the circumstances of your offending on the basis of the last form of the summary of facts presented on behalf of the Crown, I acknowledge that you do not accept that your guilty pleas involve acceptance of all the detailed indications of the scale of your activities. Bearing that in mind, I am satisfied that it is appropriate to sentence you on the basis that the supply was of six grams of methamphetamine to Mr Fraser on or about 30 September 2013. I note that at the time of the arrests, it appears that Mr Fraser owed you approximately $18,000 for methamphetamine that you had supplied.
[39] The offer to supply related to a further three supplies of a quarter of an ounce each to Mr Fraser, which would total 21 grams. The conviction for conspiracy to supply a quarter of an ounce was in relation to arrangements to supply Mr Sua.
[40] After your trial was due to begin, you sought a sentence indication on the basis that additional charges would not be pursued, provided you pleaded guilty to the three on which I am now sentencing you. On all the information then available, I provided a sentence indication that there would be a starting point of four years and two months’ imprisonment. I then indicated, as matters then stood, that there might be two cumulative discounts available to you of 15 per cent for personal mitigating factors and for the guilty pleas.
[41] Your counsel has now provided further detailed submissions, urging that I deviate from the sentence indication by seeing your offending as less serious. It has also been argued that you are entitled to a larger discount than I indicated for personal mitigating factors. Additional materials have been submitted to me in support of that.
[42] In short, the Crown submits that a departure from the sentencing indication is not warranted.
[43] As to the starting point, fitting you in band two from Fatu, one way would be to treat the supply of 27 grams as being added to by a conspiracy to supply a further seven grams, which might be treated as if an actual supply of somewhat less, say four or five grams, making your offending in relation to a notional quantity of 31 to
33 grams of methamphetamine. The core of the summary of facts requires me to see that as part of a pattern of offending, conducted by you in what I take to be a business-like or commercial approach to the dealing. Aspects of it suggest a maturity of approach beyond what might be expected of someone at your relatively young age.
[44] The comparative cases I used in testing a starting point for Mr Weston also have some relevance in your case. Counsel on your behalf has urged that a lower starting point of three years would be appropriate because the quantity of methamphetamine is at the lower end of band two, that there is no evidence of the purity of the methamphetamine so a favourable assumption should be made that it had been cut, and further that when the surveillance operation was terminated, you were not in possession of methamphetamine or tools for supplying the drug.
[45] I do not accept that those circumstances require the offending to be ranked as less serious. Having reflected on all that I have heard, I remain comfortable that the quantity and suggestions of something of a pattern in the offending support the starting point of four years and two months. If indeed Mr Fraser owed you $18,000, it was in circumstances where you had been sourcing ounces of the drug and you were keen to increase that level. Certainly, with respect, the submission on your behalf that three years would be adequate is not realistic.
[46] As to any aggravating circumstances, unlike Messrs Sua and Weston, you have no relevant convictions and are to be treated as a first offender. That indeed becomes a part of the mitigating circumstances that have been urged on me very strongly by your counsel in the last round of written submissions and in oral submissions today.
[47] The pre-sentence report writer acknowledges that you have a solid work ethic, having been employed continuously since leaving school at the age of 17. You have also shown enterprise in running your own scrap metal business, and then turning your hand to work, as I understand it, in a sign-writing business when you were bailed to an address in Hawke’s Bay. You appear to enjoy very strong support from members of your family, including a relatively recent reconnection with your birth father, after a period in which negative influences, including drug-taking, were a feature of your relationship with a step-father.
[48] I have also read the numerous testimonials that refer to your hard work, reliability and your positive personality. I have also read obviously the letter that you have provided this morning that expresses remorse.
[49] You must understand that, in general terms, personal mitigating circumstances count for less in cases of serious drug offending, than in other categories of offence.2
[50] The other mitigating factor in terms of your personal position as urged on me is your relative youth. You were 19 or 20 during the period of offending, and it
2 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
seems likely that the influence of your step-father and his associates may have made you vulnerable at the outset. The courts do recognise that young people may assess the blameworthiness and consequences of offending differently from adults. There are age-related neurological differences so that young people may also be more vulnerable or susceptible to negative influences and may be more impulsive than
adults.3
[51] A component of assessing age as a factor in sentencing is the reality that prison may be a harsher environment for young people than for adult offenders. Again, in particular contexts, the Court has recognised that young offenders may be affected more seriously in terms of their mental health than is the case with adults.4
Another side of those considerations is that courts, perhaps optimistically but with some empirical support, treat young offenders as likely to have better rehabilitative prospects than adults. That is a feature particularly emphasised in your case.
[52] Applying all these considerations, it is urged that yours is a case in which I could grant an initial discount of more than the 15 per cent for personal factors that was suggested at the time of the sentence indication I gave to you. The Crown would oppose that. Ms FitzHerbert makes the valid point that your offending cannot be described as a youthful indiscretion. It was committed over a period of months and escalated to a point where you were prepared to be involved with quite serious drug dealers. On any view, it was adult offending.
[53] This is not offending in which you could be given credit for remorse in the conventional sense, but in assessing prospects of rehabilitation I sense that you are determined to put the offending behind you, and you have repeated that point explicitly in the letter you have provided to me this morning. So taken overall, I would allow a discount of 20 per cent for your youth and the other personal circumstances that I have reviewed.
[54] The final consideration for a discount is the guilty plea. Again, your counsel urge on me a discount of greater than 15 per cent, but I am not persuaded. In this,
3 See generally Churchward v R [2011] NZCA 531, (2011) 15 CRNZ 446 at [79]–[84].
4 See, for example, R v Slade [2005] 2 NZLR 526 (CA) at [45]; R v Chankau [2007] NZCA 587 at
[26].
you should be treated consistently with the co-offenders and in each case I am comfortable that 15 per cent is the appropriate discount.
[55] The result is, from a starting point of four years and two months or
50 months, I would apply a discount of 20 per cent on account of youth and personal circumstances including commitment to rehabilitation, which brings it down to
40 months. I then apply a discount of 15 per cent for your guilty plea, making a final sentence of 34 months, or two years and 10 months’ imprisonment.
[56] The sentence I impose on you for the conviction for supply of methamphetamine is two years and 10 months’ imprisonment. There will be concurrent sentences of two years on the remaining convictions. You may stand down.
Kimberley Sarah Meihana-Sua
[57] Ms Meihana-Sua, I have to sentence you on one charge of conspiracy to
supply methamphetamine. The maximum penalty is 14 years’ imprisonment.
[58] The summary of facts submitted on the single charge to which you pleaded guilty at the outset of what would have been the trial contains two factual components. First, there were text exchanges between you, Mr Fraser and Ms Smith in which you effectively put Mr Fraser in touch with Ms Smith to get a small quantity of methamphetamine from Ms Smith’s house. On sentencing Ms Smith, the Crown accepted that her involvement did not amount to dealing in any usual sense. Rather, it was explained that a small quantity of methamphetamine had been left at her house after a number of people had a party there, and Ms Smith was asked to make it available to Mr Fraser. The Crown accepted that Ms Smith did not ask for or receive any money, and your role in facilitating contact between Mr Fraser and Ms Smith is to be treated in the same way.
[59] The second aspect of the conspiracy charge against you involves your part, in the company of Mr Sua, in making arrangements towards the end of November 2013 for Ms Smith to fund the purchase of an ounce of methamphetamine for $14,000. In comparing your involvement in those events to those of Ms Smith, Mr Hewson made
a number of points intended to reduce the importance of your involvement, and to play up the part Ms Smith took in it. I am not able to accept a number of the inferences he invites me to draw, and in the end I consider that the differences in the nature and seriousness of involvement of you and Ms Smith more or less cancel each other out so that you are to be seen as involved in the conspiracy in ways that should bear equal culpability for the conspiracy to supply.
[60] On 28 November 2013, you sent a significant text to Ms Smith saying:
We have to go for a ride but it will be untouched until we give it to u and it will be esquisit we r ready wen u r.
[61] The Police monitored the movements of you and Mr Sua when you travelled to Hawke’s Bay shortly after that. You were stopped on the way back in the early hours of 30 November 2013 and searched by Police, but no methamphetamine was found. Later than morning, Ms Smith was texting two unidentified people, indicating that she had methamphetamine available for sale. In all the circumstances of both your sentencings, it would be naïve to overlook the prospect that you had indeed returned with methamphetamine, some of which was made available to Ms Smith, for her to be selling it that day.
[62] With Ms Smith I adopted a starting point of four years imprisonment. Certainly, the nature of your involvement is different. She was the funder, whereas you were intended to accompany your husband to obtain an ounce, and to return to Palmerston North with it. The Crown has accepted that there is no evidence that you benefited directly or independently from the conspiracy as it was structured. That is possibly a generous concession, given the reality that your fortunes at the time were tied very closely to those of your husband, and he was embarking on commercial dealing in methamphetamine. I am not prepared to treat Ms Smith as the initiator of the conspiracy simply because she provided the money. The preferable view is that she was a vulnerable widow, with a dependency on the drug at the time and under extreme financial pressure. So, I adopt the same starting point for you of four years.
[63] I also adopt the same discount for this being a case of conspiracy rather than actual supply. That discount is nine months, bringing the starting point down to three years and three months’ imprisonment.
[64] As to mitigating circumstances, you have the benefit of a very positive pre-sentence report, and strong support from your family, including your parents who have been caring for your daughter, and have had you in their home on restricted bail terms. Significantly, the report writer considers that imprisonment could serve to increase your risk of re-offending, and for that reason home detention is recommended. Obviously, before I can consider home detention as an alternative to imprisonment, the starting point has to come down to two years’ imprisonment or less.
[65] As to your personal circumstances, somewhat generously in my view, the Crown accepts that you would be entitled to a separate discount for lack of previous convictions. You do have eight convictions for minor dishonesty and driving offences, which would generally, for a person of your age and circumstances, disqualify you from claiming a discount for previous good character. I prefer to see the lack of relevant previous convictions as an aspect of the overall rehabilitative efforts and the prospects of your succeeding with them.
[66] I accept that the rehabilitative initiatives you have undertaken are impressive and you certainly deserve encouragement to continue with them. Being bailed to your parents’ address was no doubt pivotal in that, as demonstrated by the letter that they have written to me, urging that you be sentenced to home detention at their address on terms that would allow you to pursue further study. You have completed a diploma in interior design and you are planning further study at Massey University to attain a degree in communications. Living with your parents has enabled you to reconnect with your young daughter, who was placed with your parents by Child Youth and Family Services (CYFS) when your own lifestyle was causing CYFS concern. I note that CYFS are also supportive of home detention and see it as a positive in terms of the relationship with your daughter.
[67] As you will have heard me say earlier this morning, the general rule is that the personal circumstances of drug offenders cannot have the same impact in mitigating the seriousness of sentence as in other offending. That general rule is, however, subject to exceptions. I was persuaded to make an exception for Ms Smith in the most unusual combination of circumstances that she presented, and I am satisfied that an exception is also justified for you in terms of the various aspects of your personal circumstances that are highlighted in the pre-sentence report, some of which have been repeated in the urgings on me by your counsel this morning.
[68] Having reduced the four year starting point by nine months on account of it being conspiracy rather than supply, the starting point would be 39 months. I am satisfied that a discount of 10 per cent is appropriate for your personal commitment to rehabilitation, and the absence of relevant convictions. That would reduce the sentence to 35 months and you are then entitled to the 15 per cent discount for guilty plea that I have recognised for your co-offenders. That, if the figures are rounded down, gets to a prison term of 29 months.
[69] The last factor to be considered is whether I should exercise my discretion to give you credit for a period spent on very restrictive bail conditions. I would be required to consider that factor if you had been on electronically monitored bail, but that was not the case. However, there is a discretion to reduce a term of imprisonment to reflect a period spent on other restrictive bail conditions. It is a matter on which an evaluative, rather than a mathematical, approach is to be taken.5
My understanding is that you have spent 12 months subject to a 24 hour curfew, but
with the curfew being relieved to enable strict attendances for educational purposes and for counselling. That still qualifies as restrictive bail conditions and the Crown does not dispute that. I acknowledge then that that entitles you to a discount for that period on those restrictive bail terms and I am prepared to give you a discount of six months. That produces an end sentence of what would be 23 months’ imprisonment, which does entitle you to have the Court consider home detention as an alternative.
[70] The appendix to the pre-sentence report reviews the suitability of your
parents’ address. Although technical issues would need to be dealt with, it is
5 Keown v R [2010] NZCA 492 at [12]–[14].
approved. Those living at the address have made the appropriate commitments to have you there on home detention, with your parents providing effectively an assurance that they will let the authorities know if you are not complying with the terms of your sentence. That sentence would enable you to continue rehabilitative efforts, including further study and it avoids a prison sentence, which the pre- sentence report writer was concerned would increase the risk of your re-offending at the end of your sentence. Perhaps most importantly of all, it enables you to continue rebuilding your relationship with your daughter.
[71] In all those circumstances, I am satisfied that a sentence of home detention is appropriately substituted for what would otherwise have been a sentence of
23 months’ imprisonment.
[72] As I observed in sentencing Ms Smith, longer sentences of home detention are not easy to serve, and it should not been seen as a soft option to imprisonment. It is appropriate in your case, but it will require commitment which I certainly hope you are prepared to give it.
[73] Your parents have asked that I include conditions that would allow you to pursue a course of study at Massey University. That is not within my sentencing responsibilities this morning, but those monitoring your sentence ought to have the power to arrange for variations to the conditions that are assessed as appropriate and necessary for you to fulfil valid study commitments. What I will do is impose the following special conditions as recommended by the pre-sentence report writer. So you are:
(a) first, to travel immediately from here to the home detention address and there await the arrival of a Probation Officer and a representative of the monitoring company;
(b)second, you are to reside at that address for the duration of the home detention sentence, and leave only when given approval from your supervising Probation Officer;
(c) third, you are to abstain from the consumption and/or possession of alcohol and non-prescription drugs, unless the drugs are prescribed for you by a medical practitioner, for the duration of the home detention sentence;
(d)fourth, any dogs are to be contained away from the main dwelling at all times to allow unhindered access to the property for the Probation Officer, the monitoring company and Police, for the duration of the home detention sentence;
(e) fifth, you are to attend an alcohol and drug assessment and any on-going counselling or treatment as recommended, to the satisfaction of the Probation Officer and treatment provider, and in particular I direct that you are to pursue all opportunities for an appropriate course of drug treatment on a residential basis; and
(f) lastly, you are to undertake an alcohol breath test or drug test as required by a Probation Officer or Police officer.
[74] So, Ms Meihana-Sua, you are sentenced to a term of 12 months’ home
detention on those conditions. You may stand down.
Solicitors:
Crown Solicitor, Palmerston North
Dobson J
Schedule
Comparative sentencings to Mr Weston
R v Strachan [2013] NZHC 1711
Ms Strachan was convicted of supply of 28 grams of methamphetamine. She was addicted to methamphetamine and was in a relationship with a large scale manufacturer of methamphetamine. She sometimes acted as an intermediary and sometimes approached buyers directly. Defence counsel stressed Ms Strachan’s secondary role in the offending, the negative influence of her partner and that the offending was at the lower level of commercial supply. The Court imposed a starting point of three and a half years. The differences between that offending and Mr Weston’s cancel each other out. It is directly comparable.
R v Whakatihi HC Palmerston North CRI-2011-054-463, 12 October 2012
Mr Whakatihi was sentenced for possession of methamphetamine for supply. He was a middle man with five regular customers, at the lower end of a large methamphetamine network. Mr Whakatihi arrived with a co-offender at another co- offender’s address. Mr Whakatihi was supplied 14 grams and it was agreed that he would be supplied a further seven grams. Some of the methamphetamine was for his own use but a significant portion was for the purpose of supply. The Court imposed a starting point of three and a half years. There are relevant similarities in the combination of personal use and dealing. This was more likely to have been a “snapshot” suggesting a pattern of offending than in Mr Weston’s case, but closely comparable.
R v McPherson [2009] NZCA 487
Mr McPherson was convicted of possession of, or selling, a total of approximately
40 grams of methamphetamine. The Court of Appeal held that the minimum starting point for this offending was four years’ imprisonment. This involved a larger amount than Mr Weston, and relevantly longer starting point.
R v Jury HC Auckland CRI-2007-004-23328, 14 October 2008
Mr Jury was convicted of possession of 19.1 grams of methamphetamine for supply. The methamphetamine was found with scales, empty point bags, used pipes and
$1,020 cash. The Court imposed a starting point of three years and six months. That involved a smaller amount, but evidence of a pattern of offending, so loosely comparable.
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