R v Whittington

[2012] NZHC 2286

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-085-2048 [2012] NZHC 2286

THE QUEEN

v

KASIE TUI WHITTINGTON

Hearing:         5 September 2012

Counsel:         S Barr for the Crown

G Fulton for the Accused

Sentence:       5 September 2012

SENTENCING REMARKS OF MALLON J

Introduction

[1]      Ms Whittington, you appear for sentence having pleaded guilty to:

(a)       Four charges of supplying a class A drug, namely methamphetamine;[1]

[1] Misuse of Drugs Act 1975, s 6(1)(c), maximum penalty of life imprisonment.

and

(b)One charge of possession of a class A drug, namely methamphetamine, for the purposes of supply.[2]

[2] Misuse of Drugs Act 1975, s 6(1)(f), maximum penalty of life imprisonment.

R v WHITTINGTON HC WN CRI 2011-085-2048 [5 September 2012]

Circumstances of the offending

[2]      The charges arise out of a police investigation into the activities of members of the Nomad Gang in the Lower Hutt and Masterton area.  They were identified as being key figures in the supply of methamphetamine in those areas.  They, in turn, supplied methamphetamine to street level dealers.  Two of those identified as being street level dealers were you and your partner, Mr Smith.

[3]      Over the period that the charges cover (January 2009 to January 2011), it is conservatively estimated you and your partner obtained over 100 grams of methamphetamine from your suppliers.  It is unlikely that its purity as received from the suppliers was greater than 50 per cent although it was represented as being pure. If that quantity was sold at $1,000 per gram, it would be valued at over $100,000.

[4]      During the investigation search warrants were executed at your home.  One of  those  was  executed  on  14 January  2011.    The  police  located  three  sets  of electronic scales, cut straws and unused point bags.   ESR tests on the scales and straws were positive for methamphetamine.

[5]      On 15 December 2010, the police intercepted a phone conversation between you and one of your suppliers.  You asked your supplier to supply you with some more of “what you gave [your co-accused] last week”.   This was a request for a cutting agent, which would allow you to cut the methamphetamine you were obtaining elsewhere and thereby increase your profit.

[6]     When spoken to by the police, you denied involvement in any conspiracy to supply methamphetamine and explained that you had purchased a legal substance known as “chop” from one of your suppliers.

Previous charge

[7]      One of the warrants executed during the investigation at your home, was executed on 19 February 2010.  The police found four grams of methamphetamine,

$3,230 in cash and cellphones with drug-related text communications.  As a result,

you were charged with possession of methamphetamine for supply.   You pleaded guilty.  On 9 September 2011 you were sentenced to eight months’ home detention and 160 hours of community work.

Your partner’s offending

[8]      Mr Smith was also charged in respect of the items found at your house in February 2010.  Following a jury trial he was convicted on one charge of possession of methamphetamine for supply and seven charges of offering to supply methamphetamine.  He was sentenced to three years and nine months’ imprisonment. As a result of the ongoing investigation, further charges were brought of supplying methamphetamine (x 4) and possession for supply of methamphetamine.  Mr Smith pleaded guilty to those charges and a further 15 months was added to his sentence, taking into account his guilty plea on those charges.

Circumstances of the offender

[9]      You are 35 years of age.  You have four children.  Two of them, who are aged

8 and 12, live with you.  Mr Smith, your partner of 20 years, is currently in custody.

[10]     You have been on the Domestic Purposes Benefit since 2010 and you were last employed in 2000.

[11]     In explanation of your offending, you told the pre-sentence report writer that Nomad gang members came around to  your address and targeted you and your partner as being people who would sell drugs.  You said that you sold drugs to pay for travel for your daughter from Rarotonga and other expenses for your children.

[12]     You used to be a heavy drug user and an alcoholic.  In 2011 you completed work with a Departmental psychologist, who noted that you engaged well.  You also undertook individual counselling with CareNZ in 2011 and completed their eight week intensive outpatient programme. You spoke highly of the programme to the report writer and said that it had helped you to deal with your drug use. You told the report writer that you no longer use drugs and only drink once a month.

[13]     You completed your sentence of home detention in respect of the earlier February charge in May 2012.  Two breaches of that sentence were noted, but these were apparently minor involving absences from the home detention address for a total of 37 minutes for reasons that your counsel has advised this morning.   The completion report recorded that you were largely compliant and engaged well with the probation officer. You are presently subject to post detention conditions.

[14]     You are assessed to be at a high risk of re-offending due to your extensive criminal history and the serious nature of the offences for which you have been sentenced and are now being sentenced for.   The pre-sentence report writer nevertheless says that a sentence of imprisonment would be a backwards step for you in addressing your offending and moving forward to live an offence free lifestyle. For that reason she says a sentence of home detention would be better.

[15]     I have read the letter that I have received this morning from your daughter which addresses the impact upon her and her siblings if you were to go to prison. The letter also discusses from her perspective the huge improvements that she has seen since this offending has come to light and you have been sentenced in respect of it.

Purposes and principles

[16]     In  sentencing  you,  I  am  required  to  take  into  account  the  purposes  and principles of sentencing set out in the Sentencing Act 2002.   Deterrence and denunciation   are   of   particular   importance   in   drug   offending   of   this   kind. Consistency with the sentences of others involved in the same or similar offending also has particular relevance here.  Depending on the circumstances, a sentence with rehabilitative aims may be appropriate.

Starting point

[17]     I now turn to the starting point for  your sentence.    Because the present charges are connected to the offending for which you have already been sentenced, the appropriate approach is to assess an overall starting point for all of the offending

together.  Once that is done, the sentence you have already received can be deducted. This was the approach taken by the High Court in sentencing Mr Smith.  Counsel accept this is the appropriate approach.

[18]     In  setting the starting point  for methamphetamine offending,  guidance  is provided by the Court of Appeal judgment in R v Fatu.[3]    Counsel for the Crown submits that a starting point of six years’ imprisonment, within band two of R v Fatu, is appropriate.  This starting point is that which was adopted by the High Court for the sentencing of your co-accused, Mr Smith.  The Crown submits that there is no material  difference  in  your  culpability  and  that  of  Mr Smith.    The  Crown  also submits that the starting point is supported by other comparable cases.[4]  The Crown says that the lower purity of the methamphetamine is balanced against the period over which the offending took place and that you were doing it for money.

[3] R v Fatu [2006] 2 NZLR 72 at [34].

[4] R v Smith HC Wellington CRI-2011-085-2048, 12 June 2012; R v Nuttall [2012] NZHC 91;

[19]     Your counsel agrees that band two of R v Fatu is appropriate.  However he submits that a lower place in that band should be taken, emphasising that you were street level dealing (that is that you are not higher up in the chain), that you really did not derive any material financial gain from the offending and also that the methamphetamine was in the main “cut” reducing its purity.

[20]     I agree with the Crown that there is no material difference in your culpability as against the culpability of Mr Smith.  That was also the view of the District Court Judge when sentencing Mr Smith in relation to the earlier methamphetamine for supply charge on which  you were also convicted.   He applied to that charge a starting point of three years’ imprisonment, which was the same starting point that was taken in relation to you on that charge before the District Court Judge adjusted that for his view of his assessment of your culpability.   To the starting point for Mr Smith an uplift of nine months was applied because Mr Smith was also convicted of seven charges of offering to supply methamphetamine.   I do not, however, see

those additional charges brought against Mr Smith as distinguishing your overall

culpability from that of Mr Smith. At that time, the full extent of your offending and Mr Smith’s offending was not known.   The extent is now covered by the present charges. There is nothing to indicate that your role was any less than Mr Smith’s.

[21]     In view of that comparable culpability, I consider that a six year starting point is the appropriate one for you.

Aggravating and mitigating factors

[22]     I turn now to the factors personal to you.

[23]     You have a long list of previous convictions, mainly for dishonesty crimes. You have some drug-related convictions for possession of various classes of drugs and utensils, but no convictions for drug dealing.   I agree with the District Court Judge who sentenced  you  on  the February offending that  no  uplift  for specific deterrence is warranted in light of this history.

[24]     The Crown submits that it is aggravating that some of the offending occurred while you were on bail on the February charge.  I am not going to make any uplift for this.  At that stage, the full extent of your offending was not known.  It now is, and your overall sentence reflects the extent of your offending as now known.

[25]     Your counsel submits that I should take into account your performance on bail,  matters  set  out  in  your  probation  report  which  I  have  discussed,  and  in particular your performance in respect of your home detention sentence, and the steps you have taken towards rehabilitation in respect of drug and alcohol use.  I will come back to this, because I see this as relevant to the sentencing purposes which should be given most weight in your case.

[26]     Turning then to your guilty plea.   You pleaded guilty to these charges on

3 August 2012.  You are entitled to a discount for that.[5]   Mr Smith entered his guilty plea  immediately  after  the  sentencing  indication  in  June  2012.    He  received  a

discount  of  17.5  per  cent  for  his  guilty plea.   You  pursued  a  challenge  to  the

admissibility of evidence.  That challenge was determined in June 2012 against you and you entered guilty pleas in early August 2012.  The Crown submits that your discount should be slightly less than that of Mr Smith’s.  I consider that around the same discount as that applied to Mr Smith should be applied to you. The guilty pleas were entered effectively at similar stages, albeit by taking slightly different courses.

[5] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[27]     Deducting that from the six year starting point gives an end sentence of five

years’ imprisonment for the overall offending.

Deduction for sentence already served

[28]     I now need to deduct from that, the sentence which you have already served. Your home detention and community work sentence equated to a sentence of two years’ imprisonment.   Deducting that from a five year term, leaves a sentence of three  years’ imprisonment  which  is  the  end  sentence  that  the  Crown  submitted orthodox methodology would result in.

Rehabilitation steps

[29]     Ordinarily  that  would  mean  that  home  detention  is  out  of  the  question. However that three year sentence does not take into account your response to your previous sentence.  It is appropriate that some account be taken of this.

[30]     Had you been sentenced for all the offending at the one time, there is no doubt that you would have gone to prison.  Events, however, transpired differently. You were given home detention and community work and showed that you could respond to that.  I think there is a community interest in recognising the progress you have made and giving you the opportunity to continue with that progress, rather than taking the potentially backward step of sending you to prison. That is all the more so when you have young children to look after and care for.  I therefore consider that this  is  a  situation  where  the  sentencing  purpose  of  assisting  your  rehabilitation should be given recognition.

[31]     I am therefore going to impose a further sentence of home detention and further community work.   That effectively means that I am allowing a significant discount, of one year, to the sentence you would have otherwise received.  But the home detention sentence must be the maximum, to recognise that you would otherwise have gone to prison but for the way the case has come about and your response to the sentence that you have already received.

[32]     I emphasise that the case is unusual.  It arises because the charges came about in two stages, and your response to the initial sentence you were given on that first charge.  This should not therefore be seen as setting any precedent.  I also want to emphasise to you, Ms Whittington, that you have been fortunate in avoiding imprisonment for what was serious offending.  You have been fortunate because of your response to your previous sentence.  You need to continue with the progress you have made, or I very much doubt that there will be the same outcome if you reoffend.

Sentence

[33]     You are therefore sentenced to 12 months’ home detention together with

200 hours of community work.  The sentence applies concurrently to the charges on which you are being sentenced today.  The home detention sentence is subject to the standard conditions.  It is also subject to the special condition as per the pre-sentence report writer which is that you are to attend any counselling programme as directed by the Probation Officer.

[34]     The sentence should take effect immediately.  [Discussion with Counsel.]  It is a condition of the home detention sentence that I’ve just passed that you now return immediately home and stay there until the Probation Officer attends and you are you able to be put back on to electronic monitoring.

[35]     I  make  an  order  for  the  destruction  of  the  drug-related  paraphernalia recovered by the Police in the possession of Ms Whittington and her co-accused during the search warrants executed.

Mallon J

Solicitors:

Crown Solicitor’ Office, Wellington

Hastings v R [2011] NZCA 105; R v McLaine and Phillips HC Rotorua CRI-2009-063-5871,
24 November 2011. The Crown also referred to two cases on the relevance of purity:
R v Feldbrugge HC Nelson CRI-2007-042-3707, 16 December 2008 and R v Faifua CA 287/05,
27 March 2006.