R v Wilson
[2015] NZHC 706
•14 April 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-225 [2015] NZHC 706
THE QUEEN
v
SOPHIA WILSON
Hearing: 14 April 2015 Appearances:
T Refoy-Butler for the Crown
D Young for Ms WilsonDate:
14 April 2015
SENTENCING REMARKS OF THOMAS J
R v WILSON [2015] NZHC 706 [14 April 2015]
Introduction
[1] Ms Wilson you appear before me for sentence today having been found guilty by a jury of possession of pseudoephedrine for supply, an offence carrying a maximum penalty of 14 years’ imprisonment.
[2] Two days following your verdict, you breached your bail and went on the run with Mr Davoren, who played a major role in this and associated offending. He was your partner at the time. You failed to attend at your original sentencing date of
30 October 2014. On 5 March 2015, you and Mr Davoren were located in Hamilton and subsequently arrested.
Background facts
[3] At the time of the offending, you were in a relationship with Mr Davoren. Between December 2011 and January 2012, Mr Davoren kept you updated on his methamphetamine manufacturing activities. You played no active role at that time.
[4] On 30 June 2012, Mr Davoren arranged for you to visit an address to uplift “2 and a bit” sets of Contac NT, which each contain 90 mg of pseudoephedrine. You agreed to uplift the drugs and to supply them to another person that same evening for “20”. The Crown’s case at trial was that this referred to $20,000. The Crown’s case was that “2 and a bit” sets of Contac NT would contain at least 180 grams of pseudoephedrine, which could be converted into 90 to 135 grams of methamphetamine.
[5] It was not in dispute at trial that you had possession of the drugs that evening. You maintained your innocence, saying you did not know what was inside the bag you picked up. The jury rejected your version of the events. The text message was clear as to what you were to collect and its value. Indeed, the evidence was that you had been kept informed, as I say, of Mr Davoren’s illegal activities.
Approach to sentencing
[6] I now need to assess an appropriate starting point to reflect the nature and seriousness of your offending and your culpability. I then consider whether any adjustments should be made in respect of any matters which relate to you personally.
[7] I must also take into account the purposes and principles of sentencing as set out in the Sentencing Act 2002. That includes the need to hold you accountable. When the Court sentences offenders for dealing commercially in controlled drugs, the primary purpose is deterrence. Because of the harm done in the community by methamphetamine, which is the end-product of this type of offending, denunciation is an important purpose. As is the need to promote in you a sense of responsibility for, and acknowledgement of, that harm.
[8] In your case, the relevant principles of sentencing are the gravity of your offending, including your own culpability for that offending, the seriousness of the offending in comparison with other offending, and the general desirability of consistency so that others sentenced for similar offending receive a similar outcome. I must also impose the least restrictive outcome.
[9] Finally, Parliament has made it clear in s 6(4) of the Misuse of Drugs Act
1975 that when any person is convicted of an offence relating to a Class A or Class B controlled drug, the presumption is that the judge shall impose a sentence of imprisonment.
Personal circumstances
[10] I turn now to the address your personal circumstances. I first consider your pre-sentence report. The probation officer described you as candid and co-operative at the interview.
[11] You are 25 years old. You describe having had “a very good childhood”. Growing up, your family moved around a lot. You said you attended a number of different primary schools which you described as a good experience because it helped you develop the people skills you use today. After giving birth to your first
child, you were a stay-at-home mother for a few years. Prior to your offending, you obtained work as a retail assistant for a brief period. You then completed a beautician certificate, volunteered at the YMCA and helped out at your father’s business in Auckland. You have been described by the probation officer as a positively motivated and intelligent young woman.
[12] Shortly before the trial you discovered you were pregnant. You then breached your bail and went on the run with Mr Davoren. You told the probation officer you were very emotional at the time and that Mr Davoren threatened you.
[13] The likelihood of complying with a community based sentence was assessed by the probation officer as high. However the probation officer added that you accept the need to comply with any sentence imposed and are aware imprisonment is the most likely outcome.
[14] You were tested for drug and alcohol abuse and the result led the probation officer to conclude that rehabilitative measures in this regard are not necessary.
[15] The probation officer’s final recommendation was a sentence of
imprisonment.
[16] I have had handed to me today three letters. The first letter is from you and it is a letter expressing, what you say, is your deep remorse for the bad mistakes which you have made. You say you deeply regret your involvement which you attribute to threats from Mr Davoren and his associates. You say that after your conviction you were forcibly taken away. You say you had intended to hand yourself in but could not build up the courage.
[17] There is a letter of support from your father and I know he and other family members are attending Court today. He describes you as being very gentle, kind and honest. He says you had a bright future but when you met Mr Davoren, you stopped communicating with your family. He says he tried to persuade you to plead guilty but you refused, being under, he says, Mr Davoren’s control. He says that he
believes that you can get your life back on track and learn from all of this and he offers an address he owns in Auckland for you to serve a sentence of home detention.
[18] There is also a letter from a director of the Auckland Night Markets, supporting your submission that you should receive a sentence of home detention and offering a position of employment should that occur. So I take those matters into account.
Setting the starting point
[19] In 2011, pseudoephedrine was reclassified from a Class C to a Class B controlled substance. That can be seen as a clear message from Parliament that dealing with pseudoephedrine is a very serious offence. The maximum penalty of 14 years’ imprisonment confirms the serious way in which the Court must treat this type of offending. This is because pseudoephedrine is a precursor substance and an essential ingredient in the manufacture of methamphetamine.
[20] In the case of Wallace and Christie, the Court identified three sentencing bands for class B controlled drug offending.1 For commercial activity on a major scale, the starting point for a principal offender will be more than eight years’ imprisonment, and in the very bad cases, up to 14 years. For commercial activity on a substantial scale, where there is sophistication and organisations with operations over a period of time, but not involving extreme quantities of drugs, the starting
point will be in the range of five to eight years’ imprisonment. For smaller
commercial operations, the starting point will be up to five years’ imprisonment.
[21] Both the Crown and your counsel, Mr Young, submit that this case appropriately fits within the third band with a starting point of two and a half years’ imprisonment. You were involved in a smaller operation but it was still commercial
dealing. I accept that it falls within the third band.
1 R v Wallace and Christie [1993] 3 NZLR 159 (CA).
[22] I now turn to consider other cases to guide my starting point. The cases of R v Zhai2 and R v Li3 involved pseudoephedrine offending at the time when pseudoephedrine was classified as a class C controlled drug. In R v Zhai, a starting point of three years’ imprisonment was adopted for a charge of importing 895 grams of pseudoephedrine.
[23] In R v Li, a starting point of two years, nine months was adopted for a charge of importing 885 grams of pseudoephedrine. While Li involved nearly five times more pseudoephedrine than your case, as I say, at the time, pseudoephedrine was classified as a Class C drug. Judges’ sentencing in cases of the Class B controlled drug pseudoephedrine ought to apply the guidelines in R v Wallace rather than focus on sentences for Class C drugs.4
[24] The Court of Appeal decision in R v Wang involved 35 kilograms of ContacNT.5 The High Court’s starting point of five and a half years’ was overturned by the Court of Appeal saying it should have been at least eight years’ imprisonment.
[25] The High Court decision of R v Ha6 postdates the decision of Wang. The defendant in that case had supplied an unknown amount of ContacNT on one occasion and 1210 grams of pseudoephedrine on the second occasion. The starting point was four years’ imprisonment.
[26] Mr Young has also referred to another case of R v Li, different from the case referred to by me previously.7 In that case, a sentence of imprisonment of two years and seven months’ was imposed on someone who was the middle person in 16 transactions involving over 10 kilograms of pseudoephedrine. However, in that case a starting point of seven years and six months’ imprisonment had been taken and that case can be seen as turning on its own particular facts when it comes to the end sentence. That is, a discount of over 50 per cent was given for co-operation with
authorities and further reductions were given for the offender’s domination by her
2 R v Zhai HC Auckland CRI 2007-0404-21682, 22 July 2008.
3 R v Li HC Auckland CRI 2009-004-27952, 22 June 2010.
4 R v Wang [2014] NZCA 409 at [26].
5 R v Wang, above n 6.
6 R v Ha [2014] NZHC 2621.
7 R v Li [2014] NZHC 2610.
partner, previous positive contribution to society, and serious health issues. The Judge in that case acknowledged that significant discounts were made. So I refer to that to explain why your case cannot be seen in that same light.
[27] The Court of Appeal decision in R v Fatu is also of assistance.8 It is the guideline judgment for methamphetamine offending but of course a lower maximum sentence applies to pseudoephedrine offending.9
[28] I turn now to consider aggravating and mitigating factors in relation to the offending itself.
[29] First, I look to the role you played.10 You were neither a mastermind nor an instigator in the transaction.11 It is accepted that you were at the bottom end of the chain of offending. That is not to say, however, that your role was a minor one. You played a role in the supply of pseudoephedrine. Without people like you, who are
willing to assume the significant risk of the role you played, the supply lines for the manufacture of methamphetamine would dry up.
[30] In assessing your culpability, I consider the amount of drugs is an aggravating factor. What you delivered contained at least 180 grams of pseudoephedrine which would have been valued at the time at approximately $20,000. It is relevant to consider the commercial amount of methamphetamine which could be produced from that. The Crown submits that between 90-135 grams of methamphetamine could have been produced. Mr Young submits that there is little evidence you knew of the amount of drugs involved. I do not accept that. The text message clearly show that you were asked to collect “2 and a bit” and the value was confirmed in those text messages as being about $20,000. You also knew at the time, as was evident at the trial, that Mr Davoren was involved in significant offending involving
the manufacture of methamphetamine.
8 R v Fatu [2006] 2 NZLR 72 (CA).
9 See R v Xie [2007] 2 NZLR 240 at [23].
10 R v Wang, above n 6, at [22]; considered to be “an important consideration”.
11 R v Wang, above n 6, at [10].
[31] I accept, however, there was no evidence that you received any direct reward from your assistance.
[32] As I say, there was limited involvement on your part. However, your role was a significant and crucial one.
[33] In light of the combination of the factors mentioned and the case law I have already discussed, I adopt a starting point of two years and four months’ imprisonment.
Adjusting the starting point
[34] I now turn to consider your personal circumstances and whether the starting point for your sentence should be uplifted or discounted.
[35] There are no aggravating factors personal to you warranting an uplift.
[36] I now look to mitigating factors. I accept that you deserve a discount for previous good character. You have no prior convictions. I note that in the case of Wang, the Court of Appeal observed “there is clear authority … that previous good character can hold little weight in relation to drug offending.”12 However, pursuant to s 9(2)(g) the Sentencing Act, the Court must consider previous good character. I am of the view that you are entitled to be regarded as someone previously of good
character. In line with authorities on this point, a modest discount of two months is appropriate.13
[37] Mr Young submits that you were both vulnerable to and influenced by Mr Davoren at the time of the offending and that, at the time of your arrest following your breach of bail, you showed signs of having been assaulted. However, there is no evidence that you were in a vulnerable position when you accepted your role or
that you were unable to change the situation in which you were involved with
12 Above n 6, at [28].
13 In Quinlan v R [2013] NZCA 634 at [40], the Court of Appeal sanctioned a modest discount for a previous clean record.
Mr Davoren.14 I note, in fact, that Mr Davoren was in Queenstown at the time of your offending and that, indeed, was the reason why he asked you to collect the pseudoephedrine and to supply it. Mr Young submits the fact that Mr Davoren asked you to perform this role suggests he was taking advantage of you and your relationship with him. This does not take you outside of the usual range of this type of case.
[38] Mr Young submits that the fact you are now six months pregnant is a mitigating factor. That is essentially a submission based on s 8(h) of the Sentencing Act 2002, which requires me to impose a sentence which would not be disproportionately severe to your circumstances. I do not consider your circumstances entitle you to any reduction in this regard. The Supreme Court has made it clear that, when the Court sentences those convicted of dealing commercially in controlled drugs, the offender’s personal circumstances must be
subordinated to the importance of deterrence.15 Although pregnancy obviously
raises practical difficulties, it is a matter which is “customarily dealt with, administratively, by the prison authorities.”16 You have a couple of months left before giving birth. You chose to breach your bail and stay on the run. You did not surrender yourself to the authorities. You did so knowing you were pregnant and having received a clear warning from me on conviction that any bail breach would remove any possibility of a sentence other than imprisonment.
[39] The pre-sentence report said that you are remorseful. You have written a letter I have seen today. In Hessell v R, the Supreme Court said that sentencing judges are right to be sceptical about unsubstantiated claims that an offender is
genuinely remorseful.17
14 Contrast to the case to which Mr Young referred, R v Li, above n 10, where the psychological assessment report showed that the defendant’s partner at the time exploited her vulnerability; in particular, her uncertain sense of self, possible deficits in her ability to judge a situation, and her wish to be loved and to have a family.
15 Jarden v R [2008] NZSC 69; [2008] 3 NZLR 612 at [12]. But note, “this does not mean
that personal circumstances can never be relevant.”
16 See R v Dunn CA113/89, 2 May 1989 at 4.
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [25]. The Court said that a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse.
Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the guilty plea.
[40] Ms Wilson, you have maintained your innocence and the fact that you have been on the run, in my view, does not suggest you have taken responsibility for your offending. You said that you have suffered “a solitary experience” since you have been on remand and that you are determined not to repeat the offending. I do not consider, however, that is any more than regret or self pity. You have not shown any other tangible demonstration of remorse.
[41] You have maintained your innocence so there can be no discount for a guilty plea.
[42] The effective sentence, therefore, is two years and two months’
imprisonment.
Home detention
[43] Ms Wilson, you are not eligible for home detention. Even if you were, I
would not have granted it to you.
[44] You were explicitly warned that, if you were to breach your bail conditions, there would be no possibility of home detention. You understood that but breached your conditions anyway. And you did so flagrantly by staying on the run for five months. The Crown submits that, given the lengthy period of time that you remained a fugitive, and the absence of any signs of acknowledgement of the offending, the Court’s hands are tied and the only appropriate sentence is imprisonment. I agree. You have taken yourself out of the exception to the general rule that a custodial
sentence is to be imposed.18 It would be “sending completely the wrong message” if
I were to overlook your disdain for orders of the Court.19
[45] I should also add that the Police have made a significant concession in not pursuing any charge of breach of bail, which would inevitably have resulted in a
cumulative sentence of imprisonment.
18 Misuse of Drugs Act, s 6(4). Home detention is to be reserved for cases that fall out of the usual range which the Court sees repeatedly in this area.
19 O’Donnell v R [2011] NZCA 50 at [33].
[46] The end result, however, Ms Wilson of two years and two months’ imprisonment means that you will be eligible for parole when you have served one third of your sentence, whereas, of course, if the sentence were two years or less you would serve half that amount.
[47] Ms Wilson, please stand. On the charge of possession of pseudoephedrine for supply, I sentence you to a term of imprisonment of two years and two months.
[48] Stand down.
Thomas J