Smeath v The Queen
[2012] NZCA 466
•11 October 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA168/2012 [2012] NZCA 466 |
| BETWEEN SONIA SMEATH |
| AND THE QUEEN |
| Hearing: 8 October 2012 |
| Court: Stevens, Chisholm and Venning JJ |
| Counsel: N G Cooke for Appellant |
| Judgment: 11 October 2012 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS
(Given by Chisholm J)
Introduction
On the third day of a trial in the District Court at Auckland involving the appellant and three co-accused, the appellant pleaded guilty to eight charges of importing pseudoephedrine, four of supplying methamphetamine and one of possession of methamphetamine for supply. She was discharged on a further 15 charges.
Judge Gibson sentenced the appellant to a total of three years imprisonment.[1] She now appeals against that sentence on the ground that it is manifestly excessive, with the primary ground of appeal being that the Judge failed to give proper weight to the appellant’s personal circumstances.
The offending
[1] R v Monk DC Auckland CRI-2009-004-24447, 20 February 2012.
The appellant was part of a drug ring that participated in drug offending between December 2008 and October 2009. At the time Damian Monk, the leader of the ring, was the appellant’s de facto partner.
At least 1.4 kilograms of pseudoephedrine was imported into New Zealand and a further 1.5 kilograms was intercepted by Customs. Although substantial quantities of methamphetamine were manufactured in New Zealand, primarily by Mr Monk, the appellant was not involved in that facet of the offending. In relation to the importation of the pseudoephedrine the appellant was directly involved in the remittance of approximately $27,000 to overseas contacts. This represented about 10 per cent of the total remittances. She was also involved in the supply of one to two grams of methamphetamine within New Zealand.
The offender
At the time of sentencing the appellant was 37 years of age with two children, aged 10 and 17 years, both of whom were in her custody. Although the appellant does not have any previous drug related offences she does have some previous convictions, the most serious of which was assault with intent to injure (1996). It is apparent from the probation officer’s report and from a psychiatric report that the appellant had a difficult upbringing and that she was addicted to drugs. The risk of re-offending was considered by the probation officer to be medium. A sentence of imprisonment was recommended.
Sentencing
On the Judge’s analysis the appellant:
[54] ... could be described as a crucial player in the ring but not an instigator or a mastermind or a prime mover or a controller, but somebody necessary to keep the ring operating.
Later the Judge expressed the view that the appellant had a “relatively significant role in the ring”.[2] This categorisation of the appellant’s role has not been challenged.
[2] Also at [54].
Having concluded that the supply of methamphetamine charges fell within band one of R v Fatu[3] (starting point of two to four years imprisonment) and that R v Ho[4] justified a starting point on the importation charges of approximately three years, Judge Gibson adopted an overall starting point of four years imprisonment. He then applied a discount of six months to take into account that the appellant was addicted to methamphetamine, that she had moved to Hamilton to distance herself from Mr Monk, and that she had the charge of young children. A further discount of six months was allowed for the guilty plea, resulting in a final sentence of three years imprisonment.
[3] R v Fatu [2006] 2 NZLR 72 (CA).
[4] R v Ho HC Auckland CRI-2005-092-567, 12 April 2005.
Mr Monk was sentenced to imprisonment for 17 years and one month. The other two co-offenders were sentenced to four years and two and a half years respectively. Like the appellant these co-offenders had also pleaded guilty at a late stage.
This appeal
In support of his submission that the appellant’s personal circumstances were not adequately taken into account, Mr Cooke emphasised: the appellant’s difficult childhood; her addiction to methamphetamine at the time of the offending and the influence exerted over her by Mr Monk; rehabilitative steps taken by the appellant prior to sentencing, including her move to Hamilton and her involvement with the Bridge programme; and other matters addressed in the psychiatrist’s report from Dr McCormick that was before the District Court.
Mr Cooke also tendered a number of letters that had been prepared for sentencing. Unfortunately, these letters had been accidentally left in Hamilton by the appellant on the day of sentencing and had therefore not been considered by the sentencing Judge. We have taken those letters into account. Mr Cooke also referred to a number of decisions[5] which, in his submission, supported the proposition that the sentence of three years imprisonment was manifestly excessive and that home detention was the appropriate sentence. Finally, he suggested that the sentence was incompatible with the two and a half year sentence imposed on one of the appellant’s co-offenders.
Our analysis
[5]R v Haira HC Rotorua CRI-2007-063-991, 13 June 2008; R v De Serville HC Auckland CRI‑2006-004-18441, 29 August 2008; R v Perry HC New Plymouth CRI-2009-021-1570, 29 October 2010; R v Hopa HC Auckland CRI-2008-004-26262, 18 May 2010; R v Kissling HC Rotorua CRI‑2009-070-1557, 30 April 2010; R v Slape HC New Plymouth CRI-2009-043-2845, 22 September 2009.
When determining the starting point it was necessary for the Judge to take into account the totality of the offending. Once that approach is adopted it is clear that the four year starting point was within range. Indeed, the starting point was not seriously contested by Mr Cooke.
On the mitigating side the primary difficulty facing the appellant is that, as this Court stated in Chen v R:[6]
While the Court will not fetter the discretion to take [personal] circumstances into account, they carry little weight in sentencing for serious, drug-related offending given the vital need for denunciation and deterrence.
It is beyond argument that this offending was serious and that under those circumstances the appellant’s personal circumstances can carry little weight.
[6] Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174].
While it is true that the appellant has taken significant steps towards her rehabilitation, and she is to be commended for that, we have not been persuaded that the discount of six months allowed by the Judge was manifestly inadequate. Nor have we been persuaded that there is an unjustifiable disparity between the sentence imposed on the appellant and the sentence of two and a half years imposed on her co-offender. The reason for the difference was adequately explained by the Judge. Finally, we have not been persuaded that the cases cited by Mr Cooke demonstrate that the sentence is manifestly excessive.
We should add that even if we had reached the conclusion that the discount for mitigating factors was inadequate, we would have been obliged to take into account that this was more than offset by the extremely generous 14 per cent discount allowed by the Judge for the guilty plea.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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