Sudol v Police
[2014] NZHC 1264
•6 June 2014
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2014-412-000013 [2014] NZHC 1264
BETWEEN JESSICA ANNE SUDOL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 June 2014 Appearances:
M A Stevens for Appellant
R D Smith for RespondentJudgment:
6 June 2014
JUDGMENT OF GENDALL J
Introduction
[1] Jessica Anne Sudol (“Ms Sudol”) appeals against a sentence of 30 months imprisonment imposed on 29 April 2014 by Judge Bouchier in the District Court for one representative count of offering to sell a Class B controlled drug.
[2] The appeal is advanced on two grounds:
(a) The sentence is manifestly excessive.
(b)The Judge erred at law in determining the appropriate sentence by: (i) Failing to give a discount for personal circumstances; and
(ii)The discount for guilty plea was applied before uplift for previous convictions, resulting in a lesser discount than if the
uplift was applied before the discount.
SUDOL v NEW ZEALAND POLICE [2014] NZHC 1264 [6 June 2014]
Background facts
[3] Between 7 October 2013 and 20 December 2013 (“the period”) Ms Sudol, who at age 23 had been diagnosed with ADHD and prescribed Ritalin, was regularly sourcing, using and selling additional doses of Methylphenidate (Ritalin). She offered the drugs on a number of occasions to five people. On one occasion she offered to supply eight cards (80 tablets) for $1,000. During the period Ms Sudol offered to supply in total approximately 491 20 mg tablets, with a value of approximately $4,910 ($10 per pill, or $100 per 10 pills).
[4] Ms Sudol is now aged 28 years. She has a […] year old daughter (“X”) for whom Ms Sudol has primary care. [X] attends the […] early learning centre. Ms Sudol contends that if she is imprisoned, there is no one else available to look after her daughter.
[5] Ms Stevens, her counsel, contends that Ms Sudol experienced a difficult childhood which involved neglect and physical and verbal abuse. She says Ms Sudol is therefore making a concerted effort to ensure her daughter experiences a loving, caring upbringing. The defence suggests that Ms Sudol engaged in this offending in order to ensure she and [X] were able to obtain the necessities of life, such as groceries, and to enable Ms Sudol to purchase birthday and Christmas presents for [X].
[6] As to previous offending, Ms Sudol has an extensive history of criminal and traffic offending.
[7] Included in this history are five convictions involving possession of drugs and drug utensils, and 12 convictions for breaching community based sentences or prison release conditions. This is her first appearance for supply of drugs.
Pre-Sentence Report
[8] In the pre-sentence report before the District Court at sentencing, home detention was recommended. The report reiterated that Ms Sudol says she sold the drugs:
…because she was ‘desperate for money’ to meet expenses for her daughter’s birthday (October) and Christmas. She asserted she had not been selling for long.
[9] The report then goes on to state:
These minimisations and justifications undermine remorse and indicate pragmatic criminal decisions… Community Probation Services records note she experienced neglect and violence during her formative years and she gravitated to criminal associations, polysubstance abuse, and offending to meet lifestyle costs, including use of violence. She experienced several sentences of imprisonment from age 17 to 25 years…it appears her offending has reduced significantly since becoming a mother four and a half years ago.
[10] The report ultimately recognises fundamental issues with Ms Sudol’s approach to life, but also acknowledges that the birth of her daughter provided an impetus for change, which has proved to be somewhat successful. The report concludes by stating that Ms Sudol is an appropriate candidate for rehabilitation.
Statutory Requirements
[11] Under the Sentencing Act 2002 the following purposes of sentencing may well be seen as relevant here:
(a) Accountability for harm done to the victim and the community (s
7(1)(a))
(b)Promoting a sense of responsibility for, and an acknowledgement of, that harm (s 7(1)(b))
(c) Denunciation (s 7(1)(e)); (d) Deterrence (s 7(1)(f));
(e) Protection of the community (s 7(1)(g)); and
(f) Rehabilitation (s 7(1)(h)).
[12] And the following principles of sentencing I am to take into account and which are broadly relevant in this case are:
(a) The gravity of the offending and the degree of culpability of the offender (s 8(a));
(b)The seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed (s 8(b));
(c) The maximum penalty must be imposed if the offending is within the most serious of cases, unless circumstances relating to the offender make that inappropriate (s 8(c));
(d)A penalty near to the maximum must be imposed if the offending is near to the most serious of cases, unless circumstances relating to the offender make that inappropriate (s 8(d));
(e) The general desirability of consistency with appropriate sentencing levels (s 8(e));
(f) The least restrictive outcome that is appropriate must be imposed, in accordance with the hierarchy of sentence (s. 8(g));
(g)Any particular circumstances of the offender that makes a particular sentence disproportionately severe (s 8(h));
(h)The offender’s personal, family, whanau, community, and cultural background in imposing a sentence with some rehabilitative purpose (s 8(i)); and
District Court decision
[13] Judge Boucher in the District Court began by having regard to the guideline decision of R v Wallace & Christie1 which held that starting points of up to five years for offending of this type were appropriate. She referred also to certain other comparable cases I will refer to later where starting points of two years or two years three months’ imprisonment were adopted, in situations involving offending on a much lower scale than in the present case.
[14] The Judge accordingly adopted a starting point of three years imprisonment.
[15] Before adding an uplift of three months for Ms Sudol’s previous convictions the Judge gave her a credit of 25% for mitigating features which appeared to be solely in relation to her guilty plea. Aggravating features of the offending were also noted as being the quantity of drug offered, the duration of the period of supply and premeditation. Judge Bouchier found no mitigating features of the offending other than the early guilty plea noted above.
[16] Judge Bouchier then noted comments in the pre-sentence report which indicated that Ms Sudol appeared to be making a successful effort with her daughter to avoid the sort of upbringing she had herself in childhood. She acknowledged that whilst a sentence imposed might separate an offender from their child and this could be a ground to mitigate the length of a sentence, separation itself was not a ground for leniency. She then considered whether a sentence of home detention was a suitable one here but determined that in all the circumstances this was not appropriate.
[17] In conclusion, she adopted a three year imprisonment starting point with a
25% discount from this amounting to nine months. This brought the sentence down to 27 months with an uplift of three months applied for aggravating features giving a
final end sentence of 30 months’ imprisonment.
1 R v Wallace & Christie [1999] 3 NZLR 159 (CA).
Submissions for appellant Ms Sudol
[18] Before me, Ms Stevens accepted that an appropriate starting point here was the three year period adopted by Judge Bouchier. No real issue was taken also with the three month uplift imposed for previous convictions. This took the total starting point to 39 months. From there it is contended that the full 25% discount for guilty plea should have been applied on this figure to reduce the sentence by ten months (rounded) to come to an end figure of 29 months, a month less than Ms Sudol’s current sentence.
[19] Ms Stevens then maintains that a further discount from the 39 month figure would be appropriate to recognise Ms Sudol’s personal circumstances. She suggests this should be 10% or 15%.
[20] On this aspect, Ms Stevens said that Judge Bouchier in her decision had noted as possible mitigating features here several different factors. The first was the need for Ms Sudol to care for her child. The second related to her background and the fact that in recent years Ms Sudol has to an extent turned her life around and in particular she has made successful efforts in bringing up her daughter to avoid the sort of upbringing she had for her own childhood. Lastly, Ms Stevens noted Ms Sudol’s claim to significant financial hardship position at the relevant time.
[21] Ms Stevens then referred to s 8(h) and (i) Sentencing Act 2002 which require the Court to take into account any particular circumstances of the offender and her personal and family background in imposing any sentence.
[22] Notwithstanding this, Ms Stevens noted that Judge Bouchier gave no credit or discount at all for any of those mitigating features noted at para [20] above. She contended that this was quite unacceptable and a clear error here. Ms Stevens did accept that separation from a child will not in itself result in leniency in sentencing, particularly in cases of drug dealing where the emphasis is on denunciation and deterrence, but noted it can nevertheless legitimately be recognised in reducing the
severity of a sentence. This too had been acknowledged by the Court of Appeal in R
v Prior,2 R v Matafeo3 and R v Harlen.4
[23] Thus, Ms Stevens invited the Court to conclude that Ms Sudol’s personal circumstances should have been taken into account to give what was a total overall discount of between 35% and 40% (when added to the 25% guilty plea) but that Judge Bouchier without providing proper reasons had refused to do this.
Submissions for the Crown
[24] Mr Smith for the Crown made the essential submission that in this case the end sentence arrived at by Judge Bouchier of two and a half years imprisonment was appropriate and well within the range available having regard to the circumstances of the offending and the appellant’s personal circumstances.
[25] Mr Smith then addressed Judge Bouchier’s method at arriving at the final sentence. On this, he acknowledged that her calculation of the 25% guilty plea discount completed before the addition of the three months for aggravating factors, in terms of the approach suggested in Hessell v R,5 had clearly resulted in an overall loss to Ms Sudol of about 0.75 of a month credit on her final sentence.
[26] As to the credit sought also for Ms Sudol’s personal circumstances, Mr Smith accepted that the Sentencing Act 2002 does allow personal circumstances of the offender to be taken into account but noted that it is always the weight to be given to that aspect which is important. In this case he suggests that the District Court Judge was entitled, as she did, to consider those personal circumstances and then to decide that no weight was to be given to them. Mr Smith went on to emphasise that in terms of culpability, a large number of Ritalin tablets were supplied here by Ms Sudol. Further, he submitted that although these were difficult issues, Judge Bouchier was entitled to give no credit for the cessation or gap in Ms Sudol’s
offending which had broadly occurred since the birth of her daughter and further that
2 R v Prior (1993) 10 CRNZ 147.
3 R v Matafeo (1996) 14 CRNZ 276 (CA).
4 R v Harlen (2001) 18 CRNZ 582
5 Hessell v R [2010] NZSC 135.
she was entitled to adopt the approach she did in giving no additional credit for the fact that the sentence of imprisonment would separate her from her daughter.
Discussion
[27] As to relevant tariff cases, before me both parties accepted that R v Wallace and Christie [1999] 3 NZLR 159 (CA) is the applicable tariff case here. They also accepted that this offending falls into the middle to upper end of the lowest category of Class B offending. The Court of Appeal there said:
For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate.
[28] There does not therefore appear therefore to be any compelling justification for departure from the three year starting point position accepted by both Judge Bouchier and the parties.
[29] As to aggravating features of Ms Sudol’s offending, in this case, as in all drug offending involving supply, some measure of harm to the users and community at large occurs as a result. In addition, the supply of drugs is most often not a spur of the moment decision and it will involve at least some premeditation. In this case the premeditation was extensive. It involved going to a doctor with a concocted story designed solely to induce the doctor into prescribing more Ritalin.
[30] In most drug cases the ‘victim’ is ordinarily a willing participant. However, that conduct should not approbate the conduct of the offender. Additionally, in this case Ms Sudol was the sole offender so her involvement could not be categorised as limited on any interpretation of the word.
[31] Here, as I have noted, Judge Bouchier took a starting point of three years. For small scale commercial operations such as this, starting points of up to five years are acceptable.
[32] In Andrews v R6 the Court was required to consider offending involving
90 Ritalin tablets being less than one-fifth of the number supplied here. The Court did not disturb a sentence (and starting point) of imprisonment of two years, three months on appeal. And, in that case the appellant had the care of three children, one of whom was four years old.
[33] In Andrews the Court referred to R v Piper7 and R v Scott8 and observed that more pills were involved in Andrews than in either of those other cases. Piper involved 37 20 mg Ritalin tablets, 9.1 gms of loose cannabis head and 32 tinnies of cannabis with an approximate value of $1,750. There, a two year starting point was taken with a 100% uplift in the High Court for previous drug dealing offending, with that reduced to 50% on appeal. Scott involved 50 Ritalin tablets. In that case the offender’s sentence of two and a half years was upheld on appeal.
[34] In R v Brunt9 the tariff case was distinguished on the basis of what was seen as a lack of commerciality, but this case clearly turns on its own facts.
[35] The present offending involves quantities of Ritalin almost five and a half times greater than that involved in Andrews. The Crown, when appearing at sentencing, recommended that a starting point of three and a half to four years be taken. In all the circumstances it appears that the starting point of three years adopted by Judge Bouchier in the present case was if anything a lenient one. This option seems well within range, particularly given the tariff for such offending in Wallace.
[36] As to aggravating factors relevant to the offender, Ms Sudol has a significant criminal history. Relevant in this are convictions concerning her prior drug-use offending and non-compliance with imposed conditions. A three month uplift was recorded in the District Court for this and in my view that was appropriate. I note that this uplift could have readily been expressed in a per cent format, which might
even have increased the uplift, perhaps even significantly.
6 Andrews v R [2012] NZCA 76.
7 R v Piper CA345/05, 12 September 2006.
8 R v Scott CA34/04, 1 June 2004.
9 R v Brunt HC Christchurch CRI-2005-009-13777, 22 June 2006.
[37] As to mitigating factors relating to the offender, Ms Sudol entered an early guilty plea and was therefore accorded the maximum discount to which a person can be entitled of 25%.
[38] In Judge Bouchier’s view as I have noted above, no discount for other mitigating factors was seen as being justified or appropriate here. I repeat that Ms Stevens however has implored this Court to consider a further discount for Ms Sudol’s personal circumstances, the paramount considerations being her separation from her daughter, and issues of her remorse, her openness to rehabilitation and the fact that Ms Sudol had made major changes to turn her life around since the birth of her daughter.
[39] On the first aspect noted above, the broadly accepted starting point is that separation from a child, which will inevitably result in harm to that child, is not in itself a ground for leniency. This is particularly so when the principles of denunciation and deterrence predominate: R v Williams;10 Skelton v R11. This principle however can be departed from where imprisonment would cause exceptional hardship to family members: R v Prior;12 R v Matafeo13.
[40] Clearly the Court in this case must have some sympathy for Ms Sudol and the predicament into which she has placed herself. In all the present circumstances, however, the question remains whether there may be good reason why this case falls outside the normal/usual and into that category of exceptional cases warranting leniency in itself because of hardship to family. Judge Bouchier considered this request and denied it. She was well placed to assess those submissions. While the unfortunate consequence is that a child will be without direct mother care for a period of time, the responsibility for that must fall squarely at the feet of Ms Sudol. And as I understand the position, the care of Ms Sudol’s daughter has been taken properly addressed as this presently rests with her maternal grandparents, Ms Sudol’s
parents.
10 R v Williams CA23/05, 15 March 2005 at [20].
11 Skelton v R [2011] NZCA 35 at [40].
12 R v Prior (1993) 10 CRNZ 147 (CA).
13 R v Matafeo (1996) 14 CRNZ 276 (CA).
[41] I turn now to consider a possible discount for Ms Sudol’s other personal circumstances, that is her remorse, her suggested openness to rehabilitation and the fact that since the birth of her daughter she has made significant changes to turn her life around. On these aspects, it is clear from s 8(h) Sentencing Act 2002 and decisions such as R v Peehi14 that such personal circumstances can be taken into account in cases of drug dealing sentencing such as the present.
[42] Here, Ms Sudol has not denied her offending or claimed innocence which were factors in Andrews v R15 which were seen to limit the Court’s options in providing a discount for personal circumstances in a similar situation of drug dealing offending.
[43] As I have noted above, in her decision in the District Court Judge Bouchier noted at paragraph [18] Ms Stevens’ submissions as to mitigating factors in relation to Ms Sudol’s offending which were described as:
…her acceptance of guilt, remorse and willingness to engage in rehabilitation and responsibilities towards her daughter…and that the pre- sentence report emphasises the turnaround in her circumstances and that that turnaround is a significant one…
And, at paragraph [15] of her decision, Judge Bouchier noted comments in the pre- sentence report:
…that the defendant appears to be making a successful effort to avoid the
sort of upbringing she had for her own child…
[44] But, despite specifically mentioning these factors, it is clear that Judge Bouchier did not see fit to provide any sentencing discount relating to these aspects.
[45] Leaving aside whether this may simply have been a matter which was overlooked, I am of the view that in the circumstances prevailing here, these factors might well be seen as exceptional warranting some leniency that should be recognised by the granting of a small discount. There is no real dispute that the birth
of Ms Sudol’s daughter has to an extent brought about a change in her life which is
14 R v Peehi (CA430/02 24 March 2003).
15 Andrews v R [2002] NZCA 76.
something that must be regarded as positive and encouraging. This, together with her remorse and willingness to engage in rehabilitation should be acknowledged. And, as the Court of Appeal noted recently in Wood v R,16 where a 25.6% discount for personal circumstances was not disturbed (even though it was described as “generous) in a not entirely dissimilar case involving Class C drug dealing, a small discount in the present case could be seen as an expression of the least restrictive outcome principle.
[46] In my judgment a further modest discount from the overall sentence of 5%
should be allowed for these additional mitigating features.
Result
[47] The starting point in the District Court was 36 months. No issue is taken with the starting point. Adopting this 36 month period and adding the three month uplift to be applied at this stage takes the sentence to 39 months. From this is to be deducted the 25% discount for Ms Sudol’s guilty plea and the further 5% discount for the additional mitigating features noted above, making a total discount of 30% which amounts to a rounded off figure of 12 months. Deducting this from the 39 months figure leaves a final sentence of 27 months, or two years and three months.
[48] For the reasons outlined above this appeal succeeds. The District Court sentence is quashed and in its place a sentence of two years and three months is imposed.
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Gendall J
Addendum dated 8 July 2014
This is a redacted copy of my original judgment dated 6 June 2014 to delete name
and identifying features of the appellant’s daughter referred to in paragraphs [4] and
16 Wood v R [2014] NZCA 183.
[5] of this judgment.
...................................................
Gendall J
Solicitors:
Anne Stevens, Dunedin
RPB Law, Dunedin
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