The Queen v Clarke

[2008] NZCA 501

IN THE COURT OF APPEAL OF NEW ZEALAND

CA552/2008
[2008] NZCA 501

THE QUEEN

v

PAULA SUSAN CLARKE

Hearing:20 November 2008

Court:Arnold, Venning and Miller JJ

Counsel:N Cooke for Appellant

N P Chisnall for Crown

Judgment:28 November 2008 at 11.30 am 

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]       The appellant pleaded guilty to supplying a Class B controlled drug, oxycodone, and was sentenced by Judge McGuire to eight months’ imprisonment.  She appeals against that sentence. 

Background

[2]       On 13 January 2008 the appellant visited her former partner in prison.  She had concealed a package containing four oxycodone tablets on her body.  Oxycodone is an opiate commonly used for pain relief.  It is similar to morphine.  The visit was monitored by video camera.  A corrections officer observed the appellant passing the package to her partner.  The visit was terminated by prison staff and the package recovered.  When spoken to by the police the appellant admitted bringing the tablets with her to prison. 

The sentence

[3]       The Judge noted the pre-sentence report was not the most flattering.  The probation officer considered the appellant showed an ambivalent attitude to her offending.  The Judge also noted the appellant said her ex-partner had pressured her and that she had a daughter whose future care was in issue.  But the Judge considered that the supply of illegal drugs into prison was regarded as serious.  He considered a proper starting point to be one year’s imprisonment.  Taking account of mitigating factors including the guilty plea and the appellant’s largely good record he reduced that by a third to arrive at the end sentence of eight months.

Grounds for appeal and discussion

[4]       Mr Cooke (who was not trial counsel) first criticised the summary of facts as being in error in that it referred to:

(a)an allegation relating to the supply of cannabis when the charge was not before the Court;

(b)       morphine, when the substance supplied was oxycodone.

[5]       Mr Cooke is correct there were errors in the summary of facts, but the Judge was clearly aware of them.  The Judge properly sentenced the appellant on the basis of the one count of supply of a Class B controlled drug, oxycodone.  He amended the information accordingly.  There was no reference in his sentencing notes to the supply of cannabis.  There is nothing in this point.

[6]       Mr Cooke then submitted that the sentence was manifestly excessive because the appellant received little or no consideration for the fact that she was sentenced as a first offender.  That submission does not withstand scrutiny either.  The Judge recorded in his sentencing notes counsel’s submission that she had “largely a good record”.  He did not take issue with that.  The Judge reduced the start point of one year’s imprisonment by one third for mitigating factors.  In the absence of significant assistance to the police a discount of one third is the most that could be expected for a very early guilty plea by an offender with no relevant previous offending. 

[7]       Mr Cooke next submitted that the sentence left him with a feeling of unease and was manifestly excessive because the appellant was subject to pressure from her former partner, Mr Tua, to commit the offending.

[8]       In R v Metcalfe CA312/99 18 October 1999 this Court acknowledged that offending of this nature is often carried out under duress.  But the Court noted that the appellant chose to go into the prison.  She knew of the security at prison.  She tried to hide the drugs in order to supply the inmate.  A sentence of imprisonment was confirmed.

[9]       In R v Napia CA258/00 12 October 2000 the appellant was only 18 years old, poorly educated, and under the influence of a partner almost twice her age.  Relatively small quantities of drugs were involved.  This Court accepted that there were a number of personal factors which tended to mitigate and explain the offending and quashed the sentence imposed by the trial Judge.  But this Court still imposed a sentence of two years’ imprisonment.

[10]     The appellant is 33 years old.  The summary of facts recorded that Mr Tua had arranged for Ms Clarke to smuggle the drugs into prison.  The appellant told the probation officer that she was influenced by Mr Tua, and she had concerns in relation to her safety if she did not comply with his requests.  She said she had a protection order and had previously been threatened by him.  But the probation officer also noted that the appellant had said she had initiated the requisition of the tablets by trading them for marijuana of her own volition.  The appellant also told the probation officer that she intended to relocate to Australia to remove herself from Mr Tua’s influence but felt obliged to remain in contact with him for the sake of her daughter.  The pre-sentence report does not support the submission that the appellant’s will was overborne by the pressure placed on the appellant.

[11]     Mr Cooke accepted that the pressure placed on the appellant did not provide a defence but submitted the Court should nevertheless have inquired into it further by a disputed facts hearing.  But there was no need for such a hearing.  Sentencing proceeded on the basis that the appellant became involved in the offending at the request of her partner.  The Judge accepted that in cases of this kind there is an element of the offender being placed under pressure to commit the offending.  There was no basis for a disputed fact hearing under s 24 of the Sentencing Act 2002, quite apart from the fact none was sought.

[12]     Mr Cooke also referred to the appellant’s stated concern for her seven-year-old daughter.  To the extent this was a relevant factor, the Judge was aware the appellant had a dependant child.  The report noted that Child, Youth and Family had an involvement with the appellant and her daughter already and that her mother had become involved with the child.  We note that the appellant in Metcalfe also had a nine-year-old son.

[13]     The challenge to the sentence of eight months’ imprisonment as manifestly excessive must be considered in context of the maximum penalty of 14 years’ imprisonment and against sentences imposed in other cases involving offending of this nature.  A review of the authorities confirms that the supply of drugs into prison and the effect that has on the administration of the prison is to be regarded as serious and of particular concern. 

[14]     In Napia this Court noted that:

[12]     Deterrence is an important aspect of sentencing in relation to the smuggling or attempted smuggling of drugs into prisons. ... First, there is a difficulty in managing prisoners indulging in drug taking with consequential implications for security and risks of harm. Second, any illicit market within the prison tended to be dominated by stronger inmates and stand-over tactics were common. Third, the availability of drugs interfered with management for rehabilitation. The consequences of smuggling drugs into prisons warrant a policy of deterrence and having regard to the deliberate premeditated nature of such offending deterrent policies can be expected to be generally effective.

[15]     In Napia a sentence of two years was imposed.  Reference can also be made to the cases of R v Callard, CA266/97 16 September 1997, where a sentence of three and a half years’ imprisonment for attempting to smuggle 40 tablets of the Class B controlled drug morphine into a prison was upheld, and R v Stephens CA323/98 10 December 1998, where an appeal against a sentence of three and a half years’ imprisonment for attempting to smuggle 53 Ritalin tablets into a prison was dismissed.

[16]     The case of Metcalfe is perhaps closest on the facts to the present.  The appellant pleaded guilty to a charge of possession for supply of a Class B controlled drug, morphine.  She was stopped at a checkpoint by prison staff.  The tablets had a street value of about $300.  She was sentenced to 15 months’ imprisonment after allowance of a six month discount for a guilty plea.  This Court concluded that was an entirely proper sentence.

[17]     Considered against those authorities, the start point in this case of 12 months was well within range and indeed might be seen as lenient.  The discount of one third for the guilty plea and other favourable mitigating circumstances was conventional and cannot be criticised. 

Home detention

[18]     The remaining issue is whether home detention was appropriate. We would have been assisted by the Judge’s consideration of that issue.  In the absence of the Judge’s reasons for not imposing home detention, Mr Cooke submitted the appellant “ticked all the boxes”.  We cannot agree.  The pre-sentence report did not recommend home detention.  This is not a case such as R v Hill [2008] 2 NZLR 381 (CA) where there was evidence of a strong desire to rehabilitate. While the appellant said she was attending counselling for alcohol and drugs that appears to have been in response to a Child, Youth and Family initiative. She denied having any issues with drugs or alcohol when speaking to the probation officer.

[19]     Offending of this nature requires deterrence, which may not be sufficiently reflected by the imposition of a sentence of home detention.  In R v Guthrie [2008] NZCA 439 the appellant was found in possession of drugs when visiting Mt Eden Prison. She was convicted of possession for supply. She was assessed as having an extremely low risk of reoffending, and her offending was regarded as situational. Despite that, this Court declined her application for home detention, emphasising that deterrence had to be the predominant factor in her sentencing. Also, in Napia this Court observed (at [14]):

… two years imprisonment is both appropriately punitive and sufficiently cognisant of the need to deter. However we cannot accept that there should be either a further suspension of sentence or leave granted to apply for home detention. Such a course would be inappropriately lenient having regard to the circumstances of the particular case, and insufficiently supportive of a necessary policy of deterrence.

[20]     We conclude that home detention was not an appropriate sentence in this case. 

Result

[21]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington