The Queen v H

[2010] NZHC 17

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2009-043-001288

THE QUEEN

v

H

Hearing:         24 November and 9 December 2009, and

4 February 2010

Appearances:  D A Bell for the Crown

G C Gotlieb and J D Pennick for the Prisoner

Judgment:      4 February 2010

SENTENCE OF DUFFY J

Counsel:     G  C  Gotlieb  P  O  Box  47369  Ponsonby  Auckland  1144,  and  J  D  Pennick

14 Greenslade Crescent Northcote North Shore 0627, for the Accused

Solicitors:   Meredith Connell P O Box 2213 Shortland Street Auckland 1140 for the Crown

R V H HC AK CRI-2009-043-001288  4 February 2010

[1]      Ms H  , since you have  withdrawn  the  s  106  application  for  a  discharge without conviction, I now have to enter convictions against you on the four charges

to which you pleaded guilty.

[2]      Ms H  , having pleaded   guilty   to   four   charges   of   possession of methamphetamine for supply under s 6(1)(e) and s 6(2)(c) of the Misuse of Drugs Act 1975, you are hereby convicted on all four charges.

[3]      Ms  H  ,  the  charges  to  which  you  have  pleaded  guilty  carry  a  maximum penalty   of   life   imprisonment,   and   under   s   6(4),   there   is   a   presumption   of imprisonment for offences of this nature.

[4]      The police summary of facts shows that:

a)        On     17     December     2008,     you     purchased     five     grams     of methamphetamine, for $3,500;

b)        On 30 December 2008, you purchased four grams for $2,000;

c)        On 4 to 5 January 2009, you purchased 10 grams for $6,000; and

d)       On 27 January 2009, you purchased 14 grams for $6,000.

All purchases were from a supplier by the name of Pauline Bishop.  The total amount

of methamphetamine you obtained from Ms Bishop comes to 33 grams.  Of the four purchases  of  methamphetamine,  three  of  them  were  of  amounts  in  excess  of  the presumption  in  s  6(6),  which  deems  the  possession  of  five  grams  or  more  of  a class A drug to be for the purposes of supply.

[5]      At the time you  entered  your  guilty  pleas,  the  Court  which  took  the  pleas refrained  from  entering  convictions  against  you  on  the  ground  that  you  would  be making an application for a discharge without conviction. I consider it is very much to your credit that today you have responsibly recognised that your circumstances do not warrant a discharge without conviction.

[6]      Before applying the relevant principles of sentencing to your offending, it is necessary for me to make factual findings on the nature of your offending as it was described in the disputed facts hearing which I heard last year.   At that hearing you disputed the Crown’s contention that there was an element of commercial supply in your  offending. You  accept  that  you  have  committed  the  offence  of  supplying methamphetamine, but you contend that your supply was limited to giving it to your former  husband,Tony  H  ,  and  that  you  have  never  dealt  in  methamphetamine. Today  you  will  have  heard  the  Crown  concede  that  it  accepts  there  was  no commerciality in your offending.

[7]      Before dealing with the facts and working my way through the principles of sentencing, I will say now that I do not intend to impose a sentence of imprisonment.

[8]      As a result of the evidence I heard at the disputed facts hearing, I have concluded that there is no evidence to suggest you obtained methamphetamine for a commercial purpose. Your evidence, which I accept, was that you obtained the drug

to provide relief to Mr H   to mitigate the stupifying side effects of the pain relief medication   he   was   taking,   so   that   before   he   died   he   could   enjoy   better communication with the young teenage son you and he have.

[9]      Apart from your own evidence, I have reached the conclusion there was no commercial  purpose  of  your  offending  because  there  is  no  evidence  of  the  usual indicia of drug dealing being found in your possession.  For example, you were not found in possession of large sums of money, which you were unable to explain.   In your case, there had been a recent matrimonial property settlement, and the police were  able to trace the money you used to purchase the methamphetamine.   It was clear  that  the  funds  you  used  came  from  a  legitimate  source;  namely,  the  sale  of matrimonial property.  Nor were you found to be in possession of what are known as “tick books” in which drug dealers regularly record the amounts of drugs supplied, and the amounts owed to them.   A set of scales and a glass methamphetamine pipe were  found  when  police  searched  your  home,  but  you  have  said  that  this  pipe belonged to your partner, Barry.  Whether it did or not, it does not provide evidence from which I could have drawn an inference that you were commercially supplying methamphetamine. Possession of a methamphetamine pipe points to use of the drug, rather than to supply to others. Nor do I consider that the set of scales found at your

home  can  of  themselves  supply  evidence  to  support  an  inference  of  commercial dealing.  It is just as probable that someone who was obtaining methamphetamine at the  amounts  you  obtained  from  a  supplier  might  use  scales  in  order  to  check  the amount received.   You have denied doing this, but I note that the transcripts of text messages  the  police  obtained  included  one  where  you  were  recorded  as  advising your supplier that a previous amount you had bought was short in weight, and you queried whether you should pay less for the next amount, or get an extra amount to make up for the previous shortfall.  You could only have known that if the amounts received were being weighed on their receipt.

[10]     There is also the evidence obtained by the police which records a discussion you had with your supplier about her supplying methamphetamine to your stepson.

At the time these communications were made, you were someone who was obtaining methamphetamine from the supplier.   If you were going to supply commercially to others, the opportunity of satisfying your stepson’s desire for methamphetamine was available  to  you. But  rather  than  do  that,  you  essentially  acted  as  a  go-between between him and your supplier.  Whilst this in itself can amount to a separate offence of  aiding  and  abetting  in  the  supply  of  methamphetamine,  it  is  evidence  which contradicts a suggestion that you were commercially dealing in methamphetamine.

[11]     Furthermore, there is the fact that although this was a police operation that covered  a  long  period  of  time,  your  purchases  covered  a  six  week  period  which stopped  in  February  2009,  a  time  which  coincided  with  the  death  of  Mr  H  . Having  heard  your  evidence,  and  weighed  that  up  against  the  other  evidence available to me, I have concluded that there is nothing to show that you were in the business  of  commercial  supply. And  today  the  Crown  has  reached  the  same conclusion.

[12]     Nonetheless, your offending is relatively severe. You are someone who has procured a total of 33 grams of methamphetamine, and provided it to another person

for his use. The supply of class A drugs is far more serious than the supply of other classes of drugs within the Misuse of Drugs Act. Indeed, Parliament, in s 6(4) of the Act, has indicated that generally possession of methamphetamine for supply should result in a sentence of imprisonment. Your explanation has been that you obtained the methamphetamine to help  your  terminally  ill  former  husband.  It has  not,

however,  been  made  clear  to  me  that  there  were  no  medically  prescribed  drugs available that could have a similar effect in alleviating the stupifying side effects of the  pain  relief  he  was  taking;  and  I  have  heard  nothing  from  a  qualified  medical practitioner  to  support  any  basis  for  saying  the  methamphetamine  was  of  unique assistance when it came to alleviating those side effects.

[13]     In any event, methamphetamine is a class A controlled drug.  It is no excuse

for persons to attempt to justify their involvement with this drug on the ground it is

of  medicinal  benefit. Such  explanations  carry  no  weight.       In  Filo  v  Police  HC Wellington  CRI  2007-485-61,  13  September  2007,  a  case  of  an  application  for  a discharge  under  s  106  of  the  Sentencing  Act  2002,  where  the  offender  had  used cannabis  for  medicinal  purposes,  the  Court  refused  a  discharge,  and  did  not  place any weight on the purpose for which the cannabis was being used.

[14]     You have attempted to suggest that your offending was victimless, but I do not  accept  that.   You  must  realise  that  by purchasing  drugs  from  Ms  Bishop,  you provided   revenue   to   the   dealer   and,   further   downstream,   the   importer   or manufacturer of the methamphetamine and that, in doing so, you assisted in the illicit operations of those persons.   In this admittedly indirect way, you did contribute to the overall harm methamphetamine does to the community.

[15]         There is also evidence of your own use of methamphetamine, although it is said to have been in the past and infrequent.  But, when searched by police, you were found with a ziplock bag with traces of methamphetamine in your wallet.  Such bags are generally known as point bags, because they are used to contain supplies of point one of a gram of methamphetamine.  Your explanation was that you had forgotten it was in  your wallet.   But, nonetheless, this evidence, when taken  together with the evidence  of  your  willingness  to  assist  your  stepson  to  obtain  his  own  supply  of methamphetamine, reveals you are not a stranger to this drug.  It shows that you are someone who was prepared to engage in the illegal use of a class A controlled drug. It is perhaps for that reason today that you have sensibly recognised that this aspect of  your character alone  would have made it difficult for  you to obtain a discharge without conviction.

[16]     The pre-sentence report recommended a sentence of home detention, and reported that there was no difficulty in you serving  a  sentence  of  home  detention from your current address. The report writer has assessed you as having a low risk

of re-offending, and being a good candidate for an electronically monitored sentence. You have acknowledged to the report writer the negative effects of methamphetamine, although you said you believed you were doing the right thing at the time.

[17]     You are the mother of two children, a teenage boy and a 10 month old baby. You were once a successful business    woman, having established the “Moontide Swimwear”  company  when  you  were  18  years  old.  The  business  was sold  in  2008,  and  you  now  receive  the  domestic  purposes  benefit. You  have  a supportive family, and your mother regularly travels to Taranaki to help with child care.   The  support  you  enjoy  from  your  family  is  visible  to  me  today,  with  your mother’s presence here today, and also that of your teenage son.

[18]     Under  the  Sentencing  Act,  to  arrive  at  a  final  sentence  I  am  required  to identify an  appropriate  starting  point.   The  Crown  started  off  with  the  submission that a starting point of four and a half years was appropriate and in accordance with the tariff set out in R v Fatu [2006] 2 NZLR 72 (CA). However, this was said on the basis your conduct involved commercial supply. The Crown now accepts it does not and, as I understand the Crown, it has moved away from a starting point of four and a half years.

[19]     Nonetheless, the Crown has identified aggravating features of the offending

as being the socially destructive characteristics of methamphetamine, and the amount

of methamphetamine supplied.   The Crown identifies relevant mitigating factors as being your guilty plea and lack of previous convictions.

[20]     On your behalf, your counsel points to your remorse and your willingness to make  a  substantial  donation  to  any  drug  rehabilitation  centre. Your  counsel  has identified the following mitigating facts:

a)        Your  purchase  of  the  methamphetamine  was  not  for  the  purpose  of your own financial gain;

b)        There  was  nothing  to  suggest  you  supplied  anyone,   other   than

Mr H  ;

c)        Your admitted use of methamphetamine, it is said, is not relevant to your sentencing;

d)The  glass  methamphetamine  pipes  and  scales  found  in  your  home have not been attributed to your ownership;

e)        The fact that one of your partners is now in prison for drug use is said

to be irrelevant, and I accept that is so;

f)        It  is  said  your  actions  regarding  your  stepson  and  assisting  him  to obtain  methamphetamine  are  not  relevant. I  consider  that  they  do have some relevance in that they are a factor to take into account in terms of assessing your overall character; and

g)        I do accept the submission that it is in  your favour that  you did not supply methamphetamine to your stepson, even though it would have been possible for you to do so.

[21]     Your  counsel  submits  that  in  terms  of  Fatu,  your  case  falls  within  band  2, which   normally   attracts   a   starting   point   of   between   three   to   nine   years’ imprisonment. However,  Fatu  at [42] states that a lack of commerciality and aggravating features allows sentencing judges to sentence beneath the bands.

[22]     In  R  v  MacPherson  HC  Hamilton  CRI  2006-019-1950,  11  May  2006, Ellen France  J  indicated  that  the  method  of  analysis  in  Fatu  may  be  of  limited applicability  to  cases  involving  non-commercial  giving  of  a  large  quantity  of methamphetamine.  Thus, your counsel submits that the assistance of Fatu should be considered with caution, if considered at all.

[23]     Your  counsel  submits  that  the disputed facts hearing has  demonstrated that neither of the Crown’s alleged aggravating features are present. The social harm and addictive nature of methamphetamine, it is said, is not a relevant consideration, as

the drug was provided to a terminally ill person for medical reasons only.   I do not accept   that   because,   as   I   have   already   commented,   indirectly   by   supporting manufacturers and dealers of methamphetamine, you have contributed to the social harm.

[24]     It  is  also  submitted  that  commerciality  should  not  be  assumed  from  the amount of money you spent on methamphetamine.   I have already indicated that is correct.

[25]     Your counsel has submitted that you should receive a full one-third credit for

a  guilty plea  in  that,  insofar  as  the  Crown  has  suggested  that  you  did  not  enter  a guilty plea promptly in terms of the requirements expressed in the recent Court of Appeal decision in R v Hessell [2009]  NCA 450, it is said that  you should not be held to those requirements because the judgment was delivered after you had entered a  plea. You  could  not,  therefore,  have  known  of  the  requirements  stipulated  in Hessell for obtaining a full benefit of a guilty plea.   I understand the sense in what you  say,  it  fits  with  and  is  analogous  to  the  common  law  principle  against retrospectivity in penal legislation discussed in R v Pora [2001] 2 NZLR 37 (CA). But I am bound by the Court of Appeal’s decision in Hessell as at [74], the Court of Appeal said:

The  new  guideline  should  be  applied  to  all  sentencing  taking  place  from tomorrow on …

[26]     It  was  only  in  those  cases  where  sentencing  indications  had  already  been given  and  relied  on  by  defendants  that  sentencing  judges  were  to  adhere  to  those indications  rather  than  follow  the  Hessell  guideline,  unless  the  guideline  yielded  a more favourable result than the indication.

[27]     Given this statement in Hessell, I consider that I have  to  treat  the  entry  of your guilty plea in accordance with the guidelines Hessell sets out. I do not consider, therefore, that the entry of a guilty plea at the deposition stage can be said to  qualify  as  the  entry  of  a  guilty  plea  at  the  first  reasonable  opportunity,  which would entitle you to a full discount.

[28]     Your  counsel has submitted the   appropriate   starting   point   is   one   of

18 months.   It  is  submitted  I should  give  a  40  per  cent  discount  from  the  starting point,  and  there  is  reliance  on  R v Flavell HC Auckland CRI-2008-092-7352, 21 November 2008 where a 40 per cent discount was given for a guilty plea at the earliest opportunity.

[29]     I am asked to give significant weight to your personal circumstances, due to the unusual facts of the case, and it is submitted that a discount greater than that in Flavell is warranted; here, it is said to be 50 to 60 per cent.

[30]     Your counsel says I should give credit to you as a first offender, who has co- operated with the police, and that is correct.  You have been willing to give evidence

for  the  Crown  at  the  trials  of  the  co-accused,  if  required;  and  it  is  submitted  that when all relevant discounts are applied, the final imprisonment term is well below one  year,  and thus, a community-based sentence  (either community work or home detention) should be substituted for a term of imprisonment.

[31]     It  is  said  on  your  behalf  that  your  offending  was  the  consequence  of  an emotionally overwhelming situation, and is deserving of the Court’s leniency.

Principles and purposes of sentencing

[32]     In reaching a decision on the appropriate sentence, I am required to take into account the principles and purposes of sentencing.  For the purposes of sentencing, I consider the relevant purposes are:

i)        to  hold  you  accountable  for  the  harm  done  by  the  offending (s 7(1)(a));

ii)to promote a sense of responsibility and acknowledgement of harm (s 7(1)(b));

iii)      to denounce the conduct   in   which   you   were   involved

(s 7(1)(e));

iv)to  deter  you  and  other  persons  from  committing  a  similar offence (s 7(1)(f));

v)       to protect the community (s 7(1)(g)); and

vi)      to assist in your rehabilitation and reintegration (s 7(1)(h)).

[33]     In terms of the principles of sentencing, I consider the relevant principles to take into account are:

i)        the gravity of the offending, including the degree of culpability

(s 8(a));

ii)the seriousness of the type of offence in comparison with other offences (s 8(b));

iii)      the general desirability of consistency (s 8(e));

iv)      I must impose the least restrictive outcome that is appropriate

in  the  circumstances,  in  accordance  with  the  hierarchy  of sentences and orders set out in the Sentencing Act (s8(g)); and

v)I  must  take  into  account  any  particular  circumstances  that mean that a sentence or other means of dealing with you that would   otherwise   be   appropriate   would,   in   the   particular instance, be disproportionately severe (s 8(h)).

Aggravating and mitigating factors

[34]     In terms of the aggravating features of your offending, those that I consider relevant are premeditation: you bought the drugs on at least four occasions, and there was a significant text message correspondence involved in setting up the sales.  This is not a significant factor, but it was present.

[35]     Methamphetamine is a dangerous and addictive drug.  Even though you were not supplying it to the general public, it should still be recognised that this drug has

become  a  scourge  in  our  society and,  by purchasing the  drug,  you  have  helped  to keep the manufacturers and suppliers of the drug in business.

[36]     I accept, in terms of mitigating factors, the lack of commerciality involved in your conduct, and I accept you were supplying to one person, and that that was done

in circumstances that would have been emotionally overwhelming.  I accept you did not charge Mr H   for the supplies.

[37]     There are no aggravating factors in relation to yourself.

[38]     In  terms  of  mitigating  factors,  there  is  the  guilty  plea  on  the  day  of depositions, and I consider a discount should be given, although not the maximum discount.  As I have already said, this is due to the guidelines in Hessell which apply to all sentencing after 2 October 2010.

[39]     You  are  entitled  to  a  discount  for  your  good  character  in  that  you  have  no previous convictions, and I also consider you are entitled to credit in sentencing for the responsible attitude you have demonstrated today in withdrawing the application for  a  discharge  without  conviction. That  to  me  indicates  you  fully  realise  the seriousness of your offending and are remorseful for it.

Relevant case law

[40]     Cases  which  I  consider  relevant  to  a  starting  point  are  R  v  White  HC Auckland  CRI 2006-019-1754,  30  June  2006  where  Asher  J,  in  relation  to  a  total weight of methamphetamine of 25.7 grams, adopted a starting point of four years.

[41]     R  v  Yorston  HC  Auckland  CRI  2005-004-18740,  19  May  2006,  where Priestley  J,  in  dealing  with  25.88  grams  of  methamphetamine,  adopted  a  starting point of four years, three months.

[42]     R v Reti HC Auckland  CRI  2004-044-4049,  16  December  2005,  where

Allan J on one charge of possession of methamphetamine for supply, an amount of

30 grams, found the case to be at the lowest end of band 2, calling for a starting point

of three years.

[43]     In  R  v  De  Serville  HC  Auckland  CRI  2006-004-18441,  29  August  2008, where Lang J, dealing with an amount 30 grams, adopted a starting point of four and a half years.

[44]     In all those case, however, there was some element of commerciality, where here there is not, and that to me justifies a lower starting point.

[45]     Under normal circumstances where there is  an  element  of  commerciality, offending  which  involved  33  grams  of  methamphetamine  would  attract  a  starting point  of  between  four  and  five  years’  imprisonment.   However,  as  you  were  only supplying  to  your  former  husband, there  is  the  mitigating  factor  of  a  lack  of commerciality  being  present. This  places  your  offending  at  the  very  bottom  of band 2, or indeed, in terms of the principle in MacPherson, it may remove it from band 2 altogether.   I consider that however it is formulated. the appropriate starting point here is one of three years’ imprisonment.   I find the case of Reti particularly helpful, as that case involved 30 grams of methamphetamine, and there there was a starting point of three years.

[46]     It  should  be  emphasised  that  your  case,  Ms  H  ,  has  unique  facts,  which means that a strict application of the bands in Fatu is not justified and, as I have said in this regard, the approach suggested in MacPherson, where a departure from the bands in Fatu may be warranted is relevant.

[47]     I do not consider your motive for your offending to have much weight in the sentence  I determine.   The fact that  you were supplying your terminally ill former husband  with  drugs  to  help  him  is  not  an  excuse  for  your  offending.  There  is authority  in  drugs  cases  that  having  a  good  motive  does  not  excuse  your  illegal conduct. For  example,  in  R  v  Heremaia  HC  Whangarei  CRI  2008-088-002483, 14 October  2008,  Venning  J  commented  that  the  fact  that  Heremaia  was  selling cannabis to obtain funds to enable her family to  travel to Auckland to support her mother during her chemotherapy treatment for cancer could not justify her offending.

[48]     Similarly, in R  v  Wong  HC Auckland  CRI 2008-092-012448, 5  May 2009, Priestley J also touched on this point.  He found a drug courier’s motive for bringing

drugs into New Zealand was to earn money to fund his father’s cancer treatment in

Hong Kong, and said (at [21]):

Although that type of motivation can engage the Court’s sympathy it cannot and should not justify this type of offending.  Nor can it be given significant mitigating weight.

[49]     I consider the only relevance that the unique personal circumstances of this case have is that they remove any notion of  commerciality from the supply of the methamphetamine, which is a key factor in the choice of a starting point.

[50]         Having  adopted  a  starting  point  of  three  years,  I  consider  that  when  I take into account your guilty plea and, in addition to that, your previous good character, your co-operation with the police, your responsible attitude in acknowledging today that convictions should be entered, and I give some minor weight to the emotional pressure you would have been under when you supplied your former husband with the  drugs,  I  reach  the  view  that  a  total  discount  of  one-third  is  appropriate.   This would bring the final end sentence down to two years’ imprisonment, which, in turn, qualifies you for home detention.

[51]     Everything I have seen in the pre-sentence report informs me that you are a suitable candidate for home detention. The Sentencing Act requires me to impose the  least  restrictive  outcome. I  consider  that  a  sentence  of  home  detention  is  the appropriate sentence to impose on you. Your counsel has suggested that I consider a sentence of  community  work  but,  given  the  nature  of  the  drug,  and  the  amount supplied, I consider that home detention is the least restrictive sentence I can impose on you, and that is why I will not impose any lesser sentence.

[52]     In  terms  of  home  detention,  lest  anyone  think  that  this  is  dealing  with someone  who  is  supplying  methamphetamine  too  lightly,  I  refer  to  the  Court  of Appeal’s comments in R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 where it was said of a sentence of home detention at [33]:

The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment.

[53]     I consider that someone who is the mother of a young child, and who is at minimal  risk  of  re-offending,  and  given  the  unique  circumstances  of  this  case,  is better  suited  to  serving  a  sentence  of  home  detention  than  to  serve  a  sentence  of imprisonment.  However, given the gravity of the offending, I consider that I should sentence  you  to  the  maximum  term  of  11  months’  home  detention. I  will  also impose  the  conditions  recommended  in  the  report  on  your  suitability  for  home detention.

[54]     Ms H  , will you please stand.

[55]     On  each  charge  of  possession  of  methamphetamine  for  supply,  you  are sentenced to home detention.  Those sentences will be served at the same time.  You are by no later than 5.00 pm on Saturday, 6 February 2010 to return and to remain at your address at 634 Upper Petone Road, Oakura, and there await the arrival of the probation officer and a representative of the security company.   You are to comply with all conditions of the sentence of home detention, and you are not to consume any illicit drugs for the term of home detention.   Although there was a suggestion that I should also impose a restriction on the consumption of alcohol, I will not do so.

Duffy J