The Queen v Paulette Tiahuia Napia
[2000] NZCA 236
•12 October 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 258/00 |
THE QUEEN
V
PAULETTE TIAHUIA NAPIA
| Hearing: | 27 September 2000 (at Auckland) |
| Coram: | Heron ACJ Tipping J Anderson J |
| Appearances: | P F Gorringe for Appellant |
| P K Hamlin for Crown | |
| Judgment: | 12 October 2000 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
Following trial before a High Court Judge and jury the appellant was convicted on one count of possession of the Class A drug Lysergide for supply, and one count of possession of the Class B drug cannabis oil for supply. On 18 July 2000 she was sentenced to three years imprisonment, concurrent, on each count. She now appeals against sentence, submitting that the appropriate sentence would have been imprisonment for not more than two years, coupled with an order for suspension of sentence or the grant of leave to apply for home detention.
On 19 November 1999 the appellant was found in possession of eight doses of LSD and a capsule of cannabis oil, as well as some cannabis plant, when she was checked at a road checkpoint within the grounds of Waikeria Prison. The LSD appeared to be strips cut from a single tab and had a total value of about $120. The Crown alleged that the appellant intended to smuggle the drugs to her de facto partner who was a remand inmate. The jury, by its verdicts, and the Judge, in his sentencing remarks, accepted that was the case.
The offending occurred only one day after the appellant and her partner had been convicted on their trial before a High Court jury on a number of other offences against the Misuse of Drugs Act 1975 relating to the supply and possession for supply of LSD, cannabis oil, methamphetamine, and cannabis. Upon conviction her partner had been remanded in custody but she had been granted bail. On 4 February 2000 she was sentenced to two years imprisonment on those charges but an order was made suspending the sentences for two years. The Judge in that case also imposed a sentence of seven months periodic detention and an order for supervision for two years. The sentences of imprisonment which had been suspended were not invoked at the time of the sentencing giving rise to this appeal because the present offences were committed before the earlier sentences were imposed. This is, therefore, not a case of flouting a lenient sentence. It is, rather, a case of a particular offender being undeterred by the jeopardy attending recent conviction for similar crimes and abusing the grant of bail. Subjective reasons for this may be relevant to the issue of an appropriate sentence.
The sentencing Judge in the present case had available a pre sentence report which noted limited literacy skills and susceptibility to the influence of others. The appellant was considered naïve in many respects, particularly with regard to her involvement with drugs. She was assessed as a high risk for re-offending and having only low to moderate motivation and ability to address the problems leading to her offending.
The Judge noted as aggravating factors the deliberate attempt to smuggle drugs into prison; the seriousness of offending in respect of LSD; and the commission of the offence only the day after conviction for similar offending.
In mitigation the Judge accepted that the appellant was young, poorly educated, under the influence to some extent of a partner almost twice her age, and that relatively small quantities of drugs were involved.
The Judge referred to cases where offenders had been sentenced for attempting to smuggle drugs into a prison. These included R v Callard, CA266/97, 16 September 1997, where this Court upheld a sentence of 3½ years imprisonment following conviction on trial for attempting to smuggle 40 tablets of the Class B controlled drug morphine into a prison; R v Stephens, CA323/98, 10 December 1998, where this Court dismissed an appeal against a sentence of 3½ years imprisonment for attempting to smuggle 53 Ritalin tablets into a prison; R v Metcalfe, CA312/99, 18 October 1999, where this Court upheld a sentence of 15 months imprisonment following a guilty plea to attempting to smuggle a small quantity of morphine into a prison.
Notwithstanding the mitigating features, including the appellant’s family responsibilities, the Judge considered that smuggling or attempting to smuggle drugs into a prison was too serious a matter to permit a sentence which would be amenable to suspension. He considered the least sentence he could impose, consistent with the authorities, was three years imprisonment.
Appellant’s Argument
Counsel for the appellant submits, as the essential point of the appeal, that the rehabilitative sentence imposed on 4 February 2000 should, in the overall interests of justice, be permitted to run its full course, given that the present offences occurred not after but well before that sentence had been imposed.
The appellant was 18 years old at the time of the earlier offending and 19½ at the time of the present crimes. Her counsel emphasised the difficulties she faced as a young mother with limited literacy and social skills, some measure of drug dependency and having been significantly under the influence of a 37 year old partner. He submitted that despite these difficulties, the pre sentence report for the present matters showed that rehabilitative progress had been made by the appellant since being sentenced in February 2000. The later pre sentence report indicated at least an expressed resolve to give up drugs and that the appellant’s supervising probation officer noted that she had responded positively to the community based sanctions imposed earlier. The appellant had been attending drug counselling with an approved counsellor and had completed a 10 week holistic programme which included issues of self esteem and assertion.
Crown Submissions
Central to the Crown’s opposition to the appeal was the public interest in deterring the delivery of drugs into prisons, emphasised by consistently firm sentences in other cases, such as those referred to by the sentencing Judge. No discount was available for a guilty plea or co-operation and the aggravating features noted by the Judge were significant. The effect of counsel’s submissions on behalf of the Crown was that the Judge had regard to all relevant factors and had sentenced on a correct principled basis. Although perhaps firmer than other Judges may have been in the circumstances, the sentence was not, in counsel’s submission, outside a permissible range.
Assessment of the Appeal
Deterrence is an important aspect of sentencing in relation to the smuggling or attempted smuggling of drugs into prisons. In Callard this Court referred to three principal concerns of the prison authorities in respect of illicit drug use or dealings by inmates. 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. In view of this the appellant’s conduct needs to be examined for reasons why she was not deterred.
There are a number of personal factors which tend both to explain and to mitigate the appellant’s offence. The pre-sentence reports for each sentencing and the sentencing notes of each of the Judges show the appellant to be an immature and dependent young woman. At the time of her present offence she had one infant and was in an early stage of pregnancy with another. The stress of trial with her partner and then of separation when he was remanded in custody are relevant circumstances. Plainly her judgment was affected by these very personal considerations and her conduct appears to have been an ingenuous attempt to get to her partner the solace of a small quantity of drugs. These matters distinguish her case from Callard where the amount of drugs was substantial, the offender a person of greater maturity, and the crime involving more deliberation. The features of Stephens were similar to Callard.
Although the sentencing Judge rightly stressed the importance of deterrence, we think, with respect, that there were indications for greater mercy and more recognition of the disparity between this offender and the others we have mentioned. In our judgment a sentence of 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.
For these reasons the appeal against sentence is allowed. The sentence of three years imprisonment is quashed and a sentence of two years imprisonment is substituted.
Solicitors
Crown Solicitor, Auckland
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