R v Smith

[2018] NZHC 1763

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-044-004279 [2018] NZHC 1763

THE QUEEN

v

ARNA IWI ODETTE SMITH

Hearing:	17 July 2018
Counsel:	FMT Culliney for Crown MP Hislop for Defendant
Judgment:	17 July 2018

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Auckland. MP Hislop, Auckland.

R v SMITH [2018] NZHC 1763 [17 July 2018]

Introduction

[1]                Ms Smith, you appear for sentence on seven charges:

(a)Six of possessing methamphetamine for supply.

(b)One representative charge of supplying methamphetamine.

As you will have been told, life imprisonment is the maximum penalty for each.

Facts

[2]                On 12 June 2016, Police seized 501 kilograms of methamphetamine in Northland.  Related investigations uncovered your offending:

(a)On six occasions between 30 September and 9 November 2016, you possessed methamphetamine.  On each, the amount ranged between  14 grams and 84 grams. In total, you possessed 252 grams over this period.

(b)Between 30 September and 15 December 2016, you sold all 252 grams of the drug to others. You would then pay your supplier, Mr X. You said you paid him between $8,000 and $9,000 per ounce, albeit price varied. You acknowledged to Police you made “some money” from drug dealing.

[3]                In his written submissions your lawyer, Mr Hislop, says you used some of the methamphetamine, and so did not supply it all. However, this submission is directly contrary to the summary of facts, which you agreed was correct when you pleaded guilty.1

[4]                In summary, you possessed and dealt just over a quarter of a kilogram of methamphetamine in the last quarter of 2016.

1      The last page of the summary records, “Between 30 September 2016 and 15 December 2016 the defendant supplied a total of 252 grams of methamphetamine to persons unknown”.

Starting point

[5]                The prosecution and Mr Hislop agree your offending attracts a starting point of between seven and a half to eight years’ imprisonment.2 I adopt a starting point at the lower end of this range—seven and a half years—for two reasons. First, you were a street dealer, or acting at a level broadly in the position of a street dealer. Second, this starting point better respects that adopted in relation to your co-offenders. For example, a starting point of 12 and a half years’ imprisonment was adopted in relation to Mr X, your supplier.3   He supplied much more methamphetamine than you.

[6]                You are not a first offender, but your criminal record is irrelevant today. Nothing you have done previously aggravates your offending.

Mitigating factors?

[7]                You are still quite young—29. You told the pre-sentence report writer you sold these drugs to put food on the table for your children. If true, this is not mitigating. Your children were entitled to better. That said, your own mother was, according to you, “into drugs” and a poor role model. You describe your dad as loving, but a “stoner”.

[8]                You describe using methamphetamine at least four or five times a week.4 Clearly, you have, or at least had, a drug problem. On 2 June 2017, another Judge granted you bail so you could complete a residential rehabilitation programme.5 Five days before the end of that programme, you breached bail by leaving the institution and associated programme. You were remanded in custody on 7 November 2017. The Judge who did so told you, “you blew it”.6 You sought bail again on 9 February 2018. Bail was declined: there was insufficient confidence you would not revert to your habits.7

2      The offending straddles the top of band two and bottom of band three of R v Fatu [2006] 2 NZLR 72 (CA).

3      R v [X] [2018] NZHC 1367.

4 As observed earlier, Ms Smith sold all the methamphetamine in her possession; see [3]. That which she consumed must have come from elsewhere.

5      Smith v R HC Auckland CRI-2016-044-4279, 2 June 2017 (Minute) per Muir J.

6      R v Smith [2017] NZHC 2728 at [4] per Duffy J.

7      Smith v R [2018] NZHC 87 per Lang J.

[9]                Mr Hislop argues your sentence should be reduced because of your rehabilitative efforts, and because of your remorse.

[10]            There is some evidence of remorse. For example, you appear to recognise your offending was wrong. You told the pre-sentence report writer you had let your children down. However, I am not satisfied you have demonstrated remorse, or at least that you have demonstrated remorse in a sufficiently meaningful and tangible way to warrant specific discount under this head.8

[11]            Conversely, your attendance at the course—imperfect as it was—and your apparent desire to reform warrant discount. You have made a start in the right direction.  Ten percent is appropriate under this head.  These are early days for you.

[12]            Mr Hislop’s written submissions referred to bowel cancer as a possible mitigating factor. I adjourned your sentencing (from 26 June 2018) so evidence could be obtained on this topic.9 Unfortunately, none has been. However, Mr Hislop has shown me:

(a)A one-page letter from Dr Nagham Al-Mozany, a general and colorectal surgeon, dated 24 February 2018.

(b)Four pages of related medical notes dated from 11 December 2017 until 27 February 2018.

[13]            You had laparoscopic surgery in October 2017 to remove a small, apparently cancerous tumour. The operation appears to have been a success. Dr Al-Mozany’s letter describes your surgery as “curative”, and you as being “happy with this news”.

[14]            Mr Hislop contends it is unclear whether “future ongoing testing will be required or not”.  But, he accepts there is no current “threat” to your health.

8      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

9      R v Smith HC Auckland CRI-2016-044-4279, 25 June 2017 (Minute).

[15]            Again, I had hoped for evidence on this topic so the position would be clear. But, I must proceed with the material I have. It suggests—as Mr Hislop observes— there is no existing threat. Moreover, there is no evidence your circumstances require ongoing medical treatment, either within prison or beyond it, or that prison will be harder for you.  Given all this, no discount is warranted for this aspect.

[16]            I referred to your children earlier. You say you understand you and your children will be “doing this lag”. You are right. Imprisonment will separate you from your four children, sadly. They are aged 12, 11, 9 and 2 and living with their two fathers.

[17]            The mere fact you have children does not entitle you to a discount; there are no special rules for offenders who are parents. And nor should there be. After all, you chose to commit these offences. However, it is open to a sentencing Judge to consider the impact of a sentence on an offender’s family, and make some adjustment.10 Adjustment must be modest in your case, because of the nature and seriousness of your offending and the need for general deterrence having regard to the drug involved. I reduce your sentence by five percent in recognition of the likely impact on your family of your incarceration.

[18]            Charges were laid on 14 December 2016. You pleaded guilty on 30 May 2018. Trial was then only three weeks away. The parties agree 20 percent discount is appropriate; the Crown because other defendants received discounts of 17 and 18 percent for their pleas.11

[19]            I decline to approach matters this way. The law is clear discount for a guilty plea depends on totality of circumstance.12 Your pleas were not early; and the case against you was strong. Indeed, you admitted supplying methamphetamine to Police. However, your pleas avoided the need for trial, and mark some acknowledgement of wrongdoing.  Fifteen percent discount reflects this mix.

10     Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163; R v Harlen (2001) 18 CRNZ 582 (CA).

11     R v [X], above n 3, R v McArley [2018] NZHC 1363.

12     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].

[20]            These discounts—10 percent, five percent and then 15 percent from the balance—produce a sentence of five years and five months’ imprisonment.

Minimum period of imprisonment

[21]            The Crown does not seek a minimum period of imprisonment. It was right not to do so. You are still quite young, your family is young, and you have made some progress, albeit tentative, towards reform. Parole is better left for the Parole Board unaffected by a minimum period.

Sentence

[22]            Ms Smith, please stand. On all charges, I sentence you to five years and five months’ imprisonment.  I wish you well.

[23]You may stand down.

……………………………..

Downs J