R v Turner HC Rotorua CRI-2009-063-005375 [2011] NZHC 651 (24 June 2011)

Last Updated: 11 July 2011

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI-2009-063-005375}

THE QUEEN

v

TINA JESSICA TURNER

Hearing: 24 June 2011

(Heard at Auckland)

Counsel: A J Gordon for the Crown

J P Temm for the Prisoner

Judgment: 24 June 2011

_{SENTENCE OF DUFFY J}

Counsel: J P Temm P O Box 1124 Rotorua 3040 for the Prisoner

_{Solicitors: Gordon Pilditch P O Box 740 Rotorua 3040 for the Crown}

R v TURNER HC ROT CRI-2009-063-005375 24 June 2011

[1] Tina Jessica Turner, you are for sentence on charges under the Misuse of

Drugs Act 1975.

[2] Following a jury trial, you were found guilty of one count of possession of methamphetamine for supply, and one count of possession of the class C controlled drug, cannabis, for supply. In addition to these offences, you also appear for sentence on summary charges to which you pleaded guilty in the District Court on

5 May 2011. Those charges are: possession of methamphetamine; possession of cannabis; and possession of utensils.

Facts

[3] The jury found you guilty of joint possession of 11.1 grams of methamphetamine that the police had found in a bag under the passenger seat of your car. You were sitting in that seat when, in the early hours of the morning on

19 September 2009, the police stopped your car at Fitzgerald Glade and searched it. Mr Nuttall was the driver of the car.

[4] The police photographs that were produced in evidence at your trial show that the bag in which this methamphetamine was found also contained $10,640 in cash, silver scales, straws used for measuring out methamphetamine, and numerous small plastic bags. I mention these items because they are all consistent with you being someone who dealt in the supply of methamphetamine. I consider that the jury’s verdict associating you with possession of the methamphetamine found in the bag under the passenger seat supports the inference that those other items were in your joint possession as well. A snaplock bag containing approximately 37 grams of cannabis was also found in the bag under the passenger seat. This is the basis for the possession of cannabis for supply charge.

[5] I also take into account the submissions I have heard from your counsel today that other items found in the bag, such as the two burners and the “P” pipe, are evidence of personal use of methamphetamine.

[6] I consider that it is open to me to conclude that you were present in the car that night because you and Mr Nuttall were participants in a joint enterprise to obtain methamphetamine for the purpose of supplying others. In relation to the possession of methamphetamine for supply on 19 September 2009, I consider that you are almost equally as culpable as Mr Nuttall. I say almost because Mr Nuttall has pleaded guilty to a representative count which covered methamphetamine found under the passenger seat of the car and in the boot of the car, whereas in your case, as a result of severance of the representative count, you faced two separate counts and you were only found guilty of the count for the methamphetamine found under the passenger seat. This means that I reject your counsel’s written submissions that your role in the offending that night was minor, and that you were there because, as your counsel submits, you were “compelled to accede to the demands of Mr Nuttall” as and when he required transportation in a clean, reliable vehicle. This, together with acceptance that you were a user of methamphetamine, was the thrust of your defence to the jury, the idea being that your methamphetamine use had brought you into contact with bad people like Mr Nuttall who then coerced you into helping him in his drug dealing. I consider that had the jury accepted this view of events, they would not have found you guilty of any of the counts of possession of methamphetamine for supply, or indeed for the possession of the cannabis for supply.

[7] I consider that I should approach your sentencing on the basis that you are someone who was involved in the commercial supply of methamphetamine and that you had joint possession of the 11.1 grams you were found with on 19 September

2009 for that purpose.

Personal circumstances

[8] I now turn to your personal circumstances. These carry little weight when it comes to sentencing persons for serious drug offences like the present. Nonetheless, I have given them some consideration.

[9] You are 47 years old, and you are the ninth of 10 children. The pre-sentence report shows that you had a difficult life. Your parents separated when you were approximately nine years old and after that you were raised by your father. Both of

your parents are now deceased. It is to your credit that when your father was terminally ill, you nursed him for the six months before he died in 1992, even though you say he was a difficult patient and prone to be nasty. Your mother died in 1993.

[10] I accept that you have had few good opportunities earlier on in your life. Your education was prematurely halted in the fourth form as you had no choice but to leave school when you fell pregnant. You later completed the fifth form through correspondence, which is also to your credit. Having responsibility for a child at a young age was extremely difficult for you. When you were 15 years old, you began singing and playing keyboard in the family band and you continued to be involved with the band for 20 years. When you were 21 years old, you entered into a relationship with David Drury, who is a professional musician and drummer in the family band. You and he have been together for the past 26 years, and Mr Drury has been like a father to your daughter. You supported yourselves through the band. You have described to the probation officer how the lifestyle of the band entailed alcohol abuse, and you tended to be the one who avoided alcohol so that you could drive when work finished. This was how you began to use cannabis. I also recall that Mr Drury in his evidence at the trial confirmed this. He too talked about his heavy use of alcohol while working in the band, and the fact that you did not use alcohol then. The pre-sentence report says that you came to smoke cannabis regularly in order to cope with stress and allow you to sleep.

[11] There is no doubt that in 2008, matters took a turn for the very worse for you. A nephew to whom you were very close died, and Mr Drury suffered a massive heart attack. While Mr Drury was in hospital, you would drive to Hamilton three days a week after work and on weekends. You have said that at the time you were emotionally vulnerable and found sleeping difficult. You began using cannabis to help you sleep, and methamphetamine to help keep you awake. I can well imagine that the driving from Rotorua to Hamilton so often each week, plus attempting to work and dealing with the stress of Mr Drury’s illness would have taken a greater toll on you. I can see why you might yield to the temptation to take a stimulant that would help keep you awake. Unfortunately, methamphetamine works in that way. It is readily available in our community. I can see how it would offer something that was difficult to resist for someone who found herself in your circumstances.

[12] You say that after three months in hospital, Mr Drury returned a totally different person. I recall Mr Drury when he gave evidence during the trial and it was clear that he was not a well man. One of the great burdens you now have to carry is that, at a time when he is unwell and unlikely to get better, you will be apart from him.

[13] For the last five years, you have worked as a detailer and deliverer of vehicles for Nigel’s Cars in Rotorua. You only left this employment as a result of your arrest for these offences and the loss of liberty. Your former employer speaks extremely positively about you. He mentions the change that he saw in you after Mr Drury’s heart attack. He describes you as hardworking and someone who tries hard to look after others at the expense of her own wellbeing.

[14] In terms of your previous offending, putting aside the offences for which you pleaded guilty in the District Court, and which appear to be related to the current offending in this Court, there are drug offences in October 1986 and November

2009. The number of offences in 2009 is consistent with the stress you have been under since 2008. Before then, your previous offending involved minor cannabis offences, once in 1992 and once in 1986. Your criminal history shows that apart from the two minor possession of cannabis charges in 1986 and 1992, you have not criminally offended until 2009. You are someone who has led a law abiding life until the difficulty you experienced through Mr Drury’s ill-health. Once you turned to methamphetamine, the perniciousness of that drug meant you became quickly addicted and the drug took over and destroyed your life. This Court regularly sees examples of this having happened.

[15] The probation officer who prepared your pre-sentence report has described you as candid and co-operative, with a clear insight into your offending and present situation. You are said to have no rehabilitative needs regarding gambling or alcohol abuse, and you have previously completed drug and alcohol counselling through a Rotorua drug treatment agency. You are assessed as being at a very low risk of reoffending, capable of complying with any sentence imposed by the Court, and of posing no risk to yourself or others.

[16] You have written a letter for the purpose of your sentencing today. In this letter, you express your regret and shame for your actions. You acknowledge the harm that your actions have caused to your family, society and your community. You acknowledge that you have lost your job, your savings, suffered a home invasion, and had your car taken by the police.

[17] In February this year, Mr Drury was admitted to intensive care, and you were unable to stay with him while he was in a critical condition, due to the 7.00 pm curfew. You complied with this curfew in the face of what must have been incredible pressure and temptation to remain with him. You describe having to leave him in these circumstances as being the lowest point in your life, and I can well understand that. It is to your credit that you did respect the curfew.

[18] You say that you lost perspective and control due to the personal circumstances you were facing, though you acknowledge that this is not an excuse, and you take full responsibility for your offending. You say that you can now see the changes that you need to make and you have already taken action towards that end. You have attended an alcohol and drug programme for the past 11 months and you are currently making enquiries about other programmes. You say that the consequences of the bail conditions imposed upon you, and then being remanded in custody have made you aware of the seriousness of your actions and you have resolved not to repeat these mistakes.

Counsel’s submissions

Crown

[19] The Crown relies on the sentencing tariffs that are set out in R v Fatu [2006]

2 NZLR 72, which is the leading case on sentencing for serious methamphetamine offences. The Crown submits that in your case, Ms Turner, the weight of the methamphetamine involved (being 11.11 grams) places you at what we say is the bottom of band two. This should result in a starting point of between three to four years’ imprisonment, with an uplift to reflect the cannabis charge.

[20] Now as part of how sentencing is done, Ms Turner, I need to adopt a starting point. I then work through factors, both aggravating and mitigating, to come to an end point. You will not know what the sentence is until I get to the end point. So if you hear me referring to increases, do not be alarmed because I then have to take into account what discounts are available.

[21] The Crown takes the view that there has been multiple offending and that in terms of s 84 of the Sentencing Act 2002, it would be appropriate to impose concurrent sentences, as the offences are similar in kind and are a connected series of events. I agree with that approach.

[22] In relation to the summary charges, the Crown submits that a conviction and discharge is appropriate.

[23] It is submitted that, having adopted a starting point for the charge of possession of methamphetamine for supply, I should then include an uplift for the possession of cannabis for supply charge.

[24] Regarding the commerciality of the offending, the Crown points to the electronic scales and cash that was found in your joint possession on 19 September

2009.

[25] Regarding premeditation, the Crown says that your actions involved a level of premeditation. It is said an inference may be drawn from the electronic scales and small deal bags that were found in the bag under the passenger seat of the car that the quantity of methamphetamine was to be separated into smaller amounts and then on- sold.

[26] The Crown submits there are no mitigating factors relating to your offending.

[27] The Crown approaches the cannabis charges by submitting that they would fall into the low end band of R v Terewi [1999] 3 NZLR 62, which is the tariff case for cannabis for supply, with a starting point of approximately two years. It is

submitted that this should be reflected in the consideration of the totality of the offending.

[28] The Crown accepts that you have demonstrated remorse and that you assessed as being at a low risk of reoffending.

[29] Your counsel accepts you fall within band two of Fatu. However, he submits that the quantity is at the lowest end and a starting point of three years and six months is more than adequate. It is submitted that this should be minimally uplifted due to the following:

(a) The seriousness of the offending involving methamphetamine; and

(b) The cannabis charge, though the quantity is said to be very small, predominantly for your personal use, and the rest being for a supply that was more social than commercial.

[30] The other charges are said not to warrant an uplift as the culpability for these matters is merely a reflection of the addiction and your lifestyle.

[31] It is submitted than an end sentence of three years is appropriate.

[32] Forfeiture of the cash money found at arrest is accepted. Although the Crown has sought forfeiture of your car, you may well have realised through the discussion I had today with counsel that this issue is going to be deferred. I am not going to deal with forfeiture of the car today. It will be dealt with later when the other matters you still face are dealt with. I have pointed out to counsel that Mr Drury, as your partner of 26 years, may well have an interest under the Property (Relationships) Act 1976 in the car, and his interests in the car must be respected. The Crown accepts that he had nothing to do with the drug dealing; so further enquiries are going to have to be made, including enquiries of Mr Drury to see what his stance is.

Principles and purposes of sentencing

[33] In sentencing you, I am obliged to have regard to the principles and purposes of sentencing. The following principles are relevant here:

(i) To hold you accountable for the harm done by the offending (s 7(1)(a)), and, as I have said to you, methamphetamine is a pernicious drug that is harmful to the community. One only needs to look at what it has done to your life to see the destruction of which this drug is capable;

(ii) Another purpose of sentencing is to promote a sense of responsibility and acknowledgement of harm done (s 7(1)(b)). This is borne out now by the comments you have made in your pre-sentence report, which show that you do fully acknowledge the responsibility and the harm your offending has caused;

(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 from the offender (s 7(1)(g)); and

(vi) To assist in your rehabilitation and reintegration (s 7(1)(h)). [34] In terms of principles of sentencing, there is:

(i) The gravity of the offending, including the degree of culpability (s 8(a));

(ii) The seriousness of the type of offence (s 8(b));

(iii) The general desirability of consistency (s 8(e)); and

(iv) The need to impose the least restrictive outcome that is appropriate in the circumstances (s 8(g)).

[35] Ms Turner, there is little difference between the suggested starting points adopted by the Crown and by your counsel. I consider that a starting point of three and a half years is appropriate. I consider that this should be uplifted by 12 months to account for the other drug offending; both the charge in this Court and the summary matters. I consider that the choice of starting point reflects the aggravating features of the offending that have been identified, so that there is no need for any further uplift to take them into account. The extent of the offending, the commerciality of the offending, the level of premeditation and planning have all been reflected in the choice of starting point I have adopted from tariff band two in Fatu. To include a further uplift for aggravating factors would, in this case, lead to double counting.

[36] There is then the need to take into account appropriate discounts for remorse.

[37] I also propose to take into account your trouble-free record between 1992 and

2009. I accept that the present offending has resulted from you engaging with bad company, as a result of you starting to use methamphetamine to help you to cope with the stress created by Mr Drury’s ill health.

[38] I consider that a discount of 15 per cent would properly reflect your remorse and your previous good character, as well as the stress you have been suffering. To this extent, I have taken into account personal circumstances.

[39] Because you went to trial, there is no discount for a guilty plea. That means I am left with an overall discount of 15 per cent, which takes the sentence of imprisonment to one of three years and 10 months.

Sentence

[40] Ms Turner, would you please stand.

[41] On the charge of possession of methamphetamine for supply, you are sentenced to three years and 10 months’ imprisonment. On the charge of possession of cannabis for supply, you are sentenced to two years’ imprisonment. The sentences of imprisonment are to be served concurrently.

[42] On the summary charges of possession of methamphetamine, possession of cannabis and possession of the utensils, you are convicted and discharged.

[43] I make an order forfeiting the cash found in the BMW on 19 September 2009, which I understand to be $12,721.40.

[44] You may stand down.

Duffy J