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R v HETHERINGTON [2004] NZCA 106 (29 June 2004)

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R v HETHERINGTON [2004] NZCA 106 (29 June 2004)

Last Updated: 6 July 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA426/03

THE QUEEN

v

TRACEY MOANA HETHERINGTON

Hearing: 21 June 2004

Coram: Glazebrook J
Chisholm J
Potter J

Appearances: H D M Lawry for Crown
D S Niven for Respondent

Judgment: 29 June 2004

JUDGMENT OF THE COURT DELIVERED BY POTTER J

[1] The Crown seeks leave to appeal against a sentence of 18 months imprisonment with leave to apply for home detention and the deferral of that sentence for two months concurrent with the sentence of 15 months imprisonment and a conviction and discharge imposed by the District Court at Manukau on 22 October 2003 on the respondent Tracey Moana Hetherington.
[2] The respondent was convicted following trial by jury and sentenced as follows:
• Manufacturing a class B drug (methamphetamine) - 18 months imprisonment; leave to apply for home detention was granted, and the sentence was deferred for two months;
• Possession of a precursor substance - 15 months imprisonment, concurrent with the above sentence;
• Attempting to assist a co-offender to avoid arrest – conviction and discharge.
[3] On the first two counts the respondent was convicted jointly with Lindsay James Wilson and Carlos Justin Wilson and on the manufacturing charge also with Gregory Dean Sharpe and Dwayne Wade. On those counts Lindsay Wilson and Carlos Wilson were each sentenced to three years six months and 15 months imprisonment respectively. Lindsay Wilson was also sentenced for other offending with a total sentence of four years three months imprisonment imposed. Sharpe, who was the cook, had offended while on bail and was serving a sentence of three years imprisonment for manufacturing methamphetamine on a different occasion. He had entered a late guilty plea and was sentenced to two years imprisonment cumulative on the three year term, to give a total of five years imprisonment.
[4] Wade, who was sentenced on the basis that he was the supplier of pseudoephedrine pleaded guilty on arraignment and was separately sentenced. He received an overall sentence of 27 months imprisonment, of which 15 months was imposed in respect of the manufacturing charge.
[5] The Crown appeals on the basis that the sentence of the respondent is manifestly inadequate and wrong in principle.

Background

[6] On 23 October 2003 the Police executed a search warrant over premises owned and occupied by Lindsay Wilson and Tracey Hetherington. The premises consisted of two buildings: the main house, where Wilson and Hetherington lived with their young son, and a separate garage at the rear of the section known as the club or "the Bar". In the Bar, Police located Sharpe and a methamphetamine laboratory. Amongst the paraphernalia associated with the operation, described by Police as sophisticated, were found toluene (a precursor substance), ordinary kitchen utensils, some 60 empty packets of pharmacy products containing pseudomethamphetamine and some 39 packets of unused product. Sharpe had been in occupation of the club premises for approximately two weeks prior to the search warrant being executed, after being introduced to Wilson and Hetherington by Wilson’s eldest son, Carlos Wilson.
[7] Upon the Police entering the property, they were espied by Hetherington. She shouted "Cops" at the top of her voice and, as a result, Lindsay Wilson and Wade, ran out of the main house and towards the back of the property where they were apprehended. A firearm, together with ammunition was recovered in the vicinity of where Lindsay Wilson was seen to be running, the Crown’s case being that he had taken it from the house before throwing it away. At the same time, Carlos Wilson and Sharpe ran out from the club premises towards the back of the property.
[8] On 24 October the respondent returned to the address, apparently to remove the gun from the backyard before it could be found. When she became aware that Police were still investigating, she left the property.

The sentence in the District Court

[9] The District Court Judge considered the individual culpability of the prisoners in the operation that was taking place on the premises. He noted that the Police described it as a sophisticated operation but he considered that overstated the situation. He noted that the operation had been going on for at least two weeks since Sharpe had been on the premises, and that supplies on hand indicated it was a continuing operation. He observed that considerable sums of money were found - on Carlos Wilson $680 and on Lindsay Wilson approximately $3,000.
[10] The Judge determined Lindsay Wilson to be the main occupier of the house on the property, that he well knew what Sharpe was up to and consciously supported him in that. Carlos Wilson was the person who brought Sharpe to the property and was found in the Bar where the manufacturing was taking place and from which he attempted to run away. The Judge determined that he knew exactly what was happening, what Sharpe was doing and what was going on.
[11] As to Sharpe who was the cook, the Judge noted that he was entitled to some discount for his plea of guilty and that the totality principle needed to be considered.
[12] In relation to the respondent Tracey Hetherington the Judge stated that she well knew what was happening in the house. He took into account that the circumstances were such that perhaps she could not easily sever her connection with what was happening at the property by virtue of her relationship with Lindsay Wilson and her young child. Nevertheless she knew exactly what was happening and "to a certain extent participated by aiding and abetting in the common enterprise".
[13] As to the count of being an accessory after the fact, he stated that it was only an attempt which did not succeed and that she desisted as soon as she was told to leave the property, where she went the day after the Police raid in an attempt to recover the gun.
[14] In relation to home detention, having looked at the whole of the circumstances, the Judge granted leave, including deferment of the 18 months sentence for a period of two months or until she appeared before the Parole Board, so that she could make some concrete arrangements about her residence to accommodate herself and the child.
[15] In imposing those sentences the Judge referred to R v Wallace [1999] 3 NZLR 159 and noted the Crown’s submission that the offending was in category 2 which would invoke a sentence of some five-eight years. He also referred to the decision in R v Drever (CA380/02, 20 February 2003). He stated that he had looked at the facts of Wallace and compared those and the situations in other cases referred to him, to determine the degree of seriousness in relation to the offending in this case. The Judge impliedly placed the offending in category 3 in setting the highest sentences at three years six months.

The Crown’s appeal

[16] The Crown referred to the Judge’s finding that the respondent knew exactly what was happening and to a certain extent participated by aiding and abetting in the common enterprise.
[17] The evidence showed that the respondent had admitted making equipment available for the manufacture of methamphetamine and she was the person who alerted the others to the arrival of the Police (the Police inferred that this was from the surveillance camera, but Mr Lawry in oral submissions accepted that she could have been alerted merely by the arrival of the Police). She expressed to Detective Mattich:

I’m surprised it hasn’t blown up already.

She also expressed the view that her co-offenders were improving their technique because the colour of the methamphetamine powder had improved. It was she who tried to recover the pistol belonging to Lindsay Wilson from the neighbouring property.

[18] The essence of the Crown’s appeal was disparity of the respondent’s sentence with that of the male co-offenders when there was little to show why the respondent should not be treated on the same basis as the male offenders.
[19] In the submission of the Crown, the Judge stated no reasons as to why he treated the respondent differently from her co-offenders. It appeared that some weight had been placed on her personal circumstances as the Judge had referred to her inability to extricate herself from what was happening. While the Judge did not state what provided the basis for that observation, there was a reference in the probation report that she wanted to leave with her son but did not have anywhere to go. In her Police statement she also referred to Lindsay Wilson getting violent when affected by methamphetamine. But there was no conclusion stated by the Judge of a finding that but for her relationship with Lindsay Wilson she would not have been involved in the offending.
[20] The Crown submitted that her criminal history is not consistent with such a view. She is an admitted drug user of choice and her history includes a variety of convictions including drug convictions, although the majority of them are more than ten years old.
[21] Further submitted the Crown, the Courts have recognised the need for deterrent sentences in drug cases such as this (R v Howard, CA315/99, 2 December 1999; R v Richards, CA272/98, 15 October 1998; R v Thorne-George (CA107/99, 8 July 1999).
[22] The Crown submitted it is trite law that one’s personal circumstances carry very little weight in a case involving drug offending and that here the disparate sentences suggest that undue weight was given to the personal circumstances of the respondent by the sentencing Judge resulting in a sentence that was manifestly inadequate for the offending in which she was involved.

Submissions for the respondent

[23] Mr Niven for the respondent noted that the Parole Board had initially declined home detention and that she commenced serving her sentence of imprisonment in December 2003. She was subsequently granted home detention and is complying with the conditions of her parole.
[24] Mr Niven submitted first that different sentences are justified where the level of culpability differs (R v Wallace) and that the level of disparity recognised here is not uncommon.
[25] Secondly, that the sentencing Judge was entitled to find that the culpability of the respondent was at a lower level. He submitted that over the six days of the trial the sentencing Judge had ample opportunity to form a view as to each of the accused, their credibility and their respective involvement, and that while he made the finding that the respondent "well knew what was happening", he was entitled to form the view that she was involved to a different degree than her co-offenders in what was taking place.
[26] Mr Niven referred to the Police statement given by the respondent, which was also referred to by the sentencing Judge, and submitted that the overall picture which emerges from this statement is that the respondent’s state of knowledge about what was happening at the property was different from that of the co-offenders:

a) There’s been a few strange people coming and going lately. The house is a real whanau house, but Carl’s mates don’t come into the house.
b) Sonny and me had fights about Carl, I said to him I wanted Carl out but Sonny would say "what can I do he’s my son".
c) When he (Carlos) would hang out he’d go down to the bar ... It’s really the boys hangout, it’s smelly and has rats. I’ve only been down to the bar once when we first moved back here ... I don’t have to go into the bar very far, the rats are as big as cats so I don’t like going in.
d) To be honest, I didn’t really take much notice of what Carl was doing as long as he wasn’t in the house.
e) I met Carl’s mate Dean (Sharpe) last week about Monday or Tuesday.
f) Carl would come in and take stuff out of the kitchen, like my pyrex dishes that were ovenproof ... Carl took my electric jug but I got it back minus the lid, he also wanted the electric frypan. I asked him what he wanted it for. He said to cook some steaks, but I wouldn’t let him have it.
g) I thought they might have been cooking hash oil. I probably thought they could have been cooking "P".

[27] He further submitted that the totality of the evidence does not support an inference that the respondent was watching the surveillance camera in order to warn the other accused of the arrival of the Police. The Police entered the property by climbing over a barbed wire fence and then heard a female inside the address scream "Cops". Mr Niven submitted the inference from that is that she called out when she saw the Police at the front of the house, rather than that she was watching the surveillance camera. He noted that the cash was not found on the respondent.
[28] Thirdly, Mr Niven submitted that the different sentences imposed were properly within the discretion available to the sentencing Judge. He noted the conclusion of the Judge that this did not resemble a sophisticated operation and that his treating the offending as at the upper end of category three was a view of the evidence properly open to the sentencing Judge.
[29] In relation to the respondent and her part in the operation, the Judge’s conclusion that she participated "to a certain extent" was appropriate and does not reflect an unjust disparity.
[30] Mr Niven further noted that the sentence imposed on the respondent was higher than that imposed on Dwayne Wade (15 months) whose role was to supply a significant amount of precursor substance.

Discussion

[31] In sentencing the Judge addressed the respective levels of culpability of each of the offenders. While he stated in relation to the respondent that she knew exactly what was happening as shown by the statement she made to the Police, he also addressed in some detail the statement and other evidence in relation to the respective levels of offending of the respondent and the co-offenders.
[32] It was open to the very experienced sentencing Judge (who had the advantage which this Court does not of having presided throughout the six days trial and the further day during which the Jury deliberated), to form the view that the respondent was less culpable than were the co-offenders in relation to the methamphetamine manufacturing operation taking place at the house where she resided with Lindsay Wilson and their young child. While the jury clearly accepted that her participation extended beyond knowledge that the events were occurring, her statement to the Police indicated a degree of exclusion from the offending - she was not permitted in the area of the Bar where the cooking was done and that she would be kept apart from conferences between her partner and the cook, Sharpe.
[33] The Judge also took into account that because of the respondent’s relationship with the co-offender Lindsay Wilson and the young child in her care, the circumstances were such that perhaps she could not easily sever her connection with the events at the property which gave rise to the charges and convictions, an aspect with which the Crown did not take issue before us.
[34] The central issue here is the disparity of the sentence of 18 months imposed on the respondent on the conviction for manufacturing with the sentence of three years six months imposed on each of Lindsay Wilson and Carlos Wilson. The sentence imposed on Gregory Sharpe of two years in addition to three years being served for prior offending is relevant but of limited assistance. Dwayne Wade who was treated as the supplier of pseudoephedrine was sentenced to 15 months imprisonment on the manufacturing charge following a plea of guilty, a sentence which does not present as inconsistent with that of the respondent, as the Judge viewed her level of involvement in the offending.
[35] The Judge took perhaps a lenient view of the evidence, particularly as it related to the respondent. This Court has frequently emphasised the need for deterrent sentences in drug cases and has emphasised that those involved as "helpers" cannot expect to rely on personal circumstances to seek leniency in sentencing. As this Court said in R v Howard:

We must necessarily bear in mind the need to deter other women in Ms Howard’s position and to remove from their minds any thought that a substantial prison sentence will not be visited upon them ... Nor would we wish to encourage that thought in the minds of those who might perceive an advantage in the transacting of drug activities through women who might, because of their family circumstances, escape otherwise well merited sentences. [paragraph 13].

[36] Nevertheless the sentencing Judge in this case was prepared to assess the respondent’s level of culpability as significantly lower than that of her co-offenders. While, given the serious nature of the offending, a sentence in the vicinity of two years might well have been considered not inappropriate, on a Solicitor-General’s appeal, as this is, we are not minded to increase the sentence imposed. The leniency which the sentencing Judge was prepared to extend in relation to the respondent was, however, exceptional in the circumstances of this case, and would not provide an appropriate basis for comparison in sentencing for such crimes, which the Courts must treat very seriously.

Result

[37] Leave to appeal is granted.
[38] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	The Crown seeks leave to appeal against a sentence of 18 months imprisonment with leave to apply for home detention and the deferral of that sentence for two months concurrent with the sentence of 15 months imprisonment and a conviction and discharge imposed by the District Court at Manukau on 22 October 2003 on the respondent Tracey Moana Hetherington.
[2]	The respondent was convicted following trial by jury and sentenced as follows:
•	Manufacturing a class B drug (methamphetamine) - 18 months imprisonment; leave to apply for home detention was granted, and the sentence was deferred for two months;
•	Possession of a precursor substance - 15 months imprisonment, concurrent with the above sentence;
•	Attempting to assist a co-offender to avoid arrest – conviction and discharge.
[3]	On the first two counts the respondent was convicted jointly with Lindsay James Wilson and Carlos Justin Wilson and on the manufacturing charge also with Gregory Dean Sharpe and Dwayne Wade. On those counts Lindsay Wilson and Carlos Wilson were each sentenced to three years six months and 15 months imprisonment respectively. Lindsay Wilson was also sentenced for other offending with a total sentence of four years three months imprisonment imposed. Sharpe, who was the cook, had offended while on bail and was serving a sentence of three years imprisonment for manufacturing methamphetamine on a different occasion. He had entered a late guilty plea and was sentenced to two years imprisonment cumulative on the three year term, to give a total of five years imprisonment.
[4]	Wade, who was sentenced on the basis that he was the supplier of pseudoephedrine pleaded guilty on arraignment and was separately sentenced. He received an overall sentence of 27 months imprisonment, of which 15 months was imposed in respect of the manufacturing charge.
[5]	The Crown appeals on the basis that the sentence of the respondent is manifestly inadequate and wrong in principle.

[6]	On 23 October 2003 the Police executed a search warrant over premises owned and occupied by Lindsay Wilson and Tracey Hetherington. The premises consisted of two buildings: the main house, where Wilson and Hetherington lived with their young son, and a separate garage at the rear of the section known as the club or "the Bar". In the Bar, Police located Sharpe and a methamphetamine laboratory. Amongst the paraphernalia associated with the operation, described by Police as sophisticated, were found toluene (a precursor substance), ordinary kitchen utensils, some 60 empty packets of pharmacy products containing pseudomethamphetamine and some 39 packets of unused product. Sharpe had been in occupation of the club premises for approximately two weeks prior to the search warrant being executed, after being introduced to Wilson and Hetherington by Wilson’s eldest son, Carlos Wilson.
[7]	Upon the Police entering the property, they were espied by Hetherington. She shouted "Cops" at the top of her voice and, as a result, Lindsay Wilson and Wade, ran out of the main house and towards the back of the property where they were apprehended. A firearm, together with ammunition was recovered in the vicinity of where Lindsay Wilson was seen to be running, the Crown’s case being that he had taken it from the house before throwing it away. At the same time, Carlos Wilson and Sharpe ran out from the club premises towards the back of the property.
[8]	On 24 October the respondent returned to the address, apparently to remove the gun from the backyard before it could be found. When she became aware that Police were still investigating, she left the property.

[9]	The District Court Judge considered the individual culpability of the prisoners in the operation that was taking place on the premises. He noted that the Police described it as a sophisticated operation but he considered that overstated the situation. He noted that the operation had been going on for at least two weeks since Sharpe had been on the premises, and that supplies on hand indicated it was a continuing operation. He observed that considerable sums of money were found - on Carlos Wilson $680 and on Lindsay Wilson approximately $3,000.
[10]	The Judge determined Lindsay Wilson to be the main occupier of the house on the property, that he well knew what Sharpe was up to and consciously supported him in that. Carlos Wilson was the person who brought Sharpe to the property and was found in the Bar where the manufacturing was taking place and from which he attempted to run away. The Judge determined that he knew exactly what was happening, what Sharpe was doing and what was going on.
[11]	As to Sharpe who was the cook, the Judge noted that he was entitled to some discount for his plea of guilty and that the totality principle needed to be considered.
[12]	In relation to the respondent Tracey Hetherington the Judge stated that she well knew what was happening in the house. He took into account that the circumstances were such that perhaps she could not easily sever her connection with what was happening at the property by virtue of her relationship with Lindsay Wilson and her young child. Nevertheless she knew exactly what was happening and "to a certain extent participated by aiding and abetting in the common enterprise".
[13]	As to the count of being an accessory after the fact, he stated that it was only an attempt which did not succeed and that she desisted as soon as she was told to leave the property, where she went the day after the Police raid in an attempt to recover the gun.
[14]	In relation to home detention, having looked at the whole of the circumstances, the Judge granted leave, including deferment of the 18 months sentence for a period of two months or until she appeared before the Parole Board, so that she could make some concrete arrangements about her residence to accommodate herself and the child.
[15]	In imposing those sentences the Judge referred to R v Wallace [1999] 3 NZLR 159 and noted the Crown’s submission that the offending was in category 2 which would invoke a sentence of some five-eight years. He also referred to the decision in R v Drever (CA380/02, 20 February 2003). He stated that he had looked at the facts of Wallace and compared those and the situations in other cases referred to him, to determine the degree of seriousness in relation to the offending in this case. The Judge impliedly placed the offending in category 3 in setting the highest sentences at three years six months.

[18]	The essence of the Crown’s appeal was disparity of the respondent’s sentence with that of the male co-offenders when there was little to show why the respondent should not be treated on the same basis as the male offenders.
[19]	In the submission of the Crown, the Judge stated no reasons as to why he treated the respondent differently from her co-offenders. It appeared that some weight had been placed on her personal circumstances as the Judge had referred to her inability to extricate herself from what was happening. While the Judge did not state what provided the basis for that observation, there was a reference in the probation report that she wanted to leave with her son but did not have anywhere to go. In her Police statement she also referred to Lindsay Wilson getting violent when affected by methamphetamine. But there was no conclusion stated by the Judge of a finding that but for her relationship with Lindsay Wilson she would not have been involved in the offending.
[20]	The Crown submitted that her criminal history is not consistent with such a view. She is an admitted drug user of choice and her history includes a variety of convictions including drug convictions, although the majority of them are more than ten years old.
[21]	Further submitted the Crown, the Courts have recognised the need for deterrent sentences in drug cases such as this (R v Howard, CA315/99, 2 December 1999; R v Richards, CA272/98, 15 October 1998; R v Thorne-George (CA107/99, 8 July 1999).
[22]	The Crown submitted it is trite law that one’s personal circumstances carry very little weight in a case involving drug offending and that here the disparate sentences suggest that undue weight was given to the personal circumstances of the respondent by the sentencing Judge resulting in a sentence that was manifestly inadequate for the offending in which she was involved.

[23]	Mr Niven for the respondent noted that the Parole Board had initially declined home detention and that she commenced serving her sentence of imprisonment in December 2003. She was subsequently granted home detention and is complying with the conditions of her parole.
[24]	Mr Niven submitted first that different sentences are justified where the level of culpability differs (R v Wallace) and that the level of disparity recognised here is not uncommon.
[25]	Secondly, that the sentencing Judge was entitled to find that the culpability of the respondent was at a lower level. He submitted that over the six days of the trial the sentencing Judge had ample opportunity to form a view as to each of the accused, their credibility and their respective involvement, and that while he made the finding that the respondent "well knew what was happening", he was entitled to form the view that she was involved to a different degree than her co-offenders in what was taking place.
[26]	Mr Niven referred to the Police statement given by the respondent, which was also referred to by the sentencing Judge, and submitted that the overall picture which emerges from this statement is that the respondent’s state of knowledge about what was happening at the property was different from that of the co-offenders:

[27]	He further submitted that the totality of the evidence does not support an inference that the respondent was watching the surveillance camera in order to warn the other accused of the arrival of the Police. The Police entered the property by climbing over a barbed wire fence and then heard a female inside the address scream "Cops". Mr Niven submitted the inference from that is that she called out when she saw the Police at the front of the house, rather than that she was watching the surveillance camera. He noted that the cash was not found on the respondent.
[28]	Thirdly, Mr Niven submitted that the different sentences imposed were properly within the discretion available to the sentencing Judge. He noted the conclusion of the Judge that this did not resemble a sophisticated operation and that his treating the offending as at the upper end of category three was a view of the evidence properly open to the sentencing Judge.
[29]	In relation to the respondent and her part in the operation, the Judge’s conclusion that she participated "to a certain extent" was appropriate and does not reflect an unjust disparity.
[30]	Mr Niven further noted that the sentence imposed on the respondent was higher than that imposed on Dwayne Wade (15 months) whose role was to supply a significant amount of precursor substance.

[31]	In sentencing the Judge addressed the respective levels of culpability of each of the offenders. While he stated in relation to the respondent that she knew exactly what was happening as shown by the statement she made to the Police, he also addressed in some detail the statement and other evidence in relation to the respective levels of offending of the respondent and the co-offenders.
[32]	It was open to the very experienced sentencing Judge (who had the advantage which this Court does not of having presided throughout the six days trial and the further day during which the Jury deliberated), to form the view that the respondent was less culpable than were the co-offenders in relation to the methamphetamine manufacturing operation taking place at the house where she resided with Lindsay Wilson and their young child. While the jury clearly accepted that her participation extended beyond knowledge that the events were occurring, her statement to the Police indicated a degree of exclusion from the offending - she was not permitted in the area of the Bar where the cooking was done and that she would be kept apart from conferences between her partner and the cook, Sharpe.
[33]	The Judge also took into account that because of the respondent’s relationship with the co-offender Lindsay Wilson and the young child in her care, the circumstances were such that perhaps she could not easily sever her connection with the events at the property which gave rise to the charges and convictions, an aspect with which the Crown did not take issue before us.
[34]	The central issue here is the disparity of the sentence of 18 months imposed on the respondent on the conviction for manufacturing with the sentence of three years six months imposed on each of Lindsay Wilson and Carlos Wilson. The sentence imposed on Gregory Sharpe of two years in addition to three years being served for prior offending is relevant but of limited assistance. Dwayne Wade who was treated as the supplier of pseudoephedrine was sentenced to 15 months imprisonment on the manufacturing charge following a plea of guilty, a sentence which does not present as inconsistent with that of the respondent, as the Judge viewed her level of involvement in the offending.
[35]	The Judge took perhaps a lenient view of the evidence, particularly as it related to the respondent. This Court has frequently emphasised the need for deterrent sentences in drug cases and has emphasised that those involved as "helpers" cannot expect to rely on personal circumstances to seek leniency in sentencing. As this Court said in R v Howard: