Garrity v R [2011] NZCA 552 (4 November 2011)

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Garrity v R [2011] NZCA 552 (4 November 2011)

Last Updated: 10 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA475/2011 [2011] NZCA 552

BETWEEN KATHLEEN ROBYN GARRITY Appellant

AND THE QUEEN Respondent

Hearing: 31 October 2011

Court: Harrison, Miller and Asher JJ

Counsel: A Speed for Appellant K A L Bicknell for Respondent

Judgment: 4 November 2011 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Kathleen Garrity appeals against a sentence of three years and ten months imprisonment imposed upon her by Wylie J in the High Court at Auckland on 15 July 2011 following her pleas of guilty to 21 counts of methamphetamine dealing.[1]
[2] Ms Garrity’s counsel, Mr Speed, submits that the sentence was manifestly excessive; and that an appropriate sentence would have been two years imprisonment or less.

Background

[3] The material facts are not in dispute.
[4] As a result of information gathered from another inquiry, the Police began an investigation in early 2008 into suspected drug dealing inside Paremoremo Prison. Pursuant to formal warrants they intercepted telephone calls between prison inmates and others outside the prison including Ms Garrity.
[5] Evidence emerged that Ms Garrity was acting as an agent for a methamphetamine supply operation orchestrated from within the prison by her partner, Mr Milham, and his associate, Mr Pulete. Ms Garrity was in regular contact with both men by cellphone. On their directions she collected quantities of methamphetamine from various persons and supplied it to others. She also arranged to bank the sale proceeds to Mr Pulete’s credit. Significantly, she assisted in smuggling methamphetamine and other contraband into Paremoremo. Mr Pulete arranged to pay her in cash and in methamphetamine. He also gave her a motor vehicle.
[6] Ms Garrity’s offending occurred over a five week period between 23 July 2008 and 27 August 2008. She was charged with one count of possession of methamphetamine for supply and 20 counts of supplying methamphetamine. She was charged jointly with Messrs Pulete and Milham and others. She entered pleas of guilty to 18 counts at the start of the trial in February 2011. She pleaded guilty to the remaining three counts at the end of the Crown case two months later. Some of her co-accused changed their pleas at that stage also. Wylie J sentenced to Ms Garrity and three of her co-offenders together.
[7] Before Wylie J on sentencing it was common ground that Ms Garrity did not supply more than one gram of methamphetamine on the occasion of each offence. Mr Speed’s submission on her behalf, which the Judge accepted, was that the total amount which Ms Garrity supplied across all offending was about 8.6 grams. The Judge acknowledged that the figure could not be fixed precisely.
[8] Wylie J treated the count of supplying methamphetamine to Mr Pulete as the lead or index offence. In fixing the starting point of four years imprisonment the Judge took account of the totality of Ms Garrity’s offending on the other 20 charges. He applied a six month increase to take into account the aggravating feature that Ms Garrity twice arranged to smuggle methamphetamine into the prison. He allowed discounts of six months and two months respectively to recognise Ms Garrity’s guilty pleas and remorse. An end sentence of three years and 10 months was imposed.

Decision

(a) Starting point

[9] Mr Speed filed a comprehensive synopsis of submissions. On analysis, however, his principal argument is a narrow one. He submits that Wylie J erred by placing Ms Garrity’s offending in the wrong sentencing category. In technical terms, he says, the Judge was wrong to categorise Ms Garrity’s offending as falling within band two of the Fatu[2] guidelines – that is, of three to nine years imprisonment for supplying commercial quantities of between five and 250 grams of methamphetamine. Instead, he says that it should have fallen within band one – that is, two to four years imprisonment for low level supply of less than five grams methamphetamine.
[10] Mr Speed submits that the Judge should have imposed a starting point solely by reference to the lead offence. That would necessarily have fallen within Fatu band one because a maximum of one gram was involved. He says that 18 months imprisonment was an appropriate starting point. Then, he says, a modest uplift of around six months imprisonment was necessary to reflect the totality of the other offending.
[11] In effect, Mr Speed says, the Judge should have applied the sentencing bands discretely and in isolation to each act of supply. Ultimately his argument comes down to a structural complaint. It was, he says, incorrect to impose a sentence of imprisonment of three years ten months for each act of supply which involved less than one gram of methamphetamine: that is, individual sentences should each properly reflect the amount of the drug actually supplied in that particular offence.
[12] In our judgment Mr Speed’s submission is wrong in principle. Wylie J was right to reject it. When sentencing a person for multiple offending, a Judge is required to impose a sentence which reflects the overall criminality of that offending and the offender. The Judge’s function is to assess total culpability. Providing the end sentence reflects that global or total approach, it is for the Judge’s discretion as to whether the sentence is constituted by one lead sentence of a certain term with all other sentences as concurrent or one lead sentence of a lesser term with the others being concurrent among each other but cumulative on the lead.
[13] Wylie J adopted the former approach. He was uniquely placed to assess Ms Garrity’s culpability after hearing two months of Crown evidence. The Judge was justified in adopting a base starting point of four years for the index offence to incorporate the totality of Ms Garrity’s offending in supplying 8.6 grams of methamphetamine. Its frequency and its overwhelming commercial elements were particular aggravating features.
[14] In fixing the appropriate starting point for Ms Garrity’s offending it was logically irrelevant that the total quantity was supplied over three weeks instead of in one instalment. What matters is that her overall offending placed her well within Fatu band two, justifying a starting point of at least three years imprisonment. As Ms Bicknell observes, Wylie J imposed concurrent sentences for similar offences forming part of a connected series. The Judge’s approach and the result cannot, in our judgment, be faulted.

(b) Aggravation

[15] Alternatively, Mr Speed challenges Wylie J’s upward adjustment of the starting point by six months. He says the Judge should not have taken account of the aggravating feature of Ms Garrity smuggling methamphetamine into Paremoremo on two occasions. He says that because Ms Garrity was acting as an agent at all relevant times she had no control over the methamphetamine’s destiny once it left her hands. Accordingly it is inappropriate to punish her for this factor. He also identifies a degree of double counting.
[16] Mr Speed’s argument misses the point. The question is not Ms Garrity’s control or otherwise over the drugs after they left her hands. The decisive factor is that her offending included the discrete and serious element of smuggling prohibited drugs into a prison knowing that the likely recipient would use them to obtain a commercial benefit. Also, the Judge specifically recognised Ms Garrity’s subsidiary role.

(c) Personal circumstances

[17] Finally, Mr Speed submits that the Judge failed to give a sufficient discount for Ms Garrity’s guilty pleas and remorse and her attempts at rehabilitation. Ms Garrity was aged 34 years at the time of sentencing. Ms Speed says she has made significant progress towards defeating her drug addiction since her admission to bail on strict conditions in September 2008. He also points out that she is assessed at being of low risk of reoffending.
[18] While other judges might have made a specific and meaningful allowance for Ms Garrity’s personal circumstances, we are satisfied that Wylie J made a sufficient allowance for her plea and her remorse and that the end sentence of three years and ten months imprisonment was within the appropriate range.

Result

[19] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] R v Pulete HC Auckland CRI-2008-044-7390, 15 July 2011.
[2] R v Fatu [2006] 2 NZLR 72 (CA).