R v Morris [2017] NZDC 16512 (26 July 2017)

Last Updated: 9 July 2018

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-092-012428

[2017] NZDC 16512

THE QUEEN

v

PATRICIA ANN MORRIS

Hearing:	26 July 2017
Appearances:	A Devathasan for the Crown S Cowdell on behalf of I Jayanandan for the Defendant
Judgment:	26 July 2017

NOTES OF JUDGE J H LOVELL-SMITH ON SENTENCING

[1] Ms Morris, you have pleaded guilty following a sentencing indication in respect of six charges of importing a Class B controlled drug namely ephedrine which amounted to a total of 34.44 kilograms of ephedrine. You were jointly charged with a [co-defendant] but [the co-defendant] did not seek a sentencing indication at that time and I have no information as to what course his prosecution has taken.

[2] There is no issue over the summary of facts, the charges relating to you and your co-defendant are performing secondary but significant roles in an operation. The first part of your participation in this offending was to provide addresses to which consignments would be sent, these consignments were sent via a courier with the ephedrine professionally concealed within various items such as fitness equipment and table legs. You and your co-defendant would then receive the consignment, unpack the ephedrine and deliver it to the person at the centre of the operation. These charges relate solely to the importations which were stopped by Customs.

R v PATRICIA ANN MORRIS [2017] NZDC 16512 [26 July 2017]

[3] You acknowledged that there were a number of other occasions when the consignments were successfully received for which you and you co-offender would pay several thousand dollars however that I put to one side, it does not, in my view, form part of the summary of facts on which this sentencing is based.

[4] There were four importations for which you were both charged, that and your co-defendant, and you were also charged in relation to two other importations you conducted with another and the offending took place over about eight months.

[5] The Provision of Advice to Courts report refers to you as a 57 year-old with two previous convictions for excess breath alcohol and operating a motor vehicle carelessly in 2004. I agree with your counsel’s submissions and there is no issue taken by the Crown that effectively those convictions are not relevant and you come before this Court as a person of previous good character. You admitted to the probation officer that you had made poor choices at the time of the offending and that is confirmed by your counsel, you obviously felt that you could not say no to your [family members details deleted] and became involved. You present as remorseful for your actions and it is also noted that you are able to comply with community-based sentences, your compliance has been assessed as high. You are also assessed as being willing, capable and able to be rehabilitated in the community and I acknowledge that you have taken a number of steps to do that since you have been before the Court in respect of these charges. However the inevitable recommendation given the nature and seriousness of the offending is one of imprisonment.

[6] At the sentencing indication I adopted a starting point of 10 years having regard to R v Wallace and R v Christie1 although that Judgment does of course pre-date the 2011 re-classification of ephedrine from Class C to Class B which increased the maximum penalty for importation and supply from eight years to 14 years.

[7] I accept the Crown’s submissions that Yuen v R2 is most similar to this case involving four charges totalling about 60 kilograms of ephedrine where the defendant’s role was also to provide addresses for the packages which he would deliver

1 R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159 (CA) and R v Christie

2 Yuen v R

to others however the amount involved was greater than in this case. The Crown does not seek an uplift in respect of your previous convictions, they acknowledge that you are entitled to a small discount for your relatively good prior character although discounts of this nature of course are rare in cases of serious drug offending. The Crown was not, at the time of the sentencing indication, aware of any other mitigating factors but these have been put forward today by Ms Cowdell and supported by the PAC report.

[8] Your counsel at the time of the sentencing indication had adopted a starting point of 10 years as being appropriate. She submitted that the mitigating factors applicable specifically to your case were first of all your guilty plea and that you are entitled to the maximum, the fact that your remorse and your personal circumstances are all matters that would be appropriate for me to take into account notwithstanding the fact that this was serious drug offending, that you have complied with strict bail conditions including a curfew for a long period, you have distanced yourself from the group of people you previously associated with and you have retained good employment. There is also the concession by the Crown that you are entitled to a 30 percent discount for the assistance you gave to the authorities.

[9] I have to have regard to the purposes and principles of the Sentencing Act 2002, in particular to hold you accountable for the harm done to the community through drug offending and to promote a sense of responsibility in you for that harm. On behalf of the community as a sentencing Judge I must also denounce your conduct and reflect the need to deter you and others from committing the same or similar offences, in fact deterrence is a key purpose of sentencing drug offenders. In terms of the relevant principles I need to take into account the gravity of the offending, your degree of culpability, the seriousness and bear in mind the maximum penalties prescribed. Then I must take into account the desirability of consistency in sentencing and impose the least restrictive outcome appropriate in the circumstances.

[10] I have already referred in detail to the aggravating features relating to your offending, in particular that this was a major importation of ephedrine, it was obviously pre-meditated, very carefully thought out and occurred on more than one occasion. In my view there are no mitigating factors relating to your offending.

However there are a number of mitigating factors relating to yourself which I accept, in particular your prosocial and hardworking background and upbringing and that your offending appears to have been a misguided result and where you threw away effectively a hardworking and, as I said before, prosocial life to participate in this very serious drug offending because of a misguided sense of loyalty to your [family members details deleted], I think that is the best interpretation I can place on it. You are aged 57, you have never been before the Court for such serious offending before. I accept you pleaded guilty at the earliest opportunity, your remorse is genuine and I also take into account the assistance you have provided to the authorities.

[11] Taking first the starting point of 10 years’ imprisonment, the mitigating factors are those that all include the various matters that have been referred to by your counsel and the concession by the Crown that you are entitled to that discount for assistance to the authorities. In your case, I do take into account your personal and family circumstances, your previous good character and remorse, the steps that you have taken to rehabilitate yourself and the fact that you have complied with bail since you were apprehended.

[12] I acknowledge that you are entitled to a discount of 30 percent for assistance to the authorities, a further 25 percent for those matters in mitigation that have been referred to by Ms Cowdell and lastly a discount of 25 percent for your plea of guilty which I accept was made at the earliest opportunity.

[13] So taking all matters into account I impose a final sentence of three years, six months on each charge.

[14] There is no minimum non-parole period, you will go before the parole board after serving one-third of your sentence.

J H Lovell-Smith District Court Judge