R v Wilson HC Auckland CRI-2010-057-001676 [2011] NZHC 1124 (13 September 2011)

Last Updated: 18 October 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-057-001676}

THE QUEEN

v

RACHEL SHARRON WILSON

Hearing: 13 September 2011

Appearances: B Smith for Crown

S D Cassidy for Prisoner

Judgment: 13 September 2011

12 months home detention

_{SENTENCING NOTES OF VENNING J}

Solicitors: Crown Solicitor, Auckland

Copy to: S D Cassidy, Auckland

[1] Rachel Wilson you have pleaded guilty and are for sentence on one representative count of supplying methamphetamine and one representative count of

R V WILSON HC AK CRI-2010-057-001676 13 September 2011

supplying MDMA Ecstasy. The maximum penalty for supply of methamphetamine is life imprisonment. The maximum penalty for supplying MDMA Ecstasy is 14 years’ imprisonment.

[2] Having pleaded guilty to those two charges the Crown do not propose to present evidence in relation to other counts in the indictment and I formally discharge you in relation to counts 31, 32, 33 and 35 in the indictment.

[3] Your offending came to light as a result of a police investigation into drug dealing in Papakura and Pukekohe. You were identified as being involved in the supply of methamphetamine in that area. As part of their investigation the police obtained warrants to search audio and text message data, including data from your mobile phone.

[4] When analysed the data disclosed a pattern of you receiving methamphetamine from Mr Prangley and then on-supplying it to a number of your associates. As at 22 May 2010 the police had intercepted over 450 communications between you and Mr Prangley and over 300 were identified as relating to drugs. The warrant reveals that between December 2009 and 23 May 2010 you had supplied methamphetamine on a large number of occasions. You admit to supplying 6.3 grams on 50 different occasions. The Crown considers it was more like 15.8 grams. You also admit to supplying 14 MDMA Ecstasy tablets. The Crown say 54. In each case, for sentencing purposes, I take the lower figure as discussed with counsel.

[5] On 5 July 2010 the police executed a search warrant at your home. In a secure area they located a glass pipe used for smoking methamphetamine and $490. When spoken to you admitted ownership of the pipe. You also admitted getting methamphetamine from Mr Prangley and supplying it to others, mainly your friends and associates. You said that of the $490, $240 belonged to Mr Prangley.

[6] You are 26 years old. Your family moved around a lot when you were growing up. You witnessed family violence and you have had at least two unsuccessful relationships yourself. You have a protection order in place in relation to the father of your eight year old twins. You have a two year old son to another

partner but do not maintain contact with him, but nevertheless you have arrangements in relation to the children and their fathers. It is said that the relationship with your last partner was psychologically abusive. Counsel submits that you took to using methamphetamine yourself to cope with the effect of breakdowns in your relationships. It is also said that you became involved with methamphetamine by being provided it by Mr Prangley, initially free, and then subsequently once you became addicted, he used you to supply methamphetamine to others.

[7] Your family have been spoken to by the probation officer. Your mother has confirmed the difficulties you have had with the relationships you have been in and the effect that they have had on you and on other members of your family. Your mother has said she will continue to support you and she has sworn an affidavit in support of you for today’s sentencing. She is also of course present in Court as is your brother who also supports you together with a number of your friends and associates.

[8] Despite the difficulties in your earlier life the pre-sentence report suggests there may be some optimism for your future. The probation officer notes you are determined not to put yourself in a position to offend again. You are considered to have a high motivation to change, to turn your life around and that you are at a low risk of re-offending.

[9] I note that you have responsibly made arrangements for the care of your children in the event that you are sentenced to imprisonment. The probation officer concludes with a recommendation, which counsel properly accepts is unrealistic in the circumstances, of community detention.

[10] Obviously your personal use of drugs and the relationship difficulties were key contributors to your offending but since you have been on bail you report you have not used drugs and counsel submits you have weaned yourself off drugs. As I have noted the probation officer has recommended a sentence that will enable you to remain within the community. The only possible sentence that could apply in your case that would enable that would be one of home detention. Such a sentence is only

available, as I am sure counsel has explained to you, if the ultimate end sentence, after taking account of the seriousness of the offending and your personal circumstances, is two years or less.

[11] In sentencing you I am required to take into account the purposes and principles of the Sentencing Act. In your case the particularly relevant purposes are to hold you accountable for the offending you have been involved in. The probation report suggests that you now understand the effect of your offending.

[12] It is also to engender responsibility in you for the offending. You must take responsibility for it. In a number of the letters of support written on your behalf reference is made to you making mistakes or errors of judgment. Well that might be on one or two occasions but you were involved in a prolonged activity of dealing drugs to your associates. So you need to accept responsibility for that.

[13] I am also required to provide for the interests of the community – methamphetamine is a pernicious drug. You know its effect. You became addicted to it yourself, yet despite that you supplied it to associates and made it available in the community.

[14] I am also required to denounce your offending and to deter you and others from similar offending.

[15] However, I am also required to consider your rehabilitation and reintegration into society.

[16] I am directed to consider the seriousness of the offending which is reflected by the sentences that Parliament has imposed for offending of this nature but also balanced against that the level of your culpability in this case. I am also directed to impose the least restrictive outcome appropriate in the circumstances of the offending overall and your personal circumstances.

[17] The Crown submits that your offending falls within band two of R v Fatu,[1] which is a Court of Appeal decision which prescribes bands for drug offending of this nature. The Crown argues for a starting point of three and a half to four years. Mr Cassidy responsibly accepts that the level of your supply of methamphetamine puts you within band two but submits towards the bottom of band two and argues for a start point of around three years.

[18] I accept your level of involvement was at a low level of commercial dealing and that you were generally supplying your associates with small amounts each time, however your offending did carry on over a long period of time. Despite that, I am prepared to accept Mr Cassidy’s submission and adopt a start point of around three years. There must be a small uplift to reflect your offending in relation to the MDMA as well. From a totality point of view I take a starting point for both offences of three years three months’ imprisonment.

[19] There are no aggravating factors. You have a previous conviction for driving with excess breath alcohol in 2008 but it is irrelevant for today’s purposes.

[20] I do give you some credit for the fact you have not appeared on anything other than the driving offence before. I also take into account the positive features described by the probation officer in the pre-sentence report and your expression of remorse, which, given your lack of previous serious record, and the circumstances that you find yourself in, I accept as a genuine statement of remorse. I also take into account that during the period of bail of 15 months you have been on restrictive conditions of bail, namely a curfew between 7.00 p.m. and 7.00 a.m., which you have observed without any breaches. I recall from an earlier hearing you were subjected to regular bail checks which must have been difficult given the age of the children you are caring for. To reflect all of those positive features I deduct six months from the starting point.

[21] The major remaining factor in your favour is your guilty plea. I also take into account in fixing the appropriate discount for that, that when you were first spoken

_{to you admitted your involvement candidly to the police and I accept Mr Cassidy’s}

submission that a guilty plea was intimated at an early stage. There then followed a number of negotiations with the Crown to settle the appropriate counts to which you would plead guilty to.

[22] For those reasons I propose to give a discount of between 20 and 25 per cent for your guilty plea, approaching 25 per cent.

[23] That does lead in your case to an ultimate end sentence of 24 months or two years’ imprisonment, which raises the possibility of home detention. Normally home detention is not considered appropriate for people who have dealt in drug offending, particularly people who have dealt in drug offending from their home.

[24] However, in your case, I am influenced by two factors, one, the positive steps that you have taken to turn your life around in the 15 months you have been on bail and the fact that you have weaned yourself off the addiction that you had to this drug methamphetamine. I also take into account the support that you have of your mother in particular and the fact that she has gone on oath to confirm her support. I also note the support of your brother and other close friends. You are going to require their support to ensure that you do not fall back into offending such as this again.

[25] I also bear in mind again that you have not offended before and are before the

Court effectively for the first time.

[26] On balance, considering those factors I am prepared as Mr Cassidy has urged me to do, to adopt a merciful sentence and impose home detention on you. Would you please stand.

[27] Rachel Wilson on the counts of supplying methamphetamine and MDMA you are sentenced to home detention for a period of 12 months. You are to travel directly to the address of 18 The Glade, Pukekohe and await the arrival of the probation officer and a representative from the monitoring company. You are to reside at that address for the duration of the sentence. You are to undertake an assessment for any alcohol and drug programme as may be recommended by your probation officer and if you are assessed as suitable for attending such further

counselling, treatment or programme as may be directed. You are to abstain from consumption of illicit drugs as directed by a probation officer. You are to undertake any such other programme of counselling as may be directed by a probation officer.

[28] Home detention for 12 months is not an easy sentence. You will be constrained at home and you must comply with the conditions.

[29] Ms Wilson you must also realise that you were right on a knife edge today. When I came into Court this afternoon I had considered the only sentence appropriate was one of imprisonment. After listening to counsel and considering the further material from your family I have decided on balance, but only just on balance, that the Court can be merciful. The Court is taking a chance with you with this sentence. I urge you to comply with it because there will be no second chance.

_{That’s all, stand down.}

Venning J

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[1] R v Fatu [2006] 2 NZLR 72 (CA).