R v Ashby HC Whangarei CRI-2010-027-000143 [2011] NZHC 1307 (6 July 2011)

Last Updated: 3 November 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI-2010-027-000143}

THE QUEEN

v

_{MICHELLE KAY ASHBY}

Hearing: 6 July 2011

Counsel: DB Stevens for the Crown

C Muston for the prisoner

Judgment: 6 July 2011

_{SENTENCING NOTES OF ASHER J}

Solicitors/Counsel:

Crown Solicitor, PO Box 146, Whangarei 0140. Email: [e-mail]

C Muston, PO Box 1905, Whangarei 0140. Email: [e-mail]

R V ASHBY HC WHA CRI-2010-027-000143 6 July 2011

[1] Ms Ashby you appear today for sentence after conviction on one count of conspiracy to supply methamphetamine. Your arrest arises from a Police operation known as “Operation Fender”. In the course of that operation Police became aware that you were having exchanges with another person involving the proposed sale of methamphetamine. An analysis of the dealing shows that you would on occasion supply small amounts to third parties, usually between $50 and $200 worth at a time. The total amount sold came to just over one gram.

[2] In the course of their submissions both Mr Stevens for the Crown and your counsel Mr Muston have accepted that it would be appropriate for this Court to consider home detention rather than a period of imprisonment as the appropriate sentence.

[3] It must be first recorded that in considering a sentence, deterrence and denunciation are very significant considerations. Methamphetamine is a menace to a large proportion of our society, particularly young or disadvantaged people. Indeed, you are a victim of methamphetamine use and you must have seen the damage it does.

[4] In fixing a starting point in the sentencing process the position is governed by the Court of Appeal case of R v Fatu.[1] Bands were set in that case in relation to the supply, manufacture and importation of methamphetamine. Given the level of one gram that is involved here, and assuming that this was a supply charge, you would be at band one, the lowest level for sentencing purposes. The sentencing levels are between two and four years, although on occasions the courts can go even lower.

The position is complicated however because you are charged with not actual supply but with conspiring to supply. The maximum sentence to which you are exposed is

14 years’ imprisonment.

[5] The Supreme Court in R v Jarden[2] has made it clear that there will be a discount from what you would receive if charged with actual supply and what you

will get on this conspiracy charge. What discount is appropriate will vary according to the facts.

[6] There undoubtedly was commerciality involved, although very low level, in your conspiracy to supply. Considering that low level commerciality and the comparatively low amount of one gram I have concluded that a starting point of two years’ imprisonment is the right amount assuming a supply charge. Then I discount that amount on the basis that this is conspiracy to supply and not actual supply. The amount of discount I consider on these facts to be correct is 15 per cent.

[7] On this basis the starting point I reach is one year and eight months imprisonment.

[8] I now turn to matters relating to you personally. You have no previous record and there are no aggravating factors.

[9] There are two significant mitigating factors. First the fact that you have no previous convictions which I taken into account as evidence of your previous good character. This is a matter that the Sentencing Act 2002 specifies can be considered and you are entitled to a credit for having lived your life until the point of this offending without blame.

[10] The second factor is your undoubted remorse. I have read the probation report and the testimonial document that has been provided to the Court. These documents tell how after leaving school with Fifth Form Certificate and having a full-time job you fell pregnant, continued to work part-time but then made some very bad decisions and got involved with criminal elements.

[11] However, you are remorseful. You realise the implications of what you have done to your life and what it has involved in hardship to your son. You want to be a good mother to your son who is the priority in your life. I look on your case as one where a person who has a great deal to offer our society and to offer her son as a good mother has gone astray and now genuinely wishes to get back into the mainstream of our community and be a good mother and be a good example.

[12] So I am going to give you a very considerable discount for your good record and your remorse of five months. From that I must also deduct an amount for your guilty plea which I note was far from at the first possible opportunity. In the circumstances, and there is little disagreement between the Crown and your counsel on this, the discount will be 15 per cent. This means that the end sentence that would be imposed if you were to be sentenced to imprisonment would be 13 months.

[13] But as I said at the outset both counsel responsibly, and in my view correctly, accept that home detention is the right sentence. Home detention would give you an opportunity to stay with your son and stay connected with the community (although we all know home detention in itself involves considerable restriction and hardship).

[14] I have a report setting out detailed information about the suitability of home detention and the address and I am satisfied from that report that this is an appropriate option. But having reached this decision I do make the point that it is unusual for those convicted of dealing in methamphetamine to receive a sentence of home detention and not go to prison. This is because, as I have already said, methamphetamine is so damaging to our community and there is always the need of deterrence, but it is also because as I mentioned home detention carries its own hardships and sends drug dealers and drug users back to a home environment where they might be faced with possible future temptation. However, here if any temptation does come your way there is every reason to believe you will reject it.

[15] The amount I determine as the appropriate length for the home detention is influenced by the fact that the maximum sentence of home detention is one year compared to the minimum period of imprisonment under which home detention is an option of two years, and also the fact there is no possibility of any early release from home detention.

[16] In all the circumstances the sentence of home detention will be seven months.

[17] Ms Ashby, you have been through a very bad phase in your life. Everything that has the ability to make you and your son happy has been at risk while you have been involved with methamphetamine. It is still at risk, but undoubtedly you have a

chance now to turn your life around, to be a good mother to your son whom you love and to be a good member of our community, so please take that chance.

[18] You are sentenced to seven months’ home detention on the conspiracy count with the following special conditions:

(a) After receiving the order from the Court to report to a probation officer at Community Probation Service, 17-19 Station Road, Kaikohe.

(b) When instructed to do so, travel directly to the proposed address of

20 Oromahoe Road, Opua. To travel by the most direct route with no stops and wait the arrival of the probation officer and security officer.

(c) To reside at 20 Oromahoe Road, Opua and not move from the address without the prior written approval of a probation officer.

(d) Not to purchase, possess or consume alcohol and/or illicit drugs for the duration of the sentence.

(e) Not to permit alcohol and/or illicit drugs at the detention address of

20 Oromahoe Road, Opua.

(f) To undertake and complete any other counseling or treatment to the satisfaction of the probation officer and counselor. The details of the treatment or counseling to be determined by your probation officer.

(g) To undertake and complete an alcohol and drug counseling programme to the satisfaction of the probation officer and treatment provider. The details of the treatment or counseling to be determined by your probation officer.

[19] There will also be imposed the following post-detention conditions which I

emphasise will be at the discretion of the probation officer:

(i) To undertake and complete any other counselling or treatment to the satisfaction of the probation officer and counsellor. The details of the treatment or counselling to be determined by your probation officer.

(ii) To undertaken and complete an alcohol and drug counselling programme to the satisfaction of the probation officer and treatment provider. The details of the treatment or counselling to be determined by your probation officer.

[20] You may stand down.

...................................

Asher J

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[1] _{R v Fatu [2006] 2 NZLR 72 (CA).}
[2] R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [11].