R v McGee HC Whangarei CRI-2010-088-002612 [2011] NZHC 1308 (6 July 2011)

Last Updated: 3 November 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI-2010-088-002612}

THE QUEEN

v

HELENA SUSANNE MCGEE

Hearing: 6 July 2011

Counsel: DB Stevens for the Crown

WD McKean for the prisoner

Judgment: 6 July 2011

_{SENTENCING NOTES OF ASHER J}

Solicitors/Counsel:

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

WD McKean, DX AP24506, Whangarei 0148. Email: [e-mail]

R V MCGEE HC WHA CRI-2010-088-002612 6 July 2011

[1] Ms McGee you appear for sentence today on 13 charges being 10 charges of offering to supply methamphetamine, two charges of supplying methamphetamine and one charge of offering to supply cannabis. The maximum penalty for the methamphetamine charges is life imprisonment. The maximum penalty for the cannabis charge is eight years’ imprisonment.

[2] You had been arrested as part of the Police operation known as “Operation Arabia”. Your apprehension was as a result of the interception of various text messages. The summary of facts shows that over a two-month period you were involved in offering to supply methamphetamine and on two occasions actually supplying it. The amounts involved on each individual occasion were small. You were commercially dealing in methamphetamine at what could be called the lowest level, offering bags of very small amounts of the drug worth $100 or $200 to various persons.

[3] In summary, therefore, you were involved in the commercial offering for sale of methamphetamine for two months at a street level basis. The total amount of methamphetamine involved was 4.35 grams of what has been described by your counsel Mr McKean as low grade methamphetamine. In relation to the single cannabis charge, the amount involved was an ounce worth approximately $300 and given the fact that your phone was being monitored it can be accepted that this was something of a minor one-off act of offending.

[4] In sentencing you I take into account the maximum sentences that are directed by the legislature. The leading case setting out the correct approach in relation to sentencing on methamphetamine for supply is R v Fatu[1] and it is agreed by counsel that your level of offending comes within band one. The range of starting point for sentence is therefore between two and four years’ imprisonment.

[5] Mr Stevens for the Crown submits that the correct starting point is between three and four years’ imprisonment. Mr McKean on your behalf suggests a lower

_{starting point of between two and two and a half years.}

[6] In considering the appropriate starting point I must take into account the other sentencing decisions that have been delivered in Operation Arabia. There are quite a number of these and I refer specifically to two: R v Matthews[2] and R v Tohu.[3]

[7] In R v Matthews the amount of methamphetamine was 3.6 grams and the dealing was similar street level commercial sales. There were 12 counts of conspiracy to supply and offering to supply in total. The starting point reached was approximately two years and nine months’ imprisonment.

[8] In R v Tohu the total amount was in the order of two grams and there were four charges of supply and four charges of offering to supply. The starting point reached was two and a half years’ imprisonment.

[9] In assessing the correct starting point I take into account the period, the nature of the commerciality and the amounts involved. A starting point higher than that in R v Tohu and slightly higher than that in R v Matthews would appear to be warranted. I accept, however, that despite the amounts in question a sentence close to the four year mark would be too high given, in particular, the fact that most of the charges are for offering to supply only and there is no indication that supply was achieved. Further, as I have said, the relatively petty and comparably insignificant amounts of each individual offer are relevant.

[10] I also take into account the cannabis offending that for the reasons already given I regard as a one-off offer to supply at the lowest level of seriousness.

[11] In the end I reach a starting point of three years and two months’

imprisonment.

[12] I turn now to matters relating to you personally. To start with the negative, your record shows that you have been involved in constant criminality from about the age of 17. Of the 47 prior convictions you have, nine are drug related. Significantly, in 2006 you were sentenced to two years and two months’

_{imprisonment for the supply of methamphetamine.}

[13] This serious prior offending demands an uplift. I do take into account, however, that it appears to reflect the desperate and low level criminal life that you have led for your adult years. I therefore increase the starting point by four months.

[14] I turn now to matters relating to you personally which demand a reduction in the sentence that would otherwise be imposed. I have the benefit of a helpful probation report. First, you are entitled to a significant credit for your guilty plea. It was not given on the first possible occasion but I have a detailed explanation from Mr McKean as to why this was so. He observed that the reasons for the delay in the entry of the plea have nothing to do with you personally and that in the circumstances a full discount is warranted. The Crown has not contested that submission.

[15] I therefore propose giving you the maximum discount of 25 per cent.

[16] It is clear from the Sentencing Act 2002 and Hessell v R[4] that remorse is a particular factor that can on occasions warrant a discount. In this respect I have statements in the probation report which record the very hard and unfortunate life you have led and the fact that you now feel deep remorse for your offending. I have also had the benefit of reading your handwritten letter addressed to the presiding Judge in which you set out what your life has been and where you are now. You record your great love for your son and your wish to have a better life with him. You record your distress at seeing young girls coming into prison affected by methamphetamine and how it is damaging their lives.

[17] Judges are always very cautious in assessing remorse. Here I am satisfied from the probation report and your letter that your remorse is entirely sincere.

[18] You now want to re-establish yourself in our community and to be a good example to your son. You want to be involved in voluntary work educating others, and I quote you, “about the consequences of methamphetamine and how it will destroy lives”. You are genuinely ashamed at the course your life has taken and you

_{appear to have turned it around.}

[19] Without going into detail, the level of active remorse in this case is extraordinary. I propose, in those circumstances, to take the very unusual step of giving you a nine month reduction from the sentence I would otherwise impose, for your remorse. I will therefore deduct that nine months from the starting point I have reached and I will then make the deduction I have indicated for the guilty plea. That will mean that the end sentence is two years’ imprisonment.

[20] Such a sentence requires me to consider the option of home detention. Home detention would not be appropriate given the nature of the charges and the particular factor of your prior record and previous sentence of imprisonment for methamphetamine supply. I note that home detention is not recommended in the probation report, and that such a sentence has not been a submission pursued by your counsel.

[21] I am very impressed with your probation report and your letter to me. It seems to me that after a very hard life you could be at a point of great change, change for the better. You obviously are an intelligent person. The letter you have written to me shows that you are sensitive and you are articulate. You still have a very good life ahead of you if you are able to seize it. Unlike many people we see in this court, you are a person who is able to seize this opportunity and has done so. You have a lot to offer. I hope you will take up your intention to help other younger people who may face the same problems you faced when you were a teenager in your early years. I hope too that you can resume your relationship with your son and be a good mother and good example.

[22] So the sentences I impose are as follows:

(a) On the 10 offering to supply methamphetamine counts you are sentenced to two years’ imprisonment on each count. Those sentences to be concurrent.

(b) On the two charges of supplying methamphetamine you are also sentenced to two years’ imprisonment on each count. Those sentences to be concurrent.

(c) On the one charge of offering to supply cannabis you are sentenced to two months imprisonment. That sentence also to be concurrent.

[23] The end result is the sentence for all your offending is two years’

imprisonment.

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

Asher J

---

[1] R v Fatu [2006] 2 NZLR 72 (CA) at [34].
[2] _{R v Matthews HC Whangarei CRI-2010-088-2612, 14 April 2011.}
[3] R v Tohu HC Whangarei CRI-2010-088-2691, 7 October 2010.

[4] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].