R v Lash [2012] NZHC 144 (14 February 2012)

Last Updated: 17 April 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-055-001742 [2012] NZHC 144

THE QUEEN

v

KARA JOYCE LASH

Hearing: 14 February 2012

Counsel: B Finn for the Crown

HE Juran for the prisoner

Judgment: 14 February 2012

_{SENTENCING REMARKS OF ASHER J}

Solicitors/Counsel:

Crown Solicitor, DX CP24063, Auckland 1140. Email: [e-mail]

HE Juran, PO Box 38030, Howick, Auckland.

R V LASH HC AK CRI-2010-055-001742 [14 February 2012]

[1] Ms Lash, you appear for sentence today having pleaded guilty to one count of possession for supply of the Class A controlled drug methamphetamine. The maximum sentence available for this charge is life imprisonment.

Background

[2] Your involvement with the supply of methamphetamine was discovered in the course of a Police surveillance investigation known as Operation Hype 1. The Police summary states that you were the partner of a significant supplier of methamphetamine at the time whose conversations were being intercepted. Telephone records show that you were involved in supplying methamphetamine on some occasions. The surveillance does not show you to have any role of significance in the alleged commercial methamphetamine operation, but it does show you to have on occasions supplied small amounts of methamphetamine and obtaining a reward for that.

[3] On 22-23 December 2009 a person known as Stan attempted to procure one gram of methamphetamine from you. You said you only had .25 grams for the whole day. On 12 January 2010 there was a text exchange where an unknown person offered to trade a stolen gold lighter worth $1,400 for .5 grams of methamphetamine. There are two other text message conversations which refer to trades of methamphetamine for cannabis.

[4] After you were spoken to by the Police you provided a statement in which you admitted being involved in some low level supply of methamphetamine to associates.

Principles of sentencing

[5] In any case that involves the supply of methamphetamine the need to deter the offender and denounce the offending is an important consideration. You know better than anyone Ms Lash just how dangerous methamphetamine is, and indeed I will quote what you yourself have said which is accurate:

It disintegrates everything it touches, it’s a dead end ... it’s wrecked my

whole life. I have to start from scratch and build a clean and healthy life.

And because it does have these terrible consequences, it is necessary to denounce methamphetamine offending and to do all that is possible to stop others offending.

Starting point

[6] It is necessary to consider the starting point for the offending, by which I mean the sentence that is warranted for the offending itself before I turn to consider personal factors relating to you.

[7] The ranges of sentences that I must consider are set out in the guideline Court of Appeal decision known as R v Fatu.[1] Your sentence involves the supply of less than five grams of methamphetamine and it falls in what is called band one, which is the lowest band relating to the sale or supply of methamphetamine and the sentence range there is two to four years’ imprisonment.

[8] Both Mr Finn for the Crown and Mr Juran, your counsel, accept that band one applies. The question is where your offending sits. I have to recognise that your offending was not just a one-off occasion. It took place between December 2009 and April 2010. However, I am satisfied that while there was a commercial element in that you were offering to supply for reward, that commerciality was at a very low level and the occasions where you supplied tended to be rather one-off.

[9] Also I do accept that you had been drawn into a lifestyle where the exchange of methamphetamine for reward was part of a way of life, and that your role was peripheral and arose because you were the partner of the person who was involved in the business of dealing in drugs.

[10] Therefore, I am prepared to put your offending towards the bottom of the scale, but I do not feel able to put it at the absolute bottom because there were a number of occasions over a period of time. So I fix the starting point at two years

_{and three months’ imprisonment.}

[11] I now turn to factors relating to you personally. You have a relevant record where there are two convictions for possession of cannabis and methamphetamine. However, clearly that was not commercial and reflected your lifestyle at the time. So while you are not entitled to any credit for good character, because that record spoils that, I equally will not add to the sentence for bad character as I do not consider the offending to be sufficiently relevant.

[12] I have read the full and extremely helpful pre-sentence report. I am aware of difficulties in your background and the fact that despite those difficulties and with the support of your family you appeared to make a good start in life only to become involved with a group of persons who were involved criminal activity. You became a very heavy methamphetamine user.

[13] Following your arrest you have, it seems, walked entirely away from that way of life and with the support of your family endeavoured to lead a drug-free life and realise the potential you have always had. So far it seems you have been successful. You have attended a Salvation Army course for two months and attended sessions with Community Alcohol and Drug Services in Auckland over the last one and a half years. There have been some difficulties with those but I accept that they do not indicate an unwillingness on your part to undergo full rehabilitation.

[14] I have already quoted your observation about the effects of methamphetamine and I am prepared to accept that you are entirely remorseful and regret what has happened, and that you are presently determined to not go back to that bad way of life. Nevertheless, the pre-sentence report still reports you at being at a medium risk of re-offending, and that is understandable given the gravity of your offending and the links that you have had with methamphetamine users. But you are assessed at having medium to high levels of motivation to address your behaviour.

[15] I am prepared to give you a very unusual and significant discount for your remorse and your efforts at rehabilitation. Often those factors are just subsumed in the discount you get for a guilty plea, which I will mention shortly. However, in your case I will take the unusual step of giving you a specific discount for those

factors which reflects my acceptance of your turnaround and the efforts that you are making. So I will give you a 10 per cent discount on that basis.

[16] I now turn to the guilty plea that you have entered. The Crown submits 20 per cent and your counsel submits 25 per cent. It was not a guilty plea given at the first possible opportunity and the evidence against you appears to me to have been strong. I consider the correct discount is 20 per cent.

[17] Applying that sort of discount, the end sentence that would be imposed for this offending would be 19 or 20 months’ imprisonment. So the question is should I take the unusual step, given that this is commercial methamphetamine offending, of sentencing you to home detention? Home detention is not often ordered in relation to commercial methamphetamine offending. However, as was stated in R v Hill:[2]

Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.

[18] Your offending was committed at home, but you now have a new home and a new life. Your home now is going to be with your sister. She is obviously supportive of you and you are also supported by your mother, grandmother and other family members. There is a realistic prospect that your change will be permanent.

[19] Both Mr Finn and Mr Juran accept that home detention is the right sentence for you. I agree. So I am going to sentence you to a period of home detention of nine months. That will be a difficult sentence for you as home detention is hard on an offender, but with family support and your wish to turn your life around there is every chance it will work for you.

[20] Could you stand up please.

[21] Ms Lash, on the count of possession for supply of the Class A controlled drug methamphetamine you are sentenced to nine months’ home detention. The

_{conditions of that home detention are:}

(a) To travel directly to 86 Duke Street, Mt Roskill and await the arrival of the Probation Officer and security company representative.

(b) To remain at that address for the duration of the sentence of home detention and not to leave that address unless with the prior written approval of the Probation Officer.

(c) Not to consume, possess or purchase alcohol or illicit drugs for the duration of the sentence of home detention.

(d) To undertake and complete a suitable alcohol and drug treatment programme, including residential, to the satisfaction of the Probation Officer and programme provider.

(e) To undertake and complete any other counselling/programmes, if directed, to the satisfaction of the Probation officer and programme provider.

(f) You are not to communicate or associate with Wayne Van De Ven or any co-accused unless you have the prior written consent of your Probation Officer.

(g) Post detention conditions for 12 months may also apply.

[22] Ms Lash, you have made some terrible mistakes and as the Probation Officer wisely observes you remain at risk, with the background you have. If you do return to the life that you previously led I hardly need tell you that the consequences will be very bad for you and of course you will cause your family further agony. But I am quite persuaded that right now you are resolved to have a new and clean life and I must say from what I have read and from what I have seen of you there is an excellent chance that you will achieve that. So in a way the Court is placing faith in what you have said and what those who believe in you have said. While your offending was serious, and the sentence of nine months’ home detention recognises that, I wish you every success.

_{[23] You may stand down.}

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

Asher J

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

[2] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].