R v Keegan [2012] NZHC 3019 (13 November 2012)

High Court of New Zealand

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R v Keegan [2012] NZHC 3019 (13 November 2012)

Last Updated: 20 November 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-088-2892 [2012] NZHC 3019

THE QUEEN

v

TONI MARIE KEEGAN

Hearing: 13 November 2012

Counsel: TL Nicholls for Crown

JS Day for Prisoner

Judgment: 13 November 2012

_{SENTENCING NOTES OF RODNEY HANSEN J}

Solicitors: Marsden Woods Inskip & Smith, P O Box 146, Whangarei

(Email: [e-mail] )

Mr JS Day, P O Box 225, Whangarei

(Email: [e-mail] )

R V TONI MARIE KEEGAN HC WHA CRI-2012-088-2892 [13 November 2012]

[1] Ms Keegan, you appear for sentence on five counts of selling a Class C controlled drug, namely cannabis, and four counts of offering to sell a Class C controlled drug, cannabis. Each of those counts carries a maximum sentence of eight years imprisonment. You entered guilty pleas in the District Court. The District Court Judge acceded to the Crown’s request to transfer the charges to this Court for sentence.

Background

[2] The offending was uncovered by a covert police operation that took place earlier this year. It revealed that you were operating, with some assistance from another it would seem, a tinny house from the house that you shared with your partner in suburban Whangarei.

[3] An undercover constable visited the house on a number of occasions in April and May. On four of those occasions he purchased a tinny - that is, cannabis wrapped in tinfoil – for $20. In the course of one of those visits, you advised him that you would sell him an ounce for $300. He said he would return the following day when he had enough money. When he came back, you arranged for your partner to go out and get the cannabis. You then texted the undercover constable when your partner returned and the undercover constable went to the house and completed the purchase.

[4] Further evidence of your commercial dealings in cannabis came from text messages that were intercepted between 15 April and 14 May this year. On 19, 20 and 24 April and 13 May, you sent by text to associates offers to sell half an ounce of cannabis for prices ranging from $140 to $170. On 7 May, and again in response to a reply to the text you sent out on 13 May, you made offers to supply one ounce of cannabis for prices of $340 and $350.

[5] When the operation terminated and your house was searched, a small quantity of cannabis was found and a bong. You admitted your offending. You said

you organised sales on behalf of a supplier who would deliver the larger quantities for on-sale.

Personal circumstances

[6] You were 18 when this offending occurred. You are now 19. You are a first offender. You had a disrupted and abusive childhood. I am told that you were sexually abused by your biological father at the age of eight and by your stepfather four years later. Child Youth and Family intervened. You were placed with your mother’s half sister. That turned out to be totally unsatisfactory because she was a methamphetamine user. So it is not at all surprising that you should have ended up in the position that you are in.

[7] At the time of the offending you had been living with your partner and co- offender and your young baby. I am told that you are now pregnant for a second time and expecting your baby in the middle of next year.

[8] You have expressed a willingness to address the causes of your offending – your drug use, your unsatisfactory choice of friends and associates and your anti- social attitudes. You have shown real signs of wanting to make the changes that are needed. The pre-sentence report says that you have distanced yourself from anti- social friends. You want to be a good mother. You attended a school for teenage mothers for five months during 2011. You describe this as positive and achieved NCEA levels one and two which is a highly creditable outcome. You explained that you had sold the cannabis to cover rent arrears.

Sentencing principles

[9] As you have heard in the submissions of counsel, there is agreement that the starting point for your offending comes from a case called R v Terewi.[1] Your offending comes within category 2 which covers relatively small scale commercial dealing in cannabis. The issue which has divided counsel is where, within that range

_{of between two years and four years imprisonment, you fall.}

[10] The Crown has argued for a starting point of three years imprisonment, relying on the sentencing in a case in this Court called R v Owen[2] and also a Court of Appeal decision in Lord v R.[3] I do not find Owen particularly helpful or relevant. A starting point of three years imprisonment was adopted in that case but there were many more charges and the charges included the sale of cannabis resin which is a Class B controlled drug. In that case, text messages showed offers to supply at least

$3,000 worth of cannabis, whereas, in your case, the total value of the transactions in which you have been implicated is a little over $1,000.

[11] I think the case of Lord is somewhat more applicable on its facts. In that case, the Court of Appeal found that a starting point of two years and nine months was within the range for four counts of selling cannabis and two of possessing cannabis for supply.

[12] My assessment, having regard to sentencing levels in other cases to which I have been referred, is that a starting point of two years and six months is about right. I emphasise that this is not an exact science. It is a question of making the best assessment one can of the culpability of the offending.

Aggravating and mitigating features

[13] Mr Nicholls suggested that the presence of your baby at the time of the offending could be regarded as an aggravating factor. I do not accept that. There are cases where the presence of children can rightly be regarded as an aggravating factor, such as where they are being put at risk. This is not such a case.

[14] The next issue I have to consider is what discount there should be for mitigating factors. It is accepted and absolutely standard that in a case such as this where you have entered a plea of guilty at the earliest possible opportunity a

_{discount of 25 per cent should be applied and I will do that.}

[15] But there is in your case a further important factor, in my view, that must mitigate sentence. That is your age and your lack of previous convictions. It has been acknowledged by our Court of Appeal, in a case called Churchward v R[4] among others, that psychologically young people are more vulnerable to negative influences and outside pressures and have greater difficulty regulating their behaviour and impulses. You have had, sadly, a troubled childhood. The abuse that you have experienced has to date not been addressed by counselling. You were exposed to drugs when you were very young. Those factors should be recognised in sentence,

as should the fact that there is more promise of rehabilitation in a young person than there is in a hardened criminal. That is particularly so when that person has expressed an eagerness, as you have, to take the steps that are necessary to change your lifestyle. You have got every incentive to remove yourself from a lifestyle that engages in drug-taking and other forms of anti-social activity. You have a baby to look after and another one on the way. It is very important that you provide them with the nurturing and the protection that you did not have throughout your childhood.

[16] Those considerations lead me to the view that the starting point of two years and six months should be reduced to two years to take account of your youth and good character and by a further three months to take account of your personal circumstances – the fact that you have a child to care for and another one on the way. To that reduced sentence of 21 months, it is necessary then to apply the discount for your guilty plea of 25 per cent. That would bring the sentence down by some five months to one of 16 months imprisonment.

Home detention

[17] That takes me to the question of home detention. Because the prison sentence would be one of less than two years, you are eligible for a sentence of home detention.

[18] I have received a report which says that the address at which you are living in

_{Kamo Road is technically suitable for the purpose of home detention. You are living}

there with a friend. It is said that there are some safety and welfare concerns at the address but Child Youth and Family, who are currently working with you, have no concerns about your living at that address. I am told also by your mother, who is present in Court, that she is actively supporting you and is in touch with you on a daily basis.

[19] As a general rule, the courts are reluctant to impose sentences of home detention in cases of drug dealing, particularly where the drug dealing has taken place from home. But a case called R v Hill[5] has made it clear that where the risks of reoffending can be controlled and the offender shows clear promise of rehabilitation, there is no reason why a sentence of home detention should not be imposed. Indeed, such a sentence in appropriate cases is not only in the interests of the offender, it is in the interests of society as a whole.

[20] I am satisfied that this is such a case. Things have been difficult for you and you have fallen by the wayside but there are strong indications that you have real insight into what has happened to you and you want to make the changes that are necessary for you to live a fulfilling and responsible life and to be a good and caring parent for your children. A sentence of home detention will provide you with the ability to do that because, among other things, you will have the opportunity to undertake counselling and educational courses and so on. There will be support available to you, not just from Child Youth and Family but also from the Probation Service and you should take full advantage of that.

Sentence

[21] If you wouldn’t mind standing now Ms Keegan, I will formally sentence you. [22] On each of the charges of selling a Class C controlled drug and offering to

sell the Class C drug, you are sentenced to eight months home detention. Those will be on the conditions set out in the report dated 29 October. I wish you all the best

_{Ms Keegan. You may stand down}

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[1] R v Terewi [1999] 3 NZLR 62.

[2] _{R v Owen HC Whangarei CRI-2009-027-002809, 17 March 2010.}

[3] Lord v R [2012] NZCA 276.

[4] Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].

[5] R v Hill [2008] NZCA 41.