R v Matthews [2013] NZHC 119 (8 February 2013)

Last Updated: 26 February 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-090-819 [2013] NZHC 119

THE QUEEN

v

KATHLEEN MAHUE MATTHEWS

Hearing: 8 February 2013

Counsel: R Thomson for Crown

J Verry for Prisoner

Judgment: 8 February 2013

_{SENTENCING REMARKS OF LANG J}

R V KATHLEEN MAHUE MATTHEWS HC AK CRI-2012-090-819 [8 February 2013]

[1] Ms Matthews, you appear for sentence today having pleaded guilty in the District Court to two charges of being in possession of the Class C controlled drug cannabis for supply. Each of those charges carries a maximum sentence of eight years imprisonment. You have also pleaded guilty to two charges of being in possession of utensils in the form of methamphetamine pipes. The maximum sentence in respect of that charge is 12 months imprisonment.

[2] You have pleaded guilty to three charges of receiving. Because of the differing value of the items you dishonestly received, the maximum sentence in respect of those charges vary from between seven years imprisonment and three months imprisonment. You have also pleaded guilty to being in possession of the Class A controlled drug methamphetamine. That charge carries a maximum sentence of six months imprisonment. Finally, you have pleaded guilty to a charge of driving whilst forbidden to do so. That charge carries a maximum fine of $10,000, together with an order for disqualification at the Court’s discretion.

[3] The District Court declined jurisdiction to sentence you because of the sentencing limits imposed upon it in the jurisdiction in which you pleaded guilty. For that reason the District Court remanded you through to this Court for sentence.

The facts

[4] The charges relate to three separate incidents. The first of these occurred on

6 February 2012. On that date you were at your home address when the police arrived to execute a search warrant. When the police searched your bedroom, which was located in a converted garage, they found three plastic snaplock bags containing methamphetamine in your handbag. The snaplock bags were of a type commonly known as point bags, because they commonly contain approximately .1 of a gram of methamphetamine. In the side pouch of your handbag the police found a glass pipe consistent with the type of pipe used to smoke methamphetamine.

[5] Under your mattress the police found a plastic container that had 21 cannabis bullets in it. These had a combined weight of approximately 16 grams. Being in bullet form, they were obviously pre-packaged in a form commonly used to supply

cannabis at street level. Cannabis bullets, or tinnies, normally have a street value of

$20, so the bullets found in your possession had an estimated street value of $420.

[6] Whilst the police were at your address on this occasion you received a text message on your phone from an associate enquiring if you had cannabis available. You acknowledged to the police that you had sold that associate a bullet of cannabis the previous day for $20. When asked about why you were supplying cannabis to others, you told the police that it was to earn extra money because you were on a benefit and did not receive money from your former partner for child support.

[7] The police also found a laptop computer at your address when they searched it. The laptop had been stolen just over a month earlier from the Central City. You told the police the laptop was yours, and said that you had bought it from an unknown male approximately seven months earlier. That explanation was obviously false given the fact that the laptop had been stolen just a short time earlier.

[8] The next incident occurred 13 days later, on 19 February 2012. On that occasion you were driving a Subaru Legacy along a road in Henderson when the police stopped you. You had earlier, on 8 February 2012, been forbidden to drive until you had obtained a valid driver’s licence. You were asked why you were driving whilst forbidden, and said in explanation that you were going to get the tyre of your vehicle fixed.

[9] The next incident occurred on 18 April 2012. By this stage, of course, you were already on bail in respect of the charges arising out of the execution of the search warrant on 6 February 2012. On 18 April 2012 the police again attended at your address to execute a search warrant. You were not present at the time the police arrived, but your partner was. When the police looked under a pile of clothes on the sofa in the lounge of the address, they found $500 in loose cash. They also found a silver Jägermeister tin which contained six individually wrapped bullets of cannabis. There was also the further sum of $320 in cash in mainly $20 notes.

[10] The police also found a metal drinks bottle sitting on the dining room table. This was found to contain 26 more bullets of cannabis and $10 in cash.

[11] When the police searched the wardrobe in a bedroom of the address, they found an Xbox and a bag of games. This was worth approximately $400 and had been stolen in the burglary of a residential address in or about December 2010. In the same wardrobe the police also found seven items of stolen clothing. These still had the labels attached, and these showed that the total value of the items was $260.

[12] When the police searched the garage of the address, which you were using at that time as your bedroom, they found three glass pipes consistent with those usually used for smoking methamphetamine.

[13] When the police asked you for an explanation in relation to the Xbox and the stolen clothing, you denied any knowledge of the Xbox but said that you had purchased the items of clothing two weeks earlier from a friend for the sum of $100. You acknowledged that you suspected when you acquired them that they had been stolen.

Sentencing Act 2002

[14] In any case involving dealing in drugs, the courts are required to take a deterrent approach. This reflects the fact that drugs of any description have the capacity to cause a great deal of harm in our society. For that reason it is virtually inevitable that the Court will begin from the premise that a sentence of imprisonment will be imposed.

[15] Importantly, however, the Court is also required to ensure that the sentence it imposes provides for the rehabilitation of the offender, and his or her reintegration into the community. That is a factor that I consider needs to be applied in your case because it is clear, as I will shortly outline, that you have had a significant involvement with both methamphetamine and cannabis for some considerable time.

Starting point

[16] It is necessary for me to first fix a starting point that reflects the overall culpability of your offending. The most serious charges that you face are being in

possession, on two occasions, of cannabis for supply. Counsel agree that the starting point to be applied in respect of those charges is to be determined having regard to the decision of the Court of Appeal in R v Terewi.[1] In that case the Court said that a starting point of between two and four years imprisonment will be appropriate where there is drug dealing on a modest scale.

[17] You are a seller of drugs operating on a relatively small basis. The Crown suggests that the starting point in respect of those charges should be fixed at two years imprisonment, and I agree.

[18] There needs to be an uplift to reflect the fact that you have also been prepared to receive stolen property on at least three occasions. I suspect that this has arisen as part and parcel of your drug offending. It is likely that you have been prepared to receive stolen goods in exchange for cannabis. Nevertheless, that is a discrete form of offending and reflects dishonesty that needs to be recognised in the sentence. The Crown suggests an uplift of three months imprisonment, and I concur with that approach.

[16] This leaves me with an end starting point of two years three months imprisonment before considering aggravating and mitigating factors personal to you.

Aggravating factors

[17] There are two aggravating factors in your case that need to be factored into the equation.

[18] The first, and most serious of these, is that you were prepared to become involved in all of your offending whilst already on bail. You were released on bail in or about August 2011 on charges of being in possession of methamphetamine and utensils. That charge arose after you left your handbag at the (Sky City) Casino, and this was found to contain ten point bags of methamphetamine. You were on bail on

_{those charges when you committed all of these offences.}

[19] In addition, as I have already recorded, you were on bail on charges pertaining to the incident on 6 February 2012 when you committed the offences on

16 April 2012. That is a very significant factor, because one of the conditions of your bail was that you were not to consume or be in possession of drugs.

[20] You also have previous convictions for drug-related offending. In addition to the offending that occurred on 16 August 2011, you have convictions for possession of utensils in November 2009 and earlier convictions of a similar type stretching back to 2005. In addition, you have convictions for theft and receiving in 1997 and

2000 respectively.

[21] The Crown acknowledges, however, that you do not have any previous convictions for drug dealing activities and this is a factor that needs to be borne in mind when fixing the level of uplift. You need to know, however, Ms Matthews, that the present convictions mark you out as a drug dealer and, from now on, any uplift the Court applies for future similar offending is likely to be significantly greter.

[22] The Crown suggests an uplift of three months imprisonment to reflect these aggravating factors, and I am prepared to impose that uplift even though it can be regarded as generous.

[23] This leaves me with an end sentence of two years six months imprisonment before taking into account mitigating factors personal to you.

Mitigating factors

[24] You appear for sentence at the age of 41 years. The pre-sentence report makes it clear that you have had a very significant involvement with drugs for some time. That is demonstrated by your criminal history, which contains drug-related convictions going back many years.

[25] Importantly, however, you have recently undertaken rehabilitative steps. You completed the Salvation Army Bridge Programme in August 2012. You have been subject to a 24 hour curfew on electronically monitored bail for approximately eight

months, and no issues have been identified during this period in the form of drug use by you. You say that you now wish to continue your efforts at rehabilitation, and say you are determined to do that. It would obviously be in society’s best interests for you to do that, and if you do not engage with such rehabilitative programmes as may be offered to you there must be a realistic chance that you will relapse and again become involved in drug-related offending. The fact that you have already been prepared to engage in rehabilitative steps is a matter that I propose to take into account in selecting the end sentence for you.

[26] The most significant factor in respect of which I can give you credit is your guilty pleas. The Crown accepts that these should attract a full discount in the order of 25 per cent. I propose to reduce your sentence by seven months to reflect that fact.

[27] It is also important that I give recognition to the fact that you have spent approximately three weeks in custody on the present charges, and you have also been subject to stringent electronically monitored bail for approximately eight months.

[28] Counsel have provided me with authorities[2] indicating that, in those circumstances, a further discount of around three months is available. Taking into account the fact that you have also spent three weeks in prison, I propose to apply a discount of four months to reflect that factor. This leaves me with an end sentence of one year seven months imprisonment. You therefore qualify for a sentence of home detention.

Home detention

[29] In deciding whether to exercise its discretion to impose a sentence of home detention, the Court will normally tend to have regard to the nature of gravity of the offending and the prospects of rehabilitation. Your history, Ms Matthews, suggests you are not a prime candidate for rehabilitation. Courts also hesitate to impose sentences of home detention on drug dealers because it may lead to further offending

_{in the form of drug consumption and drug dealing. Your offending, of course,}

occurred within the home environment and this would also normally be a factor counting against a sentence of home detention.

[30] In your case, perhaps unusually, the Crown supports a sentence of home detention. It does so because it recognises the rehabilitative steps you have taken to date, and your determination to continue with these in the future. For me, these are the deciding factors in selecting the type of sentence to be imposed. You will have one final opportunity to prove that you can rehabilitate yourself and remain drug free.

[31] You need to be aware, however, Ms Matthews, that this is your final opportunity. If while serving your sentence the authorities discover that you have been consuming or selling drugs, then the Court expects an immediate application will be made for the termination of the sentence of home detention and imposition of the sentence of imprisonment that would otherwise have been imposed. So you need to understand that this is your final opportunity, and you must take it.

Sentence

[32] On the lead charges of being in possession of cannabis for supply you are sentenced to ten months home detention.

[33] On each of the charges of receiving you are sentenced to one month’s home

detention.

[34] On each of the charges of being in possession of utensils you are sentenced to two months home detention.

[35] On the charge of being in possession of methamphetamine you are sentenced to three months home detention.

[36] All of those sentences are to be served concurrently, so you will serve an effective sentence of ten months home detention.

[37] On the charge of driving whilst forbidden to do so, you are convicted and discharged.

[38] Counsel have helpfully raised with me the fact that you are currently serving a sentence of intensive supervision arising out of the sentences imposed on you in relation to the incident that occurred on 16 August 2011. It is not possible for sentences of intensive supervision and home detention to be served together.[3] For that reason, I anticipate that the Probation Service will apply to the District Court for an order cancelling the sentence of intensive supervision.

[39] I also express the hope that the probation authorities will find a way for you to undertake further rehabilitative programmes and/or therapy whilst you are serving your sentence of home detention. I consider that is essential if you are to have a realistic chance of remaining drugs free at the conclusion of your sentence.

[40] The sentence of home detention is subject to the following special conditions:

1. You are to reside at 26 Birdwood Road, Swanson, for the duration of the sentence of home detention.

2. You are to travel directly today to that address and you are to remain there until the Probation Officer and representative of the monitoring company arrive.

3. You are to comply with the requirements of electronic monitoring as directed by the Probation Officer.

4. You are not to purchase, possess or consume alcohol and/or illicit drugs for the duration of your sentence.

5. You are to comply with any drug testing procedures that may be directed by your Probation Officer.

6. You are to undertake such vocational training or employment as directed by the Probation Officer.

7. You are to attend an assessment for, and to complete if appropriate, an alcohol and drug counselling and treatment programme to the satisfaction of your Probation Officer and programme provider. Details of any such programme are to be determined by the Probation Officer.

8. You are to attend an assessment for Kowhiritanga, and if deemed suitable, you are to attend and complete that programme to the satisfaction of your Probation Officer and programme provider.

9. You are to undertake any other appropriate counselling and/or programmes, if eligible, and as directed by the Probation Officer.

Destruction order

[41] Finally, I make an order for the destruction of the drug-related paraphernalia that the police found in your possession.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

J Verry, Auckland

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

[2] R v Tamou [2008] NZCA 88; R v Schuster [2011] NZCA 343.

[3] Sentencing Act 2002, ss 19 and 20.