R v Guthrie [2013] NZHC 1783 (16 July 2013)

Last Updated: 1 September 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-5862 [2013] NZHC 1783

THE QUEEN

v

GINA GUTHRIE

Hearing: 16 July 2013

Appearances: W N Fotherby for Crown

M N Pecotic for Prisoner

Sentenced: 16 July 2013

_{SENTENCING REMARKS OF PETERS J}

Solicitors: Meredith Connell, Crown Solicitor, Auckland

_{Counsel: M N Pecotic, Auckland}

R v GUTHRIE [2013] NZHC 1783 [16 July 2013]

Introduction

[1] Ms Guthrie, you are for sentence on 5 charges to which you pleaded guilty in

April 2013.

[2] Counts 1 and 2 are representative and are that between 1 June and 6 October

2011 you supplied a Class A controlled drug, namely methamphetamine, and that you supplied pseudoephedrine, which is a pre-cursor substance for the manufacture of methamphetamine. The charge of supply of methamphetamine carries a maximum penalty of life imprisonment[1] and the charge of supply of a pre-cursor

substance[2] carries a maximum penalty of 7 years’ imprisonment.

[3] Counts 3, 4 and 5 arise from searches the Police carried out on 6 October

2011.

[4] Count 3 is possession of methamphetamine for supply.[3] The maximum penalty is life imprisonment.

[5] Count 4 is possession of a pre-cursor substance, pseudoephedrine.[4] The

maximum penalty for that count is 5 years’ imprisonment.

[6] Count 5 is unlawful possession of a firearm.[5] The maximum penalty for this

charge is 4 years’ imprisonment.

[7] In summary, looking at those penalties, you are before the Court on serious charges.

Facts

[8] On 6 October 2011, the Police stopped and searched a taxi that you were in. They found a total of 111.9, so we will call it 112, grams of methamphetamine in

_{your possession and $5,145 in cash.}

[9] The Police also executed search warrants at your address and at two storage facilities that you had rented. There they found more than $47,000 in cash. So, in total you had about $52,000 in cash either on you or at premises of which you were the occupier.

[10] The Police also found two amounts of ContacNT, that being a medication that contains pseudoephedrine. One amount was 220.9 grams and the other was

226 grams, giving a total of 447 grams effectively. The Police estimate such a quantity of pseudoephedrine would have a street value of about $20,000 and that it would yield approximately 90 grams of methamphetamine. The Police also found a sawn-off shotgun in one of the storage facilities.

[11] Those searches have given rise to counts 3, 4 and 5, of which count 3, possession for supply of methamphetamine, is the most serious.

[12] Counts 1 and 2, the representative counts of supply of methamphetamine and supply of pre-cursors, arise from evidence of text messages sent to and from a mobile phone you were using between June and October 2011. The Police are not able to determine how much methamphetamine and pseudoephedrine you supplied over this period. I know your account of the matter is that you were a “middle man” and essentially acted as a courier of product or cash between buyer and seller. Even if you carried out that role, your activities still constitute supply and, in my view, do not reduce your culpability in any significant way. The amount of cash the Police found on 6 October 2011 and your possession of the sawn-off shotgun indicate that you were involved in this trade in a significant way over 4 months.

Personal circumstances

[13] In preparing for sentencing today, I have considered the submissions made by both counsel, the pre-sentence report which is dated 1 May 2013, your prior criminal history, the letters of support which that your counsel filed several weeks ago now and more recently, yesterday, a letter from you and a letter from your son. I have

_{also read the Court of Appeal judgment}[6] _{from 2008 delivered on a successful appeal}

you made against a sentence that another High Court Judge, Justice Wylie, imposed in 2008.[7]

[14] You are 45 and a mother of two sons aged 18 and 14 years. Several matters emerge from the pre-sentence report and the letters. The first is that you are known to your family and friends as a generous, intelligent and a caring and loving mother. The second is that a combination of unfortunate personal circumstances has led to your offending, including relationships with people who, in retrospect, have hindered rather than helped you. The third is that you are addicted to methamphetamine. You say you that want to get off the drug and rehabilitate yourself, but as I have already said to your counsel and to you today, you said the same thing to the Court of Appeal

5 years ago.[8] You have had plenty of time to address these addiction issues and, as I

have already said, you clearly have the ability to do it. I am satisfied, however, that the efforts you made, at least before you entered your guilty pleas, were too little, too late.

[15] The pre-sentence report puts you at a medium risk of reoffending and says your risk of harm to others can be considered high due to your involvement in the drug trade and the impact that it has on the community.

[16] As for your prior criminal history, your methamphetamine related offending commenced in August 2005, so that is 8 years ago. If I include counts 1 to 4 of the present offending you have 11 convictions concerning methamphetamine. That excludes the different but probably related charges in respect of the firearm and of course charges for receiving stolen property which were dealt with a couple of years ago.

[17] Taking all of these matters into account, I consider that you have the personal qualities, intelligence and support to turn this situation around but to date you have not done so. Whether you will do so in the future remains to be seen. I am sympathetic to your sons but the Court has previously reduced your sentence for

_{personal matters and it is not going to keep doing so.}

Approach to sentencing

[18] The only sentence for a person who deals in Class A drugs at your level is imprisonment. The sentence to be imposed must be one that deters both you and other people from becoming involved in this kind of drug dealing. It is also necessary to impose a sentence that properly reflects the totality of your offending. The sentence must be broadly consistent with sentences imposed in other cases, hence the lengthy discussion I have had with your counsel this morning, and must be the least restrictive outcome appropriate in the circumstances. In the context of your offending that means that I have to impose the minimum sentence of imprisonment that I can.

[19] The process that I intend to adopt is to select a sentence on the lead, or most serious, charge. Counsel agree that is the charge of being in possession of methamphetamine for supply. I propose to select a starting point in relation to that charge and then take account of your other offending. That is the first stage.

[20] The second stage is to consider all of the matters that relate to you personally, the favourable and the not so favourable, which make it appropriate to increase or reduce the starting point so as to arrive at the final sentence. So, there is a lot of adding and subtracting and you should not assume that you have heard the final sentence until you have heard the final sentence.

Starting point

[21] As I have said, counsel are agreed that I should take count 3 as the lead offence. That is because we know the quantity of methamphetamine in your possession that day of 111.9 grams.

[22] Counsel also agree that the starting point for the methamphetamine charge falls to be determined in accordance with a decision of the Court of Appeal in a case called R v Fatu.[9] In that case the Court of Appeal identified bands of starting points to be applied in relation to offending involving the manufacture or supply of

_{methamphetamine.}

[23] Your offending falls to be dealt with in accordance with band 2. Band 2 is for offending involving between 5 and 250 grams of methamphetamine and depending on matters of culpability will attract a starting point of between 3 and 9 years’ imprisonment. The quantity that you had in your possession – 112grams – is such that the methamphetamine must have been for supply.

[24] The Crown says that quantity puts the offending in the range of a starting point, just on count 3, of between 5 to 7 years’ imprisonment.

[25] Your counsel submits that it should be between 4 ½ and 5 years’ imprisonment. That contention is made on the basis of the lesser role it is contended that you took. I do not accept that the role you played was lesser in any significant way so as to warrant any significant departure from the bands. In my view, the appropriate starting point on count 3 is 5 ½ to 6 years’ imprisonment.

[26] That leaves the four other charges. Count 4 concerns a substantial amount of pseudoephedrine. Count 5 is serious in its own right. Sawn-off shotguns are dangerous things and the fact that you had one, for whatever reason, is alarming.

[27] Then there are the two representative charges. Taking all of those into account, the Crown suggests an uplift of 2 years which would take, on the Crown’s view of it, the starting point to 8 years. That would be the maximum.

[28] Your counsel suggests that the totality of the offending requires a starting point of 5 years’ imprisonment and no more than that. I cannot accept that submission. In my view, the Crown is much closer to the correct answer and I propose to take a starting point of 7 ½ years’ imprisonment.

Adjusting the starting point

[29] I turn to the second stage of the exercise, which is to consider whether it is necessary to increase or reduce the sentence on account of other matters that are personal to you.

[30] The aggravating features personal to you which increase the starting point are your prior related drug offending. Your criminal history includes convictions for methamphetamine related offending in August 2005 and June 2006. Sentences of imprisonment were imposed including 2 years and 6 months’ settled upon by the Court of Appeal for possession of methamphetamine and a further 9 months imposed for the 2005 offending.

[31] Now you have offended again, in a relatively close period of time, in relation to Class A drugs. In those circumstances an increase in the starting point is required. That is not to penalise you again for the earlier offending. It merely reflects the fact that you did not learn from the sentences imposed on you earlier. You knew the risks that supplying methamphetamine entailed and you clearly took the view that it was worth running them.

[32] I propose to increase the starting point by 6 months’ in relation to your earlier

offending, and that takes the sentence to 8 years’ imprisonment.

[33] There must then be a reduction to the sentence for personal and other matters to which both counsel have referred and for which it is agreed that a reduction is required. For these matters I propose to reduce the sentence by between 25 and 30 percent.

[34] As I have already said I do not place any weight on the submissions that you are remorseful or have attempted to rehabilitate yourself. The same points, as I have said, were made to the Court of Appeal in 2008 and you have had plenty of time since you were arrested to progress rehabilitation so there will not be any further reduction on account of those matters.

[35] Then there is your guilty plea. I understand from both counsel that meaningful discussions commenced shortly before the trial following a substantially revised indictment. The earlier such discussions start and the earlier a guilty plea is entered, the greater the discount likely to be given. I accept the points your counsel makes and I allow a discount of 15 per cent.

[36] Allowing for the 6 month uplift, and the percentage reductions to which I

have referred, I impose a sentence of 4 years, 10 months. That is the final sentence,

4 years, 10 months’ imprisonment.

Sentence

[37] Please stand:

(a) on the lead charge of possession of a Class A controlled drug for supply on 6 October 2011, I sentence you to 4 years, 10 months’ imprisonment;

(b) on the representative charge of supplying a Class A controlled drug between 1 June and 6 October 2011, I sentence you to 3 years’ imprisonment;

(c) on the representative charge of supplying pseudoephedrine, a pre- cursor substance, between 1 June and 6 October 2011, I sentence you to 3 years’ imprisonment;

(d) on the charge of possession of pseudoephedrine, a pre-cursor substance, on 6 October 2011, I sentence you to 3 years’ imprisonment; and

(e) on the charge of unlawful possession of a firearm, I sentence you to

18 months’ imprisonment.

[38] All sentences are to be served concurrently. That means your total sentence

is 4 years, 10 months’ imprisonment.

[39] There will be an order for forfeiture made in respect of all cash the Police located with the exception of $17,000 net. On the evidence before me, I am not satisfied that the $17,000 results from your offending. It will be for your counsel and the Crown to liaise as to how reimbursement to the relevant payers is to be effected. If any issues arise counsel may refer back to me.

[40] There is to be an order for destruction of the firearm and any drugs or related paraphernalia which the Police seized in the search.

[41] Stand down.

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

M Peters J

---

[1] _{Misuse of Drugs Act 1975, s 6(1)(c).}
[2] _{Ibid, s 12A(1)(b).}
[3] _{Ibid, s 6(1)(f).}

[4] _{Ibid, s 12A(2)(b).}

[5] Arms Act 1973, s 54.

[6] R v Guthrie [2008] NZCA 439.

[7] _{R v Guthrie HC Auckland CRI-2006-004-11979, 24 June 2008.}

[8] R v Guthrie, above n 6.

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