R v Jackson [2013] NZHC 2194 (27 August 2013)

Last Updated: 20 October 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-055-2640 [2013] NZHC 2194

THE QUEEN

v

VICTORIA ANNE JACKSON

Hearing:	27 August 2013
Appearances:	S McKone and K Raftery for Crown R L Thomson for Prisoner
Sentence:	27 August 2013

SENTENCING NOTES OF PRIESTLEY J

Counsel:

S McKone, Crown Solicitors, Auckland K Raftery, Crown Solicitors, Auckland R L Thomson, Te Kuiti

R v JACKSON [2013] NZHC 2194 [27 August 2013]

[1] Victoria Anne Jackson, I am sentencing you this afternoon on one count of offering to supply the Class A drug methamphetamine laid under s 6(1)(c) of the Misuse of Drugs Act 1975. As I am sure you are aware, this is an offence which Parliament has regarded seriously. It has stipulated a maximum penalty of life imprisonment. Let me say at the outset that I do not intend to sentence you to a lengthy term of imprisonment. But I am telling you what I have just said because you need to learn now that drug offending is always seriously regarded, not only by the courts but by society. You better than most people, because of your addictions, should be aware of the dreadful effect which methamphetamine can have on people’s lives and personalities.

[2] I accept that you were very much a minor player in the offending before me and to some extent you were probably bobbing in the wake of your then de facto partner, Mr John Cuthers. Nonetheless, you were involved in the supply of approximately 38.26 grams of methamphetamine to unknown people between February and August 2012. The negotiations for these sales, as so often is the case, were carried out by cellphone. Many people in your situation come before the courts, Ms Jackson, and many of them are in exactly the same position that you were in. You found you were addicted to this drug, so you involved yourself in trafficking it to feed your own habit.

[3] You are now aged 21. You came to New Zealand with your parents when you were a teenager. You obviously had huge difficulties with parental discipline and family life arising, in part, from the fact that you were in a relationship with a man at that stage who was considerably older than you were. It appears from the materials before me to have been a destructive and abusive relationship. You also got yourself involved in alcohol and drugs. You are lucky to the extent that instead of writing you off entirely as many parents might have done, your parents have been supportive of you, despite the heartbreak and anxiety which your conduct must have caused to them.

[4] This offending which I am dealing with started, ironically, after you were discharged from a residential rehabilitation facility. It appears that you met or became involved with Mr Cuthers at about that time. You started to live with him

and you were dealing in drugs in the small capacity that I have mentioned. I think I can fairly regard him as the lead offender but, nonetheless, you knew what you were doing and you were a joint party to his offending.

[5] I do not think I need to say much more about your personal circumstances. You have been on bail for a fairly lengthy period of time. You have completed a course at Hamner Clinic, Tauranga, involving one-to-one counselling and assistance. That course started approximately six weeks ago.

[6] Turning to counsel’s submissions, counsel are agreed that in terms of the Court of Appeal tariff case of R v Fatu[1] the band for supply purposes is Band 2. The top end of the band is 250 grams. The bottom of the band is 5 grams. I agree with counsel’s assessment that 38.26 grams fits at the lower end. More problematic is what the proper start point should be. Ms McKone, in her submissions, suggests a start point of three years imprisonment.

[7] Ms Thomson, in her helpful submissions, essentially accepts the Crown’s submissions. She notes that you were 20 at the time of the offending.

[8] Returning briefly to your personal circumstances, not only have you completed the Hamner Clinic course to which I have referred but you have also been involved, so it would seem, in an eight-week Salvation Army Bridge programme and have also resided at a Wings Trust programme.

[9] The stipulated terms of imprisonment for Band 2 Fatu range from three years to nine years imprisonment. By urging on me a start point of three years Ms McKone is effectively suggesting that your offending sits right at the bottom of the band. I, for my part, consider that start point is probably slightly on the low side, although the point becomes academic given the sentence I am going to impose on you. But I note in such cases as R v De Serville[2], R v Haira,[3] and R v Bradley,[4] start points for comparable amount of methamphetamine supplied ranging between 26

grams up to the mid-high 30 grams have been nearer four years’ imprisonment than three years. The purpose of a start point, of course, is to reflect accurately your culpability and there is, in my view, some artificiality in mechanically applying the

38.26 grams comparing it with other cases, given that you were a joint offender here rather than a sole offender.

[10] What I intend to do is to adopt a start point in your case of three years and four months imprisonment. I am, however, going to reduce that by 30 per cent which brings me down to two years and four months imprisonment, the deduction being 12 months. I am making that deduction to reflect, first of all, the efforts you have made to help yourself, secondly, the fact that you have not been before a court before on a Misuse of Drugs Act charge and, thirdly, to assist you with your rehabilitation. As the Crown rightly points out, your guilty plea was heralded at a

very early stage so I consider that I am entitled to afford you as a mitigating credit the full 25 per cent discount mandated by the Supreme Court in R v Hessell.[5] That, Ms Jackson, would bring me to a final sentence of one year and 9 months imprisonment which is, in terms of the legislation, a short sentence and entitles me to consider, instead of imprisonment, a sentence of home detention.

[11] I note that the pre-sentence report prepared on you recommends home detention as an option. The suggested home detention address would be your parents’ home at which you have resided for many months and where you have made good progress. I also consider home detention is the sentence best suited to help you in your rehabilitation and provides you the opportunity not only for further courses, but also for training and, one would hope, some form of part-time or full-time employment.

[12] I ask you to stand up at this stage please.

[13] So, Ms Jackson, the sentence of this Court is that you will be sentenced to a term of 12 months home detention. When you leave this Court you are to travel directly to your parents’ home in Te Puna near Tauranga and await there the arrival for a probation officer and a security officer who, it would seem, will be available

tomorrow morning. You are to reside within the monitoring boundaries of your parents’ address and not move from it without the prior written approval of a probation officer. You are not to purchase or possess, during the 12-month sentence of this Court, or to consume, any alcohol or illicit drugs. Nor are you to possess any equipment used for the consumption of illicit drugs. You are to undertake such interviews and programmes to the satisfaction of your probation officer and the Department’s programme facilitator and to carry out any directions which she may give in respect of programmes, employment opportunities or training. You are not to contact, associate or communicate with your co-offenders at any stage during home detention by phone, text, through social media or any other way.

[14] I impose on you standard post-detention conditions and the following special conditions which are:

(a) You are to undertake and complete any remaining rehabilitative programme casting treatment and maintenance follow-up programmes which your probation officer may direct at the conclusion of your sentence;

(b) The direction I have made about contact and association with your co- offenders will also apply.

[15] I also recommend strongly to the probation officer, Ms Jackson, that you should be given every opportunity to find some form of employment in the Tauranga area with the appropriate modifications to the home sentencing regime.

[16] On the two other counts which you faced, being count 7 and 9 in your trial indictment, you are discharged under s 347 of the Crimes Act 1961.

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

Priestley J

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[1] R v Fatu [2006] 2 NZLR 72 (CA).
[2] R v De Serville HC Auckland CRI-2006-004-18441, 29 August 2008 per Lang J.
[3] R v Haira HC Rotorua CRI-2009-063-5871, 24 November 2011 per Lang J.
[4] R v Bradley [2012] NZHC 848 per Brewer J.
[5] R v Hessell [2010] NZSC 135.