R v Kau Kau [2013] NZHC 2688 (15 October 2013)

Last Updated: 31 October 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-009-005715

[2013] NZHC 2688

THE QUEEN

v

JACQUELINE DANIELLE KAU KAU

Hearing:	15 October 2013
Appearances:	K C Francis for the Crown R M Mansfield for the Defendant
Judgment:	15 October 2013

SENTENCING NOTES OF WYLIE J

R v KAU KAU [2013] NZHC 2688 [15 October 2013]

[1] Ms Kau Kau, you appear for sentence today, having made a voluntary appearance in the Auckland District Court on 19 July 2013, and having pleaded guilty to the following charges on 2 August 2013:

(a) Dealing in the Class A controlled drug methamphetamine. This is an offence pursuant to the Misuse of Drugs Act 1975, and the maximum penalty is life imprisonment;

(b) Possession of the Class A controlled drug methamphetamine for the purpose of supply, together with others. Again, this is an offence pursuant to the Misuse of Drugs Act, and again, the maximum penalty is one of life imprisonment;

(c) Possession of the Class B controlled drug gamma-hydroxybutyrate (GHB or Fantasy). This is also an offence pursuant to the Misuse of Drugs Act, and the maximum penalty is three months’ imprisonment, and/or a fine of $500.

[2] The guilty pleas were entered prior to committal, and you were committed to this Court for sentencing. You have spent some time in custody. Counsel are agreed the total time you have spent in custody is approximately a month.

Relevant Facts

[3] In early 2013, police in Christchurch were investigating the flow of methamphetamine into the city from Auckland. One of your co-accused, who is based in Auckland, was identified as a source of the drug. He was transporting methamphetamine to Christchurch in a number of ways. On some occasions, he would travel to Christchurch himself to deliver the drug. On other occasions, he would use drug couriers, or “mules”, who travelled to Christchurch on domestic airline flights.

[4] You were one of those couriers. You flew to Christchurch on three occasions. On the first trip, you simply accompanied the drug supplier. On the other two occasions, you transported methamphetamine which he had provided to you.

[5] On the first of these trips, on 14 May 2013, you met the supplier in Auckland, and you and he went to the Domestic Terminal at Auckland Airport. He purchased a ticket for you to Christchurch. He provided you with a package containing an ounce, or 28 grams, of methamphetamine. You concealed that package on your person. You flew to Christchurch. On arrival, you met the other of your co-accused, the recipient of the drug. You travelled to a motel together in his car. You handed your co-accused the package containing the methamphetamine. Two days later, he gave you $2,000 in cash in part payment for the drug. You, in turn, passed this on to the supplier in Auckland.

[6] The second trip was on Wednesday, 5 June 2013. The supplier picked you up in Auckland, together with a friend, and took you to the Domestic Terminal. He purchased airline tickets for you to Christchurch. On the way to the airport, he had given you a small package containing approximately 12 grams of methamphetamine wrapped in tape. Again, you concealed this package in your clothing. You arrived at Christchurch Airport at about 10.50 pm. You and your friend disembarked, and you went to the airport McDonald’s Restaurant, where you met the intended recipient of the drug. You were arrested by the police shortly thereafter as you were leaving the airport. By this stage, you had the methamphetamine concealed in your handbag.

[7] When you were searched by the police, a small vial of GHB was found in your pocket.

[8] When you were spoken to by the police, you stated that you enjoyed smoking methamphetamine, and that you knew it was wrong. You admitted that you were bringing the methamphetamine that you had smuggled in your clothing to Christchurch. You admitted that the GHB found in your handbag was yours. You made full and frank admissions during the course of that interview. It seems that the police were unaware that you had acted as a courier of methamphetamine on 28 May 2013, and that without your cooperation and assistance, you would not have faced a charge in relation to that offence.

Presentence Report

[9] I have received a helpful report from the Department of Corrections.

[10] You are 24 years of age. You are a sole mother with a three-year-old daughter. She is currently in the care of her father. You, however, are anxious to provide parental support for her.

[11] It was noted that during the interview, you were able to offer insight into your offending. You expressed remorse for your part in the methamphetamine trade. It was noted that, at the time, you were transient. You had resided with your mother, and then with your sister. The probation officer spoke to your father. He confirmed that in the past, you have made some poor choices regarding the company that you have kept. He also stated that there is a history of drug abuse in the family. He offered his full support for you, and he stated that he will ensure that you continue to see your daughter in the event that a custodial sentence is imposed.

[12] You were very forthcoming during the interview. You stated that you were oblivious at the time to the serious consequences of your actions. You acknowledged that you were aware that your actions were criminal in nature, and that you could be arrested, but that you did not appreciate that prison was “on the cards”. It was considered that you exhibited considerable naivety in relation to the potential consequences of your actions. You accepted that you have created the present situation. You have also acknowledged that you were a frequent user of methamphetamine. You stated, however, that since your incarceration, you have not craved the drug. You have indicated that you are prepared to attend any counselling that may be offered to you. You have also stated that you have seen the impact that methamphetamine has on others as a result of your time in prison, and you have expressed remorse about the contribution you have made to the methamphetamine trade by supplying the drug to others.

[13] It was noted that you very much regret not seeing your daughter, and that you are somewhat confused regarding the prison system, and how your sentencing will progress.

[14] You have some eight previous convictions over the period 2007 to 2013. They are for traffic-related and other relatively minor offences. I do, however, note that you have failed to respond well to community-based sentences in the past. You

have convictions for failing to answer District Court bail and for two breaches of a community work order.

[15] I record that I have received a letter from you. In that letter, you express your regret, and say that you believe you became involved because of your drug addiction. You state that being in custody has been a huge eye opener for you, and that it was a struggle, given that you were no longer in regular contact with your daughter. You have offered an apology to all concerned and to the Court. You state that you regret that your offending has hurt others, and that you were oblivious at the time to the damage that you were causing. You have taken full responsibility for your actions, and stated that you are highly motivated to accept any help towards bettering yourself while you serve your sentence.

Submissions

[16] Mr Francis, for the Crown, submitted that a starting point of four to four and a half years’ imprisonment is appropriate. He approached the sentencing on the basis that you supplied or offered to supply 40 grams of methamphetamine, worth

approximately $40,000. He noted that offending of this kind falls within what is known as Band 2 in the Court of Appeal decision in R v Fatu.^[1] He acknowledged that you acted as a courier or mule, and that it is arguable that your culpability is less than that of your co-accused, both of whom appear to have had a greater involvement in the distribution of the drug. However, he pointed out that couriers are an essential part of any drug distribution and supply operation. He submitted that

the offending was commercial in nature, that it occurred twice, and that at least some premeditation was involved. He did not seek an uplift in relation to the GHB offending, acknowledging that a small amount was involved, and that there is a low maximum penalty. Nor did he seek an uplift on account of your previous convictions. He accepted that they are minor and/or of an historic nature. Mr Francis acknowledged that you are entitled to a significant discount, both for your guilty plea, and for other circumstances personal to you.

[17] Mr Mansfield, on your behalf, submitted that the Crown overstated the degree of premeditation involved in the offending. He argued that a starting point of

three and a half to four years’ imprisonment adequately reflects the seriousness of your offending. He suggested that the cases cited by the Crown all involve higher levels of methamphetamine, and that your case is at the lower end of Band 2 in Fatu. He pointed out that it is generally accepted that drug mules are less culpable than other more involved offenders, and he argued that no uplift is necessary for your previous convictions. Mr Mansfield also noted that you provided a full evidential statement when you were interviewed by the police, and that in that statement, you provided the police with evidence in relation to the first conviction, which they did not otherwise know about. He pointed out that there are circumstances particular to you which he argued justify an additional discount in your case. He noted your anxiety about supporting your daughter, and argued that you are highly motivated to reform your life. He suggested that the available discounts bring your sentence to one of two or less years’ imprisonment, and that, therefore, home detention is both possible and appropriate. He submitted that such a sentence would adequately reflect your culpability.

Purposes and Principles of Sentencing

[18] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved. I am also mindful of the need to deter others from committing the same or similar offences. This is a primary factor in drug- related offending. I have taken into account the gravity of the offending with which you were involved, including your degree of culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences. I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and that I need to consider your rehabilitation in the circumstances which have arisen.

Analysis

[19] The starting point is the decision of the Court of Appeal in R v Fatu.^[2] In this case, the Court discussed various guidelines which are generally applicable to methamphetamine-related offending. Four bands were discussed in relation to the supply of methamphetamine. Band 2 relates to the supply of commercial quantities of methamphetamine, ranging from five grams to 250 grams. The Court of Appeal’s judgment records that a sentence ranging from three to nine years’ imprisonment will generally be appropriate for such offending.^[3]

[20] Here, the total amount of methamphetamine involved in your offending was

40 grams. You supplied 28 grams, and you were found in possession of an additional 12 grams. You were intending to supply the additional 12 grams. In my view, it is appropriate to approach your sentencing by reference to the total quantity of methamphetamine involved — 40 grams. I note that Mr Mansfield does not disagree with this approach.

[21] I am required to adopt a starting point that reflects the gravity of your offending, while taking into account both aggravating and mitigating factors relevant to that offending.

[22] I accept the submission made by Mr Mansfield on your behalf, that you are less culpable than your co-offenders. Insofar as I can glean from the summary of facts to which you have pleaded guilty, you were simply a courier. The drug was supplied to you in Auckland, and you either delivered or were about to deliver it to the recipient in Christchurch. There is nothing however to suggest that you participated in the profits. As I understand it, you simply handed over monies paid to you by the recipient to the supplier. In my view, your role cannot be described as pivotal, and you do not seem to have been a trusted lieutenant of the supplier. Nor in my view was there any significant premeditation on your part. I accept that your offending was not the most serious of its type, and that your role was limited.

[23] I have looked at the starting points imposed in comparable cases, involving more or less similar amounts of methamphetamine.^[4] While each case must turn on its own facts, they do provide general guidance.

[24] Considering these matters, in my view, the appropriate starting point for your methamphetamine-related offending is one of four years’ imprisonment.

[25] Given that the starting point reflects the totality of the methamphetamine involved, there is no need for an uplift for the possession for supply conviction. Further, I agree with both the Crown and Mr Mansfield that the Class B-related offending does not require any uplift. Only a small amount of the drug was found in your possession, and the maximum penalty available is low.

Personal Aggravating and Mitigating Circumstances

[26] I now turn to consider aggravating and mitigating circumstances personal to you.

[27] While you do have a criminal history, I do not consider it appropriate to uplift the sentence which I would otherwise impose on account of your prior convictions. They are of a minor and/or historic nature, and none of them have any relevance to the present offending.

[28] You are, however, entitled to significant discounts. First, there is your remorse. I accept that that remorse is genuine. Secondly, there is your acknowledgement of your predicament and your desire to rehabilitate yourself. I accept that you are strongly motivated to turn your life around. Your daughter appears to be a primary driving factor in that regard. Thirdly, there is your guilty plea. It was entered at a very early stage. Finally, there are other factors personal to you which I do not need to outline.

[29] I have considered all of these various factors carefully, and in my view, it is appropriate to allow you an overall discount of 50 percent from the sentence I would otherwise have imposed. It follows that the end sentence I would adopt is one of two years’ imprisonment.

[30] A sentence of two years’ imprisonment is a short-term sentence as defined in the legislation.^[5] A sentence of home detention is available where an offender has been convicted of an offence punishable by imprisonment, the Court is satisfied that the purpose of the sentence cannot be achieved by any less restrictive sentence or combination of sentences, and the Court would otherwise impose a short-term sentence of imprisonment.

[31] Here, home detention is an available option. The offences you have been convicted of are punishable by imprisonment. A lesser sentence or combination of sentences would not however adequately respond to the gravity of your offending, and, in any event, you have a poor history of complying with community-based sentences. I would otherwise impose a short term of imprisonment.

[32] Imprisonment would normally be imposed for drug-related offending of this kind. There are, however, particular factors in your case which suggest that it is inappropriate. First, there is the welfare and best interests of your daughter. Secondly, there is your strong desire to rehabilitate yourself. In the present case, I have concluded that a sentence of home detention is appropriate. Your sister has offered her home as a suitable address for you to serve the sentence. It has been assessed as suitable. Your sister has given her consent to you serving the sentence in her home.

[33] Where a two-year sentence of imprisonment would otherwise have been imposed, the usual approach is to impose a sentence of 12 months’ home detention. A term of home detention is imposed that is broadly half of the prison sentence that would otherwise be imposed. This recognises that home detention should not be recognised as a “soft option”.

[34] I am advised by Mr Mansfield, and the Crown accepts, that you have already spent approximately a month in prison. It is appropriate to reduce the sentence of home detention I am about to impose to recognise that. Case law suggests that the appropriate reduction should be twice the period spent in custody.^[6]

[35] Accordingly, I propose to sentence you to a term of 10 months’ home detention.

Sentence

[36] Ms Kau Kau, will you please stand.

(a) In respect of the offence of supplying the Class A controlled drug methamphetamine, I sentence you to a term of 10 months’ home detention.

(b) In respect of the charge of being in possession of methamphetamine for supply, I sentence you to a term of 10 months’ home detention.

(c) In respect of the charge of possession of the Class B controlled drug gamma-hydroxybutyrate, I sentence you to a term of one month’s home detention.

[37] The periods of home detention are to be served concurrently. It follows that the end sentence is one of 10 months’ home detention.

[38] The following conditions are imposed. They are, in part, designed to ensure that you obtain the appropriate assistance to help you rehabilitate yourself.

(a) You are to travel directly from the Court to your sister’s property in New Lynn, Auckland, after sentencing, and you are to wait there until your home detention connection is facilitated by the probation officer;

(b) You are to reside at your sister’s address at New Lynn, Auckland, for the duration of the sentence of home detention, and you are not to

move address without the prior written approval of the probation officer;

(c) You are not to consume or possess any illicit drugs;

(d) You are not to associate with your co-offenders;

(e) You are to attend and complete an appropriate alcohol and drug addiction programme to the satisfaction of your probation officer and the programme provider. Details of the appropriate programme are to be determined by your probation officer.

[39] Ms Kau Kau, you have expressed the desire to turn your life around, and it is clear to me that you want to be a good mother to your three-year-old daughter. The time you have been in prison has not been easy for you. I am giving you a chance to make good on your intentions, and to remain in the community where you can have ready access to your daughter. I hope that you will take full advantage of the chance I am giving you, that you will succeed in your endeavours to turn your life around, and that we will not see you in the courts again.

[40] You may stand down.

Wylie J

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^[1] R v Fatu [2006] 2 NZLR 72 (CA).
^[2] R v Fatu, above n 1.
^[3] At [34]

^[4] R v Haira HC Rotorua CRI 2009-063-5871, 24 November 2011 – 26.7 grams, starting point four years; R v Zeng HC Auckland CRI 2007-009-008275, 4 December 2008 – conspiracy to supply 28 grams, only courier, starting point three years; R v MacPherson [2009] NZCA 487 – supply of 27 grams, starting point four years; Reid v R [2013] NZCA 89 – 27.67 grams, starting point five years (at the upper extremity of the sentencing Judge’s discretion); Yuen v R [2010] NZCA 521 – possession of 51.5 grams for supply, starting point four years within range.

^[5] Sentencing Act 2002, s 15A and s 4. Parole Act 2002, s 4.

^[6] Dingemans v R [2013] NZCA 355 at [14].