R v Smith [2014] NZHC 2680 (30 October 2014)

Last Updated: 18 August 2017

ORDER PROHIBITING PUBLICATION OF THESE SENTENCING NOTES AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL OF CO- ACCUSED. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2013-054-3482 [2014] NZHC 2680

THE QUEEN

v

_{VANESSA MARIE SMITH}

Hearing:	30 October 2014 (Heard at Wellington)
Counsel:	E M FitzHerbert for Crown (by AVL) M M Wilkinson-Smith for defendant
Sentence:	30 October 2014

_{SENTENCING NOTES OF DOBSON J}

[1] Mrs Smith, I now have to sentence you on one conviction of conspiring to supply methamphetamine. As we have discussed already this morning, this sentencing follows the indication as to sentence that I gave you in the Palmerston North Court on 23 September 2014, following which you entered a plea of guilty to the charge.

[2] As you will remember, Ms Wilkinson-Smith was able to persuade me at that time that your offending was materially less serious than a first consideration of the

_{bald summary of facts had suggested to me. I was able to rely on Ms Wilkinson-}

R v SMITH [2014] NZHC 2680 [30 October 2014]

Smith’s characterisation of the events because the Crown accepted her version as being accurate.

[3] Dealing with the matters addressed in the summary of facts chronologically, the first incident that potentially made your offending more serious was that you supplied one of your co-defendants with approximately half a gram of methamphetamine on 13 November 2013. However, as Ms Wilkinson-Smith explained, that was not a supply by you in the usual sense of doing drug deals. Rather, the methamphetamine had been left at your property when others socialised there, and you responded to a request to take the small quantity that had been left in a container at your residence to that co-defendant. I accept that no money changed hands and you were, in a sense, just getting rid of it from your home, on the instruction of others. In those circumstances, it is understandable that the Police did not lay a charge in relation to that conduct.

[4] Next, you conspired with two other co-defendants to provide them with

$14,000 in cash to enable them to procure an ounce of methamphetamine for supply. You subsequently withdrew that amount in cash from your bank, gave the money to those others and text communications confirmed their ability to procure the methamphetamine in Hawke’s Bay. When you anticipated the return of at least some of the methamphetamine, you engaged in text communications with two other unidentified people to whom you were proposing to sell small quantities of methamphetamine.

[5] Conspiring to deal in an ounce of methamphetamine is serious offending. It would invariably attract moderately substantial terms of imprisonment.

[6] The wider circumstances in which you contributed as you did enable me to treat it as materially less serious than would usually be the case.

[7] As to your personal circumstances, your husband died suddenly and unexpectedly in 2013, leaving you with the sole care of two dependent children. You struggled with the grief and the challenges of coping on your own and drifted into an association with others that led you to becoming a regular methamphetamine user.

The financial pressures were made worse when a sum of $11,000 was stolen from you, that theft being reported to the Police. You were having difficulty meeting the mortgage payments on the home you were trying to maintain and you were persuaded to use some of your remaining capital resources from a life insurance payment to fund the purchase of an ounce of methamphetamine.

[8] You were not to be responsible for on-sale of the methamphetamine. Rather, there seems to have been a shifting set of arrangements in which you would either get back your $14,000 plus a profit of $2,000 or $3,000, or you would get your money back plus a small part of the methamphetamine which would be sufficient for you to make a profit of $2,000 or $3,000.

[9] You are taking rehabilitative steps to free you of a dependence on methamphetamine, and are keen to make a break from the associates who introduced you to this opportunity for offending. The initiatives that Ms Wilkinson-Smith described at the sentencing indication are now confirmed by reports I have received from Mr Garland, the counsellor you have consulted, and from the separate counsellor at Kia Piki Te Kaha. I have also read the expressions of support from your father and your sister and they are heartening. You are indeed fortunate to have that strong whanau support and I hope you will appreciate it and remain on positive terms with your whanau.

[10] There has also been a full pre-sentence report that summarises the circumstances of your offending and your personal circumstances consistently with all the other material that I have had.

[11] I now summarise the considerations on an appropriate sentence that I went through in giving you the sentence indication. Had you been charged with supplying an ounce of methamphetamine, that would have resulted in a starting point in the range of four years’ imprisonment.¹ Because you were charged instead with conspiracy to supply, some discount from the length of that term would apply

_{compared to it being actual supply, and I settled on a discount of nine months.}

1. Within band two of R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) and consistent with sentencings for supply of that level as reviewed in R v De Serville HC Auckland CRI-2006-004-184441, 29 August

2008 at [23].

[12] From that starting point of three years and three months, you are entitled to various discounts.

[13] I emphasised to you on the last occasion that, for serious drug convictions, the personal circumstances of an offender carry less weight than might otherwise be the case. In your case, the pre-sentence report now confirms that you are of previous good character, and that in essence I can treat this offending as out of character with a commitment by you to rehabilitate yourself and focus on the parenting of your sons and maintaining a home for yourself and for them. The offending occurred at a tragic time in your life when grief and financial pressure would have contributed to the poor decision-making involved in your offending. Although I was reluctant to allow a discount for this combination of factors of more than 15 per cent,

Ms Wilkinson-Smith invited an analogy with Jarden v R,² which I treat as

comparable and which endorsed the appropriateness of going to 20 per cent where there are compelling personal circumstances such as are present here.

[14] The next discount is for your guilty plea. For the reasons I traversed in the sentencing indication, I am persuaded that 25 per cent is justified in your case, which brings the final length of a term of imprisonment to just less than 24 months.

[15] The pre-sentence report now confirms the appropriateness of your present address, and I am satisfied in all the circumstances that I have reviewed that it is an appropriate case in which to substitute a sentence of home detention for what would otherwise have been one year and 11 months’ or two years’ imprisonment.

[16] I appreciate how important it is to you to remain in the community, in your home and being able to care for your boys. However, it is a mistake to downgrade a lengthy term of home detention as being an entirely soft option. Experience shows that confinement to one address can become oppressive to the extent that longer sentences of home detention between 10 and 12 months are, for some offenders, extremely difficult to complete. So I urge you to be positive in your attitude towards

_{the sentence that has to be served.}

² Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [14], [15].

[17] I also acknowledge that substituting what would otherwise have been a prison sentence for the sentence of home detention involves the Court placing its trust in you that you will live up to the assurances of good behaviour and a focus on rehabilitation that I have relied on in choosing that option. Mrs Smith, you should expect to be positively monitored throughout your sentence, and any further offending throughout the term of the sentence will most likely be treated more harshly by the Court than it would be in other circumstances, because of the feature that it would reflect as a breach of the trust involved in sentencing you to home detention in the first place.

[18] You are accordingly sentenced to a period of 12 months’ home detention at

[the address approved by the Probation Officer].

[19] I am going to impose special conditions, in the terms that were recommended by the Probation Officer in the appendix addressing the suitability for home detention. And I hope you have seen those but I will repeat them now for you. Those conditions are as follows:

(a) You are to attend and complete an appropriate alcohol and drug programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by the Probation Officer.

(b) Secondly, you are to undertake and complete appropriate assessment, treatment/counselling as directed by, and to the satisfaction of, a Probation Officer.

(c) Thirdly, you are not to communicate or associate with your co-offenders unless you have the prior written consent of your Probation Officer.

(d) Fourthly, you are not to possess, consume or use any alcohol or drugs that have not been prescribed to you.

(e) Fifthly, you are to travel immediately from here to [the approved address], and there to await the arrival of a Probation Officer and a representative of the monitoring company that will be monitoring your home detention sentence.

(f) You are to reside at that address for the duration of home detention.

(g) Lastly, any dogs are to be contained away from the main dwelling at all times to allow unhindered access to the property for the Probation Officer, the monitoring company and the Police for the duration of the home detention sentence.

[20] I have not made it a condition, but you will have seen in the home detention appendix to the Probation report that the metal shed on your property is off-limits for you because its structure precludes the monitoring process. I hope you understand all those conditions.

[21] You may stand down.

Dobson J

Solicitors:

Crown Solicitor, Palmerston North