R v Green [2014] NZHC 51 (4 February 2014)

High Court of New Zealand

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R v Green [2014] NZHC 51 (4 February 2014)

Last Updated: 14 February 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-077-1751 [2014] NZHC 51

THE QUEEN

v

LEAH MARIE GREEN

Hearing: 4 February 2014

Appearances: C H Macklin for Crown

A Schulze for Prisoner

Judgment: 4 February 2014

_{SENTENCING REMARKS OF LANG J}

R v GREEN [2014] NZHC 51 [4 February 2014]

[1] Ms Green, you have pleaded guilty to charges of supplying methamphetamine and participating in an organised criminal group. You did so after I provided you with a sentence indication on 1 November 2013. In that sentence indication, I took a starting point of four years imprisonment and reduced that by one year to reflect the entry of guilty pleas if they were to be entered shortly after the indication. I left open the possibility of a further reduction based on your personal circumstances including any efforts you may have made to rehabilitate yourself from your drug and alcohol addictions.

[2] You accepted the sentence indication, and entered your pleas on that basis. It now falls for me to pass sentence on you taking into account such additional matters as are appropriate at this stage.

[3] I do not propose to recite the facts of your offending. My sentence indication will be attached to my sentencing remarks and the facts can be gleaned from that. In short, however, you assisted your mother, Ms Sharon Mihaka, in the acquisition and distribution of methamphetamine to a circle of associates. You received rewards in the form of methamphetamine for your own use and other items such as food and, on occasions, some cash. I accept that your offending arose in large part as a result of your close association with Ms Mihaka, and your dependence on methamphetamine.

[4] Your counsel urges me to take two further matters into account today. First, he advised me this morning that Keane J delivered yesterday a decision in relation to a disputed facts hearing that he held in December 2013 in relation to Ms Mihaka.¹ In that decision, the Judge rejected the Crown’s assertion that Ms Mihaka could be shown to have been in possession of approximately 270 grams of methamphetamine. He found instead that it was likely that she was only in possession for sentencing purposes of around 160 grams.

[5] Your counsel submits that this is relevant to the sentence to be imposed on you because I recorded in my sentence indication that Ms Mihaka came into

possession of approximately 271 grams of methamphetamine during the period covered by the indictment. As a result, your counsel submits that your overall culpability should now be regarded as less than was the case when I delivered my sentence indication. Secondly, your counsel asks me to take into account your remorse and the efforts that you have made to rehabilitate yourself.

[6] I have now had the opportunity of reading the decision delivered yesterday by Keane J. I accept that the Judge has found that Ms Mihaka was in possession of no more than 160 grams. Importantly, however, I recognised in my sentence indication that you were not responsible for all of the transactions in which Ms Mihaka engaged. Rather, your role was that of an assistant who provided help to Ms Mihaka as and when that was necessary. I also accepted that you were not a principal player, and that that role was at all material times played by Ms Mihaka.

[7] For that reason, and notwithstanding the fact that Ms Mihaka will be sentenced on the basis that she was in possession of less methamphetamine than was originally asserted to be the case, I do not see any reason to alter the starting point that I adopted at the sentence indication hearing.

[8] Your role now, as it has always been, must be viewed as that of an assistant who provided help to the principal player in the organisation in a variety of ways. The starting point to be adopted in respect of you does not shift as a result of the lesser amount of methamphetamine now found to have been in Ms Mihaka’s possession. For that reason, I am not going to alter the four year starting point that I adopted at the sentence indication hearing.

[9] I do, however, need to give concrete recognition to other factors personal to you. As the courts often say, lesser recognition can be given to personal factors in drug-related offending, but in your case, I am satisfied that you have made efforts to rehabilitate yourself from your drug and alcohol addictions. You attended a lengthy counselling course beginning in January 2012 and completed this to the satisfaction of the course provider. In addition, you say you have remained free from the use of drugs since that time.

[10] It is clear, also, from the material your counsel has provided that you have many valuable qualities, particularly as a caring and loving mother. I have references that attest to your skill in that area. I acknowledge, also, that you are going to face difficulties as a result of any sentence of imprisonment because you will be parted from your very young child. That would be extremely difficult for any mother. It is, however, an inevitable consequence of the sentence that I am required to impose.

[11] I consider that you are very much in the same position as another of your co- offenders, Ms Waddell. I found that your offending was at least as culpable as that of Ms Waddell. Like you, I had adopted a starting point of four years imprisonment in her case and reduced that by a year to take account of her guilty pleas. When Keane J eventually sentenced her, he reduced the sentence by six months to reflect personal factors very similar to those that you rely on today.² I consider that the best that I can do for your today is to reduce your sentence by six months to reflect those factors to which I have referred.

Sentence

[12] On the charge of participating in an organised criminal group, you are sentenced to two years six months imprisonment. On the charge of supplying methamphetamine, you are sentenced to two years imprisonment. Those sentences

_{are to be served concurrently.}

Lang J

Solicitors:

Crown Solicitor, Rotorua

Lance Lawson, Rotorua

PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA

OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.

IN THE HIGH COURT OF NEW ZEALAND

ROTORUA REGISTRY CRI-2011-077-1751 [2013] NZHC 2891

THE QUEEN

V

LEAH MARIE GREEN

Hearing: 1 November 2013

(HEARD AT AUCKLAND)

Appearances: F Pilditch for Crown

A Schulze for Ms Green

_{Judgment: 1 November 2013}

SENTENCE INDICATION OF LANG J

[1] Ms Green is due to stand trial in the High Court at Rotorua on 4 November

2013 on various drug-related charges. She now seeks a sentence indication on the basis that she will plead guilty on 4 November to a single charge of supplying methamphetamine, and a charge of participating in an organised criminal group.³

[2] As a consequence, the provisions of ss 60 to 64 and ss 115 to 116 of the Criminal Procedure Act 2011 are engaged. This means that in the event that Ms Green accepts the sentence indication, the Court is bound to impose the sentence as indicated on her. The only exception will be if new material comes to light indicating the basis upon which the sentence indication has been given should be reconsidered.

Background

[3] The charges against Ms Green follow a police operation known as Operation Harvest. That operation targeted Ms Green’s mother, Mrs Sharon Mihaka. She operated a retail business known as “Sharon’s Fine Leathers”. The Crown case at trial will be that Ms Mihaka was the central figure in a large scale methamphetamine distribution operation.

[4] From time to time Ms Green would work at Mrs Mihaka’s shop. Ms Green assisted her mother generally in the distribution of drugs. She would regularly count the money received from the sale of drugs, and this amounted to thousands of dollars. She also kept tally of the quantities of drugs that her mother kept in tins that were stored by Ms Waddell, another member of the group. She also weighed methamphetamine, and broke it down into smaller quantities for sale as points, quarters and whole gram amounts.

[5] In addition, Ms Green assisted by passing messages to and from her mother, and to and from other members of the group. She also collected drug-related debts on her mother’s behalf. Furthermore, from time to time she also transported methamphetamine on behalf of her mother. On one occasion, Ms Green was also

present when her mother received a “resupply” of just over an ounce of methamphetamine. On this occasion she became involved by counting out the money that was used to pay the person who supplied her mother with the methamphetamine.

[6] On 23 November 2011, whilst Ms Green was alone at the shop, she supplied a gram of methamphetamine to another of her co-defendants. This led to the charge of supplying methamphetamine.

[7] In return for assisting her mother, Ms Green would receive methamphetamine which she would use for her own consumption. In addition, she received other forms of compensation including food and cigarettes. She also received cash on several occasions.

Starting point

[8] In this case the Crown regards the charge of participating in an organised criminal group as a lead charge. The supply charge relates to the discrete supply of one gram that occurred on a single occasion. The participation charge, however, reflects the ongoing assistance that Ms Green provided to her mother throughout the period covered by the indictment.

[9] The starting point for the supply charge falls to be determined in accordance with the decision of the Court of Appeal in R v Fatu.⁴ Standing alone, the supply charge would obviously fall at the bottom end of band 1 which relates to supplies of up to five grams of methamphetamine. Starting points in this context will fall between two and four years imprisonment.

[10] It is difficult to gain assistance from other cases when fixing a starting point in respect of the charge of participating in an organised criminal group. I consider, however, that the Fatu guidelines should inform the starting point on that charge. After all, the object of this particular criminal group was the supply of methamphetamine to others.

[11] The starting point needs to recognise the fact that Ms Green was an active and willing participant in an ongoing enterprise that existed between 1 September

2011 and 20 December 2011, and had as its object the sale of significant quantities of methamphetamine to others. During this period Ms Mihaka came into possession of approximately 271 grams of methamphetamine, and the Crown can establish that she was responsible for supplying at least 46 grams of methamphetamine to others.

[12] I accept, however, that the Crown does not suggest that Ms Green was party to every transaction that her mother was involved in. The starting point also needs to recognise that, although Ms Green derived some benefits from participating in the activities of the group, she was not a principal player. Rather, she acted at all times as her mother’s assistant. Although the summary does not provide me with assistance in relation to this issue, I also accept that she may well have been under the influence of pressure from her mother throughout the period covered by the indictment.

[13] If Fatu principles are used as a guide, I consider that Ms Green’s overall culpability would place her offending towards the bottom of Band 2 identified in that case. This provides for starting points of between three and nine years imprisonment.

[14] My initial impression when this matter was first called on 30 October was that a starting point of around three years imprisonment was appropriate. At that stage I did not have the benefit of submissions from the Crown because of the late notice of the hearing. Having heard from the Crown and having reflected on the matter further, I accept the Crown’s submission that a starting point of four years imprisonment is appropriate having regard to Ms Green’s overall culpability.

[15] In reaching that conclusion I accept the Crown’s submission that Ms Green must be at least as culpable as her co-offender Ms Waddell, who was responsible for storing methamphetamine and cash on behalf of Ms Mihaka. I took a starting point of four years imprisonment when I provided Ms Waddell with a sentence indication on 30 October 2013. Ms Green’s participation in the activities of the group was far more varied than that of Ms Waddell. It could be argued that this means that her culpability is greater than that of Ms Waddell. Having regard to the issue of parity

between co-offenders, however, the Crown accepts that a starting point of more than four years should not be adopted in relation to Ms Green.

[16] The starting point of four years imprisonment would also reflect Ms Green’s culpability in respect of the supply charge, which in reality is no more than an example of the manner in which she participated in the activities of the group.

Aggravating factors

[17] There are no aggravating factors personal to Ms Green that would justify an increase to that starting point.

Mitigating factors

[18] The only mitigating factor that I would be prepared to take into account at this stage is the entry of guilty pleas. The Crown accepts that although these are very late, nevertheless this has been a very complicated prosecution that involved a voluminous amount of disclosure. For that reason the Crown accepts that a generous allowance can be made to reflect guilty pleas. I propose to reduce the starting point by twelve months to reflect this factor. This leaves an end sentence of three years imprisonment before taking into account other mitigating factors.

[19] Counsel for Ms Green submits that Ms Green has engaged in extensive rehabilitative efforts to deal with her addiction to methamphetamine. The extent to which that mitigating factor should be taken into account would need to be determined by the sentencing Judge, who would have the benefit of the pre-sentence

_{report and, presumably, a drug and alcohol assessment report.}

Lang J

Solicitors:

Crown Solicitor, Rotorua

Lance & Lawson, Rotorua