R v Morrison [2016] NZHC 2931 (6 December 2016)

Last Updated: 16 December 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-085-012123 [2016] NZHC 2931

THE QUEEN

v

_{ELIZABETH WENDY MORRISON}

Hearing:	6 December 2016
Counsel:	E M Light for Crown T W Fournier for Defendant
Sentence:	6 December 2016

_{SENTENCING NOTES OF CLIFFORD J}

Introduction

[1] Ms Morrison I am going to sentence you to home detention. I am doing that for two reasons principally. First, I think it is the right outcome and secondly I think in this case it is a fair outcome in terms of parity with Mr Persico who ended up, albeit by a different route, not being in a similar position to you. So that is going to be the outcome and now I will go through the formal part of my sentencing and explain for the record and in public my reasons for reaching that conclusion.

[2] Elizabeth Wendy Morrison, you appear for sentencing having been found guilty by a jury following a trial before me on one charge of supplying five grams of methamphetamine and on one representative charge of possessing an unspecified

_{quantity of methamphetamine for supply.}

R v MORRISON [2016] NZHC 2931 [6 December 2016]

[3] The maximum sentence for both of those offences is life imprisonment. That maximum sentence reflects the pernicious effects of methamphetamine in our communities.

Disputed facts

[4] To decide your sentence, I have to determine the offending that the jury’s verdict represents. You and the Crown take different views on that. You say you should be sentenced on the basis that you possessed for supply, and supplied, perhaps less than five grams of methamphetamine. The Crown’s position is that I should sentence you on the basis that, in total, between 15 and 20 grams of methamphetamine was involved.

[5] The Sentencing Act 2002 provides a procedure for resolution of disputed facts for sentencing purposes. In your case, however, both you and the Crown agree I may do so without the need for a formal hearing, or the taking of sworn evidence. Rather, I am to decide that question on the basis of the submissions I have heard today, and the written submissions as well, as part of deciding your sentence.

[6] In doing so, and where the evidence is uncertain, I must take the version of events which is most favourable to you provided that it is not manifestly false or wholly implausible.

[7] Your offending came to light pursuant to what came to be known as

Operation Nebraska.

[8] Operation Nebraska was a police investigation, conducted between July and October 2013, principally in the lower North Island and Christchurch. That investigation was centred on the activities of a Mr Clint Helmbright. Mr Helmbright was alleged to be the organiser of a drug dealing ring that distributed methamphetamine, BZP and cannabis. Mr Helmbright obtained those drugs from some three or four people. He distributed them using a network of some 15 dealers or “runners”, including his son and daughter.

[9] When Operation Nebraska was terminated, your home was searched. The police found digital scales, snaplock bags and other items consistent with the use, and supply, of methamphetamine. No methamphetamine itself was found.

[10] You were tried with a number of other defendants who were arrested and charged as a result of Operation Nebraska. You were, the police considered based on their investigations, a “runner” for Mr Helmbright, obtaining methamphetamine from him for the purpose of supply in the Christchurch area. You faced a number of charges on that basis, and one charge of, on one occasion, having supplied methamphetamine to a Mr Hemopo. Mr Hemopo was a person who also dealt methamphetamine in Christchurch for Mr Helmbright.

[11] Mr Hemopo pleaded guilty in the District Court at Christchurch to representative charges relating to methamphetamine offending. He was sentenced on a basis that recognised not only his guilty plea, but also his agreement to assist the police. He gave evidence at your trial, principally relating to his dealings with Mr Helmbright. Mr Hemopo also acknowledged having obtained methamphetamine from you.

[12] You were charged with being in possession of methamphetamine for supply on five specific dates: 22 June, 25 July, 15 and 28 August and 8 September 2013. Mr Helmbright was charged with supplying that methamphetamine to you. The 22

June and 8 September offending was also alleged to involve Mr Hemopo: Mr Hemopo’s evidence was that on 22 June he had delivered some methamphetamine to you, being part of an amount he had got that day from Mr Helmbright. His evidence as regards 8 September was that he had been asked to deliver a backpack to you: he did not know what was in the backpack.

[13] Mr Helmbright was also charged with supplying you with methamphetamine on 29 June. You faced no corresponding charge.

[14] Finally, as regards offending on specific dates Mr Helmbright was charged with offering to supply methamphetamine to you on 19 September.

[15] As regards those charges Mr Helmbright was found guilty of supplying you with methamphetamine on 22 June 2013. The jury did not, however, return a verdict on the charge you faced for that day.

[16] For the rest, that is the rest of the charges alleging offending on specific dates, the jury either found you and/or Mr Helmbright not guilty, or did not return verdicts.

[17] You and Mr Helmbright also each faced a corresponding, representative, charge covering the period between 4 and 23 July. You were charged with being in possession of methamphetamine for supply on at least one occasion during that period. Mr Helmbright was charged with supplying you with an unknown quantity of methamphetamine on at least one occasion during that period. You were both found guilty on that charge.

[18] You were also charged with supplying Tane Hemopo five grams of methamphetamine between 5 and 8 July. You were found guilty on that charge as well.

[19] Therefore the charges you originally faced covered the period from late June to early September. The Crown’s evidence against you related to that period and was, more generally, placed by the Crown in the context of Operation Nebraska itself, which covered a period from June to October. But the evidence that I must focus on is that relating to the two charges on which you were found guilty and the relatively short period of time between 4 and 23 July that those charges covered.

[20] The Crown says I can reach the inference that you possessed between 15 to

20 grams of methamphetamine for supply in that period based on the coded text messages you exchanged with Mr Helmbright, the fact that you met Mr Helmbright on 5, 11 and 19 July, that you deposited some $15,000 into his bank account during July, and Mr Hemopo’s evidence.

[21] There is text message evidence of you and Mr Helmbright arranging to meet at Christchurch Airport McDonalds at around 6.00 pm on 5 July 2013.

Mr Helmbright refers to you “smashing out some paid order[s] for me”. The next evening you and Mr Helmbright exchanged text messages. At one point he asks you, “How many do you have left”. He went on to say he “might be down on Monday, would you be all done or would you want some more”. You texted in reply indicating you had five left and that you probably would not be all done by Monday as you were staying home that night. That is, Sunday 6 July. So that is evidence that you obtained more methamphetamine from Mr Helmbright than the five grams you had left that night.

[22] Mr Helmbright then told Mr Hemopo you had five bins of fish. The exchanges of text messages indicate Mr Hemopo contacted you, and that you provided him with those “five bins”. Based on all the evidence, including I infer that of Mr Hemopo, the jury was sure you had that day supplied him five grams of methamphetamine.

[23] On 5, 19 and 23 July, you deposited some $10,000 into Mr Helmbright’s bank account. I consider the significance of the deposits on those dates only, as the other dates fall outside the period of the representative charge. And I also bear in mind that you were not convicted on the charge relating to 25 July in taking that approach. Text messages on and around those dates, that is 15, 19 and 23 July, reflect arrangements being made for you to pay Mr Helmbright for fish. Mr Helmbright did not sell fish. You did. You used the fish code when arranging the supply of methamphetamine to Mr Hemopo. I therefore accept that the payments are also evidence of further possession for supply. I am not in a position to say how much. All accept that you had a significant methamphetamine habit at this time.

[24] So against that background, I turn to determine your sentence. In doing so I remind myself of the presumption of imprisonment for offending involving methamphetamine, the need to hold you accountable and to denounce your conduct, and to deter you and others from dealing in what is a pernicious and life destroying, in the broadest sense, drug. At the same time I am to impose the least restrictive sentence that I consider appropriate. I am to consider the principle of parity which is that like offending should receive like sentences. But I am not to tailor my sentence to produce an outcome of home detention.

Starting point

[25] What then is the appropriate starting point?

[26] For me, as the trial Judge, the most obvious comparator starting point, the most relevant starting point, is the one I identified for your co-offender Mr Persico. During the second trial, Mr Persico entered guilty pleas to specific and representative charges relating to both methamphetamine and BZP offending. The specific methamphetamine charges of possession related to some seven grams. Mr Persico also pleaded guilty to having possessed unknown amounts for supply. Based on the known specific amount of seven grams, I set Mr Persico’s starting point at the

bottom end of what is called Band 2 of Fatu,¹ which is the guideline judgment, and

that is three years’ imprisonment.

[27] Here, the known specific amount is five grams. That was an amount that was actually supplied. There were unknown additional amounts possessed for supply, and also unknown amounts that you purchased from Mr Helmbright for your own use.

[28] In that guideline judgment of Fatu, the Court of Appeal recognised the significance of the degree of commerciality involved. Where there was, it said, a complete absence of commerciality a sentencing judge could sentence below the bands identified in Fatu and, in what would otherwise be Band 1 supply, identify starting points below those indicated.

Similarly in a case called R v Hill, the Court commented:

Cases involving the supply of methamphetamine vary greatly – from sophisticated, large scale commercial operations undertaken by persons whose motivation is financial, to cases involving addicts who deal in a small way to friends or acquaintances essentially as a by-product of their own use and involvement in the drug sub-culture.

[29] At one point in his evidence, Mr Hemopo, a Crown witness, said his assessment was that you obtained methamphetamine for your own use and to supply to friends. I see no reason to doubt that assessment.

[30] There was, therefore, by my assessment, only a low level of commerciality. You supplied or delivered, or allowed Mr Hemopo to pick up, five grams from you. You did sell some of the methamphetamine you obtained from Mr Helmbright: I infer, however, that was largely to fund your own habit. It is commercial but it is low level commerciality at most.

[31] So, based on the known quantity of supply to Mr Hemopo, some of which you may have initially possessed for your own use, and those other considerations I have mentioned, I set a starting point of two years and nine months’ imprisonment.

[32] I do not consider there are any aggravating factors as regards your offending.

[33] In its written submissions the Crown did identify a number, being premeditation, quantity and value of drugs involved and the extent of your offending. I do not regard those as aggravating factors: they are simply the facts which your offending involved.

Personal considerations

[34] I therefore turn to aggravating and mitigating factors personal to you.

[35] The Crown accepts there are no personal aggravating factors: I agree. In your earlier life, you had something of a low level criminal history. But your most recent conviction was possessing cannabis in 1998. That offending, of whatever type, is in my view no longer relevant.

[36] I therefore turn to mitigating factors personal to you. The Crown submits there are none. Mr Fournier says I should have regard to a number: your willingness to plead guilty to one charge of supplying five grams; that you were exploited by Mr Helmbright; that your offending had, in effect, stopped before Operation Nebraska was brought to an end; and that your drug use, which occurred during what Mr Fournier described as a particularly difficult and stressful year for you, has been addressed by you. You have also expressed remorse.

[37] On that basis, Mr Fournier as we have heard, proposed a discount that would bring you within the range of a sentence of home detention. That is an end sentence of two years’ imprisonment or less.

[38] Aspects of those submissions have been supported by the report I have received from the Department of Corrections. In recommending a sentence of home detention, the Department referred in particular to the support you have available in the community, which the Department recognised you had already begun to engage on. The report accepts as genuine your expression of remorse and your commitment to moving on from drug use.

[39] There is also a letter from Care New Zealand, an addiction treatment provider. You have very recently engaged with Care New Zealand and have attended two individual counselling sessions. The addictions counsellor also says she believes you were being truthful when you said you were remorseful of your actions and did not intend to repeat them.

[40] There are also matters relating to your family relationships that I should refer to.

[41] You and your partner have an 11 year old son. That relationship has had its hard times but you are, as I understand, back at the family home. Your partner has provided a letter of support to the Court. He is willing to provide his address, the family home, as your home detention residence. You also have two adult sons, and you are the main support for one son, as you explained to me today, who has considerable mental health issues.

[42] When I sentenced Mr Persico to home detention, an important factor was his successful rehabilitation. In R v Hill the Court of Appeal has recognised the importance of that and also the opportunity that a sentence of home detention provides for rehabilitation to be continued.² In a case known as R v Kennedy, the Court of Appeal observed that in borderline cases a judge is often able to recognise

the real prospect of rehabilitation by an unusually high discount to justify imposing something less than a custodial sentence.³

[43] I asked you today, and you answered me I think honestly, that you have moved on from methamphetamine. You have been on bail for three years. There is no record of any non-compliance with your bail.

[44] On that basis, I consider that a discount on account of personal factors of

30 per cent is appropriate and that brings me within the range where home detention is available and as I have already said to you, I think that is the appropriate outcome.

[45] I do so very much in line with the Court of Appeal’s analysis in Hill, that a sentence of home detention recognises your efforts at rehabilitation, provides an environment within which that process can continue under supervision by the Department of Corrections and will give you the opportunity of the improved outcomes the Court of Appeal saw as being associated with sentences of home detention compared to those associated with sentences of imprisonment. So I consider that that sentencing option is not only appropriate for you but it is also in the best interests of the community as a whole.

[46] Ms Morrison if you could now stand please. You are sentenced to 12 months’ home detention. The home detention address is [redacted]. You will be subject to the condition that you comply with the directions of your probation officer as regards drug counselling and rehabilitation treatment and you will need to discuss with the Department the arrangements for going home to that address in Christchurch. I am not sure what arrangements will need to be made but I imagine you will be directed to return to Christchurch and report there to the Department.

[47] That sentence of home detention will start tomorrow, which will give you time to get back to Christchurch and report to the Probation Department tomorrow. The sentence of home detention will start tomorrow and will be for 12 months.

[48] And I do not have to say to you Ms Morrison that, I know you want to put this episode in your life behind you, and I trust that you will.

“Clifford J”

Solicitors:

Crown Law, Wellington