MAGON v POLICE [2021] NZHC 447

MAGON v POLICE [2021] NZHC 447 [9 March 2021]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000039[2021] NZHC 447BETWEEN HARRIET PATRICIA MAGONAppellantAND NEW ZEALAND POLICERespondentHearing: 3 March 2021Appearances: T J Surrey for the AppellantP A Norman for the RespondentJudgment: 9 March 2021JUDGMENT OF NATION J[1] On 22 October 2020, the appellant, Ms Magon, was sentenced to 23 months'imprisonment. She appeals that sentence, relying largely on her realisation while inprison that her drug use has been a core factor in her offending. She would like to begranted leave to apply for home detention on the basis that sentence would be servedat an appropriate drug rehabilitation centre in Canterbury.[2] Ms Magon was sentenced to 23 months' imprisonment on charges ofpossession of cannabis for supply,1 sale of cannabis to a person over the age of 18(representative),2 and supply of cannabis to a person under the age of 18(representative).31 Misuse of Drugs Act 1975, s 6(1)(f).2 Section 6(1)(e).3 Section 6(1)(d).Facts[3] These were set out in the summary of facts which was accepted for thesentencing in the District Court.[4] In June 2020, Central Otago Police were alerted to a significant use of cannabiswithin a group of high school students. An investigation established Ms Magon wassupplying cannabis to students aged between 13 and 17 years.[5] Generally, to purchase the cannabis, one 14 year old girl would make contactwith Ms Magon by text, either on her own behalf or on behalf of other students of asimilar age. On other occasions, members within the peer group would make director indirect contact with Ms Magon to purchase cannabis. The cannabis was normallysold in $50 bags each containing approximately 2 g.[6] Text messages and bank records revealed Ms Magon sold cannabis to personsunder the age of 18 between February 2020 until the time of her arrest in June 2020.There is evidence of 19 bank transactions showing cannabis being sold to personsunder the age of 18. This offending resulted in the representative charge of sellingcannabis to persons under the age of 18 years.[7] Examination of Ms Magon's bank records revealed that between July 2019 andJune 2020 she sold cannabis to persons over the age of 18 on at least 64 occasions.This resulted in the representative charge of supplying cannabis to persons over theage of 18 years.[8] On 24 June 2020, Police observed Ms Magon alone in her vehicle driving fromCanterbury to an address that was known to contain a group of young people, some ofwhom had been her previous customers. Police executed a search at the address anda search of the vehicle. One pound of cannabis broken into 16 one ounce bags wasfound.[9] A search warrant was later executed on Ms Magon's room at her Alexandraaddress. A tick list was found outlining amounts owed to her in the denomination of$50. The names on the tick list corresponded with known children and young personsaged approximately 14 years. A large number of unused snap-lock bags used as $50deal bags were located.District Court decision[10] Judge Turner placed the offending within band 2 of the guideline judgment Rv Terewi.4 His Honour considered the aggravating factors to be the duration of theoffending, the regular supply of cannabis to children as young as 13 and the obviousbreach of trust. His Honour noted that the number of snap-lock bags found and a ticklist point to the activity being more than of a minor nature.[11] The Judge adopted a starting point of two years and three months'imprisonment. His Honour applied an uplift of three months to reflect the fact MsMagon was before the Court on other drug charges and that the offending continuedafter Ms Magon had been dealt with by the Court on those offences. A further upliftof three months was applied to reflect Ms Magon's prior drug convictions. Thisbrought the overall starting point to 33 months' imprisonment.[12] The Judge allowed a five per cent discount for personal circumstances, as setout in the pre-sentence report. A 25 per cent credit for guilty pleas was applied. TheJudge did not consider a discrete discount for remorse was justified. This brought theend sentence to 23 months' imprisonment.[13] In respect of home detention, the Judge noted Ms Magon told the probationofficer she did not consent to a sentence of home detention as it would require her toinform her employer of the charges. The Judge considered the purposes and principlesof sentencing were not met by a sentence of home detention. Further, the fact MsMagon committed the offences while subject to a community-based sentencereinforced his view that Ms Magon was not a suitable candidate for home detention.Principles on appeal[14] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. An4 R v Terewi [1999] 3 NZLR 62 (CA).appeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and a different sentence should beimposed.5 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lowerCourt's decision, a "court will not intervene where the sentence is within the rangethat can properly be justified by accepted sentencing principles".6 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.7Submissions[15] In written submissions, Ms Surrey, on behalf of Ms Magon, submitted thesentence imposed by the District Court Judge was manifestly excessive whenconsidered in light of comparable cases. She submitted the Judge did not givesufficient credit for mitigating factors, including Ms Magon's personal circumstancesand remorse. In support of this submission, Ms Surrey referred to Ms Magon'spersonal circumstances and what she said were Ms Magon's battles with addiction andefforts to deal with those issues since her incarceration.8[16] The second ground of appeal was that the District Court Judge erred in notcommuting Ms Magon's sentence to home detention. Through counsel, Ms Magonsought a variation of the sentence imposed so as to grant her leave to apply for homedetention on the basis this would be served with her residing at an approved drugtreatment facility.Respondent's submissions[17] For the respondent, Ms Norman submitted there was a fundamental problemwith the appeal in that Ms Magon was not, in essence, suggesting there was any errorin the Judge's decision based on the information before him at the time of thesentencing. She was relying on developments that had occurred since then, progressMs Magon was said to have made in facing up to her drug use issues and the potential5 Criminal Procedure Act 2011, ss 250(2) and 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].8 Referring to Criminal Procedure Act, s 335.for her to engage positively with a programme to deal with those issues when therewas no evidence before the Court to support that submission.Discussion[18] I am satisfied there was no error in the way the Judge arrived at an end sentenceof 23 months' imprisonment. He adopted a starting point sentence of 27 months'imprisonment. This was close to the lower end of two years within band 2 of theguideline judgment of R v Terewi.9 In the District Court, Ms Magon had submittedthe offending came within band 2.[19] The prosecution had submitted the aggravating features of the offending werethe duration of the enterprise, the numerous sales to persons under 18 and the overallscale of the offending as apparent from physical evidence recovered, and argued for astarting point sentence of three and a half years' imprisonment.[20] There has been no criticism of the uplifts for the fact the offending occurredwhen Ms Magon was before the Court and after she had been sentenced on othercharges, and that she had prior drug convictions.[21] The Judge allowed a five per cent discount for her personal circumstances. Shewas given a 25 per cent credit for guilty pleas. There was a tentative suggestion shecould have been given a discrete discount for remorse but the Judge was fully justifiedin saying there was no tangible demonstration of remorse of the sort that would justifyspecial recognition. He had referred to the fact that Ms Magon appeared to haveminimised the seriousness of her offending in telling the pre-sentence report writerthat, in her opinion, her young victims were already using cannabis before she startedto supply cannabis to them. The pre-sentence report referred to her regretting heractions but that was because of the way her apprehension for the offending hadaffected her life in Alexandra which had been going well, both personally andprofessionally. The pre-sentence report referred to her expressing remorse only forthe impact her offending had on her teenage niece. It was not suggested for her at thesentencing that her offending had been caused by drug addiction and the information9 R v Terewi, above n 4.before the Court was to the contrary. Ms Magon had told the report writer that she didnot like using cannabis.[22] In the District Court, Ms Magon did not seek either a sentence of communitydetention or home detention for rehabilitation purposes. The Judge was told in thepre-sentence report that Ms Magon did not agree to the imposition of a sentence ofhome detention. This was because she did not want her then employers to be awareof the matters for which she was being sentenced or that she had previous criminalconvictions. She did agree to a sentence of community detention, which was what hercounsel sought in written submissions presented to the District Court. She wanted tobe on community detention with specific curfew hours that would allow her tocontinue working in the hospitality industry but she would not agree to Correctionscontacting her employers to check that those suggested hours were required for hercontinued employment.[23] Ms Surrey had referred the Judge to cases where the High Court had imposedsentences of home detention for band 2 cannabis offending.10 Those cases could bedistinguished because of the particular aggravating features of this offending.[24] There was also no error in the Judge deciding community detention would notbe appropriate. There was no error in the Judge considering that Ms Magon was nota suitable candidate for home detention because of a degree of minimisation of theseriousness of her offending, the fact she had offended while subject to a community-based sentence and was in breach of that sentence. A community-based sentence hadnot been sought to assist with her rehabilitation. The Judge also referred to the factMs Magon had not attended a sentence of intensive supervision with real effort andshe had sought to deal with methamphetamine use issues through a residentialtreatment in Blenheim but was exited from that programme as a consequence ofcriminal offending – theft by shoplifting.[25] Even if Ms Magon had been a suitable candidate for home detention and sucha sentence could have been imposed for her admitted offending, it cannot be said there10 R v Morrell [2013] NZHC 2801; Solicitor-General v Manson [2016] NZHC 1224; Brown v Police[2019] NZHC 3365.was any error in the Judge not imposing such a sentence when Ms Magon had toldCorrections she did not agree to the imposition of such a sentence.[26] I am satisfied, on all the information available to the Judge at sentencing, therewas no error at that time in the sentence imposed.[27] Ms Magon however pursues her appeal in the hope it could result in her beingable to leave prison and be sentenced in substitution to home detention at anappropriate drug treatment centre.[28] Although I have no evidence from Ms Magon that this is what she wants, I doacknowledge the progress she has made in recognising her particularly drug abuseissues.[29] This appeal was originally set down for hearing on 16 December 2020. MsMagon's counsel sought an adjournment of the appeal on the basis that, despite anearlier denial of ongoing addiction problems, Ms Magon had come to realise she hadan addiction issue that required treatment. The Court was told Ms Magon wasundertaking an intensive drug addiction and rehabilitation programme within theprison system which she attended five days a week. She wanted the opportunity tocomplete the course. The Crown and the Court agreed to an adjournment of thehearing of the appeal for that purpose.[30] On 2 March 2021, Ms Magon's counsel filed a memorandum with an attachedemail from Ms Magon's case manager at the Christchurch Women's Prison. It advisedMs Magon had completed an eight week intensive AOD programme11 and wasbeginning a 16 week offence-specific programme during the week of 1 March 2021.The case manager advised Ms Magon was doing well on treatment at this stage.Counsel advised the Court that, despite the appeal, Ms Magon wished to remain inprison to complete that specific programme.11 Alcohol and Other Drugs programme.[31] For that to happen, Ms Magon will need to stay in prison until at least the endof June 2021. With her being subject to a short term period of imprisonment of lessthan two years, she will be released on parole in early October 2021.[32] When imposing the sentence of imprisonment, Judge Turner said Ms Magonwas, on release from prison, to be subject to the standard conditions of parole andspecial conditions as set out in the Department of Corrections sentencingmemorandum until six months after the expiry of her current prison sentence. Thespecial conditions are:1. to reside at an address approved by a probation officer and not to moveaddress without the prior written approval of a probation officer;2. not to possess or consume any alcohol or drugs not prescribed to her;3. to attend an assessment for a department programme as directed by aprobation officer. To attend and complete any counselling, treatment orprogramme as recommended by the assessment as directed by and to thesatisfaction of a probation officer; and4. attend and complete an appropriate alcohol and drug programme to thesatisfaction of a probation officer.[33] This means, with her current prison sentence as imposed, Ms Magon willbenefit from the rehabilitative drug treatment programme she wishes to participate inuntil July 2021. She would have a further three months in prison but should then havecontinuing support available to her from Corrections for potentially a period of up toa further 17 months to ensure she can continue to take advantage of any residentialtreatment programme that will address the causes of her offending. Her current prisonsentence thus meets the rehabilitative needs Ms Magon wishes to address.[34] Ms Magon has however pursued this appeal in the hope this Court willsomehow provide for her to seek substitution of a sentence of home detention to beginafter June 2021. There is no evidence or information before the Court to indicate shewould then be suitable for such a sentence or that any residential programme wouldactually be available for her. Her counsel was not able to give me any detailedinformation as to just what facility might be available. There is also no evidencebefore the Court to establish that, at the time of this offending, Ms Magon sufferedfrom drug addiction or that it was a cause of the offending for which she was beingsentenced.[35] Ms Surrey referred to a judgment of the High Court in Brown v Police wherethe High Court allowed an appeal, held that a sentence for cannabis offending of twoyears and three months' imprisonment was manifestly excessive, and arrived at anappropriate end sentence of 24 months.12 The Court also decided that home detentionwas appropriate and substituted such a sentence for a period that also recognised thetime spent in prison. Counsel submitted the approach in Brown would be appropriatewith the appeal being allowed and the remainder of the sentence converted to allowMs Magon to serve the remainder of her sentence in a residential rehabilitation facilityand then a home detention address.[36] In Brown however, the appellant sought home detention where that sentencehad been recommended in the pre-sentence report, and the address approved for homedetention in the report was still appropriate and available on appeal. Dunningham Jheld the sentence in the District Court had been manifestly excessive and arrived at alesser adjusted end prison sentence, not on the basis of circumstances that had arisenafter sentencing but on the basis of the information that had been before the DistrictCourt as to the appellant's personal circumstances at that time.[37] Here, the appellant relies on circumstances that have arisen while she has beenserving her prison sentence. The Court has no information now on which it coulddecide that a sentence of home detention is appropriate or that a residentialrehabilitation facility would be suitable and available as the address for which homedetention would be appropriate. Ms Magon only seeks leave to apply for homedetention.[38] I am satisfied there was no error in the sentence originally imposed. Ms Magonis to be commended for the efforts she appears to be making to address the causes ofher offending but the sentence of imprisonment will allow her to continue doing this.12 Brown v Police, above n 10.The Court certainly hopes she can make the most of the support available to her toavoid any further offending of the sort that has caused problems for her, the membersof her family and the victims of her offending in the past.[39] Ms Magon's appeal is dismissed.Solicitors:MacTodd Lawyers, Queenstown-LakesRPB Law, Dunedin.