IN THE Court of Appeal OF New Zealand	
CA786/2012
[2013] NZCA 106	

BETWEEN	DIANE MARIE LUNDY
Appellant	

AND	THE QUEEN
Respondent	

Hearing:	13 March 2013	

Court:	French, MacKenzie and Mallon JJ	

Counsel:	V C Nisbet and P A Walker for the Appellant
M H Cooke for the Respondent	

Judgment:	15 April 2013 at 2.30 pm	

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Mallon J)
Introduction 
[1]	Ms Lundy appeals against her sentence on drugs charges.  She pleaded guilty to those charges and was told by the District Court Judge that if she completed a rehabilitation programme the Court would consider a sentence of supervision.  She did not undertake that programme and was then sentenced to 20 months’ imprisonment.  She contends that this was manifestly excessive in light of the earlier indication.  She also contends that home detention ought to have been given.
Factual background 
[2]	The charges related to a search of Ms Lundy’s house in July 2011.  The police found five grams of methamphetamine (divided into seven bags of one gram and half gram amounts), 50 grams of cannabis (in two one-ounce bags), eight LSD tablets and a methamphetamine pipe.  A further 0.25 grams of methamphetamine was hidden internally.  
[3]	Ms Lundy was initially charged with possession of methamphetamine for supply, possession of cannabis for supply, possession of LSD and possession of a methamphetamine pipe.  She spent three weeks in custody but was then released on bail.
[4]	Counsel informs us that at an early stage a sentence indication of three and a half years’ imprisonment was given on the charges as they then stood.  By a letter dated 12 October 2011, which seems to have been for the purpose of this sentence indication, Ms Lundy told the Judge that she had previously been on the methadone programme for over 10 years.  She said that she started using drugs again after the loss of a loved one.  She said that her arrest and time in custody helped her to realise that she needed to make some changes.  She said she was attending support sessions and believed she was a suitable candidate for home detention.
[5]	Following discussions between counsel, a disputed facts hearing took place before Judge Saunders on the charge of possession of methamphetamine for supply.  The Judge found that there was no commercial element to that offending.  A Judge-alone trial was conducted on the possession of cannabis for supply charge, with Judge Saunders finding that Ms Lundy had rebutted the presumption that the cannabis was for supply.  The cannabis charge was replaced with simple possession of cannabis.
[6]	Guilty pleas were entered on the four charges (possession of methamphetamine for supply, possession of cannabis, possession of LSD and possession of a methamphetamine pipe) in March 2012.  Judge Saunders adjourned the sentencing until 24 September 2012.  This was because it was anticipated that Ms Lundy would be viewed as suitable to undertake a residential rehabilitation programme.  In allowing Ms Lundy this opportunity, the Judge said:
[7]	I have indicated to counsel and now to Ms Lundy that, in the event that she has successfully completed the intervention that is in mind, the Court would at that stage consider the imposition of a short term of supervision to follow, simply to ensure that any relapse prevention programme is adhered to and give Probation some further oversight around her recovery from the addiction.
[8]	My concluded view in this matter is that the appropriate intervention that will benefit the community is for this woman to be now given the benefit of understanding the consequences of the addiction and that that would best be done through a residential programme such as the one mentioned at St Marks.  For those reasons, she is now remanded on bail formally to undertake the assessment and the referral to St Marks.
[9]	Ms Lundy, it is a journey that hopefully will be of great benefit to you in the years ahead.  If you look after yourself, there is no reason why you cannot have a number of worthwhile years in this community or such community as you choose to live.  If you, of course, return to drug abuse and addiction takes over, you know that it is a path of self-destruction and that you are really going to, of course, have to be dealt with in a rather different way in September if you are unable to resist that temptation.  Good luck.  I hope that you will take the benefits of that residential programme.
[7]	As matters transpired, Ms Lundy did not undertake the residential rehabilitation programme.  According to the pre-sentence report, Ms Lundy attended an assessment but indicated that she did not really want to do a residential programme.  Apparently this was because her friends, including some that had attended the residential programme, had told her that she would not complete it and so she felt there was no use in attending it.  As a result, the assessor did not make a referral to the programme.  
[8]	Ms Lundy did attend some counselling with an alcohol and drug service and had some sessions with a psychiatrist.  The pre-sentence report writer contacted her counsellor towards the end of August.  The counsellor advised the writer that he had not seen Ms Lundy for about three weeks and that she had missed two appointments with the psychiatrist.
[9]	Ms Lundy was interviewed by the pre-sentence report writer on 11 September 2012.  She told that writer that since her court appearance in March 2012 she had smoked cannabis and methamphetamine with her friends.  She told the writer that, compared with her previous addiction, her present use of drugs was recreational.  
[10]	The pre-sentence report writer did not recommend supervision.  The writer also had concerns about the home detention address.  This was because a person with a drugs conviction frequented the address and because firearms were on the premises.  The writer also had concerns that Ms Lundy would continue to participate in drug taking with her friends if she were granted home detention.
[11]	Ms Lundy has two previous convictions: a conviction in 1987 for supplying a minor (for which she was fined $80) and a conviction in 1997 for manufacturing morphine (for which she received a nine month suspended sentence).
The sentence imposed by the District Court
[12]	Ms Lundy came back before Judge Saunders for sentencing on 24 September 2012.  The Judge took two years as the appropriate starting point on the possession of methamphetamine for supply charge, being the bottom of band one from the guideline judgment of R v Fatu.  He uplifted that by three months for Ms Lundy’s prior conviction history.  He reduced that to 20 months because of Ms Lundy’s guilty plea.  He imposed concurrent sentences of two months’ imprisonment for the possession of cannabis and three months’ imprisonment each for the possession of the pipe and possession of LSD. 
[13]	The Judge considered but rejected a sentence of home detention.  His reasons were as follows: 
[12]	The probation officer has expressed some real reservations about whether or not the house is suitable for home detention based on some material that the police provided.  Technically I find the house is suitable for home detention and yes, you would be, in my view, suitable to carry out some community work if that were to be attached to the sentence.  The real difficulty though is that you have, on the basis of your admitted past and use, indicated that you have succumbed to the temptation to use while awaiting sentence and that there is simply no appropriate means by which the Probation Service can require you to submit to regular screening tests to prove that you are remaining abstinent from use of illicit substances.
[13]	The Court of Appeal and Appellate Courts have made it clear that, as I have said, home detention can be still seen as a deterrent sentence because it does restrict your liberty and could do so for a reasonable period of time even associated with community work.  Generally, however, it is acknowledged that if it is to be a deterrent sentence the Court should also have regard to whether the needs of rehabilitation are being met by that sentence.  I guess what I had hoped six months ago is that today I would be dealing with somebody who had already completed, in the community, a rehabilitative sentence and for reasons that have been canvassed before me that has simply not been able to be done.
[14]	The issue then is whether or not somebody who has, on the face of it, committed offending within the home environment and I admit that you are now in a different home environment to that where the offending occurred and who has, again, acknowledged ongoing issues can really successfully be the subject of a home detention sentence.
[15]	I have unfortunately reached the view that I cannot, in light of the facts and the reasons for why this sentence was originally adjourned, accede to the view that home detention with community work is now an appropriate outcome.  The probation officer has not been able to provide me with sufficient evidence that the risk has been reduced of reoffending.  Clearly somebody who needs to acquire illicit substances, be it methamphetamine or cannabis, has to deal with suppliers or dealers and brings them back into that type of environment.  The deterrent aspect of sentencing then has not clearly been met if somebody is continuing to use a substance while under a restrictive electronically monitored sentence.  The probation officer’s assessment in the report was that you are likely to remain at high risk of reoffending in light of the history.
Starting point too high?
[14]	The submission for Ms Lundy is that a two year starting point was far too high when compared with the Judge’s earlier indication that supervision could be imposed.  Counsel for Ms Lundy submits that a sentence of around six months’ imprisonment would have been appropriate.  It is said that a sentence of this term would better reflect what must have been the Judge’s assessment of Ms Lundy’s culpability when he was contemplating a sentence of supervision.  That culpability was at the low end because there was no commercial element to Ms Lundy’s offending.
[15]	We do not accept that submission.  In March 2012 Ms Lundy presented as a person with past drug addiction problems who had slipped back into drug use and who was motivated to address her drug use.  The indication that supervision would be imposed reflected the Judge’s assessment at that time that rehabilitative, rather than punitive, sentencing aims could be given the greatest weight.  It was not an assessment of the seriousness of the offending, as indicated by the Judge’s comment that if Ms Lundy did not resist drugs she was going to “have to be dealt with in a rather different way in September”.  When Ms Lundy did not take full advantage of the opportunity to address her drug use in the intervening period, the Judge was entitled to give greater emphasis to the sentencing aims of deterrence and denunciation over rehabilitative aims.  That meant imprisonment was the starting point, with the appropriate term dependent upon an assessment of where this offending fell under the guidelines in R v Fatu.
[16]	Counsel for Ms Lundy understood the Crown to have submitted that a “short term” sentence was appropriate.  He understood this to have meant a term that was below band one of R v Fatu.  That, however, was a misunderstanding of the Crown’s submissions.  The Crown’s written submissions for the September 2012 sentencing stated that if Ms Lundy had not completed the residential programme then a “short sentence of imprisonment” would be appropriate.  No particular term was proposed.  According to the Judge’s sentencing remarks, at the September sentencing the Crown accepted that the offending fell within band one.  It therefore seems that the reference to “short term” in the Crown’s written submissions meant a sentence of two years or less once the guilty plea was taken into account.  That is the meaning of “short term” in the Sentencing Act 2002.
[17]	We consider that the two year starting point was available to the Judge.  The guidance in R v Fatu is that band one (two years to four years imprisonment) is for low level supply (less than five grams).  A starting point below that may be appropriate where the supply is in small quantities and there is no commerciality.  In the present case, there was no commerciality but the quantities involved were not so small as to require a starting point below band one.  The Judge therefore did not err in taking a starting point at the bottom of band one. 
Uplift for previous convictions?
[18]	Counsel for Ms Lundy submits that the Judge erred in uplifting the starting point by three months because of Ms Lundy’s previous convictions.  We agree.  The previous offending was limited and occurred about 15 years ago.  It did not indicate any special need for individual deterrence so as to warrant an uplift to what would otherwise be the appropriate term for offending of this kind.
[19]	That said, the uplift did not render the end sentence manifestly excessive.  The end sentence of 20 months’ imprisonment could have been arrived at by uplifting the two year starting point for the methamphetamine charge by three months for the other charges.  The Judge made no uplift to his starting point for that offending.  Alternatively the Judge might have taken a slightly higher starting point for the methamphetamine charge and allowed slightly less by way of credit for the guilty plea.  By whichever route, the end point of 20 months’ imprisonment was within the Judge’s sentencing discretion. 
Home detention?
[20]	The written submissions for Ms Lundy contended that the Judge was in error in rejecting home detention.  It is said that the Judge erred in thinking that he could not order Ms Lundy to submit to regular drug screening tests and that he incorrectly weighed the purposes and principles of sentencing.  At the hearing before us counsel did not pursue this part of the appeal with any vigour.  That was mainly because Ms Lundy has already served over five months of her imprisonment sentence.  
[21]	In any case, we are satisfied that there was no error in the Judge’s decision to decline home detention.  While a Court can impose a condition requiring that a person submit to intensive monitoring, it should only do so if the Court considers that it is a necessary condition and that a sentence of home detention is otherwise appropriate.  Home detention would have been suitable if Ms Lundy was motivated to address her drug use.  The information before the Judge was that she was not.  She was viewed as likely to continue to use drugs from time to time even if a condition of a sentence of home detention was that she not do so.  There were also concerns about the suitability of the address, even though it was technically feasible for there to be electronic monitoring at that address.  
Result
[22]	The sentence imposed was not manifestly excessive.  The Judge did not err in declining to impose a sentence of home detention.  The appeal is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent