Karatau v Police HC Wanganui CRI-2011-483-29

[2011] NZHC 1995

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2011-483-29

ESMAY KARATAU

v

NEW ZEALAND POLICE

Counsel:         F C Devlin for Appellant

S A MacDonald for Crown

Judgment:      12 December 2011

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 3:30pm on the 12th December 2011.

Solicitors:
F C Devlin, Barrister and Solicitor, Wanganui

Crown Solicitor, Wanganui

ESMAY KARATAU V NEW ZEALAND POLICE HC WANG CRI-2011-483-29 12 December 2011

[1]      On 19 October 2011 Esmay Karatau was convicted in the District Court at

Whanganui on the following charges:

(a)       possession of cannabis for sale;

(b)      possession of utensils for the consumption of cannabis;

(c)       possession    of    utensils    (14    methamphetamine    pipes)    for    the consumption of methamphetamine;

(d)      possession     of     a     Class     C     drug     (Benzylpiperazine     and

Trifluoromethylpiperazine); (e) wilful trespass;

(f)       theft under $500; and

(g)      breach of community work.

[2]      Ms Karatua was sentenced to 12 months’ imprisonment on the drug related charges and three months’ imprisonment (cumulative) in respect of the other charges. She appeals the 12 month portion of the sentence primarily on the basis that she has no previous drug convictions and was simply taking the rap for her partner.   It is argued  that  she  should  not  have  received  the  maximum  penalty  available  on summary conviction for this offending.  Instead a sentence of six to nine months is argued to be appropriate.

[3]      There seems to be no argument that Ms Karatau did in fact take the rap for offending in which the primary offender was a Mr Kiu – her partner.  In the District Court His Honour Judge Moore was unsympathetic to these arguments.  He accepted that Ms Karatau was not solely responsible for the drug offending at the residence but noted that, because the drugs were found in the master bedroom along with equipment consistent with ongoing sales, she “effectively had no choice”.   In addition, the drug offences were committed while subject to community work on two

charges of trespass at a local supermarket, and that Ms Karatau was raising children in an atmosphere in which drug dealing and use was normalised.

[4]      The Judge found that while Ms Karatau had no prior drug convictions she had an extensive criminal history including breaching community work and other sentences,  20 dishonesty  offences  including  12  counts  of  shoplifting.  and  seven trespass counts.  His Honour took the view that crime had been an ordinary part of Ms Karatau’s life for many years. The Judge said:

The problem here is that with people who persistently breach the law there are no prizes for changing from being a criminal of one sort to being a criminal  of  another  sort.   You  cannot  escape  the  consequences  of  your history and your lifestyle by changing the nature of the offences you commit.

Analysis

[5]      Although  the  court  had  no  power  to  impose  a  penalty  of  more  than

12 months’ imprisonment for the drug offending in its summary jurisdiction, it is accepted that this does not mean that the prevailing tariff case – R v Terewi[1]  is displaced.   While 12 months for the sort of offending in this case is not a light sentence, it is well within range.  I refer for example to R v Shelford[2], R v Heremaia[3] and R v Franklin[4]  all of which adopted starting points at or above two years for offending on a similar scale.

[1] R v Terewi [1999] 3 NZLR 62 (CA).

[2] CA3/06, 22 March 2006.

[3] HC Whangarei CRI 2008-088-4116, 25 March 2009.

[4] HC Whangarei CRI 2008-088-5973, 13 July 2009.

[6]      Accordingly an end sentence of 12 months’ imprisonment after credit for late guilty pleas and lack of prior convictions is well within range.   Against that background, Ms Karatau’s general history of offending when combined with Judge Moore’s acceptance that she had some involvement in the drug offending, establish in my view that her sentence was not manifestly excessive.

[7]      In documents filed prior to the hearing of this appeal, there was also an argument in respect of home detention – an option refused by Judge Moore.  I was

advised at the hearing that the address for a home detention sentence was no longer available and that this option would not be further pursued.  I would comment that, for the reasons given by Judge Moore, such a sentence would  have been quite inappropriate in any event.

[8]      The appeal is dismissed accordingly.

Williams J