Police v Ratahi

[2013] NZHC 1657

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2013-016-000360 [2013] NZHC 1657

BETWEEN  NEW ZEALAND POLICE Informant

ANDANDRE NATHAN RATAHI Defendant

Hearing:                   2 July 2013

Appearances:           K Laurenson for Informant

A M Sceats for Defendant

Sentence:                 2 July 2013

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Napier

A M Sceats, Gisborne

POLICE v RATAHI [2013] NZHC 1657 [2 July 2013]

[1]      Andre Ratahi, you appear for sentence for five offences: possessing cannabis twice, first on 13 January 2013 and then for supply on 9 February 2013; and then three driving offences on 13 January 2013: driving with an excess breath alcohol level, a third or later offence, driving dangerously and failing to stop when required by the police.

[2]      On 3 May 2013 jurisdiction was declined in the District Court and you are thus for conviction and sentence in this Court.

Offences

[3]      On 13 January 2013, at about 2 am, when you were driving on Peel Street, Gisborne, you sped away, when the police attempted to stop you by turning on the red and blue flashing lights on their patrol car. You drove through a stop sign on Peel Street and a give way sign on Grey Street. You collided with a parked car in Kahutia Street but that did not deflect you.

[4]      Finally, you were stopped by other officers on Cobden Street and by then the car you were driving had become inoperable. You underwent a breath test. Your level was 477 micrograms of alcohol per litre of breath. A bag of cannabis was found in your car, which you accepted was yours.

[5]      On 9 February 2013, shortly after 9 am, the police came to your home in Lytton  Road,  Gisborne  in  response  to  a  report  that  you  and  your  partner  were involved in what might have been a violent dispute. The police smelt cannabis and exercised their power to search your property without warrant.

[6]      In the washing machine they found a bong and a plastic shopping bag inside which were four snaplock bags containing cannabis head. Three contained 18.4 -

18.7 grams, the fourth 2.6 grams, in all 58.2 grams. The cannabis had just been bagged, on the face of it for the purpose of sale. At $300 an ounce it was worth $621. If sold as tinnies it was worth $1,160.

[7]      In a satchel in the lounge the police found a glass pipe, commonly used to smoke  methamphetamine,  and  $2,996.50  cash,  mostly  in  $20  notes.  Also  a

cellphone. Messages in your sent box were to organise drug deliveries or to demand that drug debts be paid. In the kitchen there was a set of scales capable of weighing up to 500 grams, and a box of plastic snaplock bags.

[8]      You admitted that the satchel was yours. You said that you and your partner had saved the cash from wages, that the cellphone was to contact your boss and that the cannabis was for personal use.

Pre-sentence report

[9]      Your pre-sentence report recommends home detention, a sentence to which you consent, at the home of your aunt and two cousins, where you live presently. Your aunt, a registered nurse you say, is assessed favourably. She disapproves of your offending. She is willing to assist you by allowing you to serve home detention in her home.

[10]     Your employer, as I understand your report, is also willing to continue to employ you if home detention is imposed. You work for him seasonally depending on when work is available. Your supervisor is confident that your payslips will verify the hours you work and can be used to monitor your compliance with your sentence.

[11]     Such a sentence, however, your report says would require close management. You have had, certainly in the past, a harmful pattern of drinking. You have used cannabis heavily, smoking up to 10 pipes daily. You did not at the time of your report believe  that  cannabis  should  be  illegal.  You  have  a  history  of  breaching  the conditions of community based sentences.

[12]     Since 2006, when you first began to offend, I see, you may have only one drug related conviction in 2007 for simple possession of cannabis. But you have offended persistently and variously. You have three convictions for driving with excess breath alcohol and three for driving while disqualified. You acquired two of your convictions for each of those offences in the last two years. You have also breached sentences of community work three times, conditions of supervision once, and finally your conditions on release from an August 2009 prison sentence of two years, two months, for serious violence.

Letters

[13]     I have a letter confirming that in May this year you were assessed for one on one therapy for your addictions and you showed a lot of remorse. I have a letter from you in which you say that, since you were charged, you have been drug and alcohol free and that you have found it positive to live with your aunt and your cousins.

[14]     You say you work when you can as much as six days a week in the vineyards and orchards. You love working and that is what keeps you out of trouble. You say you have been assisting your mother, who has been unwell. Prison, you say, has done nothing for you and there you fear for your health and wellbeing.

Submissions

[15]     There is no issue as between counsel that your lead offence for sentence is possessing cannabis for supply on 9 February 2013, or that your offence lies within band two R v Terewi,1 which for low level commercial offending sets starting points for sentence in the span two - four years imprisonment.

[16]     The Crown contends for a starting point of two years for that offence, a six month uplift for the January offending, and a two month uplift for your previous convictions, a total effective sentence of two years, eight months. Equally the Crown accepts that you are entitled to a 25 per cent credit for your early plea, reducing your sentence for that offence, and thus your effective sentence, to two years or thereabouts, right on the cusp of a sentence of home detention.

[17]     Your counsel does not differ significantly. He commends a sentence of home detention because you have the opportunity, living at your aunt’s house, to face up to your addictions within the community, and you would be able to continue to work. It would be retrograde said, he says, if you were to have to give up your work because

work stabilises you.

1      R v Terewi [1999] 3 NZLR 62.

Conclusions

[18]     On  the  Crown’s  logic,  which  I  accept,  your  lead  offence  for  sentence, possession  of  cannabis  for  supply,  warrants  a  sentence  of  imprisonment  in  the vicinity of two years.

[19]     As against that I am encouraged by the fact that, since charged with this offending, you have remained, as it appears, drug free. You have lived successfully at your aunt’s house. You have remained in fulltime work. If you are able to consolidate those gains in the community that is likely to be much more lasting than any that you might make apparently during a sentence of imprisonment.

[20]     I am told that despite the fact that you work throughout Poverty Bay, that can be reconciled administratively with a sentence of home detention and, once again, keeping you in work seems to me to be a very worthwhile feature of a community sentence in your case. You have offended persistently but, unusually, you have also worked constantly and it does appear to be stabilising for you.

[21]     For those reasons I convict you of your possession for supply offence and sentence you to 12 months home detention. I convict you of your excess breath alcohol offence, which is in the aggravated category, and impose concurrently for that offence the sentence of home detention. For that latter offence also I disqualify you indefinitely.

[22]     Your simple possession of cannabis and  your dangerous driving offences attract lesser maximum sentences of imprisonment, which may be incompatible with the sentence of home detention I have imposed. For the simple possession offence I convict and discharge you. For the dangerous driving offence I convict you and disqualify you for 12 months as from today. For failing to stop, which is fineable only, you are convicted and discharged.

[23]     To give effect to your sentence of home detention I impose on you the special conditions set out in your pre-sentence report. They are these:

1.You are to travel directly to 37 Cambridge Terrace, Kaiti, Gisborne and wait there until your home detention connection is completed by the security guard and a probation officer.

2.You are to reside at 37 Cambridge Terrace, Kaiti, Gisborne and not move from that address without written permission from your probation officer.

3.You are to remain at 37 Cambridge Terrace, Kaiti, Gisborne at all times unless an absence has been approved by your probation officer.

4.You are to abstain from the consumption of alcohol and illicit drugs for the duration of your sentence of home detention.

5.You are to be assessed for a drug and alcohol counselling program and, if assessed as suitable, to attend such counselling program to the satisfaction of your probation officer and the program provider.

6.You are to undertake an assessment with a Department of Corrections psychologist.

7.You are to complete a Tekanga Maori program to the satisfaction of your probation officer and the program provider.

[24]     There remains the cash confiscated when  your home was searched. That cannot be forfeited because your offending was possession for the purpose of sale or supply, not an actual sale or supply. That will have to be the subject of an application

under the Criminal Proceeds (Recovery) Act 2009, or the cash returned to you.

P.J. Keane J