R v A'A HC Auckland CRI 2010-092-9128

[2010] NZHC 1776

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-9128

THE QUEEN

v

PUTE LOLOTAI A'A

Charge:Possession of cannabis for supply; Unlawful possession of firearm

Plea:               Guilty

Appearances: S C Waalkens for Crown

B Castelino for Prisoner

Sentenced:     8 October 2010

Cannabis - 1 year 8 months' imprisonment
Firearm - convicted and discharged

SENTENCING NOTES OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Crown

Bennett Castelino (Manukau) for Prisoner

R V A'A HC AK CRI-2010-092-9128  8 October 2010

Introduction

[1]      Mr A'A, you pleaded guilty on 21 July 2010 to one charge of possession of cannabis for supply under s 6(1)(f) of the Misuse of Drugs Act 1975.  The maximum penalty for that offence is eight years’ imprisonment.  You also pleaded guilty to one charge of possessing a firearm under s 45(1) of the Arms Act 1983, the maximum penalty for which is four years’ imprisonment.

Facts

[2]      These are what I understand to be the relevant facts.

[3]      On  15 June  2010  you  were  at  your  family's  address  in  Otara  with  your brother and a friend.  I understand that you had arrived there only the previous day, having had a row with your partner and put everything into your van and headed home.  By coincidence, the police attended an armed incident on the same street and you, your brother and friend were asked to come onto the road by armed police.

[4]      Your Mitsubishi van was parked in the driveway of the address.  The police searched the van and found an amount of cannabis plant material, packaged in small tin foil packages known as "tinnies".   The amount of cannabis was found to be

88.3 grams.   Also in the van were snaplock bags, tinfoil, electronic scales, and a large amount of cash - $39,722.50 - in various denominations.   A search of your home located a shotgun, which you admitted to owning.

Personal circumstances

[5]      I am told that you are a 29 year old of Maori and Samoan descent.  You were born in Auckland.  You worked in a garage for a time until you were dismissed for being late to work.  You then began to run out of money and you spent what money you had on gambling and alcohol.  I accept that you have a very harmful pattern of alcohol use and that you have a harmful pattern of problem gambling.

[6]      You stated that the background to the offending was that you needed income but that you had put on too much weight and become "too lazy to do a fulltime job". Your motivation for offending was to get enough money to live on and to service your gambling addiction.   You did express remorse and you apologised to your family.  Regarding the firearm, you reported that you kept the shotgun purely as a souvenir and had never fired it.  You would have heard the exchanges I had with the lawyers just now about part of the transcript of your interview with the police where the shotgun was discussed.   I accept that the shotgun was stored at your family's home and that it is unrelated to the drug offence.

[7]      Your do have rehabilitative needs and they are to address your alcohol use and the problem gambling.  You are assessed by the probation officer as at a low risk of re-offending, but that is qualified by an assessment that your risk of offending is likely to rise so long as you have these problems with alcohol use and gambling.

Purposes and principles of sentencing

[8]      Against that background, I have to look at what the law requires me to look at for the purposes and principles of sentencing.

[9]      I have to look at the need to hold you accountable for the harm done to the community by your offending, and the community regards dealing in drugs as being harmful to it.  I have a need to promote in you a sense of responsibility for the harm that you have been doing.  There is a need to denounce your conduct and to deter you and others like you from committing the same or similar offences.  And there is a need to assist your rehabilitation and reintegration.

[10]     I have to take into account the gravity, the seriousness, of your offending.  I need to take into account the seriousness of what you have been doing in comparison with other types of offences.   I have to, as much as possible, deal with you consistently with other drug dealers who have appeared for sentencing.   I should impose the least restrictive outcome that is appropriate in the circumstances, and I need to take into account your personal, family, whanau, community and cultural background in deciding what sentence to impose.

[11]     As you will at once have appreciated, many of those factors are in conflict with each other so it becomes a balancing exercise.

Starting point

[12]     The Crown in its written submissions has said that your offending falls within category 2 of a case called R v Terewi,[1] which is a case that gives guidance to Judges on sentencing in cases such as  yours.   Category 2  carries a two to four  years' imprisonment  starting  point.    The  Crown  has  noted  that  there  is  a  commercial element to your offending based on the cash, the bags, the tinfoil and scales, and the cannabis being packaged into tinnies.   The Crown submitted that the appropriate

starting point for the cannabis offending is between two years' three months' to two years' six months' imprisonment.

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

[13]     Your counsel argued that sales were infrequent and of a very limited extent, and  a  lower  starting  point  in  category  2  of  Terewi  is  justified.    Mr Castelino submitted that a starting point of two years' imprisonment should be adopted.

[14]   I have looked at the cases counsel have referred me to, and to others independently.  I agree that the case falls clearly within category 2 of Terewi.  There are serious indications of commercial gain here, including the amount of cash.  I am adopting a starting point of two years' and six months' imprisonment for the cannabis charge.

[15]     The Crown has recommended that because you had a shotgun I should add three to six months' imprisonment for that factor.  I am not going to.  As I said, I am satisfied that the possession of the shotgun was not connected to the drug offending and I intend to treat it as an entirely separate matter.

Mitigation

[16]     You  have  a  number  of  previous  convictions  including  driving  offences, assault, obstructing police and disorderly and offensive behaviour.   However, you have no previous convictions relating to cannabis.

[17]     The Crown and your lawyer agree that the starting point of imprisonment should not be increased because of your previous convictions, and I agree with that. I am not going to increase the starting point because of your previous convictions. But neither am I going to give you any credit for good character because of them.

[18]     The major mitigating factor in this case is your plea of guilty.  The law says that an offender who pleads guilty is entitled to a discount of sentence depending upon when he pleads guilty.   If you plead guilty at the first available opportunity then you are entitled to a discount of one third.  The later you plead guilty, the less the discount.

[19]     There has been a bit of disagreement between the Crown and the defence over the discount that you are entitled to.  The Crown says 25%; your lawyer says one third.  I have listened to the reasons he gave for the one third today, and I accept them.  I am going to give you a discount of one third which, from a starting point of two years' six months' imprisonment, results in an end sentence of one year and eight months' imprisonment.

Home Detention

[20]     As that sentence is less than two years, I must now consider the option of home detention.  Your lawyer submits that home detention should be ordered and the Crown is taking a neutral stance.

[21]     I am satisfied that home detention is not appropriate in your case.  You are a drug dealer - that is what you do; that is what you live on.  There are strong elements of commercial gain in this case.  There are no other factors that make home detention appropriate.  It is not as though you have got a partner and four young children who

need your help and support.  You have had a lifestyle and through sheer bad luck you have been caught by the police.   In your case I think that the deterrence and denunciation sentencing purposes need to be emphasised and so I sentence you to a term of imprisonment of one year and eight months'.

[22]     So far as the charge of unlawful possession of a firearm is concerned, you are convicted and discharged on that offence.  I make an order for the destruction of the

shotgun.  Please stand down.

Brewer J