R v A HC Auckland Cri-2007-035-2197
[2009] NZHC 149
•17 February 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2007-035-002197
QUEEN
v
A
Hearing: 17 February 2009
Appearances: RMA McCoubrey for Crown
F Pereira for Offender
Judgment: 17 February 2009
Charge: Possession of Class C drug cannabis for supply
Sentence: Eight months’ home detention (with conditions)
SENTENCING NOTES OF ASHER J
Solicitors:
Meredith Connell, PO Box 2213 Auckland
F Pereira, PO Box 32 483 Devonport, Auckland 0744
R V A HC AK CRI-2007-035-002197 17 February 2009
[1] A , you appear for sentence having pleaded guilty to a charge of possession of the Class C drug cannabis for the purposes of supply. The maximum sentence is eight years’ imprisonment.
The facts
[2] On 6 December 2007 the police were carrying out surveillance of an address at 7 Jean Street, Masterton. Ultimately a search warrant was issued and the police entered the premises. You were one of the occupiers. You were found in the living area of the house. When the police initially approached you you tried to conceal a tin behind your back. When you were asked to produce it it was found to contain
26 tinfoil packages containing cannabis. There was also a bag at your feet which contained $290 in cash, predominantly in $20 notes.
[3] Your co-offender, Sonny Hapi, who is your son, was located in a garage separate to the house. Beside him was a tin that contained another four tinfoil packages of cannabis. In Mr Hapi’s bedroom the police located two bags of dried cannabis plant each weighing approximately 26 grams. You admitted to the police that the cannabis that was found belonged to you and your son, and that you were selling cannabis in order to assist in paying the household bills.
The starting point
[4] I first deal with matters relating to your offending and reach a starting point for sentence. I second consider your personal circumstances and whether there should be any uplift or deduction, and I then go on to consider your counsel’s submission that home detention is an appropriate penalty.
[5] The first thing I have to do is to decide on a starting point of sentence for you in relation to the offending itself. Clearly you were part of a fairly low-scale commercial cannabis supplying enterprise. There is a leading decision: R v Terewi [1999] 3 NZLR 62, which sets out three broad categories of cannabis offending. Without going through those in detail I say that you fall within category two.
Category two was stated to involve small scale cultivation of cannabis plants for a commercial purpose, that is for profit, and a starting point of two to four years was stated to be generally appropriate. Although this was a decision relating to cannabis cultivation, the categories are relevant to the charge you face of possession for supply.
[6] You were a small-scale dealer and I consider that the appropriate starting point for your sentence is two years’ imprisonment. I now turn to your personal circumstances.
[7] Your initial pre-sentence report of August 2008 was not particularly favourable. However, you have now moved to Auckland and found accommodation here. A new pre-sentence report was provided on 9 February 2009. This records that you have a settled address in a three-bedroom property owned by Housing New Zealand. You still live with your son, Mr Hapi, and his partner and son. You also have in your care and custody your four other grandchildren who are all female aged from five to 13 years. Another granddaughter aged 15 years is also residing with you. You support yourself and your family on a domestic purposes benefit and unsupported child allowance.
[8] You nursed your grandson (the son of Sonny Hapi) through a very severe medical condition last year. Sadly your grandson died. The report records that you do not use cannabis and it assesses your overall risk of offending at low. You are not identified as having any substance abuse problem.
[9] I also have your own statement to me as the sentencing Judge, which I accept as entirely sincere. You ask to be kept with your grandchildren so that you can care for them. That this is your priority is supported by a most helpful report I have from Jess Jamieson, a social worker. She records that you are an exemplary grandmother who cared for your sick son and your very ill grandson through last year. It seems that your son, Sonny Hapi, has also got medical problems. You have moved to Auckland in a wish to make a clean start and to look after your grandchildren. Because of his health problems Mr Hapi is not able to contribute as much as he would wish, and you have the effective hands-on care of these grandchildren who are
reliant on you for all aspects of their care. The social worker believes that your involvement and availability to your grandchildren is very important to their welfare. The report records that you can contribute a lot by remaining in the community and looking after your son and grandchildren.
[10] You have some very minor and old previous convictions but nothing that warrants any particular note. You seem to have fully come to terms with the fact that you did the wrong thing in participating in a cannabis selling operation. You are therefore, in my view, entitled not only to a full one-third discount for a guilty plea but also something more for the good character you show. I would be minded to fix an end sentence of 14 months’ imprisonment if that was the only option.
[11] I now turn to the question of home detention. The fact that these offences occurred in your home would normally weigh against home detention. Nevertheless, there are clear factors indicating that home detention is the appropriate sentence. I have a report indicating that your new address is entirely appropriate, and also it is accepted that those who will be living there are appropriate occupants. You have made a clean start.
[12] I must also consider community work, which is another option either as a sentence itself or as an additional sentence to home detention. In this regard I have had referred to me the case of R v Pakau HC NP CRI-2008-043-3109 15
December 2008, Harrison J, where in a rather similar case the defendant was sentenced to six months’ home detention and 150 hours community service. There is a distinguishing factor between your position and that of Mrs Pakau. While the facts were similar, you have particularly distinguished yourself in the way you have helped your family and in your remorse. Also, community work will take you away from your grandchildren. I therefore accept your counsel Mr Pereira’s submission that a sentence of home detention only is appropriate. I note that the Crown does not oppose such a result.
[13] Could you stand up please. I am going to sentence you to home detention and not to prison. I am not going to sentence you to community work. However, the sentence must reflect the very serious nature of what you did. It was for commercial
purposes. For that reason I am going to sentence you to eight months’ home detention. It will be on the following terms:
a) You are upon release from this Court, to go immediately to 5 Bellona Road, Panmure, Auckland, and there await the arrival of a probation officer and instructions, and not to leave until this is done.
b)You are to reside at 5 Bellona Road, Panmure, Auckland, complying with conditions of curfew and not to move from that address without the prior written approval of the probation officer.
c) You are to undertake an assessment for cannabis use and if required undertake a counselling programme as directed by the probation officer.
[14] This sentence is really something of a last chance. If you come before the Court again you will have this on your record and undoubtedly will not be able to be dealt with as leniently as I have. I do it because you are clearly a good person who has a lot to offer our community. Please do not get involved with cannabis again, and do not let your family get involved. Do what you can do so well and bring up the children in your care.
………………………..
Asher J
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