R v Anaru

[2013] NZHC 1261

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-091-614 [2013] NZHC 1261

THE QUEEN

v

MICHAEL ANARU

Counsel:                  S A H Bishop for Crown

C J Nicholls for Defendant

Sentencing:              30 May 2013

SENTENCING NOTES OFWILLIAMS J

[1]      Mr  Anaru  your  sentencing  has  been  removed  to  this  court  because Judge Walker in the District Court said that the maximum sentence of 12 months that was available to him was not going to be enough in your case, because of your history, as you know.

[2]      You appear before me then on one charge of possession of cannabis for sale. A charge to which you pleaded guilty.

[3]      The facts are straightforward and you do not dispute them.  When the police searched your home you were found in possession of $940 cash, 15 cannabis tinnies, two new foil squares, one plastic shopping bag with 26 grams of cannabis leaf and three empty plastic bags with cannabis crumbs in them.   In total there were 42.5

grams of cannabis, capable of yielding about $720 if sold in tinnie form.

R v ANARU [2013] NZHC 1261 [30 May 2013]

[4]      You say that you were selling to raise money for your 60th birthday but before that you had given up selling since your last prison term.   I have to say I am sceptical.  I think Mr Nicholls probably hit the nail on the head when he said once you became unemployed you needed a little bit of money to supplement the unemployment benefit and selling became the only effective way you could do that because you could not get work.

[5]      You are 60 years old and you are on the unemployment benefit.  You are a father of four adult children, a grandfather of 16 mokopuna, and one mokopuna- tuarua – congratulations.

[6]      You have six previous convictions for possession for supply, ten for selling cannabis, seven possession-related convictions and one for cultivation.   Your first drug related offending was in 1980 and your last one was in 2006 – the last resulting in a relatively lengthy sentence of four years three months’ imprisonment.

[7]      You have given me a letter in which you express your sorrow and remorse for your crime.   You say you are deeply sorry for your victims and their families. Frankly Mr Anaru (I mean no disrespect) but I do not buy that story.  But you say by way of explanation that you had fallen on hard times and that although you had wanted to stop this cannabis dealing, it was the only way to supplement your income

– that I do accept.  Particularly when these facts are compared to the facts of your offending from a few years ago – relatively high grade retail offending.  This time it is just a few tinnies sitting on a bedside. The scale is much reduced.

[8]      I accept what you tell me about this being a way to supplement an insufficient income from the unemployment benefit bearing in mind your inability to work or find work when your last job collapsed in 2010.

[9]      You do say you are not trying to justify your recent actions and you know you have done wrong but you make this point that really resonates with me.  You said “look I’m too old for this”. That is so true – you are. You’re too old for this rubbish.

[10]     On the positive side, being in jail has made you give up smoking, and given that you have emphysema that has got to be good for you.

[11]     So I accept Mr Nicholls’s submission on your behalf that in some ways you are caught up in this game, and the only way to provide for your whanau.  And I wish life were different but the reality is selling cannabis is one, illegal; and two a scourge on our community, and you know that.  These kids who buy your product start with cannabis and they escalate.  A lot of our mental health problems relate to constant smoking of cannabis – you know all of this.  You have been around this industry for a long time. And there are victims here.  Victims as a result of what you have been doing along with many others in your circumstance.

[12]     The starting point for this kind of low end commercial offending is two years. That in my view is the appropriate starting point for you.  Your offending is low end, small scale, nickel and dime.  Your problem in terms of sentencing is that you have such a long history of cannabis related offending.  And this is just the last straw in that history as you know.

[13]     So the real challenge for me in dealing with your situation Mr Anaru is to decide  how  much  I  upgrade  your  sentence  because  of  your  history.     What Mr Nicholls has said to me this morning has given pause to think hard about that.

[14]     In  my view  a  three  month  upgrade  is  justified.    I accept  that  your  last offending was six years ago but it was significant and the last of a long line.   It would be quite wrong for me to ignore that.  On the other hand this offending was as I have said very small scale, and to some extent a response to your circumstances.

[15]     You pleaded guilty early and will be entitled to the full discount of seven months – that is about a quarter in round figures.

[16]     On my calculation, that leaves a final sentence of one year eight months – within range for home detention.  Your best argument in favour of home detention is your health status.  You suffer from a range of age and lifestyle related conditions – heart  disease,  asthma,  emphysema,  irritable  bowel  syndrome,  dizziness,  gout,  a

blood disorder of some kind and arthritis.  Now I thought quite hard about this and despite all of those problems, I do not think that home detention is appropriate in your case.

[17]     Firstly, I am satisfied that you can receive whatever medication or treatment is appropriate in prison.  And, you have received community based sentences in the past  (and  I  acknowledge  you  complied  with  them),  but  they  have  made  no difference.   Of course prison seems to have made no difference either, and I acknowledge that home detention is a punishment in its own right.   But I am not satisfied that home detention will hold you sufficiently accountable for this (the latest, albeit probably smallest) in a long line of similar offending.  I do not think it will promote in you a sense of responsibility for and, acknowledgement of, the wrong you have done.   As you have said yourself, at your age you need to have stopped this nickel and dime stuff, and prison, in my view, is the only means (such as it is) to send that message to you.

[18]     Mr Anaru, the sentence I have given you is not a heavy one but you have to do your time, and once you have done it – stop.  Stop this offending. You understand what I am saying?  Kua kaumatua ke koe – rapua he huarahi ke atu.  E marama mai ana koe?

[19]     You are convicted and sentenced to one year eight months’ imprisonment

accordingly.

[20]     Please stand down.

Williams J