R v D HC Auckland CRI 2008-092-6936
[2009] NZHC 1933
•28 July 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2008-092-006936
QUEEN
v
D
Hearing: 28 July 2009
Appearances: R M A McCoubrey for the Crown
I Jayanandan on instructions by S Tait for the Prisoner
Judgment: 28 July 2009
SENTENCING NOTES OF WYLIE J
Solicitors:
Crown Solicitor, P O Box 2213, Auckland
S Tait, P O Box 76 538, Manukau City
[1] Mr D you appear today having pleaded guilty to two charges under the
Misuse of Drugs Act 1975. Details of the charges are as follows:
a) Between 12 February 2008 and 4 May 2008 supplying the Class C controlled drug cannabis to persons unknown. That is an offence pursuant to s 6(1)(e) of the Misuse of Drugs Act 1975 and the maximum penalty for the offence is a term of imprisonment not exceeding 8 years.
b)Between the same dates, supplying cannabis to a Mr Wilson and a Mr Moungatonga. Again this is an offence pursuant to s 6(1)(e) of the Act, and again the maximum penalty is a term of imprisonment not exceeding 8 years.
Factual background
[2] Mr D , you are charged following on from a wide ranging Police enquiry known as Operation Leo.
[3] This operation commenced in late 2007, and was directed to the drug dealing activities of the Killer Beez and Tribesmen Gangs in the Counties-Manukau region. Interception warrants were issued under the authority of this Court, and the Police intercepted somewhere in excess of 110,000 telephone communications during the period 12 February 2008 to 5 May 2008.
[4] You were not initially a target, but when monitoring the intercepted communications of the primary targets, the Police discovered that you were an offender in relation to the sale and supply of cannabis. Your connection was to two of the gang members involved, Mr Wilson and Mr Moungatonga. You communicated with both directly on a number of occasions. You were involved in
297 telephone communications with Mr Wilson and Mr Moungatonga, on 39 days,
over the total 84 day interception period. Eighty three of your text and telephone conversations related to drug dealing.
[5] During the interception period, you were involved in various drug transactions. You supplied cannabis in varying amounts from tin foils to ounces. In a number of calls you stated that you were bagging up cannabis, which refers to the breaking down of ounce bags into $20 foils. Some of these bagging up operations took some time. For example, on 21 February 2008 you communicated with Mr Moungatonga at 3.52pm stating that you were putting cannabis into bags. At
6.01pm on the same day you said that you were still bagging up cannabis. On
23 February 2008, you communicated with Mr Moungatonga and told him that you were bagging up cannabis for the weekend which would take an hour or two. On
29 February 2008, you explained in a communication to Mr Moungatonga that you were half way through rolling up some cannabis, and that you had another “20 something” to go. Later that day you sent a text to him explaining that you still had
$400 worth of cannabis for him.
[6] It is clear from these communications that you had access to and were dealing in significant quantities of cannabis. In a number of the incidents picked up by Police, you were supplying direct to Mr Moungatonga and Mr Wilson.
[7] You were arrested on 7 May 2008 – two days following the termination of Operation Leo. When spoken to by Police, you refused to make a statement, and offered no explanation.
Pre-sentence report
[8] I have received a full pre-sentence report from the Department of
Corrections.
[9] You are a 25 year old of Cook Island Mäori descent. You are currently being held in custody, but prior to that, you were residing in South Auckland. You are no longer in contact with your parents who reside in Rarotonga. You have two sisters,
who I infer live in New Zealand. You gave the Probation Officer permission to speak to your sisters, but unfortunately no contact was able to be established.
[10] You left school at the age of 14 years, and the Probation Officer quotes you as saying that you then “started being a bum”. You recall being employed in 2003-
2004 making pallets, for a period of approximately a month. You have outstanding fines of some $5,910. There is no payment arrangement in place for this amount. You are stated as being in good physical health.
[11] You are reported as having two children aged 4 and 2 years who live with your ex-partner. You believe you have a good relationship with your ex-partner and your children and you have reported that you are now in a new relationship.
[12] Despite your offending, you have denied any affiliation to any gang.
[13] You have offered no explanation in relation to your offending other than to state that you use cannabis daily.
[14] Despite your age you have previously appeared before the Courts on a very large number of occasions. You have amassed some 50 prior convictions since
2001. You have some five previous convictions for alcohol and drug related offending, 14 convictions relating to property offending, 14 convictions for driving offences, and 9 convictions relating to breaches of bail and community based sentences. You are assessed as being at a high risk of re-offending given your cannabis use, and your association with gangs.
[15] You advised the Probation Officer that you have not attended any counselling to address your drug use, and that you do not believe it to be a problem.
[16] The Probation Officer assessed you as having no motivation to address your offending. You expressed no remorse or regret at interview. The Probation Officer recommended that you should be sentenced to a term of imprisonment.
Submissions
[17] I have received helpful submissions from Mr McCoubrey on behalf of the
Crown and from Ms Jayanandan on your behalf.
[18] Mr McCoubrey discussed the purposes and principles of sentencing. He submitted that the Court should impose a strong deterrent sentence, to mark society’s concern at the use and distribution of cannabis. He referred me to the decision of the Court of Appeal in R v Terewi [1999] 3 NZLR 62, which is the guideline judgment in respect of cannabis-related offending. He also referred me to other decisions dealing with cannabis-related offending, and submitted that your offending falls between bands 2 and 3 in R v Terewi – namely that it lies somewhere between small scale commerciality, and large scale commerciality. He submitted that a starting point in the region of 3 to 4 years’ imprisonment is appropriate.
[19] Mr McCoubrey also gave me a table outlining the sentences imposed on other people involved in Operation Leo. The end sentences imposed ranged from 12 months’ home detention and 200 hours community work, through to 5 years and 3 months’ imprisonment. Most involved sentencing for methamphetamine-related offending, and obviously the role taken by the various offenders differed significantly.
[20] Mr McCoubrey referred me to various aggravating features which he submitted I should take into account – first that your offending was pre-meditated, and that you were supplying drugs over a long period; secondly that your offending was plainly commercial in nature; and thirdly that the loss, damage and harm resulting from your offending. In relation to personal aggravating features, Mr McCoubrey referred to your criminal history, and in particular to the fact that you have two previous convictions for drug offending, as well as numerous convictions for breaches of Court orders. He submitted that an uplift of the starting point is required. He accepted that you are entitled to a discount for your early guilty plea, and that a discount of around 30% would be appropriate.
[21] Ms Jayanandan appearing on your behalf accepted that you were primarily involved in sourcing, packaging and selling cannabis on behalf of Mr Moungatonga and Mr Wilson. She also referred me to the purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002, and in particular to the need to hold you accountable for the harm done to the community, the need to promote in you a sense of responsibility and acknowledgement, the need to denounce your conduct, and the need to deter you and others from committing the same or similar offences. She also referred to the need to protect the community from you, and to the need to assist your rehabilitation and reintegration. She acknowledged the gravity of your offending, and the seriousness of the offence in comparison with other types of offence. He emphasised that I must nevertheless impose the least restrictive outcome that is appropriate in the circumstances, and take into account your personal, family, whanau, community and cultural background in imposing a sentence.
[22] Ms Jayanandan accepted that the lead authority is the Court of Appeal decision in R v Terewi. She also referred me to the decision of Miller J in R v Baker HC WN CRI 2005-485-157, 21 February 2006, where the Court emphasised that the bands in R v Terewi should be seen more as a guideline than a binding decision, and that starting points should be used flexibly. She noted the decision of Stevens J in R v Packer HC ROT CRI 2008-063-444, 5 September 2008. She accepted that there were aggravating features, including pre-meditation, and the number, seriousness and nature of your previous convictions. She submitted that your list of previous convictions was not however of such severity as to warrant any uplift to the sentence. In mitigation, she submitted your early guilty plea and the remorse she asserted that you had expressed.
[23] Ms Jayanandan submitted that your offending fell within the lower end of Category 2 in R v Terewi. She submitted that I should impose the least restrictive outcome appropriate in the circumstances and that a short term of imprisonment would be appropriate. She submitted that the level of culpability was such that a starting point should be in the vicinity of 3 years’ imprisonment.
Principles and purposes of sentencing
[24] I have considered the purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002. I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and acknowledgement of your offending, and the need to denounce the conduct in which you were involved. I am also mindful of the need to deter others from committing the same or similar offences. I have taken into account the gravity of your offending including your degree of culpability and I have considered the seriousness of this type of offence and the general desirability of consistency of the appropriate sentencing levels with similar offenders committing similar offences. I am also mindful of counsel’s submissions that I must impose the least restrictive outcome that is appropriate in the circumstances.
Analysis
[25] I accept that the guidelines for sentencing you are those discussed by the Court of Appeal in R v Terewi. That case involved the cultivation of cannabis, but it has been extended to apply to cases involving supply – R v Keefe CA275/02, 20
November 2002.
[26] R v Terewi puts in place three broad bands for sentencing offenders involved in relation to cannabis-related offending. Category 2 encompasses the small scale cultivation of cannabis for a commercial purpose, i.e. with the object of deriving profit. The starting point for Category 2 offending is generally between 2 and 4 years’ imprisonment. Category 3 is reserved for more serious cases of cannabis- related offending. It involves large scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point is generally 4 years or more imprisonment.
[27] The offending to which you have pleaded guilty and the summary of facts you have accepted does not detail how much cannabis you supplied. It seems clear
enough that there was significant supply, and that you were involved in numerous sales.
[28] I have considered a number of authorities in relation to cannabis-related offending, including R v Wharawhara HC HAM CRI 2006-019-9951, 27 June 2007, Asher J. That case concerned an offender who was found in possession of 99 grams of cannabis, and $1,290 in cash. His Honour adopted a starting point of 2 years and
6 months’ imprisonment. In R v Mamanu HC AK 2008-090-4226, 18 November
2008, John Hansen J adopted a starting point of 2 years and 6 months’ imprisonment for an offender found in possession of 110 grams of cannabis, and cash totalling
$2,541.50. In R v Davis HC AK CRI 2006-004-010121, 25 July 2006, Williams J adopted a starting point of 3 years and 6 months’ imprisonment, for an offender who sold 112 grams of cannabis, was found in possession of a further 28 grams of cannabis, and had 60 cannabis plants and 500 grams of dried cannabis in his house. In R v Reece HC CHC CRI 2005-019-010188, 15 June 2007, Panckhurst J adopted a starting point of 4 years’ imprisonment for an offender in possession of 5 ounces of good quality cannabis, and $4,260 in cash. His Honour was satisfied that the offender involved in that case was procuring and supplying cannabis over a three month period on almost a daily basis. The offender was described as being at the hub of a cannabis dealing operation.
[29] It is clear from the summary of facts that you were involved the regular procurement and supply of cannabis over a lengthy period. I doubt however that it can be said that you were the hub of the drug dealing operation, the subject of Operation Leo. You were supplying cannabis primarily to Mr Moungatonga and Mr Wilson, albeit regularly, and seemingly in quite significant amounts. I do not however know what amounts you were supplying or what revenue you derived from the supply of cannabis in which you were involved. I doubt that the revenue you derived was any where near the $100,000 sum discussed in R v Terewi as taking cannabis-related offending into band 3 for sentencing purposes. I have only limited information before me and I am required to sentence you on the basis of your plea and by reference to the facts you have admitted.
[30] In my view, your offending falls within Category 2 discussed in R v Terewi. I accept that there are aggravating features to your offending. Your offending was pre-meditated. It occurred over a prolonged period. It was plainly commercial in nature, and there has been significant harm and damage done to the community. We live in an age when the social evil of drug manufacture and supply is having a very real impact on the community. Illegal drugs are responsible for much crime and related suffering and it is important to denounce those involved in the sale and supply of drugs in strong terms.
[31] In the circumstances, it seems to me that a starting point of 3 years’ imprisonment is appropriate to your particular offending. But for the limited material before me, I may well have considered a more substantial starting point.
Aggravating and mitigating features personal to the offender
[32] The Crown suggests that it is an aggravating feature that you have two previous convictions for drug offending, and a number of convictions for breaches of Court orders. Insofar as I can glean from the record of your criminal history, your prior drug related offending has not been particularly serious. You were convicted and discharged in September 2005 for possession of a needle and a syringe used to consume cannabis. Your other drug related conviction was for the possession of cannabis plants. It was as long ago as October 2001. You were then sentenced to a
1 year term of supervision. While you have a horrendous criminal record for a young man, I am not satisfied that it is appropriate to uplift your sentence because of that record. You have already served sentences for your earlier offending, and in my view it would be inappropriate to take that earlier and largely unrelated offending into account in your particular circumstances.
[33] I accept that you are entitled to a discount for your early guilty plea. I have regard to the decision of the Court of Appeal in R v Walker [2009] NZCA 56. It suggests that an accused who pleads guilty at the earliest opportunity can expect a
30% to 33% discount for the guilty plea. Here you did enter your guilty plea at an early stage. In my view, it is appropriate to allow you a discount of one third from the sentence I would otherwise have imposed on you.
Sentence
[34] In the circumstances, you are sentenced to a term of imprisonment of 2 years in relation to the supply of cannabis to Messrs Moungatonga and Wilson. You are sentenced to a term of imprisonment of 18 months for supplying cannabis to unknown persons. That sentence is to be served concurrently.
Home detention
[35] I do not consider that it is appropriate to impose a sentence of home detention. Given your criminal record, and in particular the fact that you have numerous convictions for breaches of Court orders, you are not a suitable candidate to serve your sentence in the community and you should serve a sentence of imprisonment. The gravity of your offending is serious, and your culpability is high. There is no evidence of remorse, and you have made no attempt to rehabilitate yourself. It is important to send a strong message of deterrence to others who may be involved in, or contemplating such conduct. In my view that would not be achieved by a sentence of home detention given your particular circumstances.
[36] You may stand down.
Wylie J
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