R v Dean HC Auckland CRI-2010-004-21077

[2011] NZHC 367

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-21077

THE QUEEN

v

MAHARA DEAN

Hearing:         13 May 2011

Counsel:         E McCaughan for the Crown

MN Pecotic for the prisoner

Judgment:      13 May 2011

SENTENCE OF KEANE J

Solicitors:           Meredith Connell, P O Box 2213, Auckland for Crown

Ms MN Pecotic, P O Box 6379, Auckland 1141 for Prisoner

R V MAHARA DEAN HC AK CRI-2010-004-21077 13 May 2011

[1]      Mahara Dean, you appear for sentence for conspiring with three others, one of whom was your sister, Nancy Dean, between 1 May and 23 July 2010, to commit an offence against the Misuse of Drugs Act: the form of offending for which you are secondly for sentence, possession on 25 June 2010 of cannabis for supply or sale.

[2]      You pleaded to those offences in the District Court and  you were to be sentenced there.  But at a disputed facts hearing, the Judge who had accepted your plea, acceded to the Crown’s application to decline jurisdiction to sentence you.  He remitted you to this Court for sentence.  Your counsel says there remains an issue whether the Judge could do that, having earlier accepted your plea and assumed jurisdiction.   That is not an issue, she says, you are able to pursue today, as she understands your right of appeal. That is an appeal point she reserves.

[3]      You are now for sentence, though the facts were originally disputed, on an agreed summary.

Agreed facts

[4]      During  2009  the  police  received  information  that  tinnie  houses  were functioning in two apartments at Racecourse Parade, Avondale, apartments 8 and 11, Housing Corporation apartments within a large residential complex opposite the Avondale Racecourse. Your sister, Nancy, was a registered tenant of one.

[5]      Between 1 May and 25 July 2010, the span of the conspiracy charge, data was retrieved from your cellphone supporting the inference that you, with others, had prepared tinnies at an unknown location and that you had them delivered, or delivered  them  yourself,  to  Racecourse  Parade,  where  they were  sold  from  the apartments by others for $20 each.  You then went to the apartment to uplift the cash or got others to do so.

[6]      On 17 May, the police placed a covert video camera in a house nearby, capable of recording those who came and went to both apartments.  Between 17 May and 22 June 2010, they recorded 561 people entering apartment 8, staying for a short

period and then leaving.  In that period 490 people entered apartment 11 and, again, after staying for a short period, left.

[7]      On 18 June 2010 and again on 13 July, undercover officers attempted to buy cannabis on six occasions.  They were successful on four.  On two others they were told to come back later.   When you were arrested, you were found to have 31 cannabis tinnies at your address.  The issue in dispute in the District Court was to what extent the activity observed translated to sales and takings.

[8]      The police assume that if 30 people visited the apartment each day, during the hours of daylight only, and each purchased one tinnie, you and your associates were selling $600 worth of cannabis each day.  Over the span observed 1 May 2010 to 22

June 2010, sales would have come to $31,800.

[9]      Your position was, and remains, that you or your associates did not sell to every visitor.   Sometimes there was no cannabis. Sometimes visitors were friends and family. Your estimate was $600 worth of sales each week or $4,200 worth of sales over the period observed.

Pre-sentence report

[10]     Your pre-sentence report says that you, at age 35, wish to obtain heavy traffic and goods and chemical licence driving qualifications  but lack the means. You are a registered boxer in good health and you train young boxers. You are also a patched member of the Head Hunters and you admit to having used cannabis to relax after training but you deny possessing it for supply; a denial hard to reconcile with the charges for which you are for sentence today.

[11]     In March 2011, however, when you were interviewed for the purpose of sentence, you did wish to reduce your cannabis use, your report says, and you are assessed to have been sincere. You recognised that cannabis use had affected your prospects. More disturbingly,  you still said that  you did not think that  you had harmed anybody else.

[12]     You are assessed, on the basis of your relatively few previous convictions, to be at low risk of re-offending and against that background your pre-sentence report recommends   that   you   be   sentenced   to   community   work   and   supervision, accompanied  by  counselling  and  treatment  for  substance  abuse.  Community detention is also mentioned. Home detention, the sentence your counsel seeks, is also canvassed but not recommended. The hostel at which you live is considered more appropriate for community than home detention. To comply with a sentence of home detention, your report assumes you would be confined to your room.

[13]     Your counsel questions that. You would have to be able to use the common kitchen and bathroom facilities. She contends also, I think reasonably, that such a sentence would confine you to the hostel. The issue is rather whether, if you were able to range throughout the hostel, you might be able to offend further, and that is a police concern.

Purposes and principles

[14]     In  sentencing  you  I  must  denounce  your  offending,  I  must  hold  you accountable for it, I must deter you and others from offending in this way.  So far as I am able to, I must also impose a sentence that rehabilitates you and reintegrates you. Drug offending normally places those last considerations second in order. A deterrent sentence is ordinarily required but they still remain active considerations, as your counsel says.

[15]     I must sentence you, of course, subject to the usual principles that apply.  The sentence I impose on you must reflect the gravity of your offending and be consistent with sentences imposed in like cases. I must also take into account your particular circumstances and your background.

Starting point

[16]     The Crown seeks, in respect of both your offences, which are inter-related in its submission, a starting point of 3.5 years imprisonment on the basis that your

offending lies within band 2.[1]   It was a small scale commercial operation that attracts a starting point for sentence between 2 – 4 years imprisonment. Your counsel accepts that you lie within band 2.  She urges me to take a starting point of 2 – 2.5 years imprisonment.  The Crown contends that nothing less than an actual custodial term ought to result. Your counsel seeks, on your behalf, a sentence of home detention.

[1] R v Terewi [1999] 3 NZLR 62.

[17]     I  have  been  invited  to  consider  a  range  of  cases  consistent  with  the contrasting starting points counsel commend. Those that I have found most helpful are those that involve active sales of cannabis over time.  I am not assisted by those that involve cultivation.  I find two particularly helpful. In R v Owen[2] Gendall J, in the case of a small scale tinnie operation, took a starting point of three years. In R v Wihongi and Cook,[3]  evidence of sustained sales and admissions that six pounds of cannabis had been sold over seven months, Chisholm J took a two year nine month starting point.

[2] R v Owen HC Whangarei CRI-2009-27-2809.

[3] R v Wihongi HC Dunedin T2099 012 4390/T2009 012 4352.

[18]     As those cases illustrate, sentencing always involves an assessment of the individual case and comparisons can never be exact.  Aggravating your offending, I consider, is that you were actively involved in organising sales from the two apartments over time, albeit with others.  That there were persistent sales from the two apartments over seven weeks shows that this was sustained.  That you had 31 tinnies when arrested suggests you were fully engaged yourself.

[19]     The starting point that I take for your two offences together could lie, I think, having regard to the cases to which I have referred, without being more precise, in the range two years, nine months to three years.

Discount for plea

[20]     There are no aggravating factors and the issue then becomes, to what extent the sole factor that mitigates your offending, your plea, justifies a discount and what

that ought to be.

[21]     You first appeared on 13 August 2010.   You pleaded six months later, on

2 February 2011.   You did so, as was your right, after the police had made very significant disclosure of documents and materials that your counsel needed to assess with you.  You sought a sentence indication, which was to be given on the date you pleaded.  You did not, in the strict sense, receive one. The Judge in the District Court declined jurisdiction.

[22]     Clearly, you did not plead at the very first opportunity.  But I am satisfied that you pleaded at the first reasonable opportunity, in the sense that a plea could not have been anticipated from you before disclosure and the sentence indication that you sought, not unreasonably, took some time to obtain.

[23]     In Hessell v R[4]  the Supreme Court has fixed as the maximum discount that may be given for a plea, leaving aside now any issue of remorse, to be 25 per cent. That is to be assessed in the round. Your counsel contends that you are entitled to 25 per cent.  The Crown contends for 15 per cent.  You are, I consider, entitled at least to 20 per cent. I am prepared, perhaps generously, to allow you the full discount.

Sentence

[4] Hessell v R [2010]NZSC 135.

[24]     A proper sentence to mark your offending, having regard especially to the Wihongi and Cook case, it seems to me, though the arithmetic is not exact, is two years imprisonment.  That is a short term of imprisonment.  I have then to consider, as your counsel submits I should, whether, as happened in the Wihongi and Cook case, to impose on you a sentence of home detention.  I have decided, though you are right at the cusp, that in your case that lesser sentence is warranted.

[25]     The seriousness of your offending is not to be minimised. But you have relatively few previous convictions and in other respects show more promise than many.  You have begun to address your dependence.  I put that no higher because you have only attended a CADS Getting Started Programme.   You have also a partner expecting  your child.    Finally,  I  have a letter from  the manager of the

Roberton Lodge where you live.   His is a measured letter.   He assesses you now

much more favourably than he did when you first began to live there.  He considers you a responsible occupant and a good influence on others.

[26]     As I say, Mr Dean, you are right at the cusp.  I could, as easily, impose on you today a sentence of imprisonment.   I have decided that you are worthy of a chance.   I sentence you to one year's home detention on terms that must now be settled because they are not set out in your pre-sentence report.

Home detention terms

[27]     Mahara Dean, this morning I imposed on you a sentence of one year's home detention. As I explained to you, you were very fortunate to receive that sentence. I am now going to explain to you what the terms of your sentence are.

[28]     There are standard terms that I am not going to refer to. They apply to every sentence of home detention. I am going to tell you what the special conditions are. They apply obviously and immediately to you.

1.You are to travel directly to Roberton Lodge, 53 Roberton Road, Avondale, Auckland, and await the arrival of a representative of the monitoring company and the probation officer.

2.You are to be and to remain at that address for the duration of the sentence and not to change that address without the prior written approval of your probation officer.

3.You  are  to  attend  and  complete  a  program  of  counselling  and treatment in the areas of substance abuse to the satisfactory of your program provider and your probation officer.

4.You are to attend and complete a program of any other treatment or counselling as directed by the probation officer.

5.        You are not to possess or to consume alcohol or illicit drugs for the

duration of the home detention sentence.

P.J. Keane J