R v Folaumoeloa HC Auckland CRI 2009-092-5810
[2010] NZHC 157
•5 February 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI 2009-092-005810
CRI 2009-092-009722
CRI 2009-092-011138
THE QUEEN
v
MAKATUU FOLAUMOELOA
Appearances: A R Longdill for the Crown
W T McNicol for the Prisoner
Sentence: 5 February 2010
SENTENCING NOTES OF PRIESTLEY J
Counsel/Solicitors:
A R Longdill, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: 09 336 7629
W T McNicol, Public Defence Service, P O 76715, Manukau City 2241. Fax: 09 261 2502
R V FOLAUMOELOA HC AK CRI 2009-092-005810 5 February 2010
[1] In August 2009 you pleaded guilty to four offences in the District Court. That Court declined jurisdiction and you were sent here to be sentenced. The four charges were three of possession of cannabis for supply on 11 April, 11 June, and 8
July 2009, and the fourth charge was one of burglary relating to a burglary committed by you in a home in June 2008. As you probably know the burglary charge carries a maximum of 10 years imprisonment. The maximum penalty for the possession of cannabis charges is eight years imprisonment.
[2] I need to say something about the facts of your offending although you will know them. In the early hours of the morning of 11 April last year, after your vehicle was stopped, you were arrested and when searched were found with 26 cannabis tinnies on you weighing approximately 15 gms. Exactly two months later, again in the evening, when you were a passenger in another motor vehicle, the vehicle was stopped. You gave a false name and were searched and in a drink bottle were discovered 10 tinfoil packages of cannabis weighing 13 gms. Less than a month later on 8 July yet another vehicle was stopped in which you were a passenger. Cannabis was detected by the Police. You were again found with seven tinnies in your possession weighing approximately 10 gms. So those three spates of offending over a three month period involved 38 gms of cannabis packaged into 43 tinnies.
[3] As to the burglary which took place in June 2008 in the company of another person, you went into a private home in Papatoetoe. You took from those premises a stereo and a television. I have no information about the value of those chattels but it
is clear that they were insured. I have read the victim impact statement of the victim, the owner of the chattels, a 33 year old woman. She describes the feelings of insecurity which have flowed from her house being burgled by you and her property stolen. Her financial loss, in addition to her no claims bonus, is a $200 insurance excess. I intend to ensure that you make good that loss and I impose on you a reparation sentence of $200 to be paid to your victim Ms Johnson and it is my hope that when you are released from prison and get your life sorted out you will prioritise payment of that sum to her.
[4] I turn now to your personal circumstances. You were born in Tonga. You moved to New Zealand when you were approximately nine. You are currently 24 years of age. You describe a happy childhood. You were, however, expelled from school for the use of cannabis when you were 14. You have had occasional employment as a casual labourer. You left school, unsurprisingly, with no qualifications. You have had some on the job training with vehicle maintenance. At the time of your offending you were unemployed. You told the Probation Service you had been in a relationship for approximately three years which has produced an 18 month old son. You have family who support you in the Auckland area. With the Probation Officer you were quite candid about your cannabis offending. You gave no explanation other than to say it was for profit. It is clear from the pre- sentence report that you have displayed an element of remorse. You are missing contact with your partner and your son and you have instructed your counsel, and I accept this, that having had time in prison to reflect upon your life you say you want
to put your previous lifestyle behind you.
[5] Whether you are successful in doing that is entirely up to you because the big problem you have had, as you well know, is drug and alcohol abuse. The pre- sentence report refers to that and an unbalanced lifestyle. When tested for alcohol addiction you scored, on the relevant scale, 18 which is well above the trigger point
for a harmful pattern of alcohol use which is 8. The report correctly states that you have a high risk of re-offending which will continue until you really address your cannabis and alcohol use. So given that you have clearly been abusing alcohol and using cannabis for a number of years whether you can put your lifestyle behind you really is going to turn around whether or not you can stay away from cannabis and stay away from getting drunk all the time. Do you understand that? That is the challenge which you are going to have.
[6] You have completed already, whilst in custody, the Straight Thinking Programme and there is a recommendation I intend to follow that you be enrolled in the medium intensity rehabilitative programme.
[7] I turn now to your previous convictions. You have approximately 16
previous convictions. These include, relevantly in your case, a 2007 conviction for
possessing cannabis for supply for which you were sentenced to jail for six months and clearly you have not learnt your lesson. You also have a number of convictions
for dishonesty which includes one of aggravated robbery and there are a number of convictions for unlawful taking of motor vehicles. So your record is not good.
[8] So far as the purposes and principles of sentencing you are concerned I need
to impose a sentence which reflects the gravity of your offending, its seriousness, a sentence which is consistent with others imposed for like offending and yet strive for the least restrictive outcome. Relevant purposes clearly in your case are, holding you accountable, which relates to the burglary, promoting a sense of responsibility, and so far as your drug offending is concerned denunciation and deterrence. There is also the possible element of protecting the community from you given your repeat offending.
[9] I turn now to aggravating and mitigating factors. It seems to me that the aggravating features of your cannabis offending is partly the volume involved but more importantly its repetition, three considerable quantities of cannabis to be sold
by you in your possession over a three month period. The clear aggravating feature
of the burglary is that you entered into a residential address and the Court of Appeal,
in R v Nguyen CA 110/01 2 July 2001, has identified that aspect of a residential burglary as being a legitimate aggravating feature. Aggravating features relating to you are the fact that two of your three cannabis offences were committed whilst you were on bail and a further aggravating feature is your previous conviction for an identical offence. You also have your previous dishonesty convictions. A clear mitigating feature, however, for which you are entitled to considerable credit is the fact that you pleaded guilty at an early opportunity, a month after your last cannabis offending. I accept your counsel’s submission to me that the 2008 burglary offending was detected as a result of fingerprints being matched when taken from you as a result of your offending in the following year.
[10] Counsel have been very helpful to me with their submissions. The Crown submits that so far as the cannabis offending is concerned your offending justifies a start point of between two and three years imprisonment. On the burglary the Crown’s submission for a start point is 12-18 months imprisonment. Your own
counsel, understandably perhaps, comes in at a slightly lower total. He submits a start point of six to nine months for the burglary offending is appropriate and the cannabis offending be met with a start point of around two years imprisonment. Both counsel, however, are at one when they suggest that your cannabis offending, and probably the April 2009 offending, should be the lead sentence and that the appropriate way to deal with you is to impose a cumulative sentence so far as the burglary is concerned. Your own counsel’s submission so far as an end sentence is concerned is somewhere in the region of two and a half years to two years nine months imprisonment. I also note Ms Longdill’s responsible submission that in these circumstances you should be entitled to the entire one third discount for your early guilty pleas and of course that is the only mitigating factor which is relevant in your particular case.
[11] As both counsel accept, a term of imprisonment is inevitable and indeed essential. My sentence must reflect a number of factors, not the least of which is that you have been convicted and imprisoned for a cannabis supply offence in recent times. Your cannabis offending was deliberate and persistent. Your overall culpability includes repetition and the fact that this offending was committed whilst you were on bail.
[12] Because the cannabis offending is very different in type from the burglary, your sentence must be crafted to ensure it does not do violence to the s 85(2) principle of totality. I shall indicate appropriate start points. But a mere addition of the two otherwise appropriate sentences would violate the totality principle. Hence the burglary sentence, of necessity, will have a degree of artificiality.
[13] I agree with counsel’s submissions that the most serious of your cannabis supply offences, the 11 April 2009 offence when you had 26 tinnies in your possession, should be the lead offence. But I see little point in imposing sentences of different length for the three cannabis supply offences.
[14] Relevant to your culpability on those three offences is the fact that a total of
43 tinnies were involved to an approximate weight of 38 gms. You made no secret
of the fact that you were supplying these tinnies for commercial and economic reasons.
[15] Looking at those quantities and the weights in isolation, you fall, in my view,
at the lower end of R v Terewi [1999] 3 NZLR 62 category two which would attract
a two to four year start point. Again both counsel accept that assessment. But the context of the number of tinnies is important. This was deliberate dealing over a period of three months. I consider that a start point of two and a half years is justified. That must be uplifted to reflect the aggravating features of your offending whilst on bail and the fact that you had previously been imprisoned for the identical offence. An appropriate uplift for those two aggravating factors in my judgment is one of three months. Thus the appropriate adjusted start point for the three cannabis offences would be one of two years nine months imprisonment.
[16] I note from the cases cited to me by counsel, in their written submissions, of
R v Rihari (HC WHA S05102 23 September 2005), R v Karena (HC AK CRI 2006-
092-9854 13 October 2006), R v Heemskerk (HC NEL CRI 2008-042-3203), R v
Tavake (HC AK CRI-2007-004-1359), and R v Taikato (HC ROT T023806 18
March 2003), small scale cannabis dealing of this type involving tinnies has attracted start points ranging between one year and three years. Were there any cogent argument for a slightly reduced start point the uplift for your aggravating features, in my view, would need to be correspondingly greater.
[17] Turning to the burglary I do not consider that you are a recidivist burglar. This was a somewhat drunken spontaneous and opportunistic burglary in the company of another person. Nonetheless it must be denounced and deterred.
[18] Having regard to counsel’s submissions a start point between nine and 12
months would not be untoward.
[19] But, as I have said, that start point becomes somewhat academic. My sentence, before applying any reduction, must reflect totality. This was a 2008 burglary which has been followed by 2009 cannabis dealing. In my judgment the
cumulative sentence for burglary needs to be reduced to three months. A total of three years imprisonment would thus be appropriate for all your offending.
[20] Turning now to the inevitable reduction which must flow because of your guilty pleas I accept that you pleaded guilty at an early opportunity. Both counsel agree to that. The plea was entered within approximately six weeks of your last offending. There is an unreality here in applying R v Hessell [2009] NZCA 450 in a mechanistic way to four offences of varying dates. The pragmatic and just approach is to allow you a one third discount for your guilty plea across the board. In other words the total period of imprisonment imposed on you should be two years imprisonment.
[21] I would ask you to stand up at this point please.
[22] Breaking that down, on each of the three cannabis for supply charges you are sentenced to one year and nine months imprisonment (which exceeds by one month the one third discount on two years and nine months). All those three terms of imprisonment are to be served concurrently.
[23] On the burglary charge I sentence you to three months imprisonment. That term of imprisonment is to be cumulative on the one year nine month term.
[24] Thus the total time you will spend in prison is two years.
[25] The Sentencing Act requires me to consider, for a sentence of two years or less, a home detention sentence. I do not do so here. Home detention would be totally inappropriate and both counsel accept that is the case.
[26] I recommend to the prison authorities and the Parole Board that your treatment as a prisoner and the speed of your release on parole should be dictated by the extent to which you respond to programmes and show a willingness, which you have failed to do to date, to surmount your problems with alcohol and drugs. As recommended by the Probation Officer I also recommend that you be exposed to the medium intensity rehabilitative programme.
[27] I will also direct that on your release, release conditions should apply for a minimum of six months. Those release conditions are to undertake and complete a drug and alcohol counselling assessment, any residential treatment programme administered by a community service provider, and to abide by the rules of the programme to the satisfaction of the programme provider and the Probation Officer.
[28] What I have done here, because you are probably wondering what on earth
we have been talking about, is I have also directed that when you are released from jail, if necessary and it is going to help you, you are directed to attend some programmes which the Probation Service may suggest to you are a good idea. Do you understand that?
[29] Mr Folaumoeloa: Yes.
[30] Thank you. You can take him down now.
........................................… Priestley J
0