R v Haira HC Rotorua CRI-2009-063-5871

[2011] NZHC 1910

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-063-5871

THE QUEEN

v

LEE SARA HAIRA

Hearing:         24 November 2011

Counsel:         A Gordon and S Simmers for Crown

P Kaye for Prisoner

Judgment:      24 November 2011

SENTENCING REMARKS OF LANG J

R V HAIRA HC ROT CRI-2009-063-5871 24 November 2011

[1]      Ms Haira, you appear for sentence today having pleaded guilty on the second day of your trial to being in possession of methamphetamine for supply between

12 August  2009  and  27  October  2009.    You  also  pleaded  guilty  to  supplying methamphetamine to your co-accused, Mr Phillips, between 12 August 2009 and 15

October 2009.   Finally, you pleaded guilty to a charge of conspiring to be in possession   of   methamphetamine   for   supply   between   27   October   2009   and

28 October 2009.

[2]     The first two charges, as you know, carry maximum sentences of life imprisonment.   The conspiracy charge carries a maximum sentence of 14 years imprisonment.

Background

[3]      Your offending  was  detected during a police operation  that  involved  the covert surveillance of cellphone traffic by the police.  The police obtained warrants from this Court to intercept conversations and text messages between your co- offender, Mr Phillips, and another person by the name of Mr Williams.   This uncovered a wide network of methamphetamine dealing in this region.  You were one of the persons who was detected dealing in methamphetamine as a result of the police operation.

[4]      The text message traffic showed that you were a reasonably busy retailer in methamphetamine, selling in small lots.   You had your own customer base who would contact you seeking methamphetamine, and you would do your best to accommodate their wishes.  You dealt reasonably extensively with Mr Phillips, and co-operated with him in sourcing methamphetamine.  On occasions, you would pool your funds so that you could buy a greater amount of methamphetamine at a cheaper price.

Sentencing Act 2002

[5]      You will know, from having been sentenced on similar charges in the past, that the Court views any form of dealing in methamphetamine seriously.  Issues of

denunciation and deterrence are clearly to the forefront and, inevitably, a sentence of imprisonment is the only sentence that can be imposed.   That is the only way in which the Court can contribute in any way to the scourge that is methamphetamine. Having said that, the Court must also impose a sentence that is broadly consistent with those imposed in similar cases and, also, a sentence that provides so far as possible for your rehabilitation and reintegration into the community.

Starting point

[6]      The starting point for the sentence to be imposed on you is determined by a decision of our Court of Appeal known as R v Fatu1.   In that case the Court of Appeal identified bands of offending and specified the starting points to be applied in relation to those bands.

[7]      Counsel agree that you fall squarely in Band 2 identified in Fatu.   That relates to offending involving between five and 250 grams of methamphetamine. You accept that you were in possession of, or supplied, 26.7 grams of methamphetamine during the course of  your offending.   Band 2 provides for a starting point of between three and nine years imprisonment.   The quantity of methamphetamine involved in the offending is just one factor to be weighed into the equation.  What the Court must do is assess the offending overall to see where within the band it fits.

[8]      As   I   have   said,   you   were   a   busy   dealer   sourcing   and   supplying methamphetamine at street level.  Counsel agree that, standing alone, this offending would attract a starting point of four years imprisonment.

Aggravating factors

[9]      I now need to consider whether that starting point should be increased to reflect aggravating factors personal to you.

[10]     You  have  previous  convictions  relating  to  methamphetamine,  but  these occurred in 2006, and were dealt with by way of conviction and discharge and a fine. For that reason, I propose to put them to one side for present purposes.  You need to know, Ms Haira, that from now on if you offend in this way the Court will routinely apply an uplift to any sentence that it imposes upon you.

[11]     There is, however, a further aggravating factor to your offending, and this flows from the fact that it occurred whilst you were on bail.  On 22 November 2008, the police stopped a vehicle in which you were travelling.   It contained all the trappings of a drug dealer’s vehicle.   You and a co-offender were found on that occasion in possession of 13.6 grams of methamphetamine and 1.41 kilograms of cannabis.  Other indicia of dealing, such as tick lists and scales, were also found in the vehicle.  You were sentenced for that offending on 1 April 2010 and received a sentence of two years six months imprisonment, which reflects the culpability of

your  offending  on  that  occasion.2      The  relevance  of  that  offending  for  present

purposes is that you were released on bail after your arrest on 22 November 2008, and this offending obviously occurred whilst you were still on bail.

[12]     The story does not end there, because you were stopped again in a vehicle on

10 April 2009, and again, you were found in possession of methamphetamine and cannabis.   I do not have any details of the quantities involved, or the other circumstances of that offending.   On 8 December 2009, however, you received a sentence of six months imprisonment for that offending.  I take it from that sentence that the quantities of methamphetamine and cannabis were less than those found in your possession on 22 November 2008.  Again, you were released on bail after your arrest on 10 April 2009, and just four months later the police began detecting this current series of offences.  You were quite prepared to offend whilst on bail on very serious charges.

[13]     The issue really is the level of uplift that I need to apply to reflect that fact. The Crown submits that an uplift of 12 months is appropriate having regard to the fact that you offended whilst on bail on two separate sets of charges.  I consider that

that is too high because it would represent an uplift of 25 per cent.  I consider that a more realistic uplift is one of six months imprisonment.

Mitigating factors

[14]     I now need to have regard to factors that operate to reduce the end starting point of four years six months imprisonment.  You have written a letter in which you indicate your remorse.  It is also clear that you have a large body of persons who are supporting you through this ordeal.   Many of them are here and present in Court today to support you in your hour of need.  You are very lucky, Ms Haira, to have so many people who care about you so much.

[15]     You point out that you had a very good upbringing.  Your parents gave you everything.  I note that when you were sentenced by Judge McGuire on the charges flowing from the incident on 22 November 2008, he said that this meant that you did not have an excuse for why you had descended to behaviour such as this.   I am satisfied, however, that you do have many good qualities and that is reflected in the fact that so many people support you.  What you have to do now is ensure that you stay well clear of all types of drugs in the future.

[16]     I propose to make an allowance for the progress that you have made in prison.  Generally speaking, personal factors do not count for a lot in drug-related offending.  In your case, however, you have now been custody for some time and it is clear that you have made very considerable progress.  The Court is entitled to give that factor concrete recognition.  I propose to reduce your sentence by four months to reflect this fact.

[17]     The other matter I am entitled to recognise is the fact that you pleaded guilty. Your guilty plea came late, because you did not plead guilty until after your trial had actually begun.   Ordinarily,  this means that the level of discount that  could be applied is very low.  I accept, however, that there were issues that your counsel and the Crown needed to resolve before the plea could be entered.   For that reason, I propose to allow a discount of seven months, or something in the order of 12 per

cent, to reflect that fact.  This means that I would be left with an end sentence of three years seven months imprisonment, and that is what I would ordinarily impose.

Totality

[18]     The position is complicated here by the fact that you have now been in prison for a lengthy period on the charges flowing from the incident on 22 November 2008. It is important that I apply totality principles so that I do not impose a sentence that is too long, having regard to the totality of your offending.

[19]     Counsel  for the Crown  submits  that  I should  impose an  end  cumulative sentence of between two and three years imprisonment to reflect the totality of your offending.  Your counsel submits that the cumulative sentence should be within the range of 18 months to two years.

[20]     It is difficult to assess totality in this context because of the lack of detail regarding the offending that occurred on 10 April 2009.  I consider that your counsel is correct, however, when he submits that it is likely that in total you have been in possession of just over 40 grams of methamphetamine taking into account all three sets of offending.  In addition, concrete recognition needs to be given to the fact that you offended on this occasion whilst on bail.

[21]     Taking those matters into account, I have reached the conclusion that an appropriate end cumulative sentence of 21 months imprisonment is appropriate.

Sentence

[22]     Ms Haira, on the charges of being in possession of methamphetamine for supply and supplying methamphetamine, you are sentenced to 21 months imprisonment.  Those sentences are to be served concurrently with each other, but cumulatively on the sentence you are currently serving.

[23]     On the conspiracy charge you are sentenced to 12 months imprisonment. That sentence, too, is to be served concurrently with the sentences imposed today,

but cumulatively on the sentence you are currently serving.

Lang J

Solicitors:

Crown Solicitor, Rotorua
Counsel:

P Kaye, Auckland