R v Heremaia HC Whangarei CRI 2008-088-002483
[2011] NZHC 876
•25 July 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2008-088-002483
THE QUEEN
v
OLIVIA JEAN HEREMAIA
Hearing: 25 July 2011
Counsel: B O'Connor for the Crown
A M Dooney for the Prisoner
Judgment: 25 July 2011
SENTENCING NOTES OF WYLIE J
Distribution:
B O’Connor:
A M Dooney, Bank Street Chambers
R V O J HEREMAIA HC WHA CRI 2008-088-002483 25 July 2011
[1] Ms Heremaia, you appear today having entered a plea of guilty to one charge of possession of cannabis for supply. That is an offence pursuant to s 61(f) of the Misuse of Drugs Act 1975, and the maximum penalty available is one of eight years’ imprisonment.
[2] The matter came before the District Court. You entered your plea of guilty on 24 March 2011. The District Court declined jurisdiction, and remanded you to this Court so that a conviction could be entered, and for sentencing.
[3] I have convicted you this morning in relation to your plea, and I now turn to the appropriate sentence.
Relevant Facts
[4] The Police executed a search warrant at your address in Ashley Avenue, Whangarei, on 28 February 2011. They found 56 cannabis foils in the fridge, and
$710 in cash in your wallet.
[5] When you were spoken to, you admitted rolling up the foils to prepare them for sale, but you denied having sold any.
Sentencing Report
[6] Ms Heremaia, you are a 48 year-old Māori woman with iwi affiliations to Ngāpuhi. You were born in Whangarei, and raised in nearby Portland. You left school in the fifth form, and worked as a machinist for around four years.
[7] You live in a unit on your father’s property. You live on the property alongside your father, nieces, nephews and partner. Your own daughter is now
28 years old. She says that you have been a caregiver to the family for much of your life, and that you have cared for your paraplegic brother, your daughter, your mokopuna, and your mother who died of cancer in 2009. She states that the family is very close, and that it has been supportive during past crises.
[8] At the time of interview, you had recently found full-time employment at a kiwifruit packhouse in Whangarei. The report noted your excitement to be working after eight years of unemployment.
[9] You have 17 previous convictions dating from 1977 through to 2008. These convictions include underage drinking, dishonesty, and disorderly offences, as well as seven convictions on drug-related charges. In particular, you have two previous sets of convictions for cannabis-related offending. The first was for cultivation and possession in 1996. You were fined. The second set of offending occurred in 2008, and involved five charges, two for possession of cannabis for supply, and three for selling cannabis. You were sentenced to concurrent terms of imprisonment of two years and two months on those charges.
[10] As at 13 June 2011, you had outstanding fines of $331.35.
[11] You told the probation officer that you have not used illegal drugs for more than 30 years. A self-assessment did not highlight any harmful pattern of alcohol abuse, drug addiction, or gambling.
[12] Your risk of reoffending was assessed as being low, and your motivation to change high. You have completed an alcohol and drug programme. That programme did not target your financial needs, and they are considered to be the motivation behind your offending. You were stated as saying that you fell into the trap of “easy money”, because you were so desperate for cash. You were seen as demonstrating both insight and remorse. I understand that you are currently working with budget advisors to try and help you manage your finances.
[13] The probation officer recommended intensive supervision with a special condition requiring counselling or other treatment, and a sentence of community detention with residence and curfew conditions.
[14] Home detention is discussed in the pre-sentence report, but it was considered that a sentence of home detention would severely impact upon your ability to remain employed. Community detention was seen as being an alternative that would allow
you to continue working, while still providing a punitive and restrictive element to the sentencing. It was considered that the combination of this with supervision would provide a rehabilitative component to the sentence.
[15] I should also record that I have received a number of letters this morning from family and friends and from work colleagues. They speak of you in favourable terms and attest to your community attitude, and to your trustworthy and reliable nature. It also appears that you are flourishing in the workplace.
Submissions
[16] Ms O’Connor for the Crown referred to the purposes and principles of sentencing, and to the aggravating features referred to in s 9(1) of the Sentencing Act
2002. In particular, she referred to s 9(1)(d), and noted the harm which results from cannabis-related offending in Northland. She also noted that your offending involved a degree of premeditation, and referred to your previous convictions.
[17] Ms O’Connor referred to the lead decision of R v Terewi.1 She submitted that your offending fell into what is referred to in Terewi as category 2 offending, and that a starting point of two and a half years’ imprisonment was appropriate to reflect your culpability. She then submitted that there should be an uplift of six to nine months to take account of your prior history of drug dealing.
[18] Ms O’Connor submitted that any sentence must be set at a level which reflects the fact that the previous sentence of two years and two months’ imprisonment served by you was insufficient to deter you from continuing to deal in drugs. She submitted that a sentence of home detention is not suitable, given that you have been convicted of dealing in drugs from your own home.
[19] Mr Dooney on your behalf submitted that your offending fell within the lower end of category 2 in Terewi, and that an appropriate starting point of two years’ imprisonment or perhaps a little less was appropriate. He submitted that a sentence of home detention was appropriate given your guilty plea, your cooperation, the fact
that you are now employed, the fact that you now reside at a different address to that at which the offending took place, and the fact that the pre-sentence report recommended a community-based sentence, namely community detention and intensive supervision. He acknowledged that your previous convictions are a concern, but he submitted that the 2008 offending was more serious. He submitted that you should receive a discount of 25 per cent for your guilty plea.
Principles of Sentencing
[20] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act. In particular, 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 an 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. This is a primary factor in drug-related offending. I have taken into account the gravity of the offending with which you were involved, including your degree of culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences. I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and I need to consider your rehabilitation in the circumstances which have arisen.
[21] I have also considered s 9 of the Sentencing Act. I note that the offending in respect of which you were involved, required premeditation. That is an aggravating feature. So are your previous convictions.
Analysis
[22] The tariff case in relation to cannabis offending is the decision of the Court of Appeal in R v Terewi. Terewi set out sentencing guidelines for the cultivation of cannabis, but it has subsequently been extended to apply to cases involving possession for supply, and to the sale of cannabis.2
[23] Terewi sets out three broad categories of cannabis-related offending. Category 2 is relevant for present purposes. It provides for the possession of cannabis at a small scale, but for commercial purposes. The general starting point is in the region of two to four years’ imprisonment, but it may be lower if the sales are infrequent, and of limited extent.
[24] Relevantly, the Court in Terewi noted as follows:
As with any drug offending for the purpose of profit making, the personal circumstances of the offender whose activities fall within Categories 2 and 3 are usually not to be given much significance in the sentencing process. The fundamental requirement is that the sentence imposed should act as a deterrent to other persons minded to engage in similar activity.
[25] Here, you were found with a significant number of cannabis foils in your fridge and a comparatively large quantity of cash in your wallet. You admitted rolling up the foils so that they were ready for sale. Although you denied making any sales, it is clear from the facts and from your plea that you had possession of the foils of cannabis for a commercial purpose.
[26] I note however that the Police did not find any other form of cannabis, or anything to suggest cannabis cultivation, or other drug-related paraphernalia.
[27] I have considered other similar cases. In particular, I refer to R v Awa.3 In that case, the offender pleaded guilty to possession of cannabis for supply. Twenty six tinnies and 26 grams of cannabis were discovered. The Court held that the offending was part of a fairly low scale enterprise of supplying cannabis, and that Category 2 in Terewi applied. A starting point of two years’ imprisonment was adopted. After mitigating factors were taken into account, the final sentence, which the Judge accepted was lenient, was eight months’ home detention.
[28] I also refer to R v Packer,4 where the Court adopted a starting point of two
years’ imprisonment, and imposed a final sentence of 11 months’ home detention.
The offender was found in possession of four cannabis tinnies, 30 grams of cannabis
3 R v Awa HC Auckland CRI 2007-035-0021, 17 February 2009.
4 R v Packer HC Rotorua CRI 2008-063-0444, 5 September 2008.
plant material, four blister packs of cannabis resin, 42 cannabis seeds, and cannabis utensils. There was also a sworn-off air rifle, and some $3,400 in cash found.
[29] I also refer to R v Tupaea.5 In that case, the offender was in possession of 70 cannabis tinnies, five grams of loose cannabis, and $420 in cash. Winkelmann J adopted a starting point of two years and four months’ imprisonment.
[30] Although, in its written submissions, the Crown described you as a habitual dealer, the evidence in my view does not establish that. While you do have previous convictions for possessing and selling cannabis, they do not yet compel the conclusion that you are a habitual dealer. I prefer to deal with the matter by applying the Terewi guidelines and then uplifting the starting point to take account of your previous convictions.
[31] In my view, your offending falls toward the lower end of Category 2 offending as described in Terewi. Your offending is analogous to that in R v Awa, and R v Tupaea. I adopt as a starting point, a term of imprisonment of two years and three months.
Aggravating and Mitigating Factors
[32] Your offending is aggravated by your previous convictions, and in particular, by the fact that you were imprisoned for similar offending as recently as 2008. An uplift is necessary to recognise that earlier offending, and to record that you have failed to learn from your past mistakes, and from the custodial sentence which was then imposed on you. I uplift my starting point by six months to reflect this. It follows that my starting point is two years and nine months’ imprisonment.
[33] However, you entered a guilty plea at an early opportunity. I accept that a discount of 25 per cent or seven and a half months is appropriate to recognise that guilty plea. I also accept that you have expressed remorse, and I allow you a further discount of one and a half months to recognise that remorse.
[34] That takes me to a final sentence of two years’ imprisonment.
[35] In the circumstances, home detention is available as a sentence. Imposing a sentence of home detention in cases where the offending has occurred in the home environment is unusual, because such sentences can undermine the deterrent effect of sentencing, and diminish the public’s perception of judicial authority.6
Nevertheless, I have a discretion in this regard. Home detention with conditions, or
supervised community detention, also with conditions, are both possible sentences in your circumstances.
[36] In my view, and despite the recommendation of the probation officer who interviewed you, supervised community detention is not the appropriate sentence in your case. It would not sufficiently denounce the conduct in which you have been involved; nor would it adequately recognise the earlier custodial sentence imposed on you.
[37] In my view however, a sentence of home detention could be appropriate in your circumstances. I say that for the following reasons:
(a) First, you have finally found full-time employment, after eight years of not working. That will give you an income, and it gives you the opportunity to rehabilitate yourself, and to take some responsibility for your own life. Rehabilitation is a matter which I am required to consider under s 7 of the Act.
(b)Although the probation officer suggested that a sentence of home detention could severely impact on your ability to remain employed, I am not persuaded that that is the case. Continued employment while subject to home detention is not impossible, although special conditions will need to be crafted to make such a sentence feasible, and your employer will have to agree.
(c) As I understand it, a sentence of home detention can probably be served at a property at 1 Taipari Street, Portland, Whangarei. That is not the address where the offending took place. The occupants of that property are your father and partner. They have given their consent and will be able to provide a degree of supervision over you. Unfortunately, the suitability of those premises for an electronically monitored sentence has not however been finally assessed, although the probation officer has advised me this morning that the reports which are annexed to her report are adequate for that purpose.
Sentence
[38] Ms Heremaia, will you please stand.
[39] In respect of the charge of being in possession of cannabis for supply, I
sentence you to a term of imprisonment of two years.
[40] I reserve leave to you to apply for home detention.
[41] As you have heard this morning, I need to be satisfied that the residential premises are appropriate for electronic monitoring. I also need to be satisfied that your employer agrees and that he will allow his premises to be used for electronic monitoring during work hours.
[42] I am in Whangarei for the rest of this week and certainly for part of next week, and I will deal with the matter again as soon as the necessary consents can be obtained.
[43] Ms Heremaia, I am giving you an opportunity to turn your life around. This sentence may be seen as lenient, given your previous convictions for cannabis-related offending. Be that as it may, I am giving you this final chance. I trust that you will take advantage of it. You should be aware that any further offending of this kind will be treated very seriously indeed and will almost inevitably result in a lengthy period of imprisonment.
[44] You may stand down.
Wylie J
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