R v Hereora

[2012] NZHC 3422

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-488-8 [2012] NZHC 3422

THE QUEEN

v

RAINER HEREORA

Hearing:         14 December 2012

Counsel:         M B Smith for Crown

C Cull for Prisoner

Judgment:      14 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei
Counsel:

C Cull, 212 Waipapa Road, RD 2, Kerikeri

R V RAINER HEREORA HC WHA CRI 2011-488-8 [14 December 2012]

Introduction

[1]      Rainer Mark Hereora, you appear for sentence today having pleaded guilty to nine counts  in  an  indictment  alleging drug  and  firearm  related  offending.   The majority of your pleas were entered on12 March 2012, the week before you were to stand trial.1

[2]     Your offending was detected during a combined surveillance operation conducted by Northland Organised Crime Unit and Organised and Financial Crime Agency New Zealand, known as Operation Abyss.  The target of the operation was the Tribesmen motor cycle gang, of which you were then a patched member.

[3]      As a result of that operation, a number of gang members and associates were charged with drug offending.  The most serious charges involve methamephetamine, a Class A controlled drug.  That is a pernicious drug that has caused enormous pain and suffering to many New Zealanders, both directly and through its indirect consequences.

[4]      You appear for sentence on the following charges: (a) Conspiracy to supply methamphetamine,

(b)      Conspiracy to supply a precursor substance, pseudoephedrine (c)           Conspiracy to supply the Class C controlled drug, cannabis (d)         Offering to supply methamphetamine (x3)

(e)       Offering to supply cannabis, as a representative charge

(f)       Unlawful possession of a firearm

1      Pleas of guilty to the firearms charges were entered on 21 March 2012.

(g)Unlawful possession of explosives in the form of ammunition for a firearm.

The offending

[5]      The offending occurred between 10 August 2009 and 28 October 2009, the latter being the date on which search warrants were executed to terminate Operation Abyss.

[6]      The Crown has provided a helpful summary of the nature of the offending. The  conspiracy  to  supply  methamphetamine  charge  involves  a  quantity  of  two ounces of the drug.   You had $8000 on you to purchase one ounce of methamphetamine and you said that you were trying to make another $8000 for a further ounce.

[7]      The other charges relate to various attempts to plan or to deal with drugs in a manner contrary to the Misuse of Drugs Act 1975.   There is no doubt that the offending is serious.  It is offending to which the Courts must respond appropriately in the interests of the community.

[8]      In sentencing you, I am required to apply principles that have been laid down by Parliament in the Sentencing Act 2002 and by our Court of Appeal.  Because of the way in which I propose to deal with you today, I will need to take some time to explain the legal principles that I am applying.  That will require me to discuss legal issues in a way that would normally be omitted from sentencing remarks.  I ask you to bear with me and please be seated while I do this.  I will ask you to stand when sentence is imposed.

Analysis

(a)      Starting point

[9]      The starting point for sentencing in cases involving dealing in drugs have been set out in a number of guideline judgments given by the Court of Appeal.  In

the case of supplying methamphetamine, the Court of Appeal set down guidelines in R v Fatu.2    In R v Te Rure3 the Court dealt with the situation pertaining for conspiracies and offers to supply methamphetamine.  The supply of cannabis is the subject of a guideline decision in R v Terewi.4

[10]     On  the  facts  of  this  case,  the  Crown  contends  (and  I  accept)  that  the conspiracy to supply charges should be treated as the lead offending for sentencing purposes.  The evidence indicates that the amount involved was two ounces.  Had that quantity actually been supplied you would have fallen within Band 2 of the Fatu decision which addresses commercial quantities of between 5 and 250 gms.5     A starting point for sentence of between three and nine years imprisonment would have been required for an actual supply.  The starting point for a conspiracy or an offer is lower,  reflecting  that  the  supply  offence  was  not  complete.    Nevertheless,  the sentence must also reflect the nature of the offers made, your ability to procure

product and the stage that the conspiracy had reached.   That approach has been confirmed by our Supreme Court in R v Jarden.6

[11]     Applying Te Rure, the conspiracy and offers can be assessed as at the latter stages of implementation of the wider plan to deal in methamphetamine.  That was a plan  that  involved  Tribesmen  gang  associates.    The  nature  and  extent  of  the offending requires a starting point of three years six months to reflect a reduction from the actual starting point for supply (of what I would have assessed as four years imprisonment) and the proximity of execution of the plan.

[12]     My  starting  point  is  consistent  with  the  approach  taken  to  small  scale cannabis dealing, where the starting point would be between two and four years imprisonment.7

[13]     There  are  aggravating  factors  relating  to  the  offending.    They  are  the extension  of  the  plan  to  both  precursor  substances  required  to  manufacture

2      R v Fatu [2006] 2 NZLR 72 (CA).

3      R v Te Rure (1997) 23 CRNZ 967 (CA).

4      R v Terewi [1999] 3 NZLR 62 (CA).

5      R v Fatu [2006] 2 NZLR 72 (CA), at para [34].

6      R v Jarden [2008] 3 NZLR 612 (SC) at para [11]

7      R v Terewi [1999] 3 NZLR 62 (CA), at para [4].

methamphetamine and the involvement of cannabis.  The presence of a firearm and ammunition is indicative of a willingness to use that type of force to protect drug interests.  I apply an uplift of six months to reflect those factors, making an adjusted starting point of four years imprisonment.

(b)      Mitigating factors (other than rehabilitation)

[14]     I turn now to the more difficult exercise of assessing the credit for mitigating factors.  That part of the exercise is more difficult in your case because of the efforts you have made to rehabilitate after the offending was completed.

[15]     Section 6(4) of the Misuse of Drugs Act 1975 has to guide my approach to sentencing.   Relevantly, it states that where a person is convicted of an offence relating to a Class A drug a sentence of imprisonment must be imposed unless “having regard to the particular circumstances of the offence or the offender ... the Judge or Court is of the opinion that the offender should not be so sentenced”.

[16]     Leaving rehabilitation to one side for the moment, there are few mitigating factors.  The only one of substance, are your pleas of guilty, entered a week before your trial was due to begin.  Normally that would attract credit of no more than 10%. But in this case I am satisfied that there is now remorse that goes beyond that inherent in acceptance of responsibility through a guilty plea.8    I allow a credit of

15% for the guilty plea and that remorse.  I round that to eight months.  On the face

of it, that would reduce a prison sentence to one of three years and seven months imprisonment.

(c)      Rehabilitation

[17]     With that provisional approach in mind, I address the credit to be given for your considerable efforts at rehabilitation. That must be done in a principled manner. I am not allowed to construct a sentencing artificially to bring you within the range

available for a non-custodial sentence.

8      Hessell v R [2011] 1 NZLR 607 (SC) at para [64].

[18]     Nevertheless, our Supreme Court has said that notwithstanding the deterrent aspect of sentencing drug offenders, there remains room to take account of personal circumstances, either because of the way in which they contributed to the offending, or on purely compassionate grounds.   In R v Jarden,9  Wilson J, for the Supreme Court said:

(a)      First, that personal circumstances can be so overwhelming that they can be given some recognition on sentencing, even though usually personal circumstances of an offender must be subordinated to the need for deterrence.

(b)Secondly, that personal circumstances may be relevant because they contribute to offending.

[19]     That approach is consistent with s 9(4)(a) of the Sentencing Act 2002 which makes it clear that the Court should not take into account the use of alcohol or drugs when an offence is committed. Those sorts of factors must be left to one side.

[20]     As I understand the decision, Jarden did not intend to limit the second of its categories to compassionate grounds.10   That happened to be the focus of that case. Once, however, it is recognised that an element of mercy can be introduced into the sentencing exercise, wider factors must come within the Jarden principle, provided a reasoned analysis can support the approach.

[21]     Having said all of that, I now address your attempts at rehabilitation.  I do so from the perspective of the initial pre-sentence report prepared in May 2012 which indicated you had no insight into your offending and in particular its drug-addiction related causes.

[22]     Since being bailed to undergo a drug rehabilitation programme,11  you have made exceptional progress.   A report that I received from the residential course

9      R v Jarden [2008] 3 NZLR 612 (SC).

10     For example, see R v Jarden [2008] 3 NZLR 612 (SC) at para [12].

11     R v Hereora [2012] NZHC 1338. This decision was given on 13 June 2012, after Mr Hereora had served some 2 years and 5 months in custody, on remand.

provider, Raukura Hauora O Tainui, has provided me with information to support that.  I have also heard from Mr Murray, from the provider, today.  What he has said has also encouraged me to deal with you as I will.

[23]     I take from the report and what I have been told that:

(a)      You have engaged fully with the programme.  You are said to have “shared [your] lived experiences” within a group and demonstrated “constructive reflection around new learning gained from the sharing” of experiences of both yourself and others.

(b)You have embraced and responded well to one-on-one counselling.  In doing so, you now appear to have insight into your offending, the reasons why it was wrong and the negative influences imposed by your gang associates.

(c)      You are a young man, aged 25 years, who now wishes to commit to a better lifestyle free of drugs.  Importantly, you have been selected as a Lifeline Teen Suicide Prevention Model for a Northland promotion which will begin next week.  You will be involved in that promotion with a prominent All Black, Piri Weepu.  The fact that you have been selected for that, and have also been recommended to present a personal profile to present in Mana magazine to highlight the teen suicide problem, speaks volumes for your efforts.

[24]     The report concludes with the following observations:

Mr Hereora now recognises and accepts his own mistakes, that he had done previous to rehabilitation.  Mr Hereora acknowledges that there are a lot of things that he has had to fix and to say sorry to the people he has hurt.  The quality of Mr Hereora’s rehabilitation is indicative of his strong will to commit to change for a lifestyle that is constructive to the fabric of whanau, community and society.   Mr Hereora’s long-term aspirations are to work within the field of rehabilitation with a keen focus on youth work.   Mr Hereora is a young man that will benefit more from sustained rehabilitation than a return to prison.  It is palpable that a prison sentence will undo all that has   been   positive   and   enabling   for   Mr   Hereora’s   rehabilitation. Imprisonment could precipitate Mr Hereora’s return to old behaviours and familiar ways of survival as he has stated that that is the culture and lifestyle

of prison.   Imprisonment would not benefit Mr Hereora, his whanau, community  and  society  in  any  way.    Unfortunately,  it  would  have  the opposite effect of a destructive violent force of return to the gang lifestyle.

[25]   Mr Murray, as the programme facilitator and author of that report, has recommended  that  you  continue rehabilitation  in  residence with Te Ara Hou in Weymouth for a further 52 weeks and that you receive 12 months aftercare in the community supported by Te Ara Hou.

[26]     I consider that you are entitled to a credit of an extreme proportion to reflect those  efforts.    I say that  in  the knowledge that  I cannot  artificially  bring  your sentence within the available bounds for a non-custodial sentence.   I propose to adopt a credit of 40% for these reasons:

(a)      It is in the interests of society as a whole that someone recognise and address societal problems that have caused him or her to commit serious offences against the community.  It is better that you have the opportunity, whether after serving a term of imprisonment or otherwise, to undertake the type of work to assist others that you propose to do.

(b)There are benefits to society as a whole in acting to break the cycle of violence and anti-social behaviour caused by gang involvement.  It is also beneficial to rid you of a drug addiction which has been the partial cause of your offending.   This reason, however, offsets your previous offending for which I have not provided any uplift. Accordingly, this particular factor is regarded by me as neutral for present purposes.

(c)      You have shown courage to reject your gang associates and to address your problems.   I have no doubt that if you return or go into an environment that lead you back to those associates, your progress could be halted and you may return to your old ways.  A glimpse of the possibility of that can already be seen from the breach of bail issue that arose in October when you were given bail for weekend leave.

You were readmitted to bail and I accept that the efforts made by the programme organisers have assisted you to understand what happened was wrong.12

(d)To reflect efforts of that type, it is necessary to provide a substantial amount of credit.   Others need an incentive to step away from the gang situation and to address their problems.  It is in the interests of society that incentives be given for others to do the same thing.  That is just as important as deterring others from doing what you did.

(e)      Your personal  efforts  require public acknowledgement.   You  have done well.  Much better than I had ever hoped or believed when this opportunity was first provided to you.

Revised approach to sentencing

[27]     Taking my initial approach, the sentence of imprisonment that you should serve would be one year and 11 months.  That is calculated by taking my revised starting point of four years, deducting 45% for rehabilitation factors and remorse over and above that reflected in a guilty plea (round to one year 10 months) and then deducting a credit of 10% to reflect the guilty plea (rounded to three months).

[28]     Because that brings you to a sentence of under two years imprisonment I need to determine whether it is necessary for you to be sent to prison or whether some   lesser   sentence   can   respond   adequately   to   the   sentencing   goals   of accountability, denunciation and deterrence.   I am satisfied that protection of the community is no longer an issue so far as you are concerned.

[29]     When I came into Court today I was seriously considering whether to order home detention.  However, that would have required you to serve that sentence at the residential centre.   Mr Murray has explained to me why that is not possible.   I

respect the provider’s view as far as that is concerned.  That means that I need to

12     Hereora v R [2012] NZHC 2816.

consider whether another sentence short of home detention, whether alone or in combination with other sentences, can respond adequately to the offending.

[30]     One thing that I think is clear, is that you need supervision for a long period of time.  You need to make sure that you do not relapse once you have completed your programmes.  The spectre of what occurred in October with the breach of bail suggests you are not yet at the stage where you can confidently go back into the community without the prospect of some form of re-alignment with your past associates.

[31]     Having said that, I take into account the fact that you have already handed your gang patch back and that is a big step to take for someone such as yourself.

[32]     I propose to sentence you to two years intensive supervision.   I do so on standard conditions and special conditions which I impose to reflect the risk of further offending and the need for programmes to reduce the likelihood of further offending through rehabilitation and reintegration.

[33]     The special terms I impose are to allow a probation officer to require you to undertake any programme of the type to which s 54H of the Sentencing Act 2002 applies during the course of your involvement with the residential programme.

[34]   I also impose a sentence of 200 hours community work to be served concurrently.

[35]     And finally I ask you to do something that is inherent in what Ms Cull has put to me.  Will you please confirm to me that you undertake to the Court to go into the residential programme for the 52 weeks recommended by the provider and to be subject to their aftercare in terms of the report.  Mr Hereora, would you please stand and tell me whether your answer is yes or no?

[Mr Hereora: Yes].

[36]     You understand, and I will make it clear to you, that if you breach that undertaking you are guilty of contempt of Court and could be brought back before the Court for sentence for contempt.  Do you understand that?

[Mr Hereora: Yes]

Result

[37]     Mr Hereora, on the basis of your undertaking, you are sentenced to two years intensive supervision on standard conditions and the special condition to which I have referred. You are also sentenced to 200 hours community work.

[38]     Stand down.

P R Heath J

Addendum

[39]     On  counts  on  which  the  Crown  offered  no  evidence,  Mr  Hereora  is discharged, under s 347 of the Crimes Act 1961.  Those discharges have the effect of

an acquittal on each charge.

P R Heath J