R v Herewini HC NAP CRI 2007-041-003646

[2008] NZHC 2439

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2007-041-003646

THE QUEEN

v

TE MANGA HEREWINI

Hearing:         30 July 2008

Appearances: J E Rielly for the Crown

A J Snell for the Prisoner

Judgment:      30 July 2008

SENTENCING NOTES OF ANDREWS J

Solicitors:

Elvidge & Partners, P O Box 609, Napier 4015

Counsel:

A J S Snell, P O Box 101, Hastings 4201

R V HEREWINI HC NAP CRI 2007-041-003646  30 July 2008

[1]      Mr Herewini, you appear for sentencing today having pleaded guilty to one charge of possession of the Class A controlled drug methamphetamine for supply, one charge of dealing with methamphetamine, one charge of aggravated assault, and one charge of escaping from custody.   You will know that the methamphetamine charges carry a maximum penalty of life imprisonment.  The maximum penalty on the charge of aggravated assault is three years imprisonment, and that for escaping from custody is five years imprisonment.

[2]      All three of the charges relate to Friday, 7 November 2007.  On that evening, your car was stopped by the Police.  You were driving and you had an associate with you in the passenger seat.  You were informed that the Police were going to conduct a search of the vehicle under the Misuse of Drugs Act.  You were asked to get out of the vehicle and hand over your bag to the Police but you refused to comply.  You were then told you were under arrest.

[3]      Your associate had got out of the car and a Police Constable had leaned into the car to search the front passenger seat area.  You then suddenly lunged forward and started the car.  The Detective who had arrested you tried to remove the keys from the ignition but you immediately began to drive off, dragging the Detective along for a few metres.  The Constable was unable to get out of the car. He made several attempts to pull on the hand-brake.  You punched him several times on the side of his head and upper body and although the Constable managed to put on the hand-brake, you re-started the car and continued on until the Constable managed to remove the ignition key.  While you were doing it you drove fast, without headlights, fishtailing the vehicle backwards and forwards and on to the wrong side of the road.

[4]      When you were searched, a bag containing approximately 16.1 grams of crystal methamphetamine was found concealed in your underwear.  Its street value was estimated at $19,000.   You also had some tick lists with names and dollar amounts noted on them.

[5]      I accept that  you pleaded  guilty to  the  charges  on  18  June  2008  before depositions and you were then committed to this Court for sentence.

Pre-sentence report

[6]      I turn first to consider the pre-sentence report from your probation officer. You are 27 years old. You left school at 16 and then worked for two years.    This appears to be the only time you have worked since leaving school. I am told you have a daughter who is seven years old and you have worked at maintaining contact with her although your relationship with her mother is strained.

[7]      The probation officer said that you were diagnosed with cancer in 2002 and you have had surgery to remove tumours.   You say this diagnosis and the death of your father when you were young has had a negative impact on your life.

[8]      You have an extensive list of previous convictions spanning 12 years.  You have spent a large portion of the past six years in custody on remand including terms of imprisonment.   Your convictions have been for possession of drugs, violence, theft, driving offences and breach of the Court orders.

[9]     As to the present offending you told the probation officer you had the methamphetamine for your own use and to make money so you could provide for your daughter.   You said you panicked when the Police stopped you because you wanted to get rid of the drugs before the Police found them.  Notwithstanding what occurred when you were stopped, you told the probation officer that you do not consider yourself to be a violent person.

[10]     The probation officer considered that given your drug use, your association with the Mongrel Mob gang and your lifestyle, there can be little assurance that you could maintain yourself free from offending.  It was considered that you remain at a high risk of re-offending until you can distance yourself from the gang association and you can address the factors that have influenced your offending.

Victim impact report

[11]     I have read the victim impact report prepared by the Constable whom you assaulted.  He is a man with three young children. He feared for his life while you

were trying to accelerate away.  He said you showed no respect for him or for any other motorist on the road.  This was his worst experience, he says, in 10 years of Policing.

Sentencing process

[12]     I turn now to the sentencing process and talk briefly, first, about the general law relating to sentencing and the principles that are set out in the law that I have to apply.  Then I have to decide what sentence is appropriate taking those principles into account.  That is a two-step process.

[13]     The first is to establish what we refer to as the starting point.  The starting point is what would be the sentence imposed for conviction on the most serious of the charges on which you have been convicted had you gone through a trial in Court. In your case, that is the two methamphetamine charges.

[14]     The  second  step  is  to  take  that  starting  point  and  decide  what  is  the appropriate sentence for you, for your offending, and I do this by taking into account what are aggravating or mitigating factors in relation to the offending I also take into account matters that relate to you personally.

[15]     In sentencing you I have to take into account what the law has set out as the purposes of sentencing.  I have to hold you accountable, to make you responsible for what you have done.  I have to consider deterrence and protection of the community. I have to denounce your offending.  This means, to make it clear to you that your offending is unacceptable in New Zealand society.  At the same time the purpose of sentencing is to help you with getting back into the community as a useful member of it.

[16]     Methamphetamine is involved here and there is also a need to protect the community from methamphetamine.   The social cost to families and to the community that follows from the use of methamphetamine is destructive, it is devastating, and we see its effects in the Courts every single day.

[17]     There are also some general principles of sentencing that must be considered. In your case, I consider the gravity of your offending, including your degree of responsibility, and the seriousness of your offending in comparison with other types of offences.

[18]     I  also  take  into  account  that  it  is  desirable  to  maintain  consistency  in sentencing levels.

[19]     I must also take into account any information provided about the effect of the offending on the victim.

[20]     Finally,  I  am  directed  to  impose  the  least  restrictive  outcome  that  is appropriate in the circumstances.  It is desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community.  However, the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant to  your case.   For the offences to which  you have pleaded guilty under the Misuse of Drugs Act, there is a presumption that a sentence of imprisonment will be imposed.   In your case, I am satisfied that a sentence of imprisonment is appropriate.

Starting point

[21]     I come now to the starting point.  As I said earlier, I set the starting point by reference to the most serious offence.  In your case, it is the charge of possession of methamphetamine for supply.

[22]     In sentencing on methamphetamine charges, this Court is guided by the Court of Appeal’s decision in Fatu1 and you heard your lawyer Mr Snell, referring to Fatu. In that case, the Court of Appeal set four levels, or bands, for sentencing for the supply of methamphetamine.   The bands depend on how much methamphetamine was involved.  The lowest band is less than 5 grams and the highest is 5 grams or more.  The second band applies in your case, that is between 5 and 250 grams, and the Court of Appeal has said that the appropriate starting point for imprisonment is 3

1    R v Fatu [2006] 2 NZLR 72 (CA)

to 10 years.  The Crown and Mr Snell, on your behalf, agreed your offending sits at the lower end of band 2 and that the starting point should be somewhere around 3½ to 4 years imprisonment.

[23]     I have considered sentences imposed in cases where the circumstances were similar to yours although, of course, no two cases are ever exactly the same.  I note that a starting point of four years imprisonment has been adopted in cases where a similar amount of methamphetamine has been found, but in those cases there were more indicators of dealing with methamphetamine, such as large amounts of cash,

quantities of snaplock bags and scales.  I refer to the cases of Maeva2 in November

2007, Anderson3 in October 2007, Wallis4 in August 2007, and Allan5 in November

2006.

[24]     I have concluded that the appropriate starting point for sentencing on the charge of possession of methamphetamine should be a little lower than that in the cases referred to, because my understanding is that the only indicia of dealing, other than the quantity of methamphetamine, was the presence of tick lists.  On that basis, I have concluded that the appropriate starting point is imprisonment for three years and six months.

[25]     I turn now to consider the charges of aggravated assault and escaping from custody.  They are linked to each other in that they arose out of your attempting to get away from the Police.  Mrs Rielly for the Crown, submitted that the appropriate starting point for each of these is 2 to 2½ years in light of the fact that more than one Police Officer was targeted, that you detained a Police Officer in the car, the way in which you were driving and the effect of your offending on the Constable.  Mr Snell submitted on your behalf that the appropriate starting point should be 12 to 18 months imprisonment.

2    R v Maeva HC AK CRI 2007-090-992 13 December 2007, Venning J

3    R v Andersen HC AK CRI 2006-092-1569 16 October 2007, Winkelmann J

4    R v Wallis HC HAM CRI 2006-019-10117 29 August 2007, Asher J

5    R v Allen HC AK CRI 2005-04-23236 17 November 2006, Keane J

[26]     Again looking at comparable cases, Mrs Rielly in her submissions referred me to the sentence Brooking6  in March 2005, a case of the Court of Appeal which involved an aggravated assault on a Police Officer in pursuit an offender.  The Court of Appeal there did not disturb the starting point of two years imprisonment on the assault charge.

[27]     In McLean7 in August 2006 the Court of Appeal did not disturb sentences of two years imprisonment imposed for assault against Police Officers.  I note that in both of those cases, sentences were also imposed for serious charges of burglary.

[28]     The charges against you of aggravated assault, in particular, and escaping from custody are serious.  I accept Mrs Rielly’s submission that your behaviour was reckless, that  it  endangered  the  life  of  a  Police  Officer,  the  public,  and  indeed yourself.  I have concluded that the appropriate starting point for that charge is two years imprisonment.

[29]     I  have  then  considered  whether  the  sentences  for  these  two  groups  of offending,  that  is  the  methamphetamine  charges  and  the  assault  and  escaping charges, should be imposed as concurrent, that is to be served at the same time, or cumulatively, that is one after the other.  Cumulative sentences are appropriate if the offences for which you are being sentenced are different in kind, whether or not they are connected.  Concurrent sentences are appropriate if the offences are of similar kind and are connected.

[30]     I am satisfied that in your case it is appropriate that the sentences be served cumulatively and that has been accepted by Mr Snell.  However, within each of the two groups, sentences are to be served concurrently.

[31]     Because  I  am  sentencing  you  on  more  than  two  offences,  s 85  of  the Sentencing Act requires that the individual sentences should reflect the seriousness of each offence but that the total period of imprisonment should not be wholly out of proportion to the gravity of the overall offending.  So I have therefore stood back and

6    R v Brooking CA 419/04, 7 March 2005

7    R v McLean CA 54/06, 30 August 2006

looked at the two groups of offences in your case and considered whether the combined starting point of 5½ years is appropriate.   I have decided that it is appropriate and that no further adjustment is required to reflect the totality of your offending.

[32]     Having established the starting point, I now turn to consider matters that relate to you personally.

[33]     Mrs Rielly for the Crown referred to your long list of previous convictions, including  one  in  2006  for  possessing  methamphetamine  and  eight  convictions relating to Class C offending.   You also have convictions for violence, including resisting and assaulting Police and failing to comply with Court orders.   That conviction history should result in an increase in the starting point.   Against that Mrs Rielly who noted your early guilty plea, and indeed you are entitled to credit for that.

[34]     On your behalf, Mr Snell acknowledged that your previous convictions have to be taken into account, as do the features of the aggravated assault and the escape. As to the methamphetamine offences, Mr Snell said in his written submissions that you instructed him that your sale of methamphetamine was solely to finance your own heavy drug use.   As mitigating factors, he referred to your early guilty plea, which he submitted was made as soon as there was agreement as to what the final charges would be, and he also referred me to your significant medical issues.  As to the assault, he said that you acted instinctively.   Mr Snell stressed that you have always been polite and articulate and have shown insight.   Given those positive comments, it is clear that you have the ability to address your offending and you really must do so.

[35]     Taking all of those submissions into account, I have concluded that it is appropriate to allow you a reduction from each starting point to take account of the mitigating factors, but there must also be an uplift in the starting point to take account of the aggravating factors of the previous convictions and in particular the circumstances of the assault on the Police Officer.

[36]     In the end result Mr Herewini the starting point for each group of offending will be reduced by 18 months from the starting point, that is just over one-quarter, and that leads to a total final sentence of four years imprisonment.

[37]     Mr Herewini, would you please stand.

[38]   On each of the charges of possession of the Class A controlled drug methamphetamine for supply and dealing in methamphetamine, you are sentenced to two years and nine months imprisonment, those two sentences to be served concurrently.

[39]     On each of the charges of aggravated assault and escaping from custody, you are sentenced to 15 months imprisonment.  Again, each of those two sentences is to be served concurrently.  However, the sentence for the assault and the escaping is cumulative upon the sentence for the methamphetamine charges, making a total sentence of four years imprisonment.

[40]     Would you please stand down.

Andrews J