R v Hokianga (aka Kaui)

[2012] NZHC 2609

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-020-1060 [2012] NZHC 2609

THE QUEEN

v

KATHLEEN HOKIANGA (AKA KAUI)

Hearing:         9 October 2012

Counsel:         J Rielly for the Crown

M J Phelps for Mrs Hokianga

Judgment:      9 October 2012

SENTENCE OF WOODHOUSE J

Solicitors / Counsel:

Ms J Rielly, Elvidge & Partners, Office of the Crown Solicitor, Napier

Mr M J Phelps and Mr AJS Snell, Barristers, Hastings

R V HOKIANGA (AKA KAUI) HC NAP CRI-2012-020-1060 [9 October 2012]

[1]      Mrs Hokianga, you can remain seated while I explain this sentence, not just to you but to the community as a whole who are entitled to know.  I do wish to say at the outset that I am going to impose a sentence of home detention, but I would ask please that you do listen.

[2]      You appear for sentence having pleaded guilty to two charges in the District Court.   These are possession of cannabis for the purposes of supply and selling cannabis to a person over the age of 18.  The maximum penalty for each offence is 8 years imprisonment and you should reflect on that. You are being sentenced today in the High Court because the District Court declined to sentence you because the sentence that could be imposed in the District Court was potentially inadequate to meet the circumstances of your offending. And I agree with that.

Facts

[3]      A brief outline of the facts is as follows.  On 3 April 2012, Police executed a search warrant at a property in Hastings.   You were there.   You had a handbag containing 32 tinnies.   Police also found 28 grams of cannabis in a microwave. There was also  a total of about $210 in cash.   You admitted ownership of the cannabis and selling cannabis. You told the arresting officer that “the temptation was too great”.   But you have explained some further things to the probation officer which I will come to.

Personal circumstances

[4]      You are 61 years old.  You have some previous convictions but all but two of these are quite irrelevant because they are different in kind and most happened a long time ago.   The two  relevant convictions are for  possession of cannabis for the purposes of supply and the sale of cannabis – that is to say, identical offences.  Those offences, like the present ones, were linked.   They occurred in December 2011. However, you were only sentenced for them on 29 March 2012.  That is less than a week before the offending for which  you  are  now being sentenced.   You were sentenced to 6 months community detention for this earlier offending.

[5]      You have a number of health problems but despite these I note that you are making efforts to return to part-time employment, and that is to be commended. Your health issues also mean that a sentence of community work is unsuitable and, in any event, not a sentence that I would impose for this further offending.

[6]      The pre-sentence report notes that your primary motivation for the present offending was to repay a debt to the drug supplier from the earlier offending. Apparently there were threats made against you in regards to this earlier debt and you got this further quantity of cannabis to sell it to try to repay the debt.  It does not remotely excuse the offending, but it provides an explanation which has relevance. The  report  also  states  that,  apart  from  this  offending,  you  have  generally been compliant with the sentence imposed on you in March of this year.  And I have been advised today that you completed it without further difficulty.   On the whole, the report writer – who is in Court today – assessed as you as posing a low risk of harm and a low risk of reoffending.

Starting point

[7]      A starting point needs to be fixed in relation to possession of cannabis for supply.   This is to be fixed in accordance with the guidelines set by the Court of Appeal in a case called Terewi.[1]   Both counsel submit that your offending falls within what is called category 2 of Terewi.  This has a range of 2 to 4 years imprisonment as a starting point.  And you need to reflect on that.  I agree that your offending falls within category 2. What I need to do is fix the starting point within that range of 2 to

4 years.

[1] R v Terewi [1999] 3 NZLR 62.

[8]      The Crown accepts that your offending is at the bottom of the range and at around 2 years imprisonment; that is for the total offending – possession for supply and supply.   Your counsel, Mr Phelps, has submitted that a starting point in the vicinity of 15 to 18 months imprisonment is appropriate.  However, this was a purely

commercial activity, whatever the motivation – even though it was on a small scale.

I can see no particular reason to go below the bottom of the Terewi range when I am fixing a starting point.

[9]      I have had regard to some cases with some broad factual similarities.  These are – and I will simply note the names: Evans,[2] Reeves,[3] Awa,[4] Kihi[5] and Wolland.[6]

[2] R v Evans [2012] NZHC 398 (Andrews J).

[3] R v Reeves HC Whangarei CRI-2008-027-002864, 24 November 2009 (Rodney Hansen J).

[4] R v Awa HC Auckland CRI-2008-035-002197, 17 February 2009 (Asher J).

[5] R v Kihi HC Auckland CRI-2009-057-1513, 2 March 2010 (Lang J).

[6] R v Wolland HC Auckland CRI-2010-092-13356, 18 February 2011 (Lang J).

[10]     Having regard to the relevant purposes and principles of sentencing contained in the Sentencing Act, the Terewi decision, the cases I have just referred to, and the submissions I have received in relation to the facts of your offending – and I am dealing at the moment with the offending itself – I consider that a combined starting point for the possession of cannabis for the purposes of supply and for the sale of cannabis should be one of 2 years imprisonment.

Aggravating and mitigating factors

[11]     The starting point has to be increased or decreased to take account of both aggravating and mitigating factors which are personal to you as opposed to the gravity of the offence by itself.

[12]     The most relevant aggravating factors here are your recent prior convictions and  the  fact  that  this  current  offending  occurred  immediately  after  you  were sentenced to the community detention sentence for the earlier offending.  Both the Crown and your own counsel are in agreement that there should be some increase to reflect these prior offences and offending while subject to the sentence for them. The increase is 3 months.   This raises your sentence to one of 2 years 3 months imprisonment if I was considering imprisonment.

[13]     There is one principal mitigating factor.  You pleaded guilty at an early stage. You are entitled to a discount for this.  The Supreme Court in a case called Hessell

has said that the maximum discount available for an early guilty plea is 25%.[7]   Your

counsel has submitted that you are entitled to the full 25% discount.   I agree.   I should also note – and this would come into play a little earlier – that you were cooperative with the Police. You fully admitted your culpability at the time.

[7] Hessell v R [2010] NZSC 135 at [75].

[14]     Applying a 25% discount reduces the sentence to one of 1 year and 8 months imprisonment.

Home Detention

[15]     I can consider imposing a sentence of home detention.  I would not consider any lesser sentence.

[16]     The Crown submits – and I consider quite properly submits – that a sentence of imprisonment is more appropriate.   In saying that, I agree that it is a proper submission; it is certainly a sentence which must seriously be considered in this case. This is because, in particular, you committed this current offending whilst already serving the community-based sentence.   Your case, Mrs Hokianga, is borderline between home detention and imprisonment.   The further offending, whatever the motivation , was brazen.  I agree with the Crown on this.

[17]     However, as I have already said, I intend to impose a sentence of home detention.  This was the sentence recommended in the pre-sentence report.  It is not a soft option.  In sentencing you to home detention I have taken into account a number of matters which I have covered already.  These include your age, your health and the circumstances surrounding the reasons for your offending.   A suitable home detention address has been proposed at your brother-in-law’s home in Hastings.  The property and the occupants are suitable for a sentence of home detention, and there are no concerns for the safety and wellbeing of the occupants if an electronically monitored sentence is imposed.

[18]     Mrs Hokianga, as I say, your case really is very borderline.  This sentence gives you a chance and I really hope you make the most of it and we don’t see you back in Court again.

Formal sentence

[19]     You should now stand.

[20]     For each of the offences you are sentenced to home detention for a period of

9 months.  The sentences are to be served concurrently, meaning the total length of the sentence is 9 months home detention.  This sentence will be subject to the usual conditions imposed on a sentence of home detention, and those will be explained to you.

[21]     I also make an order forfeiting the money found by Police in the search of the property – the sum of a total of about $211.  That application for forfeiture was not opposed.

[22]     You may now stand down.

Woodhouse J