R v Hopper HC Hamilton CRI 2011-019-3665
[2011] NZHC 1519
•3 November 2011
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2011-019-3665
THE QUEEN
v
KERETI EDEN-DEHL HOPPER
Hearing: 3 November 2011
Appearances: R B Annandale for Crown
M Bates for Prisoner
Judgment: 3 November 2011
SENTENCE OF KEANE J
Solicitors:
Crown Solicitor, Hamilton; [email protected]
Counsel:
R V KERETI EDEN-DEHL HOPPER HC HAM CRI 2011-019-3665 3 November 2011
[1] Kereti Hopper, you appear for sentence for seven offences. On 6 February
2011 you unlawfully possessed a 12 gauge pump action shotgun. On 8 February
2011 you also possessed unlawfully a sawn-off shotgun, seven shotgun shells, cannabis for the purpose of sale or supply, and also a bong and cannabis for your own use. You had as well a laptop computer that you had received unlawfully.
[2] You appear in this Court for sentence as a result of the District Court declining summary jurisdiction and you are for sentence on the basis of a summary of facts that you do not contest.
Fact summary
[3] On 6 February 2011 you were living at a Hamilton address with your then partner. She arrived home between 10.30 - 11pm. You were then at home and you were agitated. You and she argued. She told you to leave the address. She went to the bedroom and telephoned a friend.
[4] During this conversation she happened to laugh. You entered the bedroom and said 'you will see how funny this is when I blow my brains out'. You took from the wardrobe a loaded 12 gauge pump action shotgun, to which you were not entitled because you did not hold a firearms licence. You left the house and you stood outside the bedroom window for perhaps 15 - 20 minutes while she continued speaking. When she returned to the lounge you returned to the house. You gave the shotgun to her. You said that your mother had told you to.
[5] Your partner asked you how to unload the shotgun, because she wished to put it in the boot of her car. You took it from her and said that there was no way to unload it. You took it to your own car and put it there. You were still agitated. You and your partner remained in the house, notwithstanding that, throughout the day and she left early the following afternoon. She also contacted the police.
[6] On 8 February 2011 at 1.30 am the Armed Offenders Squad deployed to the address, where you still were, and apprehended you. They found the loaded shotgun in the boot of your car and 54 shotgun cartridges in the bedroom. You admitted
immediately to possessing the shotgun without a licence. You said you had borrowed it from a friend to protect your family, that is to say your partner, her five year old daughter and your two year old son.
[7] Shortly after midday the police returned to your address. They found a bag containing 18 grams of dried cannabis in the foot well of your car. In your bedroom they found $29,480 cash in varying denominations. They found two tick lists and a wallet containing .71 grams of dried cannabis.
[8] The police also found that you leased a storage unit in an industrial park some kilometres away, which they searched that evening. There they found 423 grams of dried cannabis head. They also found a sawn-off shotgun, seven cartridges, a pump action air rifle shotgun, and two bongs. As well a red Dell laptop computer that had been stolen on 27 April 2010 and other high value items, some with serial numbers removed.
[9] On 17 May 2011 you admitted that most of the cannabis belonged to you and said that it was for your personal use. You denied ownership of the sawn-off shotgun and shells and attributed both to an associate. You said that the cash was from a loan sharking business that you ran and so was the tick list. You did admit that you had sold cannabis in the past.
Victim impact statement
[10] I have as well a victim impact statement from your former partner. She left you on 7 February, she said, as a result of the incident with the firearm. She considered herself then at risk. She considered you to be at risk. It brought home to her that your relationship together had become intolerable. She now lives in another part of the country with the two children.
Pre-sentence report
[11] You have been the subject of three pre-sentence reports, the first two of which, one dated 19 May 2011 and the other 18 August 2011, both recommended
that you be sentenced to a short term of imprisonment subject to conditions on release requiring that you be assessed and counselled and treated for issues relating to alcohol, drugs, violence and perhaps other issues. Your third report, dated 27
October 2011, by contrast, recommends a sentence of home detention.
[12] When your first two reports were prepared you were living with five, and in the first instance six, others of your age at a semi rural Flagstaff address. It was deemed unsuitable for a sentence of home detention, certainly on the first occasion because of the sixth person. You now have a Cambridge address, the home of your older sister, who is a solo mother with one child, and that address is deemed to be suitable.
[13] Your report begins by saying that you are now aged 21, you were 20 at the time of your offending; that you have three sisters, all of whom are in Court today; that until you were eight you were raised by both your parents, who are also in Court; and that between eight and 14 you lived with your mother. When you were
14, your report says, your best friend died. You moved away and, as you said, that is when your problems began.
[14] You then began to use cannabis and, as I will say shortly, other drugs, and your life became much more volatile. Nevertheless, your report says, you worked, certainly from time to time, until perhaps two years ago, when you began to receive the Domestic Purposes Benefit and so things continued until the incident in February this year that led to you and your partner separating and you being charged.
[15] At the time of your offending, you told your assessor, you were suffering from depression and you had thoughts of suicide, thoughts fortunately that by the time of interview had ceased. You disclosed that you suffered diabetes but that otherwise you are in good health. You were assessed to have a harmful pattern of drug use; an assessment, your report says, with which you do not agree.
[16] As to the offending itself, you told your assessor, you stored items for gang members, or affiliates, items that may or may not have been stolen. You said that you
'couldn't turn down the money'. You kept the loaded firearm, you said as well, not
just to protect yourself and your family, but to safeguard from rival gang members the property you were storing.
[17] You explained to your assessor that you kept the firearm loaded in the house so that you would have an effective deterrent, but that you never intended to use it. You did not accept that by doing so you immediately transformed it to an immediate and serious source of risk. Nor were you able to say why an imitation firearm would not have served.
[18] Also, your report says, you did not understand that your partner might have found your threat of suicide using the shotgun to be abusive or coercive. Nor did you understand that you might have frightened her. You attributed what you then did to the stress you were suffering at the time.
[19] Your report assesses your motivation to change as low and rates the risk that you might re-offend to be high. That you kept a loaded shotgun in the house where there were two children suggests also, your report says, that the community may remain at risk.
[20] All of that said, and none of it is favourable to you, your report recommends that you be sentenced to home detention, not imprisonment. The advantage of that sentence, it says, is that you would be able to continue to disassociate yourself from gang influences in Hamilton and to undergo counselling and treatment with the Cambridge Community Network Trust.
Psychiatric report
[21] I have as well a psychiatric report, dated 13 May 2011, obtained by order in February to assess your then state when you faced only the 6 February firearms offence. The other charges were not laid until July.
[22] This report narrates in greater detail than your pre-sentence reports the account you gave in those reports of your life until the point of your offending. You appear to have been more forthcoming to the psychiatrist than you were to your
earlier assessors. You admitted, for instance, that as well as using cannabis you had experimented with crack and methamphetamine. You were also frank that from the age of 14 you deliberately avoided your family and about how very peripatetic your life became.
[23] At the time when you offended, you told the psychiatrist, you were very depressed. You did not have a job. Your relationship with your partner was not good, and you were using cannabis extensively, in part to cope with your diabetes.
[24] What you did, your counsel tells me, was to use cannabis as a substitute for diet control and perhaps even medication; an experiment that put you in hospital twice and that in all likelihood, the psychiatrist says, led to your blood levels swinging and to the depressive state in which you offended; a state that may well have begun earlier still.
[25] At the time of your offending, you told the psychiatrist, you felt hopeless and suicidal; and, as she records, you were admitted into the Henry Bennett Centre for 10 days between 8 - 18 February 2011. You were then diagnosed to suffer a severe depressive episode, though one without psychotic symptoms. At the time of your first offence, the firearms offence, when you threatened suicide, the psychiatrist considers, you were so severely affected that you might even briefly have been insane in law.
[26] At the time of your interview, the psychiatrist says, you were not suffering depression. You were well orientated. You showed some insight into your depressive state. Your judgment was reasonable. You said you had severed your bonds with those that had led you to offend. You had decided against further use of methamphetamine and crack. You no longer possessed a weapon. You accepted that it was probably better that you and your partner had separated. You were hopeful of work.
[27] You made a very good impression on the psychiatrist, certainly a much better impression than you made on the assessors who prepared your pre-sentence reports. But she too was measured as to what gains you could make without disciplined
assistance. She too considered you need counselling. Also, though you were then reasonably well, that you might well have a continuing issue with depression.
Pai Ake Solutions
[28] In the District Court you relied on a letter from Pai Ake Solutions Limited, dated 20 June 2011, which confirmed that you had been twice to counselling on account of your drug use and had agreed to attend weekly.
[29] Today your counsel has told me you did not persist and that is highly unfortunate. It has to be a reason for pause when deciding whether you are capable of completing the sentence recommended. A sentence of home detention will only work if you are able and willing to comply with it. I will return to that issue shortly.
Sentencing purposes and principles
[30] In sentencing you I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim. This was very far from victimless offending, even if you do not appreciate it. I must also, so far as it is possible, assist you in your rehabilitation and reintegration.
[31] I must have regard to the following sentencing principles: the gravity of your offending, the need to be consistent in sentence with other cases, the need to impose a sentence near to the maximum, should that be warranted. Equally, I must take into account the contrasting principles: the need to adopt the least restrictive outcome appropriate; the need to take account of anything that would make any otherwise proper sentence disproportionately severe; and the need to recognise you in the context of your family and community.
[32] Where drug, offending aggravated by possession of firearms, is as significant as yours is, I have to say, personal circumstances and the more positive purposes and principles of sentencing normally have little part to play. Denunciation and
deterrence are what is principally called for. However, that rule is not absolute and the issue remains whether it ought to be in your case.
Crown submissions
[33] It is contended for the Crown that your lead offence, possession of cannabis for the purpose of sale or supply, lies within category two R v Terewi,[1] which attracts starting points for sentence in the range two - four years imprisonment. You possessed 441 grams of cannabis and, the Crown says, the cash and the tick book are consistent. The Crown contends for a starting point of two years, six months.
[1] R v Terewi [1999] 3 NZLR 62.
[34] For possessing the shotguns and ammunition, the Crown contends, relying on two recent decisions of the Court of Appeal[2], your sentence could stand as high as two years - two years, three months, if those offences stood alone. You possessed two firearms or more. That at the home was loaded and was for protection, that at the lock-up was unloaded but there was ammunition close by. The Crown contends rather, however, for an uplift to your lead offence, on the totality principle of no more than 12 months.
[2] Torea v R [2011] NZCA 96; R v McLean [2009] NZCA 465; R v Karetai HC Invercargill CRI 2010-025-2751, 13 December 2010.
[35] Consequently, for your lead offence the Crown proposes a global starting point of three years, six months and, as to the remaining offences, for lesser concurrent sentences. If you qualify for a short term of imprisonment, the Crown puts in issue whether you qualify for a sentence of home detention. The Crown seeks as well orders for the forfeiture of the cash, the firearms and the ammunition.
Defence submissions
[36] Your lead offence, your counsel accepts, does lie within category two R v Terewi, but he would contend for a starting point less than two years, six months, perhaps two years. The firearms offending, he accepts, is aggravating and that he
cannot resist a global starting point of perhaps two years, six months - three years.
[37] Your counsel seeks a rehabilitative sentence You are, he says, in a new relationship. You are searching for employment. You are remorseful. You have been on bail for some nine months without breach or reoffending. And though you did not attend Pai Ake with any persistence you are certainly entitled to a full credit for your early plea.
[38] Also, at the time you offended, your counsel submits, you were suffering depression and might even, when you threatened suicide, have been legally insane, if only very briefly. You underwent psychiatric treatment institutionally and on that account he contends for a further and distinct discount.
[39] The upshot is, your counsel submits, that you warrant a sentence of two years imprisonment or less and therefore that you qualify for a sentence of home detention; a sentence that will respond to your offending but allow you the opportunity to rehabilitate yourself.
[40] The sentence recommended, that you live with your sister in Cambridge, away from your associates in Hamilton, he says, will enable you to reconnect with your family who are, fortunately, all here today. You will have for the first time the structured counselling and treatment you need from the Cambridge Community Trust.
[41] Your counsel accepts that you present a risk in the sense that how you will respond is unknowable. But he urges me to give you that opportunity, an opportunity you are in need of having lived such a very unsettled life without support since the age of 14.
Conclusions
[42] Your lead offence, as both counsel agree, does lie within band two R v Terewi. The cannabis you possessed was significant. So too was the cash found and the tick books. You explained the latter away as related to loan sharking and that may be partly true. But the larger probability, I consider, is that you had been dealing commercially.
[43] I accept for those reasons the starting point the Crown proposes for that offence, two years, six months; and, to take account of the firearms offence, which has to aggravating, I increase that starting point by 12 months to three years, six months.
[44] You are, I consider, entitled to a discount for your mental state at the time of your offending; a state of depression that had become extremely acute, and that, I accept, in all probability had existed for some time before you were apprehended. That depressive state does lessen your moral culpability, which is the ultimate basis for any sentence.
[45] That you may well have been the author of your state by taking cannabis to manage your diabetes does not, to my mind, deprive you of that discount. You are not to be taken to have known that you were mismanaging your diabetes. Certainly the result was both real and very significant, as your psychiatric report confirms. I will allow you a discount of nine months, reducing the starting point I have identified to two years, nine months.
[46] Finally, you are entitled to a discount for plea. You were first charged with the firearms offence on 6 February 2011. You did not plead to that until 30 March
2011. But, as the Crown accepts, you did spend time in the Henry Bennett Centre in between the two, and you entered your plea at the first reasonable opportunity. There can be no issue, that you pleaded to the other charges immediately. You are entitled, then, to a discount of one quarter, which brings your sentence down to just above two years.
[47] The precise arithmetic is not, to my mind, significant. If I were imprisoning you I would round down your sentence to two years but the issue now is rather whether you should be sentenced instead to the alternative sentence recommended for which you qualify, home detention.
[48] The Crown rightly says that you present a mixed picture. You do not have the benefit of favourable pre-sentence reports. Nor did you complete the Pai Ake counselling. I have decided, nevertheless, to sentence you as recommended.
[49] You have one previous conviction for a minor offence in respect of which you were convicted and ordered to come up for sentence if called upon. You have never had the benefit of any structured assistance or, more recently, family support. Your offending is in part explained, if not excused, by your increasingly entrenched depressive state. In the last nine months you have been on bail. You lived first with others of your age and there were issues about one at least. Yet you did not commit any breach of bail. You did not re-offend. That must give cause for hope.
[50] More hopeful still, I consider, is that your entire family is here today. You now have the chance to live with your sister and hopefully to reconnect with them. And that seems to me to be a much more positive way for you to wean yourself from offending, than if I were to imprison you and then impose release conditions.
[51] Home detention will impose a real constraint on you, and not merely you, but your sister, who is prepared to have you in her home. It is a restrictive sentence and, as has been said more than once, not an easy sentence, especially if of any length. That apart, you will have to undergo treatment and counselling with the Cambridge Community Trust. If you do not take advantage of that opportunity you may never have it again.
[52] I convict you of these offences and for your lead offence, possession of cannabis for the purpose of supply, sentence you to 12 months home detention on the terms set out in your pre-sentence report. For the possession of weapons offences, and for the lesser offences for that matter, you will be sentenced concurrently to home detention. There will be an order forfeiting the cash, the firearms and the ammunition.
[53] The first of the conditions of your sentence requires you to travel directly to
98A Scott Street, Cambridge and to remain there until the arrival of the security officer and supervising probation officer. You are to reside there for the duration of the sentence. You are otherwise to comply with the terms of the sentence set out in
the report.
P.J. Keane J
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