R v Kaihau - [2016] NZHC 1044

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-057-001428 [2016] NZHC 1044

THE QUEEN

v

TAUROA KAIHAU

Hearing: 19 May 2016

Appearances:

J M Pridgeon for the Crown
S D Cassidy for the Defendant

Sentencing:

19 May 2016

SENTENCING NOTES OF WOOLFORD J

Solicitors: Kayes Fletcher Walker (Crown Solicitor), Manukau

Counsel: Mr S D Cassidy, Barrister, Auckland

R v KAIHAU [2016] NZHC 1044 [19 May 2016]

Introduction

[1] Mr Kaihau, you are here today for sentence. The reason is that you were involved in a drug ring, which sold or supplied methamphetamine throughout a number of South Auckland communities. Two of your co-offenders, Mr McGarry and Mr Albert, were sentenced some time ago and I sentenced three other of your co- offenders today – Ms Norton, Mr Philip and Mr Rowan.

[2] The maximum penalty for the offence of supplying methamphetamine to which you have pleaded guilty is life imprisonment.

Facts

[3] The offending in which you were involved was discovered as a result of a Police operation code named “Operation Cesium”. The operation targeted the sale and supply of methamphetamine in Wiauku, Pukekohe and other South Auckland communities. It began in late 2013 and involved, among other aspects, significant interceptions of electronic data from cell phones being used by your group to co- ordinate your offending. The operation was terminated on 28 May 2014, at which point you and the other offenders were arrested and charged.

[4] As for your particular offending Mr Kaihau, your offending covered a time period between 13 November 2013 and 8 May 2014. You regularly purchased between one and two grams of methamphetamine from your co-offender, Ms Norton. Like your co-offender, Mr Rowan, you broke these down into small quantities and on-sold them to members of the community. Over the six-month period you supplied between 25 and 50 grams. In addition to your own dealing you also facilitated purchases of methamphetamine by Ms Norton from other suppliers known to you. When Operation Cesium terminated you were arrested at your home address with two bags containing 0.1 gram of methamphetamine and $1,040 in your wallet.

Approach to sentencing

[5] I will adopt a three stage approach.1 The first step is to set a starting point based on the features of the offending itself and taking guidance from previous cases. The second step will be for me to consider your personal circumstances and adjust this starting point based on any aggravating or mitigating features they contain. The final step is to give a discount for guilty plea where appropriate.

Starting point

[6] As I indicated, the total amount of methamphetamine you supplied is agreed to be between 25 and 50 grams, although this morning you instructed counsel that you had reservations about the quantities involved. In the absence of evidence establishing the precise quantity, however, I will consider it to be at the lower end of the range. This puts your offending in the lower end of band 2 which, as I said to Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kaihau

Details

AGLC: R v Kaihau [2016] NZHC 1044
Case: [2016] NZHC 1044
Decision Date: 19 May 2016

CaseChat Overview and Summary

The case of R v Kaihau involved the defendant, Tauroa Kaihau, who was sentenced for his involvement in a drug ring that supplied methamphetamine in South Auckland. The court heard that Kaihau was part of a group that was targeted by a police operation named "Operation Cesium" which began in late 2013. Kaihau was arrested on 28 May 2014 and charged with supplying methamphetamine. The court had to decide on the appropriate sentence for Kaihau, taking into account the seriousness of his offending, his personal circumstances, and the fact that he had pleaded guilty.

The court determined that Kaihau's offending warranted a starting point of three and a half years imprisonment. However, the court took into account mitigating factors such as Kaihau's age, his physical disability, and his expression of remorse. The court also considered that Kaihau had been on electronic monitoring bail for 19 months. Taking these factors into account, the court reduced the starting point by six months and applied a further discount of five months for the time spent on bail. The court then applied a 20% discount for Kaihau's guilty plea, resulting in a sentence of one year and eleven months imprisonment. However, the court decided to commute this sentence to 12 months home detention with special conditions. The court also ordered that the $1,040 cash seized from Kaihau be forfeited to the Crown.

In conclusion, Kaihau was sentenced to 12 months home detention with special conditions, which are set out in his pre-sentence report. The court also made an order forfeiting and allowing the destruction of all drugs and drug paraphernalia found as a result of Operation Cesium.

Orders