R v Kereti
[2013] NZHC 2037
•12 August 2013
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2012-021-001074 [2013] NZHC 2037
THE QUEEN
v
THOMAS KERETI JESSICA OTENE
Charge: Plea: | Possession of cannabis plant for supply Guilty |
Counsel: | SA Law for Crown R Rai for Kereti TT Bolstad for Otene |
Sentenced: | 12 August 2013 |
SENTENCING NOTES OF BREWER J
Solicitors: C&M Legal (New Plymouth) for Crown
Till Henderson (Stratford) for Kereti Turitea Bolstad (New Plymouth) for Otene
R v KERETI & OTENE [2013] NZHC 2037 [12 August 2013]
Introduction
[1] Mr Kereti and Ms Otene, you have each pleaded guilty to one charge of possessing cannabis for the purpose of supply. The maximum penalty is eight years’ imprisonment.
Facts
[2] On 5 December 2012, Police executed a search warrant at your address in Hawera. You were both in a back shed on the property, spotting cannabis.
[3] The Police found two cannabis tinnies in a plastic container in the shed. They also found a further 11 cannabis tinnies in an aluminium water bottle that was in your handbag, Ms Otene. The Police seized a cellphone, which both of you have admitted using. It recorded text messages indicating that you were offering to supply cannabis.
[4] Mr Kereti, you told the Police that the cannabis was for your own use and that you did not sell cannabis. You said that it was in tinfoil to “keep it fresh”. Ms Otene, you claimed that the cannabis was yours and that you used it for medicinal purposes. You did say that you obtained cannabis from your supplier on behalf of other people in order to obtain a “freebie”.
[5] I have to sentence you on the basis that you have pleaded guilty to possession of cannabis for supply. I can, and will, take into account that some of the cannabis found in your possession on this day would have been for your personal use.
Purposes and principles of sentencing
[6] The Sentencing Act 2002 sets out the purposes and principles of sentencing to which I must pay regard.1 In your cases, I need to balance the need to hold you accountable for your offending with the need to assist with your rehabilitation and reintegration. What that means, and what your lawyers have been at pains to tell me, is that sentencing is not just about punishment. It is also about looking at you
1 Sentencing Act 2002, ss 7 and 8.
individually, knowing that you will remain members of our community, so that the sentences I impose are the least restrictive reasonable in the circumstances. However, I must also try to be consistent with the sentences given to other offenders in circumstances similar to yours.
Personal circumstances
Mr Kereti
[7] Mr Kereti, you have appeared before the Court on numerous occasions. You are 28 years old and your criminal record dates back to 2005. You have one conviction for possession of cannabis which you received in 2006. You were sentenced to 18 months’ supervision, although that sentence means very little since you were also sentenced at the same time on 14 other charges covering a range of offending. I note that in 2011, on two occasions, you were sentenced to short periods of imprisonment. Your criminal record shows that you have been non- compliant with Court orders. You have two convictions for failing to answer bail, three convictions for driving whilst disqualified, and in 2010 you were convicted for breaching community work.
[8] Three pre-sentence reports have been prepared for you. They tell me that you are a member of Black Power and that your support network consists mainly of Black Power members. You also receive support from your immediate family. The latest report shows that you cannot identify anyone else who is able to provide you with support.
[9] The reports indicate that home detention is available to the Court if it is considered appropriate. However, the report writer is of the opinion that you will struggle to comply with community based sentences since you lack an appropriate support network.
[10] The reports indicate that while you agreed to get professional help to address your cannabis use, you have made no attempts to engage with local providers. However, I have been handed today a letter dated 8 August 2013 from Taranaki Safer Family Centre. It tells me that you have attended 11 counselling sessions in
addressing some of the historical issues from your past. The letter tells me that you want to continue this counselling to develop healthier problem-solving strategies and ways to deal with your anger.
[11] That is to your credit, and I hope that it is the sign of things to come. In terms of addressing the cannabis related offending for which I have to sentence you, it is something that I can take into account particularly in deciding where I set your starting point. However, it is not going to be determinative. The latest pre-sentence report recommends a sentence of imprisonment.
Ms Otene
[12] Ms Otene, you have appeared before the Court on numerous occasions also. However, this is your first drugs related conviction. You are 28 years old and your criminal record dates back to 2004. You have been sentenced to seven sentences of imprisonment, the majority of which have been served concurrently. I note you have a history of non-compliance with Court orders. You have four convictions for breach of community work, three convictions for driving whilst disqualified, and two convictions for failing to answer bail.
[13] I have read three pre-sentence reports prepared in relation to you. They indicate you have gained permanent part-time employment which might become fulltime employment. They tell me that you are a valued employee. I have read a letter from your employer. The writer of your reports considers that this employment is a protective factor for you as you have not had any employment for some years.
[14] Of the three reports, the first dated 11 April 2013 recommended a sentence of imprisonment. The latter two reports say that community detention and supervision should be imposed. The second report suggested that you were suitable for home detention but you would struggle because of your need for a proper level of support. In other words, there are concerns that you would struggle with childcare arrangements due to being a solo mother.
[15] The reports highlight your rocky relationship with Mr Kereti, but state that you and he have now separated. You continue to be in contact with each other as you have children together and you each have care for one or more of them.
[16] The reports tell me that you have re-engaged with your alcohol and drug counsellor and you work with her on a fortnightly basis. You have claimed, and I accept, that you have used cannabis as a form of pain relief for a medical condition resulting from a domestic violence incident. A letter from the Ruanui Health Centre documenting a visit you made in December 2011 confirms this.
[17] The reports also tell me that you struggled through your last sentence of community work and say that you would need to be more motivated to be suitable for further community based sentences. The second report indicates that you have stated that you will struggle to comply with a sentence of home detention as you rely upon the support of your mother.
[18] This is something that I have had to give some thought to. One of the pre- sentence reports says that you told the writer you have a love/hate relationship with your mother. Another says that you told the writer of the report that your mother was only going to be in the area until you were sentenced and then she was going to move away. Today you have told Ms Bolstad that your mother is here to support you through the length of your sentence. I am going to take the most optimistic version of that and conclude that your mother will give you all the support that she reasonably can. However, I also note that part of your support network is made up of Black Power members.
Starting point
[19] You both know that when a Judge comes to sentence for offending such as this, he has to first set a starting point of imprisonment and then see whether it should be adjusted up or down.
[20] Mr Kereti, your counsel and the Crown agree that the offending falls into category two of a case called R v Terewi.2 Ms Otene, your counsel in her written submissions argues that your offending falls into category one of that case. But, today, Ms Bolstad accepts realistically that because of the commercial aspects it is category two, although at the lowest end.
[21] The summary of facts applies equally to you both. As I have said, I accept that some of the cannabis found was for your personal use. However, the cellphone contained text messages making it clear that you were both offering to supply cannabis, and of course that is the charge to which you have pleaded guilty. I consider, therefore, that there is an aspect of commerciality to your offending and that the supplying of cannabis was a joint venture.
[22] In my view, you both fall within category two of Terewi, but at the lowest end.
[23] The Crown argues for a starting point of two years’ imprisonment, whereas both your lawyers assert that a lower starting point is justified. Judge AC Roberts, in his oral judgment of 3 July 2013 in which he declined jurisdiction to sentence, identified a lower starting point of around 18 months’ imprisonment or less.3 Both your lawyers accept the Judge’s indication as appropriate. He would have reached an end point of one year and three months’ imprisonment.
[24] There are a lot of cases in this area. It is not helpful to go through them in detail because facts vary so greatly and it is the individual case that has to be concentrated on. Nevertheless, I have had particular regard to the cases which have been referred to me by the lawyers.4
[25] In my view, and relying principally on Terewi, your possession of cannabis for supply was of a limited extent. I am prepared to go to the lowest level of band two of Terewi and because of the very limited nature to go past that to a starting point of 20 months’ imprisonment.
2 R v Terewi [1999] 3 NZLR 62 (CA).
3 R v Kereti & Otene DC Hawera CRI-2012-021-001074, 3 July 2013.
4 Notably, R v Bosson [2012] NZHC 1956 and R v Davies [2013] NZHC 239.
Adjusting the starting point
[26] Mr Kereti, the Crown suggests that I should impose an uplift of the starting point for you because you have a previous conviction for possession of cannabis. I am not going to do so. The conviction was for possession only and occurred six or seven years ago. There is, however, nothing in your personal circumstances which would justify a reduction in the starting point. Your criminal history prevents that.
[27] Ms Otene, this is the first time you have come before the Court on a drugs charge. There is nothing in your circumstances or in the circumstances of your offending which would cause me to increase your starting point. I recognise that you have been suffering from a condition that causes you a great amount of pain and that this is the primary reason you have been using cannabis. However, I will not discount your sentence for this. It does not mitigate the possession of cannabis for supply. In other words, it mitigates using it but not supplying it.
[28] There are no other circumstances personal to you which would justify a reduction in the starting point. As with Mr Kereti, your criminal history prevents that.
[29] You are both entitled to a discount on your sentence because of your guilty pleas. I accept that these were entered at the first reasonable opportunity and so I will give you both the maximum discount of 25%. This brings your sentences to 15 months’ imprisonment.
Home detention
[30] 15 months’ imprisonment is within the range in which home detention can be considered.
Ms Otene
[31] You have taken some steps to deal with your drug issues. According to the pre-sentence reports, your attitude has improved since you gained employment. Your employer is impressed with you, and you have natural skill in your current job. Further, you are the mother to three young children and your personal circumstances
shed light on how you became involved in the drug world. You are making attempts to address these circumstances.
[32] Now we come to the point that has been giving me the greatest concern in your case, Ms Otene. It is the reason why I took further time to think about how I should deal with your case. I have real concerns about whether you would cope with a sentence of home detention. You, yourself, have indicated that you would struggle with a sentence of home detention. I am not at all certain that you really intend to stop using cannabis. However, the pre-sentence report indicates that you have taken steps to address your cannabis addiction.
[33] In considering your case, I have tried to find rehabilitative considerations which would be of assistance to you. In a case called R v Hill,5 the Court of Appeal said:6
Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.
[34] The Court of Appeal accepted that home detention will normally be inappropriate where an offender has been dealing drugs from her own home. In effect, that is what you were doing. However, the Court also considered the following factors as relevant to adopting a home detention sentence:7
(a)The offender had committed [herself] to dealing with [her] drug addiction and had made considerable progress in doing so;
(b)The offender was in the process of addressing personal issues that caused [her] to enter the drug subculture; and
(c)The offender was able to serve [her] home detention in a place where [s]he had good support.
[35] I have a glimmer that some of those factors begin to apply to you. I have had particular regard to the letter from Tui Ora dated 22 April 2013. That letter is now some months old. I am going to take it that you have continued your progress in the
5 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
6 Ibid, at [37].
7 Ibid, at [41].
intervening few months. I will do that because if that was not the case your lawyer has a professional obligation to tell me about it. Since Ms Bolstad has relied upon the letter, I will take it that what is said there of you has continued to be the case over the intervening months.
[36] I have also had particular regard to the latest pre-sentence report dated 1 August 2013 which records that since June you have sworn off cannabis and have gone back to medication.
[37] I realise that home detention would not help with what I consider to be the brightest reason for giving you the benefit of the doubt. That “brightest reason” is your employment. The report says that you have gained in self-confidence as a result of that employment.
[38] Ms Otene, it is the only way that you have out of the mess that you have made of your life to this point. I am going to impose a sentence of home detention and I am going to do what I can to ensure that the employment that you have continues.
[39] I can say to you, Ms Otene, that when I first came into this Court I was minded to impose a sentence of imprisonment. That was because I had looked at your history of life and, despite the employment prospects, I was influenced by what Judge Roberts said when you came before him for his decision on whether he would sentence you. He said that he knows you. He said that he does not think that you will be able to serve a sentence of home detention. He said that you would be better off coming to a Judge of the High Court and trying to convince a Judge of the High Court who does not know you. I do not know you and it might well be that Judge Roberts is correct. But I am going to give you a chance, and it is going to be up to you whether you make good on that chance or not.
[40] I record that I did consider community detention, but for the reasons given I am satisfied that the purposes of your sentence could not be achieved by any less restrictive sentence or combination of sentences.
[41] Accordingly, I sentence you to seven months and two weeks’ home detention8 on the following conditions:
(1)You are to travel directly following this hearing to the address of 49 Dives Avenue, Hawera and there await the arrival of a probation officer and monitoring company representative.
(2)You are to remain at the address of 49 Dives Avenue, Hawera for the duration of your home detention sentence unless with the prior written approval of a probation officer.
(3)You are to attend counselling at the Hawera Budget Services and participate and complete any counselling/treatment as may be directed by the provider and to the satisfaction of the probation officer.
(4)You are to attend an assessment for substance abuse and, if assessed as suitable, attend and complete any counselling/treatment programme as may be recommended to the satisfaction of the probation officer and the programme provider.
(5)You are to attend an assessment for a Tikanga programme and, if assessed as suitable, attend and complete the programme as may be recommended to the satisfaction of the probation officer and programme provider.
[42] I direct that the Probation Service is to liaise with your employer and to facilitate if possible, and within the terms of your home detention, your continued employment.
8 When I delivered the sentence I misstated the duration as 10 months. I realised the error having left Court and rectified it without reconvening.
Mr Kereti
[43] Mr Kereti, you have an address suitable for home detention. You have many of the same problems as Ms Otene. You do not have that one shining possibility of employment. I have, therefore, decided that you are not eligible for a sentence of home detention. I note, in particular, that your support network is limited and made up predominantly of Black Power members. I hesitate to include Black Power members in the category of support network, but that is the claim you have made. I do not have any confidence that you would comply with a sentence of home detention.
[44] The simple fact is that apart from your recent engagement with counselling which, as I have said, is a positive indication for your life ahead, nothing else has changed in your life. You have not made any serious attempts to rehabilitate yourself. You have said that you are open to the idea of receiving counselling for your cannabis use, but you have not done anything about that. I have taken into account that you are making some effort, but I do not see any serious attempt to address the causes of your offending. I certainly cannot say that you have made “considerable progress”.
[45] Mr Kereti, you are sentenced to 15 months’ imprisonment.
[46] I make an order for the destruction of the cannabis and utensils seized by the Police.
Brewer J
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