R v Kingi
[2012] NZHC 3473
•17 December 2012
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2012-019-002042 [2012] NZHC 3473
THE QUEEN
v
MICHELLE DEBORAH KINGI
Hearing: 17 December 2012
Counsel: J M O'Sullivan for the Crown
M Young for the Prisoner
Judgment: 17 December 2012
SENTENCING NOTES OF WYLIE J
R V KINGI HC HAM CRI 2012-019-002042 [17 December 2012]
[1] Ms Kingi, let me say at the outset that I intend to sentence you to a sentence of home detention.
[2] You may remain seated until I ask you to stand.
[3] Ms Kingi, you appear for sentence today, having pleaded guilty to one charge of possession of cannabis for supply. This is an offence pursuant to s 6(1)(f) of the Misuse of Drugs Act 1975. The maximum penalty is one of eight years’ imprisonment.
[4] The District Court at Hamilton has declined to sentence you, and has transferred you to this Court for sentence.
Relevant Facts
[5] At approximately 7.30 am on 21 March 2012, the police executed a search warrant at your address in Ngaruawahia.
[6] There were two units on the property. The police located 12 cannabis tinnies in a plastic Snaplock bag, containing in total approximately 11 grams of cannabis on an associate, who lived in one of the units on the property.
[7] They found a small plastic bag containing $1,000 in cash in your locked bedroom wardrobe. In your kitchen, located in a cupboard above the sink, was a set of digital kitchen scales, containing remnants of cannabis and a Magic Bullet Grinder that had a strong smell of cannabis. In a cupboard under the sink were nine empty Snaplock bags, which contained remnants of cannabis. In an adjoining garage, police found a brown canvas bag, containing an army ammunition box. Inside the ammunition box were 21 Snaplock bags, each containing approximately one ounce of cannabis plant material. In total, approximately 590 grams of cannabis plant material was found. When the police spoke to you, you could not provide an explanation for the items found, but did acknowledge that everything found belonged to you.
[8] You are a 47-year old female. You have six adult children and seven grandchildren. You reside with your partner and father-in-law. You rely on your daughter as your main support person, due to poor health. You suffer from emphysema and you are regularly hospitalised due to your inability to breathe properly from time to time. This limits what you can physically do, as over-exertion can exacerbate your condition.
[9] You stated that you have used cannabis yourself, and that you smoked up to
30 grams per day for a considerable number of years. However, you have recently completed an alcohol and drug residential programme run by the Salvation Army. You have now been sober for some time, and you are trying to stay that way. You are not using drugs, and you continue to attend counselling with the Salvation Army.
[10] You are assessed as presenting a low risk of reoffending while you remain sober, and engage in counselling.
[11] You have no prior drug-related convictions. You do, however, have previous convictions for matters such as driving offences, failure to answer police bail, offensive behaviour, assault with a firearm and shoplifting.
[12] A sentence of community detention was recommended, as opposed to home detention. However, a further report has been provided recording that the property at
197A Hakanoa Street, Huntley, occupied by your daughter and her family, is suitable for home detention purposes. The occupants have given their consent to you residing in the property.
Submissions
[13] Ms O’Sullivan for the Crown submitted that there was a commercial aspect to your offending. She suggested that the starting point should be a term of imprisonment, but acknowledged that it is likely to be a short term of imprisonment, and that home detention can be considered. She resisted any suggestion that
community detention may be appropriate given the circumstances of your offending and submitted that home detention was the appropriate and least restrictive outcome in the circumstances.
[14] Ms Young on your behalf submitted that your offending involved the small- scale cultivation of cannabis for a commercial purpose, and that a starting point should be fixed accordingly. She noted that you pleaded guilty prior to committal, and that you should be entitled to a full discount for that plea. She also noted that you have no previous convictions for drug-related matters, and that you suffer from emphysema. She submitted that you have taken significant rehabilitative steps, and she has made available to me a certificate and various letters in that regard. She submitted that a sentence of home detention would be appropriate. She also suggested that a sentence of community detention may be appropriate, but acknowledged that I would have to make significant allowances in your favour to reach that conclusion.
Purposes and Principles of Sentencing
[15] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved. I am also mindful of the need to deter others from committing
the same or similar offences. This is a primary factor in drug-related offending.1 I
have taken into account the gravity of the offending with which you were involved, including your degree of culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences. I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and I need to consider your rehabilitation in the circumstances that have arisen.
[16] Sentencing for the offence of possession of cannabis for supply is governed by the guideline judgment of the Court of Appeal in R v Terewi.2
[17] Both counsel agree that your offending falls into what is known as category 2. Category 2 is described in Terewi as encompassing small-scale cultivation of cannabis plants for a commercial purpose, with the object of deriving a profit. The starting point for sentencing is generally between two and four years’ imprisonment, but where sales are infrequent, or of very limited extent, a lower starting point can be justified.
[18] In your case, some 590 grams of cannabis plant material was found. The cannabis was packaged in 21-ounce lots in Snaplock bags and in tinnies. This suggests that the cannabis was of saleable quality, and that the intended scope of the operation was relatively significant. The Crown estimates that you could have made between $4,440 and $9,750 from the sale of the pre-packaged cannabis. It is also noteworthy that other items were found at your address, such as digital scales, empty Snaplock bags, and $1,000 in cash. Clearly, the operation was ongoing.
[19] I have considered a number of more or less comparable cases.3 Every case turns on its own facts and sentences have varied accordingly. In other cases, starting points have ranged from three years six months to 12 months’ imprisonment. In my view, an appropriate starting point in your case is one of two years and three months’
imprisonment.
2 R v Terewi [1993] 3 NZLR 62.
3 R v Matehe HC Invercargill CRI 2010-025-904, 3 August 2010; R v Johnson HC Rotorua
CRI 2004-070-2638, 23 July 2004; R v Te Rangi HC Auckland CRI 2007-055-779, 29 April
2008; R v Ward HC Auckland CRI 2005-004-018756, 31 October 2006; R v Verschaffelt [2002]
3 NZLR 772; R v Smith (1987) 44 SASR 587; R v Dudley HC Hamilton CRI 2011-019-215,
31 May 2011, where a number of earlier cases are helpfully collated in a schedule.
[20] There are no aggravating circumstances personal to you. While you have some earlier criminal convictions, I accept that they are not relevant for present purposes.
[21] There are, however, mitigating circumstances.
[22] First, you have taken significant steps to try and rehabilitate yourself. You have successfully attended at a full-time residential programme to address your drug and alcohol addictions. Ms Young has produced a certificate from the Salvation Army in that regard, recording the various steps which you have taken to try and rehabilitate yourself. You have also re-engaged with Care New Zealand. It is appropriate to allow you a discount from the sentence I would otherwise have imposed to recognise these steps. In my view, a discount of three months to recognise your successful attempts to rehabilitate yourself is appropriate.
[23] Further, there is your early guilty plea. It was entered prior to committal, and you are entitled to a discount of 25 percent from the sentence I would otherwise have imposed to recognise that plea. This would equate to an end sentence of 18 months’ imprisonment. A sentence of this length means that home detention is available as an option.
[24] I should record that I do not consider your health to be a mitigating circumstance. Indeed, I am surprised that you involved yourself in this offending, given your poor health. It is a factor I do, however, take into account in considering whether home detention is appropriate.
Home detention
[25] The impact of a prisoner’s medical condition on sentences has been considered by the Court of Appeal. I refer to R v Verschaffelt,4 and to R v
Broughton.5 It is accepted that it can be appropriate to take a prisoner’s medical
condition into account.
[26] You suffer from a serious medical condition. That has been confirmed in a medical report that has been obtained by Ms Young on your behalf. Your medical condition would make a sentence of imprisonment disproportionately severe for you. I am required to consider this pursuant to s 8(h) of the Sentencing Act.
[27] Given your health concerns, I am satisfied that it is appropriate to impose a sentence of home detention, rather than require that you serve a sentence of imprisonment. The sentence that would otherwise have been imposed of 18 months’ imprisonment is not appropriate in your case. It would be disproportionately severe.
[28] I am satisfied that the residence at 197A Hakanoa Street, Huntley is suitable. The occupants understand the conditions of home detention and they consent to the residence being used for this purpose. You also understand the conditions of home detention and agree to comply with them.
Sentence
[29] Ms Kingi, will you please stand.
[30] In respect of the charge of being in possession of cannabis for the purpose of
supply, I sentence you to nine months’ home detention.
[31] The standard conditions set out in s 80C of the Sentencing Act are to apply. In addition, I impose the following special conditions under s 80D. I direct that upon your release from Court:
(a) You are to travel directly to 197A Hakanoa Street, Huntley, to await the arrival of the probation officer;
(b)For the duration of your sentence, you are to reside at 197A Hakanoa Street, Huntley, and not to move from that address without the prior written approval of a probation officer;
(c) You are to comply with the requirements of electronic monitoring to the satisfaction of the probation officer;
(d)You are to undertake any intervention deemed appropriate to address the factors relating to your offending to the satisfaction of the probation officer, and to the satisfaction of any provider;
(e) You are to abstain from the possession and consumption of alcohol and/or illicit drugs for the duration of your sentence.
[32] You may stand down.
Addendum
[33] By consent, I make the following orders:
(a) The drug-related items found during the course of the police search are to be destroyed; and
(b)The sum of $1,000 found during the course of the police search is to be forfeited to the Crown, pursuant to s 32 of the Misuse of Drugs Act
1975.
Wylie J