R v Langi HC Auckland CRI 2006-092-009147

[2008] NZHC 2671

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-009147

QUEEN

v

STANLEY LANGI

Hearing:         4 November 2008

Appearances: Mr Glubb for Crown

Mr Niven for Mr Langi

Judgment:      4 November 2008

SENTENCE OF WINKELMANN J

Crown Solicitor, Auckland

D Niven, PO Box 109 227, Newmarket, Auckland

R V LANGI HC AK CRI 2006-092-009147  4 November 2008

[1]      Stanley Langi, you appear for sentence having pleaded guilty to one count of permitting  premises  to  be  used  for  the  purposes  of  manufacturing  a  class  A controlled drug methamphetamine.   The maximum penalty for that offence is 10 years imprisonment.

[2]      The relevant facts are that on 1 July 2006 you were living at an address in Mangere with your mother and three sisters.  Police received information that drugs were being manufactured in your room in the front of that address.   The property owners gave the police permission to enter the address.   On entry they located equipment, material and pre-cursor substances used in the manufacture of methamphetamine.  ESR scientists confirmed police suspicions that manufacturing of methamphetamine had taken place using the various equipment and substances located in that room.  Your fingerprints were found on various exhibits.

[3]      On interview you stated that an associate of yours had asked to borrow the room and you knew your associate had carried various items into it.  You have been consistent throughout in admitting all relevant facts in relation to your offending. The Crown describes your culpability as that of having been wilfully blind to the fact that  you  were  allowing  your family’s  home  to  be  used  for  the  manufacture  of methamphetamine.

[4]      I have finally received a pre-sentence report in respect of you.  I say finally because this sentencing has previously been adjourned on three or four occasions to enable the preparation of a pre-sentence report.  The Department of Corrections had been unsuccessful in obtaining your co-operation for the preparation of the report, a fact I find remarkable given that you were aware that the reason I was requesting it was to see if a sentence of home detention was available and appropriate.

[5]      You are 27 years old.  You are of Tongan and Samoan descent.  You were born in New Zealand, but returned to Tonga when you were a small child.   You returned to New Zealand at 14 years of age but you had little formal education after your return.  You are in a stable relationship with your partner of four years.  You have two children with her.  You and your partner had been staying in a motel until

recently; but your partner has now rented a house in Mangere.  She has been living there for the last five months with your two children and your cousin.

[6]      You do report smoking cannabis on a monthly basis and the report writer recommends that you attend alcohol and drug counselling if directed to do so by your supervising probation officer.   The factor seen as contributing most to your behaviour in connection with this offending was  your  association  with  criminal associates.   The report writer notes that you have responded poorly to previously community  work  and  supervision  sentences.     A  sentence  of  supervision  was cancelled and previous breach action instigated against you for failing to comply with sentence requirements.  Department risk assessment tools assess you as being at high risk of reoffending, but given this is your first conviction for this type of drug related offending, it is seen as less likely that you will reoffend in this manner.

[7]      You  have  quite  an  extensive  record  of  previous  offending,  but  that  can probably be characterised as reasonably low level.   The thing that concerns me however - as I will come to shortly - is that you have 12 previous offences for violence including some male assaults female.  You have eight previous convictions for non-compliance with various court orders, including failure to answer bail.  You have three previous driving related convictions and one for dishonesty.

[8]      The Crown says that the aggravating factors of your offending were that you allowed the use of a residential address by your friends knowing that your mother and three sisters lived there.  It was also, of course, in a residential street so there was a risk of harm to others from the manufacturing process.   In relation to you the Crown says that an aggravating factor is your previous offending, although noting that none of it is drug related.  However, I consider that it is an aggravating factor that you do have such an extensive record of previous offending.

[9]      A mitigating factor the Crown identifies is your guilty plea.  Although it was reasonably late in the piece, the Crown accepts that you pleaded guilty as soon as the indictment was amended to more accurately reflect your culpability.  I am prepared to give you full credit for a guilty plea.  The Crown also highlights the very helpful operation you have provided which is detailed in an attached memorandum.

[10]    The Crown refers me to R v Fatu [2006] 2 NZLR 76 which describes appropriate starting points for methamphetamine manufacturing type offences. That does provide some assistance, although it is not directly relevant because you have not pleaded guilty to manufacturing, but rather to allowing premises to be used. The Crown also refers me to R v Johnson and Stott HC AK CRI 2005-044-5100 11 April

2006, Asher J.  Based on those authorities the Crown submits that a starting point of two to two and a half  years imprisonment is appropriate.   Taking into account aggravating and mitigating factors the Crown suggests that reduction of 50% is appropriate with a final sentence of 12 to 18 months.  The Crown is supportive of a sentence of home detention in light of the matters I have referred to in terms of mitigation.   Mr Glubb said that in making that submission the Crown took into account that your culpability in relation to allowing the premises to be used was toward the lower end and it was more a  case of wilful blindness than actively assisting or facilitating.

[11]     Mr  Niven  notes  what  he  characterises  as  your  low  culpability  in  this offending.  He says that it is less than that of those in R v Johnston and Stott.  In that case the offender Johnston was also guilty of possession of pre-cursor equipment and materials.  Mr Niven said that in light of mitigating factors identified by the Crown were a sentence of imprisonment to be imposed, a sentence of 18 months imprisonment would be appropriate.

[12]     In  sentencing  you  I  take  into  account  the  need  to  deter  you  and  other offenders from this type of offending.    As I hope you now appreciate, methamphetamine offending is very serious offending and the reason it is regarded as serious is because of the risks to our community associated with it.  Not just the consumption, but also the manufacturing process and in this case you have exposed your family to that risk.  I also have to hold you accountable for your offending and to promote in you an acknowledgement of that offending.  That seems to me to be another  particularly important  consideration  in  your  case  because  your  criminal record suggests that you really still haven’t worked out you are following a very poor path through life.  You have a willingness to involve yourself in criminal enterprises and your criminal history graphically bears that out.   You have been given ample

opportunity to correct your behaviour and yet you still seem to be committing low level offences on a reasonably regular basis.

[13]     Finally, I have to provide for your rehabilitation and that is also a particularly potent consideration here.  You have not previously been involved in drug related offending.  You now are in a stable relationship with your partner and although it is not noted in the pre-sentence report, from talking to your counsel and Mr Glubb today it seems you do also have the support of your mother.   That support may provide you with some assistance in attempting to address the causes of your offending.   I accept that your culpability is far less than that of your co-accused. There is no evidence of your participation in the manufacturing enterprise. Nevertheless, your plea means that you knew that manufacturing was to occur.

[14]     The  aggravating  features  of  the  offending  are,  as  I have  mentioned,  the circumstances of the house.  An aggravating feature in relation to you is your history of previous offending.   But I do accept counsel’s submissions that substantial mitigating factors are available to you, namely your guilty plea and the assistance you provided.  If I were sentencing you to a sentence of imprisonment I would adopt the starting point suggested by the Crown of two years imprisonment.  After taking into account both aggravating and mitigating factors I would allow a reduction of 12 months, which would provide a finite sentence of 12 months imprisonment.

[15]     However, on previous calls of this sentence I have indicated to you that I have been considering home detention for you.  That is because this is your first drug related offending, and also because of assistance provided by you.  I have therefore called for a report in relation to the appropriateness of a sentence of home detention for you.  That report has come back and the report writer confirms that a sentence of home detention is appropriate and available, all of the pre-conditions to such a sentence have been met.  You have consented.  So have the occupants of the house that it is proposed that you reside at, and the property is assessed as appropriate for such a sentence.

[16]     I have raised concern with your counsel that there will be two small children present in the house in which you are to be detained, and that your partner will also

be living in that house.   Given your previous history of male assaults female offending, I expressed concern that this could create risks for the other occupants of the  house.    However,  the  report  writer  confirms  that  Child  Youth  and  Family Services have not raised any concerns regarding the proposed sentence.   It is also relevant that none of the assaults that you have previously been convicted of relate to your present partner.  You have a long standing relationship with her of four years, so there is no indication that violence is a feature of your relationship.

[17]     I also take into account as a matter which weighs in favour of the sentence of home detention that you have apparently been subjected to threats in prison and that there is an issue as to your safety if you are to be sentenced to a term of imprisonment.  I record that you have already served one month on remand awaiting sentence.

[18]     Accordingly, Mr Langi I propose to sentence you to a sentence of six months home detention with the following special conditions:

1.        You are travel directly from court to 55 Bader Drive, Mangere and await the arrival of your probation officer an electronic monitoring technician to install the monitoring equipment.

2.You are to comply with the requirements of electronic monitoring as directed by the probation officer.

3.You are to reside at 55 Bader Drive, Mangere for the duration of your home detention sentence and not to move from that address without the prior written consent of your probation officer.

4.You are to attend and complete an assessment with the Departmental psychologist and if assessed as suitable, to attend and complete psychological sessions to the satisfaction of your psychologist and probation officer.   In that regard I make particular recommendation that consideration be given to you being required to complete counselling in relation to anger management and in relation to drug

and alcohol use.  You are to attend and complete any such counselling as directed by your probation officer.

5.You are to abstain from the consumption of alcohol and any non- prescription drugs.

6.I direct that you be detained for up to two hours this morning to enable the various formalities in relation to home detention to be processed.

Winkelmann J