R v Mahara HC Ham CRI 2007-019-6219

[2008] NZHC 2429

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-019-6219

THE QUEEN

v

BEN MIHIAO MAHARA

Charge:          Selling cannabis (3); Offering to sell cannabis; Possession of cannabis for sale;

Possession of cannabis for supply (2) Plea:     Guilty

Appearances: Sheila Cameron for Crown

Gavin Boot for Prisoner

Sentenced:     29 July 2008

2½ years imprisonment on all charges (cumulative)

SENTENCING NOTES OF HARRISON J

SOLICITORS

Almao Douch (Hamilton) for Crown

Gavin Boot Law (Hamilton) for Prisoner

R V MAHARA HC HAM CRI 2007-019-6219  29 July 2008

Introduction

[1]      Mr Mahara, you appear for sentence today, having been remitted to this Court from the District Court following your pleas of guilty to a number of charges laid under the Misuse of Drugs Act.  In particular, you have pleaded guilty to three charges of selling cannabis, one of offering to sell cannabis, one of  possession cannabis for sale, and two of possession for supply.   All those charges carry a maximum sentence of eight years imprisonment.

[2]      Before dealing with the formal aspects of your sentence, I note you were charged with your nephew.   He was sentenced in the District Court to a term of

120 hours  community  work  on  two  charges  of  possessing  cannabis  for  supply. Judge McAloon made a point of retaining jurisdiction to sentence him.  She noted in particular that  his  culpability,  or  blameworthiness, was  much  lower  than  yours. Also, he had mental health issues.  So his sentence cannot be seen as a precedent or a guideline.

[3]      Your sentence will be determined by the facts.  I shall deal with them now.

Facts

[4]      In early 2007 the police became concerned about the operation of what is called a ‘tinny house’ in Richmond Street.   Three times in June and July an undercover police officer purchased a $20 ‘tinny’ of cannabis from you at the Richmond Street address.

[5]      At the end of July the police executed a search warrant on the premises.  You were caught red-handed, selling cannabis to a third party.   The police spent four hours searching your address.  In that time, 22 people were arrested for attempting to purchase cannabis from you.  Another 18 were turned away by the police because they simply did not have the resources to arrest and process people.

[6]      As  Ms  Cameron  emphasised  today,  four  of  those  purchasers  were  aged between 14 and 16  years.   One of the visitors told police he had been buying cannabis from you for at least four years.

[7]      While the police were present, your nephew arrived.  He had two pounds of cannabis separated into bags.

[8]      At the address the police found 71 tinfoil cigarettes, six bags of cannabis, each weighing about an ounce, some $2226 in cash, together with a scanner which monitored police radio channels, and a sophisticated camera used to monitor visitors. The police estimated that, on the basis of the cannabis recovered, you had materials having a street value of $22,900.

Starting Point

[9]      Against that background, Mr Mahara, I must set the starting point for your sentence.   The starting point is the term of imprisonment which is appropriate to reflect the wrong-doing of the offending, the circumstances of the offending, before I take into account any good or bad factors relating to you personally.

[10]     It is common ground between the lawyers that you were indulging in small to medium scale commercial dealing.  Your offending, taken by itself, falls into a band whereby a starting point of between two to four years imprisonment is recognised by the Court of Appeal as appropriate.   The question is to determine where, on that sliding scale of two to four years, your offending falls.  That is, as I pointed out to Ms Cameron, essentially a factual exercise.

[11]     Ms Cameron has properly emphasised the aggravating factors which take your offending towards the top end of the scale.   First, there is the planning and premeditation.   This was a reasonably sophisticated operation.   Not only am I referring to the scanner and the security equipment, but I mention also the nature of supply to you.

[12]     Second, in relation to the first, is the scale of your offending.   I am in no doubt that you had been operating for some time at a reasonably high level.  I have referred to the 40 people who visited your premises within a two hour period.  You were obviously a frequent seller.

[13]     Third, Mr Mahara, I agree with Ms Cameron that your sale to juveniles is aggravating.   She has identified that four visitors were aged between 14-16 years. Doubtless there were more.

[14]     Fourth, I refer to the financial gains.   Mr Boot, who has appeared at short notice today, seeks to downplay your level of commerciality.  He said you used the money to pay your bills.  What was left over you spent on gambling.  He describes you as a middle man in the operation; someone who lived a modest lifestyle.  You were, of course, on a State benefit.

[15]     He may be correct, but that does not mitigate your involvement.  You may have lived a quiet and unpretentious lifestyle, but I am satisfied that you derived a substantial amount of money from this operation.

[16]     Taking all those factors into account, Mr Mahara, the appropriate starting point for your offending is a term of three and a half years imprisonment.

[17]     It  could  be  aggravated,  that  is  uplifted,  by  your  offending  in  2000. Ms Cameron submits that I should increase the starting point by some six months, to take account of this factor.

[18]     While it is directly relevant and might justify an increase of the type she submits, I intend to uplift your starting point only by three months, to take account of your past offending.   Thus, the adjusted starting point is three years nine months imprisonment.

Personal Circumstances

[19]     I now come to your personal circumstances.  First and foremost there is your plea of guilty.  It represents many things.  It is a sign of your contrition and remorse,

and acknowledgement of your wrong-doing.  Ms Cameron says it was entered late. Mr Boot has explained the circumstances.  I intend to give you appropriate discount for it.  You are not to be penalised for the fact it was entered eight months after you were charged.

[20]     You are 57 years of age.  You live alone.  As I have said, you depend on the State benefit.  You suffer ill health.  In particular, you have diabetes.  You have no assets other than a modest car.  You have some support, which I acknowledge, from your whanau and friends.

Sentence

[21]     Taking express account of your proper guilty plea and your ill health, I have decided the appropriate adjusted starting point of three years nine months imprisonment should be reduced by 15 months.   Thus the final sentence on all charges is a term of two and a half years’ imprisonment.  Those sentences are to be served concurrently, that is side by side, not additional to each other.

[22]     There will be an order for forfeiture of the money that was taken from the premises, and also for destruction of the cannabis and other material which was removed from the premises.

[23]     Before you stand down, Mr Mahara, this is a sad exercise for me.  I hope that no other Judge has to sentence you again on this type of offending.  At 57 years of age you should know better.  You should also know that if you do it again you will

be sentenced to a much longer term of imprisonment.  Please stand down.

Rhys Harrison J