R v Mako
[2013] NZHC 2314
•6 September 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2012-088-002233 [2013] NZHC 2314
THE QUEEN
v
PETER MAKO
Hearing: 6 September 2013
Appearances: D B Stevens for Crown
C Muston for Prisoner
Judgment: 6 September 2013
SENTENCING NOTES OF ELLIS J
R v MAKO [2013] NZHC 2314 [6 September 2013]
Introduction
[1] Peter Mako, you appear for sentence today having pleaded guilty to six counts of selling cannabis1 and two counts of possessing cannabis for sale.2 I now convict you on those charges. The maximum penalty that can be imposed for each of those offences is eight years’ imprisonment.
Facts
[2] Your offending was uncovered as a part of Operation Dan, where between November 2011 and June 2012 special duties constables visited various addresses in the Northland Police district and attempted to purchase quantities of controlled drugs.
[3] On 9 May 2012, one such officer went to the house you share with your partner, Josie Paniora, in Dargaville. The officer found you and someone else in the dining room drinking beer. He asked if he could “score” and then bought a single tinny from you for $20.
[4] On 23 May 2012, the same officer returned to that address and you sold him another tinny for $20.
[5] On 30 May 2012, the officer returned again. He asked you if there was any “smoke”. You told him it was in a white van and that he could “grab it” if he wanted. The officer opened the door of the van and took a tinny from the glovebox, and paid you $20 for it.
[6] On 6 June 2012, there was another visit by the same officer. You and Ms Paniora invited him in. Ms Paniora left the room and returned holding three tinnies which she handed to you. You then sold one tinny to the officer for $20 and
she sold another one to someone else.
1 Misuse of Drugs Act 1975, s 6(1)(e). The maximum penalty is eight years’ imprisonment.
2 Misuse of Drugs Act, s 6(1)(f). The maximum penalty is eight years’ imprisonment.
[7] When the officer returned again on 19 June 2012, you were not home so he sent you a text. You replied, telling him to go to a different address. The officer drove to this address where you and others were drinking heavily. You handed him a container with eight tinnies in it. He chose one and paid you $20.
[8] When the Police questioned you, you admitted to selling cannabis and said you made between $100 – $150 a week. You said at that time that you did it for financial reasons as times were tough.
[9] I mention at this point that following these events Ms Paniora last year also pleaded guilty to three counts of supplying cannabis, one charge of selling cannabis and one charge of possession. The Judge in the District Court took a starting point of
16 months in prison but in the end she was sentenced to four-and-a-half months’ home detention. This was due largely to her early guilty plea and a number of medical problems that meant that imprisonment would be particularly hard on her. As far as I can tell, Ms Paniora did not have any previous convictions – or at least no relevant ones.
Personal circumstances
[10] Now I have to talk about your own personal circumstances. You are 45 years old. You have a 20 page criminal record containing over 200 prior convictions, although the majority are for relatively minor matters. The most relevant prior convictions are five for possession of cannabis between 1986 and 6 August 2009. You have many convictions for failing to comply with court orders of various kinds.
[11] As I understand it you are, or you were, a sickness beneficiary although you are able to do paid work from time to time. You live with Ms Paniora, who has been your partner for five years, and her grandson. You acknowledge that you have a big problem with alcohol and cannabis, which you said you smoked “every day, but not all day”. You had a very difficult childhood as your father was regularly violent towards the family and you were sexually abused by your older sisters. When you were 12 you were sent to the Epuni Boys Home where you were repeatedly sexually abused by the staff.
[12] In the past you have not been very keen on getting help to deal with the bad things that have happened to you, but more recently you have said that you are willing to accept help.
[13] When you were in your thirties, you attempted suicide. Although you told the probation officer recently, I think, that you had no major health issues, you were, as I mentioned, receiving a sickness benefit and as I understand it you have pancreatitis which I imagine is related to your drinking.
[14] Last year you wrote two letters to the Court saying how sorry you are and saying that you were only selling cannabis to support your drug and alcohol habits. You said that you have a huge problem with alcohol and drugs and that you realised how important it is for you to change and turn your life around. You asked for help so that you could attend an alcohol and drug rehabilitation programme.
[15] Because of what you said in those letters another Judge gave you a chance in February thise year when he adjourned your sentencing so that you could take part in a programme at Odyssey House. He said that the programme would take between nine and 20 months to complete.
[16] In a letter dated 2 May 2013, Ms Dennis of Odyssey House advised the Court that you had been a part of the residential drug and alcohol rehabilitation programme since 27 February. In that letter she said that although at first you struggled with the programme you were showing some positive changes, although she said you were unable to apply those consistently. The writer of the letter said that being away from your family seemed to present particular difficulties for you and that seems to be so.
[17] But because of this not entirely positive report the Crown asked for a sentencing date to be set, and it was. I must say I regard that as a bit unfortunate as there seems to me, at least arguably, to be a connection between that and what happened next, which was that on 22 July a Probation Officer went to Odyssey House to interview you for the purpose of preparing a further pre-sentence report, but you had run away that morning. I note, however, that it seems that you may have earlier tried to get approval to exit the programme but that, for whatever reason, that
did not happen. In any event, you then had to be arrested and brought back before the Court and you have been in jail since then. You have said that you ran away because you had concerns for your partner and Ms Paniora herself has explained what was going on in her life in a letter that she wrote to the Court earlier.
[18] You have said that you do not want to go back to Odyssey House and you told the probation officer that your drinking and drugging are under control. I have to say that I am not sure that that is true because I know how difficult it is to get those matters under control. Nonetheless – and I am going to come back to this latter – I do accept what you say about wanting to get them under control in the future.
[19] So in August I adjourned your sentencing so that the pre-sentence report and a home detention appendix could be prepared.
[20] The report I have received says that you do not really accept the seriousness of your offending, or of your addictions. Again, that is slightly at odds with whate you have told me this morning and as I will come back to you later, I do believe what you said to me about that. But anyway, the probation officer said that your ability to comply with an electronically monitored sentence is problematic and says that there is a high risk of you re-offending. The writer also suggests that you have more chance of getting further treatment in prison than out of it, although Mr Muston has provided me with some information that suggests that that is slightly problematic as well. As far as the proposed home detention address is concerned, the address proposed – which is at your home with Ms Paniora – is said by the probation officer not to be suitable for a number of reasons. These include that being confined to your house is perhaps unlikely to stop you selling cannabis or using it and that Ms Paniora was your co-offender and also come concerns about previous incidents of domestic violence. So for all those reasons the report writer recommended a sentence of imprisonment.
Purposes and Principles of Sentencing
[21] Mr Mako, when I sentence you there are a number of things that the law says
I am required to take into account. In cases like this, the Court’s main aim in
sentencing you is to condemn your offending and to try and put you and others off offending like this in the future. The protection of society from people who deal in drugs is also relevant and you heard what Mr Stephens said this morning about particular concerns about the wider effects of cannabis offending in the Northland community. But if possible, the sentence is also supposed to help you get better, to stop offending and to get back into society.
[22] The facts that I have talked about earlier show that there was some commercial element to what you were doing, although in my view your dealing was at the lower end of that scale. But the Court of Appeal has said that this still means that the starting point for your sentence would usually be between two and four years’ imprisonment.3
[23] In your case – and I am just talking about if you go to jail at this point – I consider that a starting point of two years and three months would be appropriate. The starting point is, in my view, consistent with similar cases4 and I take into account the starting point adopted by the Judge who sentenced Ms Paniora for slightly lesser offending.
[24] As far as your previous convictions are concerned, there are many. although as I have said most are not drug-related. I would propose to increase the starting point by two months to reflect your earlier offending and in particular your earlier convictions for possession of cannabis. But no further adjustment is, in my view, required for totality.
[25] In terms of the things that mean that the starting point should be reduced, I have noted that your childhood was difficult and no doubt those difficulties have in part led to where you are today. I would encourage you to accept whatever help you are offered to help you deal with those disturbing parts of your childhood. But
because of the harm that drug offending does to society, as Mr Stephens said, the
3 Terewi
4 R v Lord [2012] NZCA 276; R v Day [2012] NZHC 3259; R v Wiapo [2012] NZHC 1269; R v
Harris HC Whangarei CRI-2008-088-004127, 19 February 2009; R v Croft [2012] NZHC 3010.
Court is usually unable to take those kind of things into account to any great extent in the sentencing process.
[26] Next, there is the difficult question of what effect, if any, your participation in (but non-completion of) the Odyssey House programme should have on your sentence today. I think it is fair to say that although you may have wanted to change, you have not yet been able to follow through.
[27] At the same time, the reality is that you spent five months living at Odyssey House away from your family, under restrictive conditions. The Court of Appeal has said that this is something that can properly be taken into account in your favour.5
Although, as I have said, the fact that you ran away and did not complete the course perhaps takes the shine off that a little bit.
[28] As well, there is the fact that you pleaded guilty at an early stage. The Crown accepts that you are entitled to a reduction of up to 25 per cent for that.
[29] So I think that in the circumstances of your case there should be a reduction of nine months from the 29 months starting point to take account all of the matters I have just mentioned. That would give an end sentence of 20 months in prison.
[30] Because that brings you to a sentence of under two years’ imprisonment, I need to consider whether it is necessary for you to be sent to jail or whether some lesser sentence can adequately address the sentencing aims that I mentioned earlier. The difficulty, I am sure you know, is that there are a number of problems with a sentence of home detention in your case, as I mentioned earlier. My particular concern is that if you are given home detention you will re-offend or otherwise breach the conditions and that then you will just end up being back in Court and worse off than you are today. But I also note that you have not before had an electronically monitored sentence and so there is some prospect that it might work for you. I have also read your letter and heard what you said to me this morning. As I said before, I believe you when you say that enough is enough and I also
believe you when you say how much you love Ms Paniora. And you have asked for
5 R v Benson CA86/90, 11 July 1990; Ropiha v R [2013] NZCA 60 at [26].
one last chance and said that if you are given it you could make the Court proud. So I am going to give you that chance, Mr Mako, and I sincerely hope that you will seize it with both hands.
[31] So Mr Mako, if you stand now, because this is now when I have to formally sentence you.
[32] Mr Mako, on each of the six counts of selling cannabis I sentence you to nine months home detention. I have taken a month off what I would otherwise have given you for the time that you have already spent in jail. On the two counts of possession for supply I sentence you to six months home detention.
[33] All sentences are concurrent, which means that nine months home detention is your effective end sentence. I also propose to write off your outstanding fines of
$946.45. That is going to be your sentence, nine months’ home detention.
[Court adjourns]
[34] The sentence of nine months home detention is subject to the following conditions:
(a) You are to return to Dargaville immediately with Mr Muston and once there you are to travel directly to 28 Logan Street and await the arrival of a probation officer;
(b)You are not to possess, consume or purchase alcohol or illegal drugs at the home detention address or at any other place for the duration of the sentence;
(c) You are to be assessed by the departmental psychologist and if assessed as requiring any form of treatment you are to undertake and complete such treatment to the satisfaction of the psychologist and probation officer;
(d)You are to undertake and complete any alcohol and drug programme that the probation officer may direct and abide by the rules of the programme to the satisfaction of the programme provider and probation officer;
(e) There should be post-detention special conditions in terms of (c) and
(d) above.
[35] Alright, so Mr Mako, that is it. Please take this opportunity with both hands
won’t you?
Rebecca Ellis J