R v Mihaka - [2014] NZHC 2921

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-077-1751

CRI-2012-063-2511 [2014] NZHC 2921

THE QUEEN

v

SHARON MARIE MIHAKA

Hearing: 21 November 2014

Appearances:

C H Macklin for Crown
G J Newell for Prisoner

Sentence:

21 November 2014

SENTENCE OF KEANE J

Solicitors:
Crown Solicitor, Auckland

R v MIHAKA [2014] NZHC 2921 [21 November 2014]

[1] Sharon Mihaka, you appear for sentence for eight offences between 27 July –

20 December 2011: four of possession of the class A drug methamphetamine for supply, three of supplying that drug, and one of offering to supply it.

[2] On 4 November 2013, you were to go to trial on a six count indictment then alleging two possession for supply offences, the first of which was a representative count alleging six distinct offences. You then disputed how much methamphetamine you possessed on that first count and put in issue whether the quantity you possessed on the second count was additional. You contended that it was the remainder of the methamphetamine for which you were accountable on the first count.

[3] In a ruling, dated 3 February 2014, I resolved what was then the most prominent issue of disputed fact, whether the first count included a seventh instance of possession; the ‘Ones’ supply. I held that it did not. I understood that the double counting issue had been largely resolved. That proved not to be so and later you were permitted to vacate your plea to both possession counts.

[4] The first count was then divided into two to allow you to dispute one of the six instances of possession specified in that count. You maintained your plea to the residual first count, which contained the other five specified instances. You then went to trial on the severed contested first count, the original second count, (which originally alleged that you and Denise Waddell jointly possessed methamphetamine between 1 September – 20 December 2011, but was reduced to possession on 20
December 2011), and a third count alleging the ‘Ones’ transaction. At your trial on

22 – 24 September 2014 you were convicted of all three and the trial Judge, Lang J, fixed the quantities you possessed in a minute he issued afterwards.

[5] As a result you are now to be sentenced for all four possession offences on established quantities but there remains the issue whether the fourth count concerns possession of the residue of the methamphetamine possessed as a result of the three preceding counts or concerns a distinct further quantity. That has not required a disputed facts hearing and does not complicate the sentence I am about to impose on you.

Operation Harvest

[6] In 2011, or even earlier, the police became aware from informants that you were selling methamphetamine and cannabis from your shop in Swanson Street, Tokoroa, ‘Sharon’s Fine Leathers’. They commenced Operation Harvest.

[7] The police first obtained telephone call data and text messages, under search warrant. Then, on 10 November 2011, they obtained a warrant to intercept…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mihaka

Details

AGLC: R v Mihaka [2014] NZHC 2921
Case: [2014] NZHC 2921
Decision Date: 21 November 2014

CaseChat Overview and Summary

Sharon Mihaka was sentenced for eight drug-related offences, including possession of methamphetamine for supply and supplying methamphetamine. Mihaka had been involved in selling methamphetamine and cannabis from her shop in Tokoroa, New Zealand, and was arrested and charged along with her co-offenders. Mihaka had initially pleaded guilty to all charges but later vacated her pleas to two possession counts, leading to a trial on the contested counts. The court found Mihaka guilty of all three counts and fixed the quantities of methamphetamine involved in the offences.

The court had to determine the appropriate sentence for Mihaka, taking into account the severity of her offences, the need for consistency with other cases, and the need to impose a sentence near the maximum if warranted. The court also had to consider the principles of rehabilitation, deterrence, denunciation, and protection of the community. Mihaka's personal circumstances, such as her age and addiction issues, were taken into account to some extent, but the court could not consider them heavily due to the seriousness of her drug-related offences.

The Crown argued for a starting point of nine years imprisonment for Mihaka's lead offences, based on the quantity of methamphetamine involved and the sophistication of her offending. The Crown also argued for an uplift in sentence due to Mihaka's four supply offences and the exposure of her granddaughter to the methamphetamine trade. Mihaka's defence counsel argued for a lower starting point, considering the quantity of methamphetamine involved and the fact that Mihaka was a retailer rather than a wholesaler. The defence also argued for a discount for Mihaka's time on electronic monitoring bail and her maintained pleas.

The court decided to rank Mihaka with her main supplier, Mr Bennett, and took the same starting point for her possession for supply offences as that taken for Mr Bennett's supply offences, eight and a half years imprisonment. The court did not increase the sentence for Mihaka's further offending, her supply offences, as they were inherent in her possession offences and confirmed the starting point adopted. The court also took into account Mihaka's time on electronic monitoring bail, her maintained pleas, her addiction issues, and her age in determining her sentence.

In conclusion, the court sentenced Mihaka to imprisonment for four years and six months for her possession for supply offences and three years and six months for her supply offences, with an effective sentence of four years and six months. The court did not impose a minimum term, which is usually 50% for retail suppliers at Mihaka's level. The court also made an order under the Misuse of Drugs Act 1975 forfeiting the items set out in the police schedule served on Mihaka and her counsel.

Orders