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 calls made by you and your husband, Lionel Mihaka, and by your principal supplier, Randolph Bennett, and by another of your co-offenders, which extended to calls made to and from your shop.   Then on 9 December 2011 they obtained a wider warrant, allowing interceptions to continue until 8 January 2012.

[8]      In the event, the police terminated Operation Harvest on 20 December 2011 and you and your co-offenders, Mr Bennett, Ms Waddell, your daughter, Leah Green, and others, were then arrested and charged.  Your co-offenders admitted their parts before  trial,  first  Mr  Bennett  and  then,  on  the  eve  of  trial,  the  others  as  well, including you, and they have all been convicted and sentenced.  I need only mention the two whose sentences are relevant to the sentence to be imposed on you.

[9]     On 15 August 2013 Mr Bennett pleaded guilty to five supplies of methamphetamine, in 11 transactions, three of which were supplies to you; to a conspiracy to manufacture methamphetamine, and to cultivating cannabis.  Brewer J sentenced him on the basis that he had supplied 285 grams of methamphetamine, though  the  Crown’s  estimate  exceeded  307  grams.    For  those  supplies  alone, Brewer J took a starting point of eight years, six months, which he then uplifted by two and a half years for the other offending to 11 years.  Then, after allowing Mr Bennett two discounts, principally a 25 per cent discount for plea, he imposed an eight year sentence, without any minimum term.

[10]     On 4 November 2013 Ms Waddell pleaded guilty to possessing with you, between 1 September - 20 December 2011, 73.2 grams of methamphetamine, the amount found at her home on termination date.  On 11 December 2013, following a disputed facts hearing, I sentenced her to imprisonment for two years, six months,

from a four year starting point Lang J had set in a sentence indication he gave her on

30 October 2013.  Lang J then held, and I accepted, that she was a secondary player.

Scale of offending

[11]     In sentencing you for your lead offences, the four offences of possession for supply,  I must  do  so  recognising  that  they involved seven  distinct  instances  of possession, and that you were supplied from more than one source.

[12]     First, you are to be sentenced for the three supplies that Mr Bennett made to you.  On 27 – 28 July 2011, as was established at your trial, and as Lang J confirmed afterwards, you obtained from Mr Bennett 84 grams of methamphetamine.  You also conceded by your plea that on the two other dates, one between 24 August – 24

September 2011, and the other on 24 November 2011, you obtained from him a further 56 grams.   In all, therefore, you obtained from him 140 grams of methamphetamine; that is to say about five ounces.

[13]     Second, you obtained methamphetamine from other sources.   On 18 - 20

September  2011,  as  was  established  at  your  trial,  and  as  Lang  J  confirmed afterwards, you obtained 48 grams from a supplier known as ‘Ones’.  Then, by your plea, you accepted that you had obtained from other unidentified sources three more quantities: 28 grams on 11 October 2011, .25 of a gram on 13 October 2011, and 30 grams on 13 December 2011, in all 58.25 grams; in the latter two instances jointly with your daughter.  From these sources independent of Mr Bennett, therefore, you obtained a further 106.25 grams, close to four ounces.

[14]     For all these instances of possession, standing alone, you are to be sentenced for having possessed 254.25 grams, close to nine ounces.  The issue remains whether that was the most you possessed between 27 July 2011 – 20 December 2011, or whether that aggregate must be increased to take into account the methamphetamine found in Ms Waddell’s safekeeping on termination date, 20 December 2011.  That further quantity, 73.2 grams, is in excess of two and a half ounces.  You challenged joint possession belatedly at your trial despite your earlier plea but you are accountable for that discrete amount.

[15]     If that further quantity were added, you would be accountable for possessing as much as 327.45 grams, in excess of 11 and a half ounces.   But, as the Crown responsibly accepts, that could involve double counting.   The Crown invites me therefore to sentence you on the basis that you possessed at least 200 – 250 grams of methamphetamine and your counsel makes no submission as to that concession.  I consider it a responsible basis on which to sentence you.

[16]     You are to be sentenced also for the four supply offences, as a result of your pleas on 4 November 2013, to which you have adhered.  First, for supplying Warren Wiki twice, initially on 30 November 2011, and then on 3 December 2011, nine grams in total.  Then for supplying 28 grams to Lily Clark on 19 November 2011. Then  finally  for  22  supplies  you  made  to  others  between  8  September  –  20

December 2011, in the range 0.10 of a gram - 2.5 grams, which come to 12.4 grams. You are thus to be sentenced for 24 supplies totalling 49.4 grams, just over two ounces.

Sentencing purposes and principles

[17]     In sentencing you I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim.  This was, I hope you are beginning to understand, far from victimless offending. I must also, to the extent that I can, assist you in your rehabilitation and reintegration.

[18]     I must also have regard to the following sentencing principles: the gravity of your offending, the need to be consistent in sentence with other cases, and the need to impose a sentence near the maximum, should that be warranted.  Equally, I must take into account the contrasting principles: the need to adopt the least restrictive outcome appropriate; the need to take account of anything that would make an otherwise proper sentence disproportionate; and the need to recognise you in the context of your family and community.

[19]     I should make clear that, in striking that balance, I am unable to take great account of your personal circumstances.   It is a settled principle that where drug

offending is as serious as yours is personal circumstances must largely be left out of account.  But that said, there is a factor which is in a sense personal to you.  It is the length of time you have spent on EM bail. That does require distinct recognition.1

Crown submissions

[20]     The  Crown  contends  that  your  lead  offences,  those  for  supply,  justify  a starting point in the vicinity of nine years imprisonment, at the top end of band two R v Fatu,2  which for commercial quantities between five – 250 grams sets starting points in the range three – nine years imprisonment.

[21]     The  intercepted  communications  over  the  40  days  of  the  operation,  the Crown contends, confirm that you discussed the sale and distribution of 365.45 grams of methamphetamine. And even though the Crown accepts, for the purpose of sentence, you are to be held accountable for possessing 200 – 250 grams, that is still a significant commercial quantity.

[22]     You were indeed, the Crown submits, dealing on a commercial level.  You made bulk purchases from Mr Bennett. You also purchased from other sources. You broke down your purchases for resale at a profit.  The scale of your offending is also evident from the cash in Ms Waddell’s safekeeping on termination date, $23,680.

[23]     Your offending was, the Crown contends also, relatively sophisticated.  You used your business as a front for street level dealing and kept your methamphetamine and cash proceeds at a safe remove at Ms Waddell’s home to avoid detection.  This enabled you to pursue your offending unchecked; a form of offending that causes considerable social harm. The Crown also relies on two other aggravating factors.

[24]     One is that, while you were dealing in methamphetamine, you were also dealing in cannabis.   The Crown can put it no higher because you have not been charged with or convicted of that offence and the scale is unknown.  But that too was a further element of your business.  Of greater concern, the Crown contends, is that

you exposed your two and a half year old granddaughter to this trade and in a quite

1      Sentencing Act 2002, s 9(2)(h), (3A).

2      R v Fatu [2006] 2 NZLR (CA).

literal way.   An ESR analysis of her hair shows that she had been exposed to methamphetamine over a matter of months.

[25]     Quite independently, the Crown contends, an uplift is warranted to reflect your four supply offences.  By themselves they warrant a four – five year starting point, and call on a totality basis for a one – two year uplift.  Alternatively, they justify the nine year starting point at the top of band two that the Crown commends; a starting point called for, as a matter of parity, the Crown says also, having regard to the sentence imposed on Mr Bennett.

[26]     The Crown does accept that you are entitled to a discount from that starting point to recognise the fact that for some two and a half years you were on EM bail. That restrictive form of bail was imposed on 23 March 2012 and it continued until you were remanded in custody in September 2014.   The Crown distinguishes, however, between your time on remand before your plea on 4 November 2013 and the period afterwards until you were remanded in custody.

[27]     As to the former, the Crown accepts that you are entitled to a full credit.  You were  constrained  equivalently to  home  detention.    For  that  20  month  period  it accepts a discount of 40 months; three years, four months.  After plea, the Crown contends, you deserve no credit.  You were in part at least responsible for your own predicament. You changed your plea and went to trial.

[28]     Finally,  when  you  entered  your  plea  on  4  November  2013,  the  Crown accepted that you were entitled to a 25 per cent discount.  Its position now is that you are entitled to something significantly less to recognise that, while you maintained your pleas to the supply offences and a number of the possession offences, your decision to vacate your pleas to the two possession offences still led to your trial and delayed sentence.

[29]     There is one other matter.  The Crown contends that you are not entitled to any discount on account of the fact that an application for a profit forfeiture order has been made civilly, which has still to be resolved.   It would be otherwise, the Crown says, if the application were for an instrument forfeiture order.

Defence submissions

[30]     Your counsel agrees that your possession for supply offences lie at the higher end of band two, R v Fatu.  But, he contends, a seven year starting point is the most that is justifiable for possession of the quantity that the Crown accepts for sentence,

200 – 250 grams of methamphetamine.

[31]     Your counsel agrees that one commercial measure of your offending lies in the $23,680 cash found at Ms Waddell’s home on termination date.   He does not accept that the street value of the methamphetamine you possessed can be as well. He contends that your suppliers, principally Mr Bennett, would have taken the lion’s share of any profit and at less risk.  He also contends that the Crown overstates your sophistication.  Your shop was an ordinary business, before you began to offend and even afterwards remained so.  That you used Ms Waddell as a safe house is hardly sophisticated either.

[32]  Your counsel puts in issue whether your grandchild’s exposure to methamphetamine is a relevant aggravating feature.  There is no evidence as to how that happened.  Nor are you for sentence for using methamphetamine.  You are for sentence for possessing and dealing in it. Your counsel questions equally whether, as a matter of parity, your sentence needs to be closely comparable with that of Mr Bennett.   He was higher in the supply chain.   He was a wholesaler.   He supplied drugs to others as well as to you. You were a retailer. You assumed greater risk for a lesser return. Your starting point ought to be lower.

[33]     As to your supply offences, your counsel contends, they should not give rise to any uplift from that taken for your possession for supply offences and they should attract  concurrent  sentences.    They  gave  effect  to  the  purpose  for  which  you possessed the methamphetamine. They do not greatly enlarge your criminality.

[34]     Your counsel submits that I am able to take into account that you do not have any relevant aggravating criminal conviction and that, before you began to offend you ran a legitimate business for many years.  As your pre-sentence report confirms, you have suffered addiction yourself and you self referred while on bail for drug counselling and  underwent  ten sessions.   Your wish  to  change,  your  counsellor

accepted, was real.  As a result also, your report says and your counsel submits, you acknowledge the harm your offending has caused.

[35]     Your counsel contends that you are entitled to a discount for your time on EM bail, greater than that contended for by the Crown.   He adopts the Crown’s submission that prior to your plea you should get a full three year, four month discount.   As to the nine months after your plea, before you were remanded in custody, you should at least get a nine month discount. You did suffer a material loss of liberty.

[36]     Finally, your counsel contends that at 58 years of age a lengthy term of imprisonment will be harder for you than for a younger person.  You have suffered the loss of your business.  You will suffer the loss of your family life.  He contends for a discrete discount, which also recognises your plea to the extent that you sustained it.

[37]     Your counsel points to the possibility that you might after sentence suffer the detriment of a forfeiture order.  He does not press that presently.  That application is not before the Court on sentence and he does not know whether it is for instrument forfeiture or, as the Crown says, profit forfeiture.

Conclusions

[38]     In sentencing you I begin by ranking you with Mr Bennett.   He may have been a wholesaler and you a retailer, but that is incidental.  You purchased from him in bulk, and not just from him.  He was not your sole source of supply.  You were an equally significant dealer in your own right.

[39]     Nor can I accept, without evidence, that Mr Bennett’s risk was less than yours, or that his profit was significantly greater. To supply you he had to come to you, at least on one occasion as I remember.  To that extent certainly he shared your risk, if that is a material factor, and I question whether it is.  There is no evidence as to the relative profits at wholesale or retail levels and that too is of questionable relevance.  Finally, you and he are comparable in this sense.  He was sentenced for

supply of 285 grams to you and others.  You are to be sentenced conservatively for possession for supply of at least 200 - 250 grams.

[40]     I accept that your offending was not especially sophisticated.   But it was shrewdly calculated.  You dealt from your shop but you kept your methamphetamine and cash proceeds in safe keeping with Ms Waddell.  You were also an active retail supplier, as your offences illustrate; and your offending engaged and implicated your family and  friends.    In  the network  you  created,  even  though  it  was  relatively modest, you were the central player.

[41]     I intend, therefore, to take the same starting point for your possession for supply offences as that taken for Mr Bennett’s supply offences, eight and a half years imprisonment.  But I do not intend, as happened in his case, to increase it on account of your further offending, your supply offences.  They are, as the Crown contends, certainly aggravating.  But, as the Crown also recognises, they are inherent in your possession offences. They confirm rather the starting point I have adopted.

[42]     In  this,  I  wish  also  to  be  clear,  I  have  taken  no  account  of  your granddaughter’s exposure to methamphetamine trade and use.  It is highly disturbing that she showed traces of methamphetamine in her hair but there is no evidence as to how that happened.   Nor, strictly, does that exposure aggravate your offences for sentence, which are dealing offences.

[43]     You are entitled to a discount for the time you spent on EM bail and I accept that for the period before you pleaded on 4 November last year, a 20 month period, you should have a discount of three years, four months.  As to the period after your plea, you do not have the same claim.

[44]     It may have been right for you to vacate your plea to the first of the two possession counts.  There were genuine issues about the transactions in that count, and the quantities, which had to be resolved eventually at trial.   I question your decision to vacate your plea admitting possession of what was found on termination date.  There was no ambiguity about that count and the jury found you guilty of it.

Any discount must be less than nine months.  Before I resolve that issue, however, I

must first refer to two other relevant factors.

[45]     The first is that you are entitled still, I consider, to some discount for the pleas you maintained after 4 November 2013.  Though you vacated your pleas to the two original possession offences, you continued to adhere to your plea as to five of the seven possession for supply offences they encompassed and you held to your plea for your supply offences.   Your eventual trial had a correspondingly narrow focus.

[46]     The other factor is that you have suffered addiction yourself and you have begun to address that.  That may, I accept, explain if not excuse how you came to offend.   I also  accept that at age 58  you  will find imprisonment harder than a younger offender,  and  that  you  have  suffered  or will  suffer  wider material  and personal losses.

[47]     Those factors, to my mind, when combined with the discount that  I am prepared to allow you for having been on EM bail, justify a global discount of four years.   For your possession for supply offences, therefore, I sentence you to imprisonment for four years, six months.   I sentence you concurrently for your supply offences to three years, six months.  Your effective sentence is four years, six months.

[48]     I should also add this.  It is quite usual for a 50 per cent minimum term to be imposed on retail suppliers at your level.  However, the Crown does not seek that and none was imposed on Mr Bennett.  In that you are fortunate.  I will not impose a minimum term.

[49]     Finally, I make unopposed an order under s 32 of the Misuse of Drugs Act

1975 forfeiting the items set out in the police schedule served on you and your counsel.

P.J. Keane J