R v Moka HC Auckland CIV 2006-092-012530

[2008] NZHC 2330

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-012530

QUEEN

v

BENJAMIN LOZANA MOKA

Hearing:         15 May 2008

Appearances: Mr Williams for the Crown

Mrs L O Smith for the Prisoner

Judgment:      15 May 2008

SENTENCING NOTES OF WYLIE J

Solicitors:

Crown Solicitor, P O Box 2213, Auckland

L Smith, P O Box 47 089, Ponsonby, Auckland

R V BENJAMIN LOZANA MOKA HC AK CRI 2006-092-012530  15 May 2008

[1]      Mr Moka, you pleaded guilty to a number of charges in the Manukau District

Court on 30 January 2008.  I summarise those charges briefly as follows:

a)        The sale and supply of cannabis to a person or persons unknown.

This is an offence pursuant to s 6(1)(e) of the Misuse of Drugs Act

1975, and the maximum penalty is 8 years imprisonment.

b)Possession of cannabis for supply.   This is an offence pursuant to s 6(1)(f) of the Misuse of Drugs Act 1975.   Again the maximum penalty for this offence is 8 years imprisonment.

c)       Disorderly behaviour.  This is an offence pursuant s 3 of the Summary Offences   Act   1981.      The   maximum   penalty   is   3   months imprisonment, or a $2,000 fine.

d)Resisting a constable acting in the execution of his duty.  This is also an offence pursuant to the Summary Offences Act 1981 – s 23(a). The maximum penalty is 3 months imprisonment, or a $2,000 fine.

e)       Failure to answer District Court bail.  This is an offence pursuant to s 37(a) of the  Bail Act 2000.   The  maximum  penalty is  1  year’s imprisonment or a $2,000 fine.

f)        Breach of community work order.   This is an offence pursuant to s 71(1)  of  the  Sentencing Act  2000.    The  maximum  penalty is  3 months imprisonment, or a $1,000 fine.

[2]      The two cannabis related charges were laid indictably.   Because you pleaded guilty prior to committal, you are deemed to have been convicted summarily on those charges.  The District Court is subject to a jurisdictional limit when sentencing summarily.  The jurisdictional limit is 1 year’s imprisonment or a fine not exceeding

$1,000 – s 6(3) of the Misuse of Drugs Act 1975.   As a result, the District Court

Judge referred the matter to this Court for sentence.

[3]      On Tuesday 5 September 2006, the Police executed a search warrant at an address in Otara.  The address was known to be a busy “tinnie house”.  You were found at the address with other individuals who were visiting you.   The Police located 107 cannabis tinnies in the house concealed in various locations.  They were packaged and ready for sale.  They also located at the address $200 in $10 and $20 denominations.   When spoken to by the Police, you admitted that you had been selling cannabis since the previous Thursday,  and that  you  had  sold  around  75 tinnies over that time.

[4]      In  relation to the disorderly behaviour  and resisting Police  charges,  they occurred on 28 November 2007.  You were at Manurewa.  You were approached by the Police, because you had been observed drinking alcohol in the area.  You became aggressive, and abused the Police before running off.   You were chased by the Police, and they caught up with you at a road intersection.  As the Police reached you, you turned around, planted your feet, and prepared to strike a Police Officer. You were tackled to the ground.  A struggle ensued as the Police tried to subdue you. Eventually, and after receiving warnings, the Police pepper sprayed you.

[5]      In relation to the failure to attend on 15 November 2006, you failed to attend at  the  Manukau  District  Court  without  reasonable  excuse.  There  are  no  further details in relation to this matter on the file which are available to me.

[6]      In regard to the breach of the community work order, you were sentenced to

70 hours community work in September 2006.   Shortly thereafter, the rules and regulations governing the sentence were explained to you, including your obligation to report to a Probation Officer as and when required.   Notwithstanding this, in January 2007,  you failed, without reasonable excuse, to report  to  the  Probation Officer.    The  Court  has  been  told  that  as  at  20  February  2008,  you  had  only completed 4 hours of that sentence.

[7]      You are currently aged 27 years.   You are a New Zealand Mäori, born in Auckland.  You told the Probation Officer that you have a supportive family, and that you share a good relationship with them.   The Probation Officer has reported that your family assist you financially.   You are currently unemployed, and you appear to have been unemployed since 2004.

[8]      You did not finish your schooling.  You started work as a labourer in 2000, and worked in this position through until 2003.   You were eventually dismissed apparently for smoking drugs at work, although you are adamant that you did not do so.

[9]      You  told  the  Probation  Officer  that  you  have  not  attempted  to  find employment since 2004, and that you have been dependent on benefits.

[10]     A departmental assessment for alcohol use suggests that you have a very harmful pattern of alcohol abuse. The reporting officer is of the view that alcohol and drug use have contributed to your offending.  However, you do not accept that you have an alcohol problem, and in your view there is no need for you to undertake any rehabilitation for alcohol abuse and you have denied that you use drugs.

[11]     The reporting officer records that you have expressed remorse, and that you regret what happened.  He records that you want to lead a normal life, and find a job and this is consistent with the submissions which have been made on your behalf today by Mrs Smith.

[12]     You have an extensive list of previous convictions, starting in 1995, and going through to 2006.  A number of the convictions are alcohol related.  There have been a significant number of breaches of Court orders.  The conviction list includes three breaches of community work orders, and five breaches of periodic detention orders and the reporting officer records that these may suggest a low level of motivation  to  address  the  underlying  problems  that  contribute  towards  your offending.  I note that there are no prior convictions for drug related offences.

[13]     The reporting officer assesses you as having a medium risk of re-offending due to your previous criminal history, and records that unless you address your alcohol and drug issues, the risk of re-offending could increase.

[14]     The reporting officer did not recommend a community based sentence, due to your previous history of breaching Court orders.  A sentence of imprisonment was recommended.  Intensive supervision was discussed, but it seems to me only because the report writer believed that the Court had indicated that it might consider such a sentence.  That was obviously not the District Court Judge’s ultimate view given that jurisdiction was declined and the matter was sent to this Court.

Submissions received

[15]     I  have  received  helpful  submissions  from  both  the  Crown,  and  from

Mrs Smith on your behalf.

[16]     Mrs Smith referred me to s 85 of the Sentencing Act 2000 in her written submissions.  She suggested that the drug related offending was sufficiently similar and connected in time to justify the imposition of concurrent sentences, and that the charge of selling cannabis should be treated as the lead offence.  Mr Williams for the Crown  agreed  that  concurrent  sentences  should  be  imposed,  but  noted  that  the overall sentence should reflect the totality of your offending.  The Crown agreed that the sale and supply of cannabis is the lead offence, and suggested that possession for supply was an aggravating feature of that offending.

[17]     Both counsel referred me to the purposes and principles of sentencing, and urged me to adopt the approach outlined by the Court of Appeal in R v Taueki [2005]

3 NZLR 372 at pages 376-377, where O’Reagan J said:

“[8] … The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding mitigating and aggravating features relating to the offender. Put another way, a starting point “is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial.”

[18]     Mr Williams referred me to R v Terewi [1999] 3 NZLR 62, which dealt specifically with the cultivation of cannabis. It was pointed out that the sentencing categories discussed in that judgment apply equally to possession for supply, and to supply itself – R v Keefe CA275/02, 28 November 2002.   In his submission, your offending falls into category 2 in Terewi which is as follows:

Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.

He  submitted  that  the  aggravating  features  relevant  to  the  offending  are  the significant number of tinnies involved, the degree of pre-meditation and organisation in the offending, and the harm resulting from the offending.   On this basis, he suggested that the appropriate starting point is between 2 years, 6 months and 3 years imprisonment on the lead offence of supplying cannabis.

[19]     In supplementary submissions, Mr Williams adopted a neutral stance with regard to home detention, leaving it to my discretion.

[20]     Mrs Smith on your behalf agreed that the lead offence was the sale and supply of cannabis, and accepted that this was aggravated by the other offending to which you have pleaded guilty.   Mrs Smith also accepted broadly the aggravating features pointed out by the Crown, and in her written submissions, accepted that a sentence of imprisonment is appropriate.   In oral submissions today, she has addressed me in relation to an apparent change of heart that you have had since November 2007.   She asked for the opportunity for you to undertake an intensive supervision course and in the alternative, she asked for home detention.

Approach to sentencing

[21]     I have considered the principles set out in ss 7 and 8 of the Sentencing Act

2002.  I have had particular regard to the need to hold you accountable for the harm that you have done to the community by your offending, the need to promote in you a sense of responsibility for, and acknowledgement of that harm, and the need to denounce the conduct in which you were involved.  I am also mindful of the need to

deter others from committing the same or similar offences. I have also taken into account the gravity of your offending, including your degree of culpability.  I have considered the seriousness of this type of offence, and the general desirability of consistency with appropriate sentencing levels with similar offenders committing similar offences.  I am mindful that I must also impose the least restrictive outcome that is appropriate in the circumstances.

[22]     I have also endeavoured to take into account the aggravating and mitigating factors relevant to your offending pursuant to s 9 of the Sentencing Act, in particular, the harm and the degree of premeditation involved.

[23]     As  accepted  by both  counsel,  the  leading case  on  cannabis  offending  is R v Terewi.  It discussed sentencing guidelines for the cultivation of cannabis, but as I have noted, it has subsequently been extended to apply to cases involving the possession and sale of cannabis.

[24]     Having heard from both counsel, I am satisfied that it is appropriate to apply

R v Terewi and that your offending falls within Category 2 discussed in that decision

– you were involved in a small scale commercial operation, and that attracts a starting point of 2 to 4 years imprisonment.

[25]     I have had regard to a number of comparable Category 2 cases including those referred to by Mrs Smith in her written submissions and others – in particular R v Kite HC Auckland CRI 2006-092-017251, 10 August 2007, Courtney J; R v Tavake HC Auckland CRI 2007-004-001359, 7 August 2007, Lang J; R v Siakifilo HC Auckland CRI 2006-092-009756, 27 February 2007, Andrews J; R v Wilmshurst CA152/06, 15 June 2006; R v Karena HC Auckland CRI 2006-092-009854, 13

October 2006, Stevens J; and R v Wong HC Auckland CRI 2006-092-005126, 13

October 2006, Stevens J.

[26]     I do not place your offending at the lower end of Category 2.  You sold 75 tinnies in a relatively short space of time, a matter of days, and there were 107 tinnies found at the address.   This places the offending above that in some of the above cases I have referred to, but below that in others.  Your offending was clearly

commercial in nature and motivation.  Drugs are a scourge on our community and they cause enormous harm and distress.  In addition, in my view, an uplift from what would otherwise be the starting point is appropriate because some of the offending occurred while you were released on bail.   The possession for supply charge to which  you  have  pleaded  guilty  is  an  aggravating  feature.     In  my  view,  the appropriate starting point in sentencing you is 3 years imprisonment on the lead offence of the sale and supply of cannabis.

Personal features

[27]     There are some mitigating features.

[28]     First, you entered a guilty plea at the pre-deposition hearing.  You have thus saved the State the cost of a trial.  You are entitled to a discount from the sentence which would otherwise be imposed because of that early guilty plea.

[29]     Secondly, I have taken into account the fact that you have no previous drug related convictions.

[30]     The pre-sentence report did record that you have expressed remorse and that has been reinforced by Mrs Smith today.   I regret that I cannot see this as being either a deep remorse, or remorse that is likely to prevent you from offending in the future.

[31] I did consider the imposition of home detention. Your drug related offending occurred prior to s 80A of the Sentencing Act coming into force. The Court’s powers to impose a sentence of home detention in relation to that offending are accordingly governed by s 57 of the Sentencing Amendment Act 2007, rather than by s 15A of the Sentencing Act. My jurisdiction to sentence you to home detention is not limited to cases where a short term of imprisonment (currently two years or less) would otherwise have been imposed. I refer to the recent decision of the Court of Appeal in R v Hill CA559/07, 29 February 2008 at [28].

[32]     While I have a discretion to impose home detention in relation to the drug related offending, I do not think that it is appropriate to do so.  There are no personal circumstances known to me to suggest that home detention would be the appropriate sentence.  Despite Mrs Smith’s submissions today, in my view it is clear from the pre-sentence report that you have not taken responsibility for your alcohol and drug related problems.   You have failed on a number of occasions to comply with community based sentences and Court orders.

[33]     While the Crown, in  its  written  submissions  adopted  a  neutral  stance  in regard to home detention, I do not agree with the interpretation of the pre-sentence report contained in the Crown’s written submissions.  In my view, the report writer only discussed intensive supervision, because it was thought that the District Court might wish to dispose of the matter in that way.   The report writer recommended imprisonment primarily because of the risk of you re-offending and your non- compliance with community based sentences in the past and I agree with that assessment.

Sentences

[34]     In my view, the appropriate starting point for your offending in relation to the sale and supply of cannabis and the possession of cannabis for supply is 3 years imprisonment.  You are entitled to a discount for your early guilty plea.  In my view, the appropriate sentence of imprisonment is 2 years imprisonment on each of the cannabis related charges.

[35]     On the other charges, the following sentences are imposed:

a)        On the charge of disorderly behaviour, I sentence you to 1 month imprisonment.

b)On the charge of resisting a Police Officer, I sentence you to 1 month imprisonment.

c)        On the charge of failing to answer District Court bail, I sentence you to 2 months imprisonment.

d)On the charge of breaching the community work order, I sentence you to 2 months imprisonment.

I have imposed sentences of imprisonment in relation to these other more minor charges,  because  of  your  history of  non-compliance  with  the  community  based sentences, and because you already have outstanding fines of some $7,445 including

$200 reparation.   In my view, sentences of imprisonment are appropriate in the circumstances.

[36]     All of these sentences are to be served concurrently. [37]       You may stand down.

Wylie J