R v Morunga

[2013] NZHC 1935

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-055-001466 [2013] NZHC 1935

THE QUEEN

v

ALFRED WILLIAM MORUNGA

Charges:

Plea:

Possession of cannabis for supply

Guilty

Appearances:           E Rutherford for Crown

R Treloar for Prisoner

Sentenced:               2 August 2013

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Public Defence Service, Auckland

R v MORUNGA [2013] NZHC 1935 [2 August 2013]

[1]      Alfred William Morunga, you are for sentence in this Court having pleaded guilty to possession of cannabis for supply.   The District Court Judge declined jurisdiction.  The maximum penalty in this Court for your offending is eight years’ imprisonment.

[2]      On 21 February this year the police executed a search warrant at your home address in Papakura.  You were at the address when the police arrived.  When they arrived they saw you throw an item from the back porch over to the neighbour’s property.    The  police  recovered  a  large  M&M  tin  from  the  property  of  your neighbour that had 18 tinfoil cannabis tinnies inside it.  Inside the tinfoil packages was approximately 18.9 grams of cannabis material.  When you were spoken to you admitted you had thrown the tin over the fence.  You said you were selling cannabis to people you knew.

[3]      I have to say the probation report is not particularly positive. At the age of 50 you are unemployed.  You have not been in paid employment for the last eight years. However, you consider you are respected by the youth in your neighbourhood.  You say you do domestic chores for friends and have been involved in coaching sports.

[4]      At the time of your offending you were serving a sentence of home detention for accessing a computer system for a dishonest purpose and participating in an organised  criminal  group.    You  were  also  serving  a  community  work  service sentence for drug related offending including possession of methamphetamine and cannabis.   A protection order was made against you in September last year.   The children protected by the order are in your partner’s care.

[5]      After the protection order was made, you and your partner have attended counselling which focuses on living without violence, anger management and relationship counselling.  You say that that has opened your eyes to what a better life could be.  The probation officer notes you currently have supervised visits with your daughter.   I have received material that has been referred to the Court from your family. That is supportive of you.

[6]      In sentencing you, however, this Court is required to take into account the purposes and principles of the Sentencing Act.  In this case the particularly relevant

factors are:

to make you accept responsibility for your offending;

to deter you and others from offending in this way;

to denounce this sort of offending.  Drug offending, even at a relatively low level, has the potential to impact on the community because it makes drugs

available to vulnerable members of the community;

[7]      The Court is also required to consider your rehabilitation and reintegration into the community.

[8]      I am also required to take account of the gravity of the offending which is recognised by the maximum penalty I have referred to  but also your degree of culpability in this present case.

[9]      I am also  directed to consider relevant authorities so that the sentence I

impose is consistent with other sentences imposed for similar offending.

[10]     The Crown submit that a starting point for sentencing you is two years’ imprisonment with an uplift for your offending whilst subject to a sentence and perhaps allowing 20 per cent for your guilty plea.

[11]     Ms  Treloar  submits  the  starting  point  should  be  less  than  two  years’

imprisonment and argues for a community based sentence.

[12]     In  R  v  Terewi  the  Court  of Appeal  established  bands  of  sentencing  for offending of this nature.1    Ms Treloar argued in her written submissions that your offending fits within category one.  But as I have discussed with your counsel that category only applies where the cannabis is for personal use without any sales.  You

have admitted to some sales to associates.  Your offending falls into the second band which generally provides for a starting point of between two and four years’ imprisonment.  However, I note that in Terewi the Court went on to say that:2

... where sales are infrequent and of very limited extent a lower starting point may be justified.

I accept that on the summary of facts the sales in this case were limited.  Given the number of tinnies found in your possession and the limited extent of the commerciality, in your case I take as a starting point for sentence 18 months’ imprisonment.

[13]     To that, however, I add an uplift of three months to recognise the fact that this offending occurred whilst you were subject to other sentences of the Court.

[14]     I then take into account your personal mitigating factors.   I note you have recently completed Stopping Violence and parenting programmes.  That is a step in the right direction but it does not address your drug related offending. Any credit for completing those courses must be modest.  The most relevant mitigating factor that the Court can take into account on your behalf is your plea and acknowledgement of your offending.  However, the plea was not entered at the earliest opportunity.  Also, as I have discussed with counsel, the Crown case against you was strong.  As the

Supreme Court recognised in R v Hessell,3 that is a relevant factor the Court can take

into account.  I fix the reduction at 20 per cent.

[15]     Taking those factors into account leads to an end sentence of 16 months’

imprisonment.

[16]     As  the  sentence  is  less  than  two  years  I  am  required  to  consider  other sentencing options.  I do not consider home detention to be an available sentence for you.   As the Court of Appeal said in R v Paki home detention will usually be declined  in  cases  involving  offending  occurring  in  the  home  environment  and

particularly so in the cases of drug offending:4

2      R v Terewi, at [4].

3      R v Hessell [2010] NZSC 135; [2011] 1 NZLR 607.

4      R v Paki CA165/05, 2 September 2005 at [12].

The possibility of returning home, to the scene of offending, a relatively short time after conviction, could tend to undermine the deterrent aspect of sentencing  in  such  cases,  and  detract  from the  authority  of  the  judicial process in the eyes of the public.

In your case it is even more so.  You offended whilst serving a sentence of home detention and obviously offended from your home.  Home detention is simply not an option.

[17]     That then leads to consideration of the recommendation in the pre-sentence report and advanced by Ms Treloar of supervision and community work.  Again I bear in mind what the Court of Appeal said in R v Terewi:5

The paramount consideration is, we repeat, the deterrence of others, and by that means to reduce the prevalence of cannabis use and dependence in this country.  Others who might be contemplating becoming involved in cannabis production or dealing will not be likely to be much deterred when they can see that, if detected, they are likely to escape imprisonment.

[18]     In this Court’s judgment a sentence of community work and supervision would not sufficiently take account of the need to deter you and others from repeated drug offending and to denounce your actions of offending whilst subject to sentences of the Court.

[19]     As I discussed with your counsel, this is not a case of a young man making a slip up. You are 50 years old. You have a long list of convictions for offending. You must have known the risks you were running when you re-engaged in offending in this way while serving the sentence of home detention and also the community work sentence for your previous drug offending.

[20]     Mr  Morunga,  by  your  own  actions  you  have  left  this  Court  with  no alternative  but  to  sentence  you  to  imprisonment.    Community work  would  not properly achieve the purposes of deterrence given your continued offending nor would it reflect the denunciation of offending whilst subject to sentences of the Court for other drug related offending.  The credibility of sentences imposed by the Court would be undermined if people who re-offend while subject to sentences were dealt with by the imposition of similar sentences despite re-offending in a similar or

more serious way.  As the Court of Appeal have acknowledged in Polyanszky v R

there is still a place for short term sentences of imprisonment.6

[21]     Please stand.  Mr Morunga on the charge of possession of cannabis for supply you are convicted and sentenced to imprisonment for one year, four months.

[22]     On release you are to attend an alcohol and drug assessment and any other assessments for counselling or programmes as directed by your probation officer and to complete any programmes to the satisfaction of the probation officer and programme provider. This condition is to expire on the sentence expiry date.

[23]     There will be an order for destruction of the cannabis.

[24]     Stand down.

Venning J