R v Nepia

[2013] NZHC 1705

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-024-954 [2013] NZHC 1705

THE QUEEN

v

PARAKURA BLAIR NEPIA

Charge:

Plea:

Possession of cannabis for sale; Possession of ammunition

Guilty

Counsel:

PP Crayton for Crown
M Young for Prisoner

Sentenced:

5 July 2013

SENTENCING NOTES OF BREWER J

Solicitors:  Almao Douch (Hamilton) for Crown

Maria Young (Hamilton) for Prisoner

R v NEPIA [2013] NZHC 1705 [5 July 2013]

Introduction

[1]      Mr Nepia, you have pleaded guilty to one count of possessing cannabis for the purpose of sale.   The maximum penalty for that count is eight years’ imprisonment.  You have also pleaded guilty to one count of unlawful possession of ammunition. The maximum penalty for that count is four years’ imprisonment.

Facts

[2]      On 8 November 2012, the Police searched your home in Ngaruawahia under the authority of a search warrant.  They were looking for drugs.  At your address the Police found a snaplock bag which contained 17 cannabis tinnies valued at $340 and

$140 in $20 notes.  The Police found more cash in other parts of your house.  The total cash found was $768.70. You were at that time receiving the domestic purposes benefit because you were caring for your young daughter.

[3]      When questioned by the Police you admitted that $400 was from selling cannabis. You said you had been selling cannabis for two months.

[4]      Those are the facts behind the first charge.

[5]      In your kitchen the Police found 71 rounds of .22 ammunition and three rounds of .223 ammunition.  You said that the ammunition had been at the address for some time after an associate had left it there.

Personal circumstances

[6]      This is not the first time you have been before a Court.  However, it is the first time you have been before a Court on drugs charges.  You are 26 years of age and you have a criminal record which starts in 2002.  Your convictions are for violence, dishonesty and driving offences.   Your last conviction was entered on

28 June 2012 for driving while disqualified.  You were sentenced to nine months’ supervision and further disqualified from driving for one year.  You were still subject to the sentence of supervision when the Police searched your address.  I note, further, that you have never been to prison.

Starting Point

[7]      So far as the cannabis offending is concerned, you are walking a well-trodden path.  Both your lawyer and the Crown’s lawyer agree that your case fits within the low end of band two of a case called R v Terewi.1  They agree, and I agree with them, that a starting point of two years’ imprisonment is appropriate.  I now have to look at whether the starting point should be increased or reduced.

[8]      Firstly, your offending occurred whilst you were subject to a sentence of supervision.  That is an aggravating factor because you deliberately ignored the requirements of a sentence which was designed to keep you in the community and to promote in you positive change. I impose an uplift of one month.

[9]      I also have to take into account the charge in relation to the ammunition.  I accept that there are no indications that you possessed the ammunition for a criminal purpose.  I also accept that you did not possess a firearm or firearms that could use the ammunition.  Nevertheless, the law makes it an offence for someone who does not have a licence to possess ammunition for the obvious reason that it has the potential to be very dangerous.  I will not, as your counsel submits I should, ignore the fact that you possessed the ammunition.  But neither am I going to treat it as a separate offence which should result in a cumulative sentence.   Overall, and considering your case in its totality, I will impose a one month uplift.

[10]     Therefore, at this point I have reached a starting point of two years and two

months’ imprisonment.

Mitigation

[11]     I now need to see how the starting point might be reduced.  There is nothing in your personal circumstances which by themselves would justify a reduction.  In particular, your criminal record deprives you of the opportunity to claim the benefit

of good character.

1      R v Terewi [1999] 3 NZLR 62 (CA).

[12]     On the other hand, you have entered pleas of guilty to the charges and you are entitled to a substantial discount for that factor.

[13]     You were charged on 13 November 2012.  You appeared in the District Court on the same day.   You appeared again on 4 December 2012 and on 18 December

2012.   You asked for a sentence indication and entered your pleas of guilty on

22 February 2013.   You are in this Court because the District Court declined to sentence.

[14]     Under these circumstances, I will not allow you the maximum 25% discount. The Crown contends that a 20% discount is appropriate, and I agree.  I will apply this to the starting point, rounded down, and reach an end point of 20 months’ imprisonment.

Home Detention

[15]     This brings you within the range of home detention and I must now consider whether that is an appropriate sentence in your case.

[16]     I am satisfied that no less restrictive sentence or combination of sentences would be appropriate.  The point is whether the purposes and principles of the Sentencing Act would best be served by sentencing you to home detention rather than to a short term of imprisonment. On the one hand, there is the need to have you accept responsibility for the harm of your offending, to denounce your offending, to deter others from similar offending and to protect the community.   On the other hand, there is the need to assist in your rehabilitation and reintegration into the community.

[17]     A sentence of home detention, in appropriate cases, is accepted as addressing the punitive requirements of sentencing.

[18]     In your case, you have a six year old daughter.  She has been cared for by you for some time, including the time between your apprehension on these offences and today’s date.  Your partner has very recently given birth to another of your children and hers is the address in which you would serve a sentence of home detention.  The

pre-sentence report tells me that you have engaged well on your most recent community based sentence and you are assessed as suitable for further community based sentences.  You have self-referred to counselling to address your behaviour, and that is positive.  You have been assessed as showing insight into your offending and it is said that you show some remorse because you have realised that your offending (or perhaps its consequences) could impact on your daughter and other children.

[19]     You are assessed as a medium risk of reoffending and a medium risk of harm to others.  Because of your record of violence and the role that alcohol has played in your life, some concerns have been expressed by Child Youth & Family about the possible impact on the children who would be present at your partner’s address should you be confined there.   However, I note that the Police have identified no concerns with the address and Child Youth & Family have no information to suggest there is a risk to the children.  The author of the pre-sentence report is of the view that given your current attendance at a programme to address your offending, home detention is a more appropriate option than imprisonment.

[20]     In this regard I take into account what your lawyer has just told me, that you and your partner have completed a 14 weeks programme aimed at addressing relationship concerns and your previous history of behaviour.  I also note that you would not be confined within the house itself for home detention.  Instead the garage has been converted to self-contained accommodation and that would be set aside for your use.

Sentence

[21]     I am going to sentence you to home detention.  I do so because of the low level of your offending, your previous compliance with community based sentences, the support you will have in your partner’s home, and your motivation to change. However, you should regard this as a last chance.  You have, in the course of your criminal career, climbed the ladder of sentences to the brink of imprisonment.  It is up to you now.  Further offending will almost certainly see you imprisoned.  Breach of your home detention conditions will almost certainly see you imprisoned.  I seem

to remember a comment in the pre-sentence report to the effect that some or all of your brothers have been serving sentences of imprisonment, so you know what the effect of that is like.  You are getting too old to run around doing silly, low grade offending like growing a plant of cannabis and selling a few tinnies for money.  You have been given a number of community based sentences.  You are now a father.  I take to your credit the care that you have been giving your daughter.  It would probably be better for her if you stayed out of prison, Mr Nepia.  But, as I say, that is up to you.

[22]     I sentence you to 10 months’ home detention.  The following conditions are

imposed:

(a)       When you are released from Court today, you are to travel directly to

1 Sims  Street,  Ngaruawahia  and  await  the  arrival  of  a  probation officer and a security officer;

(b)You will reside at 1 Sims Street, Ngaruawahia for the duration of the sentence;

(c)      You will co-operate in the fitting and monitoring of the electronic monitoring device;

(d)You will not leave the address of 1 Sims Street, Ngaruawahia without prior written approval from a probation officer.  I note that you have secured part-time employment at a packing shed for approximately

12-16 hours per week.  I would expect your probation officer to give you written approval to continue that employment;

(e)      You are not to obtain or consume alcohol, illegal or illicit drugs, or any synthetic cannabis substitute for the duration of your sentence;

(f)       You are to attend and complete any drug and alcohol programme as you may be directed to the satisfaction of your probation officer and programme provider;

(g)You  are to attend and  complete any other programme or training intended to assist in preventing reoffending if directed by, and to the satisfaction of, your probation officer and programme provider.

[23]     I order the forfeiture of the $768.70 found by the Police in your home.   I

make an order for the destruction of the ammunition.

[24]     The standard post-release conditions will apply for a period of six months. [25]     The above sentence is imposed in relation to the cannabis charge as the lead

offence.  On the charge of unlawful possession of ammunition, you are sentenced to one months’ home detention to be served concurrently with the sentence in relation to the cannabis offence.

[26]     You may stand down.

Brewer J