R v Nga
[2012] NZHC 236
•17 February 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-092-008468
CRI-2011-092-013917 [2012] NZHC 236
THE QUEEN
v
SHIRLEEN NGA
Hearing: 17 February 2012
Counsel: S Waalkens for the Crown
E Ward for the prisoner
Judgment: 17 February 2012
SENTENCING REMARKS OF ASHER J
Solicitors/Counsel:
Crown Solicitor, DX CP24063, Auckland 1140. Email: [email protected]
E Ward, Liberty Law, PO Box 76500, Manukau City, Auckland 2241:
R V NGA HC AK CRI-2011-092-008468 [17 February 2012]
Introduction
[1] Shirleen Nga you appear before me today for sentence having pleaded guilty to one charge of possession of cannabis for supply. You are also facing drink driving charges in the District Court. I do not have jurisdiction to deal with those and that is unfortunate as I am unable to fix a sentence which takes into account the totality of all your offending up until now. It will be the task of the District Court Judge who sentences you on those drink driving charges to assess what penalty is appropriate given the sentence I am going to impose today on the possession of cannabis charge.
[2] The maximum sentence you face on the possession of cannabis for supply charge is eight years’ imprisonment.
Background
[3] You were stopped while driving your car on 26 May 2011. The headlights were not on. Cannabis was smelt in the vehicle and the Police proceeded to search it. Indeed, you told the Police that you had just picked up a load of cannabis and it was in a shoebox in the rear of the vehicle. A plastic container was located in the shoebox containing nine tinnies and 20 pre-cut squares of tinfoil consistent with the size of the made-up tinnies. Also in the shoebox was a part-roll of tinfoil, a pair of scissors and residue of cannabis plant material. Nine $20 notes were found in your wallet. The total weight of cannabis located was 20.32 grams.
[4] In explanation you said that you wanted to “sell the weed in order to make enough money to buy some more, as when I don’t have any it makes me anxious”.
Approach to sentencing
[5] The Court of Appeal decision of R v Terewi[1] sets out the applicable bands for sentencing in a case such as this. Both counsel agree, in my view correctly, that your
offending falls into the bottom of band two of Terewi involving small scale supply
for a commercial purpose. A starting point of two to four years’ imprisonment is generally appropriate for that sort of case.
[1] R v Terewi [1999] 3 NZLR 62 (CA).
[6] I have been helpfully referred to quite a number of cases by both counsel, but in this case I do not think I need to refer to those cases as your position in band two of Terewi seems to me to be clear. You were involved in selling small quantities of cannabis for money or exchange. You were, in my view, right at the bottom of the retail supply chain and selling comparatively small quantities for modest gain. That modest gain was mainly to help you to buy more cannabis to support what seems to be a rather general addiction you have to alcohol and drugs, or certainly had at that time.
[7] So I have decided that the appropriate starting point for your offending is two
years’ imprisonment.
Aggravating factors personal of the offender
[8] Now you were involved in more serious cannabis offending in 2007 and I have to now turn to matters personal to you to assess what uplifts or reductions in that two year sentence are appropriate.
[9] You have got quite a long record which indicates that you have struggled with alcohol all your life. You have been involved largely, apart from this 2007 offending, in relatively minor offending and you do not seem to me to be a criminal in the ordinary sense of the word. You are not a person who sets out to lead a life against the law, but you have let your addictions get out of hand and your life has been really something of a mess as a consequence.
[10] I have got to uplift the starting point of two years for that serious 2007 cannabis offending where the starting point reached by the Judge was three and a half years, although there were quite a few deductions on that. That offending involved two separate incidents of selling cannabis for profit.
[11] So you have re-offended within two years of coming out of prison on that offending. You did not learn your lesson that first time and it is an aggravating factor. However, given that you have only got one set of convictions for prior cannabis offending I will limit that uplift to four months. So the starting point goes up to two years and four months’ imprisonment.
Mitigating factors personal to the offender
[12] I have the impression from the helpful pre-sentence report that the probation officer regarded you as honest and sincere in your expressions of regret. You have two children that are not in your custody, but obviously you hold them very dear and you are aware of the effect on them your offending must have. You express remorse and regret at the sad lifestyle you have ended up living. You were attending a CADS course it seems following your arrest on this charge but then got caught on further occasions of driving while under the influence of alcohol.
[13] I have also read the letter that you provided to the Court and it has the unmistakable mark of sincerity. So while this Court can be cynical about expressions of remorse, I have no doubt that in your case the expressions are entirely sincere. So in your case I am going to give you a discount for remorse, because I do regard your position in that regard as exceptional. That discount will be seven per cent.
[14] I then need to give you a discount for your guilty plea in accordance with the guidelines of the Supreme Court judgment of R v Hessell.[2] The maximum I can give you is 25 per cent, but following that guideline judgment I think that would be too much. The Police case against you is very strong. So the discount will be 20 per cent.
[2] R v Hessell [2011] 1 NZLR 607.
[15] I making that uplift of four months takes the starting point to two years and
four months’ imprisonment and then making the deductions of seven per cent and
then 20 per cent, the end sentence is 20 months’ imprisonment. Home detention is not in your case an option. Your lifestyle has been such that you have really burnt your bridges in terms of having a place where you could go and serve home detention.
[16] Ms Nga, I sentence you on the count of possession of cannabis for supply to a term of imprisonment of 20 months.
[17] For the reasons I have set out, that is the most lenient sentence I can give you. I have wanted to be lenient because you clearly have very good aspects to your character. You are a loving mother. You want to improve. You are aware of your faults. And you are aware, as your letter shows, how hopeless your present lifestyle is. If you carry on the way you were before you were arrested you will lose all respect from your children. You will set them a bad example and ultimately your health will fail and you will spend much of your life in prison. You have got to turn your life around. You have got to build on your sincere regret and your awareness of how hopeless things have been.
[18] I am going to require you to do a course when you finish your prison sentence. You must do it and you must do your best to cure yourself of your addictions, not just to cannabis but to alcohol. When you are in prison try and use that time to the best effect so that when you come out you are strong and able to resist temptation.
[19] So I will add this condition to the sentence which I set out: you are to attend and complete a drug and alcohol programme as directed by a probation officer to the satisfaction of the programme provider or counsellor in charge of that programme and the supervising probation officer.
[20] I direct that the $180 cash found in Ms Nga’s car is forfeited to the Crown.
[21] I direct that the file relating to the excess blood alcohol charges be returned to the District Court. The District Court should set down a date for the call of those charges as soon as possible and inform the Crown and Ms Ward of that date.
……………………………..
Asher J
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