R v Ngatai

[2014] NZHC 186

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-3411 [2014] NZHC 186

THE QUEEN

v

KHADEINE NGATAI

Hearing:                   18 February 2014

Appearances:           M Hammer for Crown

S Youn for Prisoner

Sentence:                 18 February 2014

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Auckland
Public Defence Service, Auckland

Counsel:

S Youn, Auckland

R v NGATAI [2014] NZHC 186 [18 February 2014]

[1]      Mr Ngatai, you pleaded guilty in the District Court to a charge of being in possession of cannabis for supply and being in unlawful possession of a shotgun and

22 rounds of ammunition.  The cannabis charge carries a maximum penalty of seven years imprisonment, and the remaining charges each carry a maximum sentence of four years imprisonment.

[2]      The District Court committed you for sentence to this Court because you pleaded guilty prior to committal.  As a result, the District Court was not able to sentence you to more than one year’s imprisonment.   It considered that that was insufficient to recognise the culpability of your offending.  It therefore remanded you to this Court for sentence.

The facts

[3]      The facts  giving rise to  your offending  can  be  stated  briefly.   They are contained in a summary of facts with which you take no issue.   This records that between 4 December 2012 and 27 March 2013, you distributed and sold an unknown quantity of cannabis in the Central Auckland area.  Your role in the operation was to procure cannabis and ready it for distribution by street dealers.   You supplied the cannabis in question to two persons who were selling at that level.

[4]      On the morning of 27 March 2013, the police executed a search warrant at your home.  Hidden there, they found 31 three gram bags of cannabis, 49 one gram tinnies and a large plastic bag containing 32 grams of cannabis.  In total, the police seized 174 grams of cannabis that had a street value of $3,480.   In addition, the police found a 12 gauge shotgun and 22 rounds of shotgun ammunition.  You did not have any lawful authority for being in possession of those items.

[5]      When you were questioned about the cannabis, you said that your role was to distribute cannabis to street dealers who would on-sell it to members of the public. You  told  the  police  that  you  had  the  shotgun  and  ammunition  as  a  means  of protecting yourself and your family.

Sentencing Act 2002

[6]      As I am sure you now know, in any case involving commercial drug dealing the sentence that the Court will generally impose is one of imprisonment.   You yourself have been sent to prison on no fewer than four previous occasions for drug dealing offences.  The real issue in your case is to select a sentence that is broadly commensurate with those imposed in other like cases.  I say, “broadly”, because no two cases are ever exactly the same.

The sentence indication in the District Court

[7]      Before I begin the calculation of your sentence, I think it is important to set out the background to the circumstances in which this case came before this Court.

It  followed  a  sentence  indication  before  Judge  Paul  in  the  District  Court  on

15 August  2013.1

The  Judge  took  a  starting  point  of  two  years  six  months

imprisonment on the cannabis charge.  He then added an uplift of around six months to reflect your previous convictions.  He then added a further uplift of six months to reflect the firearms and ammunition charges.   Having regard to totality principles, the Judge then reduced the resulting sentence of three years six months to a sentence of three years imprisonment.   He then applied a discount of 25 per cent, or nine

months, to reach an end sentence of three months imprisonment.

[8]      You did not formally accept the sentence indication.  Nevertheless, your plea of guilty just seven days after the sentence indication reflects, in my view, a broad acceptance of the Judge’s remarks and conclusions during the sentence indication hearing.  I consider that you probably came to this Court in the expectation that you would receive a sentence of around the same length as that indicated by the Judge in

the District Court.

[9]      As both counsel point out, a sentence indication is not binding on a judicial

officer other than the officer who gave it.2

Nevertheless, judges always err on the

side of caution when departing from earlier sentence indications given by other

judges.  At the very least, that is likely to provide the defendant with an opportunity to vacate his or her plea.3

[10]     I consider that a slightly different approach is warranted to that taken by

Judge Paul.  I will now explain why.

Starting point: cannabis charge

[11]     The starting point for the sentence to be imposed in relation to the cannabis charge falls to be determined, as both counsel recognise, in accordance with the

principles contained in R v Terewi.4

In that case the Court of Appeal held that in

cases of commercial drug dealing or cultivation, a starting point of between two and four years imprisonment should normally be imposed.

[12]     You cannot be said to be at the bottom of the cannabis dealing tree, because you were operating as a wholesaler supplying street level dealers.  For that reason, I do not consider that your offending could realistically be met with a starting point of two years imprisonment, as your counsel suggests.  Nevertheless, I take on board the fact that the Crown appears to accept today that Judge Paul’s assessment of a two year six month starting point on the cannabis charge as being at the very upper end of the scale having regard to other similar cases.  Having regard to that factor, I am

prepared to adopt a starting point of two years three months imprisonment.

Aggravating factors

[13]     There needs to be an uplift to reflect previous convictions.  You have now received four sentences of imprisonment for drug dealing offences.   These were imposed in 2003, 2004, 2007 and 2011.  You are now regarded by the courts as a recidivist offender and, as such, the sentence to be imposed on you each time you appear from now on will be increased to reflect that fact.  This is not to punish you again for earlier offending.  Rather, it reflects the fact that you have obviously taken the view that the gains that you make from drug dealing outweigh the consequences if you are caught.  In other words, you have failed to learn from previous sentences

that drug dealing does not pay.  This makes your present offending that much more serious.

[14]     Both counsel accept that an uplift of approximately six months is appropriate to reflect your previous convictions, and that is the level of uplift I propose to apply.

The firearm charges

[15]     The firearms offending also requires a discrete uplift. As Judge Paul noted in his sentence indication, the mixture of drugs and firearms is an extremely dangerous one.  It is a short step from possessing a lethal firearm to using one, often with tragic consequences.

[16]     Ordinarily, firearms offending of this nature would attract a starting point of around  12  to  18  months  imprisonment.    Having  regard  to  totality  principles, however, I propose to adopt an uplift of six months to reflect this factor.

[17]     This   leaves   me  with   an   end   sentence  of   three   years   three  months imprisonment before taking into account mitigating factors.

Mitigating factors

[18]     Your counsel urges on me two mitigating factors.  The first of these is your remorse, and the steps you have taken to remain drug free over the last few months. One could easily be sceptical about that, Mr Ngatai, given your past record.  Most Judges, I am sure, would discount this submission and refuse to apply any discount to reflect personal factors of that type given your past history.  I propose, however, to give you the benefit of the doubt and to apply a reduction of three months to reflect this factor.

[19]     This brings me to an end sentence of three years imprisonment before taking into account your guilty pleas.   Both counsel accept that these were entered at an early opportunity, and that the full discount of 25 per cent should be available.  For that reason, I reduce the starting point of three years imprisonment by nine months to reach an end sentence of two years three months imprisonment on the lead charge of

being in possession of cannabis for the purposes of supply.  I have therefore reached the same sentence as Judge Paul, albeit by a different reasoning route.

Sentence

[20]     On  the  charge  of  being  in  possession  of  cannabis  for  supply,  you  are sentenced to two years three months imprisonment.   On each of the firearms and ammunition  charges,  you  are  sentenced  to  six  months  imprisonment.    Those sentences are to be served concurrently, meaning that you will serve an effective sentence of two years three months imprisonment.

Order for destruction

[21]     I make an order for destruction of the shotgun and ammunition.

Lang J