R v Pakuria HC Tauranga CRI 2009-087-1465

[2010] NZHC 1184

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2009-087-001465

THE QUEEN

v

WIREMU EDWARD PAKURIA

Charges:         Possession of Class C drug cannabis for supply x1

Receiving x1

Plea:               Guilty

Appearances: H Wrigley for Crown

O Brittain for Prisoner

Sentenced:     7 July 2010

Possession   of   cannabis   for   supply   –   one   year   five   months’
imprisonment;

Receiving – one month’s imprisonment, cumulative. Total sentence – 18 months’ imprisonment.

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Tauranga

Copy to:            G Tomlinson, Gowing & Go, Tauranga

O Brittain, Rotorua

R V PAKURIA HC TAU CRI-2009-087-001465  7 July 2010

[1]      Wiremu Edward Pakuria, you are for sentence having pleaded guilty to a charge of possession of the Class C drug cannabis for supply.  The maximum penalty for that is eight years’ imprisonment.  You are here for sentence in the High Court because the District Court declined jurisdiction.  You are also for sentence on one charge of receiving.

[2]      The facts appear from the summary to which you have pleaded guilty.   In July 2009 the police executed a search warrant at your home in relation to stolen property.  The search located an angle grinder, a water blaster and sander that had been stolen during a burglary in Kawerau.   Those items are the subjects of the receiving charge.  While talking to you in the dining room the police noticed a bag of cannabis on top of the fridge.  A further search of the property revealed 23 zip lock bags containing one ounce of dry cannabis head each and 10 plastic shopping bags each containing one kilogram of dry cannabis leaf.  When you were spoken to by the police initially you refused to make any comment about the property that was found or the cannabis.

[3]      You pleaded guilty at an early stage and were for sentence in this Court on 25

November last year.  You failed to attend for sentence that day.  Counsel explains your non-appearance on the basis that the report prepared for the Court did not consider the proposed home detention address (if the Court was minded to impose home detention) was appropriate and you were anxious about the prospect of imprisonment so you decided not to come to Court.  That of course is not acceptable. If you were concerned about the position then obviously it was for you to raise that with counsel and to try to arrange an alternative home detention address.  You were only arrested recently I am advised by counsel in early June, 9 June and have been in custody since then.

[4]      An updated pre-sentence report of 1 July has been prepared.   You are 26 years old and you identify as Ngati Awa.   You are presently estranged from your partner.  While you were together for two years you were charged with assaulting

your partner.   I understand that you have largely reconciled your differences with your partner, the mother of your child, and she now also lives in Kawerau and you have access to your child.

[5]      You left school at the age of 15 without formal qualifications.   You have worked with various forestry companies since then and also on orchards.   I have received a letter of support this morning from someone that you have worked with in the kiwifruit industry and a person who has known you since school.

[6]      You  are  here,  it  appears  from  the  pre-sentence  report,  because  of  your harmful patterns of use of alcohol and cannabis.  You acknowledge that you get into fights easily when you have been drinking and that you are a heavy user of cannabis. You say you now want to do a programme to address that use.   You now do not dispute the police summary of facts.  Your explanation for the offending, particularly the cannabis offending, is that this was the first crop you had planted, and that you intended to sell the cannabis to support your family because you were on low pay. You accepted the items in your house were stolen but did not think much about it. You have now expressed remorse for your offending.

[7]      The  pre-sentence  report  also  notes  that  your  response  to  a  supervision sentence imposed in 2008 was not good.   You breached your conditions just one month post sentence and that other conditions relating to alcohol and drugs were not met.

[8]      The  probation  officer  makes  the  point  in  the  report  that  your  lack  of commitment to your job and your failure to turn up regularly was the reason your pay was low.  You accept that you regularly missed rides to work because you had slept in.  That provides no basis for growing cannabis for sale to supplement your income.

[9]      The  pre-sentence  report  notes  that  while  you  have  recently  completed sentences of community work and community detention, community detention is not recommended in this instance as it would not address the issue of alcohol and drugs and your opportunity to reoffend in relation to your use of cannabis and drugs.

[10]     The   pre-sentence   report   recommends   imprisonment,   although   in   the alternative raises the possibility of home detention.  The earlier pre-sentence report prepared for when you were to be sentenced in November last year recommended home detention.  Obviously the position has changed with your failure to appear for sentence and you have to accept the consequences of that.

[11]     The cannabis head in the bags that were packaged for sale could have sold for between $5,750 and $11,500 and in addition there was of course a further amount of

10 kilograms of dry cannabis leaf.  The Crown submit that your offending places you in Band 2 of R v Terewi,1  the leading Court of Appeal authority on sentences for cannabis offending which would lead to a start point of between two and two and a half  years  for  your  offending.    Ms  Brittain  realistically  accepts  also  that  the offending falls within band 2.

[12]     In  sentencing  you  I am  required  to  take  into  account  the  principles  and purposes of the Sentencing Act.   The relevant purposes include holding you accountable for the harm done to the community by the drug supply.  You yourself have a problem with drug supply and you must understand the effect that it can have upon you.  Such drugs are only available in the community because they are made available for sale through people like you.  Receiving is also a pernicious offence.  It supports burglary offending in the community.

[13]     The purposes are also:

a)        to  promote in  you  responsibility for  and  acknowledgement  of  the harm;

b)        to denounce the conduct you are involved in; and

c)        to deter you and also others from similar offending.

[14]     I  am  also  required  to  take  into  account  the  principles  in  the  Act,  the seriousness of the offence, reflected in the maximum sentence I have referred to, the

seriousness of your offending and the circumstances which is really the quantity that you had and the need for this Court to be consistent with other sentences imposed by other Courts.

[15]     I am also directed to impose the least restrictive outcome appropriate in the circumstances.

[16]     For sentencing you I take as a start point, having regard to the quantity of drugs that you were found with, a start point of two years two months for the cannabis offending.   I accept Ms Wrigley’s submission that the receiving offence requires a separate and cumulative uplift to reflect that offending.

[17]     Ms Brittain submitted that normally a receiving charge would be dealt with by way of a community sentence but I note you have a previous receiving charge.

[18]     I add an uplift to reflect the totality of your offending of one month for the receiving charge.

[19]     That would lead to a start point of 27 months’ imprisonment or two years three months’ imprisonment.

[20]     There are no particularly personal aggravating features.  While you do have previous offending it is some time ago and I do not propose to address any uplift for that.

[21]     In terms of personal mitigating factors I allow a discount of one-third to reflect your early guilty plea.  That was a positive and realistic assessment by you of your guilt and acknowledgement of your guilt and a practical indication of your remorse so for that I am going to give you the full amount that the Court of Appeal has recommended in R v Hessell2 of one-third.

[22]     That brings you down to an end sentence of 18 months’ imprisonment.  There are no other personal mitigating factors.

[23]     Your counsel Ms Brittain has argued strongly that the Court should consider the imposition of home detention in your case.  Your case for home detention might have been stronger in November but I am satisfied in this case it is simply not an appropriate sentence for a number of reasons, not only because you did not appear for sentence in November last year.  The first is the circumstances of your offending in relation to cannabis supply.  You had grown the cannabis yourself and you had the cannabis packaged and ready for supply at your home.  There is also your failure in the past to comply with the sentence of supervision.   While  you have recently completed community detention sentence your failure in the past to comply is a factor which counts against home detention, particularly when the failure to comply with the supervision related to, among other things, drug programmes.  Finally there is the factor of your failure to appear for sentence last year.

[24]     When I have regard to all of those factors, despite Ms Brittain’s strong and helpful submissions on your behalf I am driven to conclude that home detention is not appropriate and that imprisonment must be imposed.

[25]     Mr Pakuria would you please stand.  On the charge of possession of cannabis for sale you are sentenced to imprisonment for one year, five months.   On the receiving charge you are sentenced to imprisonment for one month, cumulative. Your total term is 18 months, one year six months’ imprisonment.

[26]     Mr Pakuria you are still a young man.  You have offended seriously and you have to now serve the sentence for that.   But you are a young man and with the support of your family you can turn your life around.  You are now at a crossroads. It will be up to you where you go to when you are released from prison.  If you avoid drug offending there is no reason for you to offend again because that seems to have driven your offending.  If you address your drug problem there is no reason for you to be back before this Court or any other Court again.  To assist that objective, apart from the standard conditions of sentence I address the following additional conditions:

a)        you are to undertake alcohol and other drug assessment, and complete any recommended counselling or treatment for abuse of alcohol and

drugs to the satisfaction of your probation officer and programme provider;

b)you  are  to  undertake  and  complete  a  Tikanga  Maori  programme, subject to availability to the satisfaction of your probation officer and programme provider;

c)      you are to attend and complete such counselling and programme treatments to address offending behaviour as may be directed by the probation officer;  and

d)you are also to undertake and complete post detention any remaining rehabilitative programmes, counselling, treatment and maintenance follow up programmes as directed by your probation officer.

[27]     The conditions are to expire no later than six months after the sentence expiry date.

[28]     The conditions are directed at ensuring when you are released from prison you will not offend again. That’s all, stand down.

Venning J