R v Paul HC Wellington CRI 2010-004-17

[2011] NZHC 155

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-004-17

THE QUEEN

v

HEMI HAMUERA PAUL

Hearing:         25 February 2011

Counsel:         K S Grau for Crown

P Knowsley for Accused

Judgment:      25 February 2011

SENTENCE OF RONALD YOUNG J

[1]      Mr Paul you pleaded guilty in the District Court to possession of one charge of a Class C controlled drug, BK-MBDB or Butylone which has relatively recently been categorised as a Class C controlled drug.

[2]      The  offending  was  discovered  in  this  way.     In  the  early  hours  of

1 January 2010 a search was conducted of your vehicle.  In a shoe box in the boot the police found 346 tablets of the drug.  The pills were divided into snap lock bags containing 50 pills each.  There were two further tablets found in your trousers.  You claimed  these  were  for  personal  use  but  of  course  your  plea,  facing  up  to  the

inevitable, accepts otherwise.

R V HEMI HAMUERA PAUL HC WN CRI 2010-004-17 25 February 2011

[3]      The police say a single pill sells for between $45 and $85 and so the potential value of the 346 pills based on that would be somewhere between $15,000 and almost $30,000.    I will, however, come back to the value of those pills during the remarks I want to make.

[4]      To turn to your personal circumstances.  You claim in the report you thought you were selling no more than party pills and you said that a friend was selling them at a cheap price and you brought some to on sell to make money.  You have some

18 convictions dating back to 2003 but I acknowledge this is your first drug related offending. You have, however, been sentenced to imprisonment.

[5]      You were, I note, convicted of offences which occurred while you were on bail for this charge and you are due to be sentenced in District Court after sentencing for this charge.

[6]      The  pre-sentence  report  notes  that  you  lack  acknowledgement  of  your offending and lack motivation to address the underlying issues which cause your offending.    In  the  circumstances  the  probation  officer  says  that  rehabilitative sentences are unlikely to be of assistance.   I accept that you regret what you have done and to some degree you have tried your best during the time of your remand to make up for that but I note, as I have said, you were convicted of offences while you were on bail for these charges and of course you also failed to answer your bail and a warrant had been issued for your arrest over a significant period of time.

[7]      The Crown submits that an appropriate starting point would be two and a half to three years’ imprisonment.  They say that while the value of the pills has some importance what is significant is that this was a clear commercial enterprise.  They say that a 15% to 20% discount for your guilty plea could be given.

[8]     I have listened carefully to your submissions from your counsel’s oral submissions and I have read his written submissions.  He says that a sentence of less than two years’ imprisonment overall is appropriate and that I could favourably consider home detention or even a lesser sentence.  He stresses that you have tried genuinely with your employment during the period of your remand that you are

regretful for the offending and should be given a chance.  He says the value of the drugs was no more than $45 per pill.  He accepts the guideline judgments relating to Class C  controlled  drugs  such  as  cannabis  are  appropriate  as  a  guide  for  your offending.

[9]      I am, for this purpose, prepared to accept that the value of the drugs was about $15,000.  That is a generous assessment to you.  In may well be that you were arrested before you could sell the drugs but it is clear your intention was to sell the drugs for commercial gain.  In my view that brings you broadly within the starting sentence of two to four years’ imprisonment.  As I have said there is no doubt this was a commercial enterprise, the packaging of the drugs indicates that and the value of the drugs was not inconsiderable at $15,000.   This was obviously a mid range small commercial operation.   I think that a starting point above two years’ imprisonment is required and that the appropriate starting point is two and a half years’ imprisonment.

[10]     As to deduction for your guilty plea this came ten months after your arrest for this drug offending.  As I have noted warrants for your arrest had to be issued after you failed to attend Court.  The prosecution case was strong; you were found with the drugs and in circumstances which clearly indicated a commercial element.  In my view no more than four months’ imprisonment or just less than 15% should be deducted for your late guilty plea.

[11]     That  reduces  the  sentence  to  two  years  and  two  months’ imprisonment. While home detention could be considered in those circumstances I am not prepared to impose a sentence of home detention. There are several reasons.

[12]     Firstly, the offending is right at the top end of offending which brings you at or near the category for home detention.  This was not minor drug offending.  You have a bad record of failing to comply with community based sentences in the past. You failed to answer your bail and a warrant had to be issued.  You offended while on bail for these charges.  All of that indicates a high degree of unreliability and overall the circumstances are such your home detention would not be right, either for the offending or your circumstances.

[13]     You are therefore sentenced to two years and two months’ imprisonment on

this charge.

Ronald Young J

Solicitors:

J A Ongley, Luke Cunningham & Clere, PO Box 10 357, Wellington, email:  [email protected]

P Knowsley, Barrister, PO Box 5289, Wellington