R v Porter-Riley HC Auckland CRI-2010-092-14703

[2011] NZHC 421

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-14703

THE QUEEN

v

TUHI MOANA PORTER-RILEY

Hearing:         12 April 2011

Appearances: Z Johnston for the Crown

E Te Whata for the Prisoner

Judgment:      12 April 2011

SENTENCING NOTES OF ELLIS J

Solicitors:           Meredith Connell, PO Box 2213, Auckland 1140

Counsel:            E Te Whata, PO Box 76629, Manukau 2241

R V PORTER-RILEY HC AK CRI-2010-092-14703 12 April 2011

[1]      Ms Porter-Riley, you appear for sentence today having pleaded guilty on

16 September 2010 to one charge of Possession of Cannabis for Supply and one charge relating to the possession of a P pipe.  The possession of cannabis for supply charge carries a maximum penalty of eight years imprisonment. The pipe charge has a maximum penalty of one years imprisonment and/or a $500 fine.

The offending

[2]      The charges relate to events on the evening of the 28 May 2010 when you and your husband, Owen Riley, were parked in Manukau in a van that is registered to your husband.

[3]      For reasons that are not important now the Police arrived and spoke to you both in the van.  They noticed a strong smell of cannabis plant.  They searched the van and found a lot of loose cannabis as well as some snap-lock plastic deal bags with  cannabis  in  them.    The  total  amount  of  cannabis  found  in  the  van  was

1.2 kilograms.  Also in the van was a black canvas bag containing $242,180 cash in

$10, $20, $50 and $100 bills.

[4]      You also had a small glass pipe used for smoking methamphetamine in your handbag.  Neither you nor your husband offered any explanation to the Police when they spoke to you.

Personal circumstances and Pre-sentence report

[5]      You are 34 years old.  You are Maori.  You live with your husband and your children in Kaitaia.  You and your husband are full time parents and are in receipt of a Work and Income benefit.  I understand a few weeks ago you gave birth to your eleventh child.  The oldest of your children is 18.  Five of your children are under

10 years of age. You have been having children for over half your life and it is really for that reason you have no formal qualifications or real work history.

[6]      I  understand  that  before  your  new  baby  was  born  your  youngest  child drowned, in January this year.  Your 18 year old daughter was, I think, helping to

look after him at the time and I mention that because I have particular concerns about her and the further burdens that will almost certainly be placed on her by any sentence that I impose on you. And I also mention it because it is a dreadful and sad thing for you as well.  You have said that neither you nor your daughter received any counselling   or   help   about   what   happened,   although   it   sounds   from   what Ms Te Whata said before, that may yet happen.

[7]      Late last year your husband was also attacked by four men at your home. The extent of his injuries meant that he was unable to walk for a while.  Police have said that your family may have been targeted, for reasons which I do not need to mention here.

[8]      As to your offending, you have admitted that the cannabis was yours, but you have said that the cash belonged to your husband.  You said that it was money that had been saved and that your husband was going to use it to renovate your home.  I am afraid I do not believe that, Ms Porter-Riley.   I do not see how your husband could possibly have saved that amount of money given that you are both on the benefit, do not appear to have any other source of income and have 10 children.  Nor can I see why he would have been driving around with his savings in the van.

[9]       You  also  denied  ownership  of  the  methamphetamine  pipe  but  I do  not believe that, either.

[10]     At the time of the pre-sentence report you were not a regular user of either alcohol or drugs due to your pregnancy.  As I have said, pregnancy has been your fairly constant state for the last 18 years. And in fact you were using cannabis at the time of the offending and this has been identified as a contributor to your offending. But the pre-sentence report says you have presented yourself to the Alcohol and Drug Services at Kaitaia Hospital for an assessment with a counsellor.

[11]     Because  of  your  age  and  the  absence  of  any  similar  previous  offending history, you have been assessed as having a low-risk of re-offending.   The report writer also recorded your cooperation throughout the interview and that you are remorseful  and  are willing to  make  amends  by completing  a  community based

sentence.  But that is problematic because of your children and in particular because of your very young baby.

[12]     The  report  writer  asks  the  Court  to  consider  that  you  have  voluntarily engaged in drug counselling and, as an alternative to imprisonment, says that you could complete a sentence of supervision whilst attending interventions.

[13]     The original presentence report said that the house where your family lives is not suitable for a home detention address not only because of the recent attack on your husband but also for other reasons including that your address is apparently known as a “tinnie house”.   As well, your husband is currently subject to a community work sentence for receiving and has previous convictions.

[14]     Since the time of that report, however, your mother in law’s address has been assessed and is regarded as suitable for a home or community detention sentence. As I understand it your children would, if such a sentence was imposed, live with your husband but they would be able to visit you and your new baby would be able to live with you at your mother in laws.   Your mother in law understands what will be required and is willing to have you there.

Purposes and Principles of Sentencing

[15]     Ms Porter-Riley there are a number of things I am required to consider and to say under the law when sentencing you.   In particular, I am required to say that I must hold you accountable for the harm you have done to the community by dealing in drugs. The sentence I give you is supposed to make you take responsibility for the harm you have done, and to make you and other people think twice before doing similar things.  But the sentence is also supposed to encourage your rehabilitation, if possible.

[16]     The sentence I impose is supposed to reflect the seriousness of what you did and be consistent with sentences in other similar cases.  But I also need to adopt the least restrictive outcome that I can in the circumstances and to take account of

anything that would mean that a normal sentence would be particularly severe for you, and to take account of your personal background and your family.

Aggravating and Mitigating Factors

[17]     The amount of cannabis in your possession and the large amount of cash found are relevant to your sentence.  I accept the Crown submission, and indeed I think Ms Te Whata also accepted it, that both those things suggest that you were dealing on a commercial basis.  Plainly, the cannabis was not just for your own or your husband’s personal use.  Some of it was packaged into deal bags.  The sentence must also recognise the extent of harm that is done to the community resulting from dealing in drugs.

[18]     Ms Johnston submitted that an appropriate sentencing starting point for the lead possession for supply offence was three years imprisonment.[1]      Counsel were more or less agreed as to that and as to the appropriate discount for your guilty plea and the remorse you have shown.

[1] There was agreement that based on the large quantity of cash and the packaging of some of the cannabis material into deal bags, your offending fell within band 2 of Terewi.

[19]     On the issue of home detention, Ms Johnston did not initially think that such a sentence would be available if I adopted a three year starting point.  Nevertheless, she acknowledged that such a sentence might be appropriate in cases of your type if there are realistic prospects of rehabilitation and where there have been efforts made towards that goal.  In the end the stance she adopted in relation to home detention was essentially a neutral one.

[20]     Ms Te Whata, although she did not really argue that a starting point of much less than three years could be justified, sought leniency from the Court to reflect your difficult personal circumstances.   But other judges have said that such circumstances have less of a part to play in sentencing for drug offending because of

the importance of deterrence.[2]

[2] The Court of Appeal in Terewi noted that for offending falling within bands 2 and 3, the personal circumstances of the offender are “usually not to be given much significance in the sentencing process” as the sentence should act as a deterrent to others (at [66]).

[21]     I have considered the cases that Ms Johnston has said are similar to yours[3] and, taking those into account together with all the things I have already mentioned, I am of the view that the possession for supply offending warrants a starting point of two years, nine months imprisonment.  In my view the cash found in your possession is a significant amount and makes your case more serious than some of the others involving a similar amount of cannabis.  I propose to increase that starting point by one further month to take account of the possession of the P pipe, bringing the starting point to two years, 10 months imprisonment.

[3] R v Owen HC Whangarei CRI-2009-027-2809, 17 March 2010; R v Duncan [2009] NZCA 18; R v Evans CA444/05, 7 June 2006.

[22]     I do not propose to make any further adjustment upwards for your three previous convictions.[4]    They are of a relatively minor nature and are unrelated to your present offending. The last of them was in 1997.

[4] Common assault, driving a motor vehicle dangerously and shoplifting.

[23]     In relation to positive (personal) factors, I have already said that ordinarily personal circumstances are not given much weight in sentences for drug offending.[5]

But that is not always the case.  There is a recent decision[6], for example, involving

cultivation of cannabis and possession of cannabis for supply on a reasonably significant scale where account was still taken by the sentencing Judge of the rehabilitative attempts that had been made by the offender and the fact that he had a special needs granddaughter who required 24 hour care.  The Judge there adopted a three and  a half  year starting point  and  allowed  a reduction  of six  months  for personal factors and a further reduction of one third for the early guilty plea.

[5] R v Terewi [1999] 3 NZLR 62 (CA) at [13] and [15]. See also R v Andrews [2000] 2 NZLR 205 at [7] and R v Howard CA315/99, 2 December 1999 at [11].

[6] R v Delamore HC Auckland CRI-2010-004-1934, 5 October 2010.

[24]     In your case, Ms Porter-Riley, in light of your family circumstances, the fact that you have taken steps to voluntarily enrol yourself in counselling and have been assessed as having a low-risk of re-offending, I will allow you a reduction of six months for your personal circumstances.  On top of that, there is a discount for your

guilty plea which was at an early, if not the earliest, stage.  That said, the evidence

against you was strong.   In the end I consider that a discount of 25 per cent is an appropriate reflection of your plea and of the remorse you have shown.[7]

[7] R v Hessell [2010] NZSC 135, 24 CRNZ 966.

[25]     On  this  basis,  your  final  sentence  would  be  one  year,  nine  months imprisonment.  This means that home detention is a possibility.  Home detention is still a significant sentence and remains a real option even for cannabis offending involving commerciality,[8]  provided the particular facts and personal circumstances indicate such a sentence is appropriate.  In one case in 2009[9]  the sentencing judge referred to there having been 12 cases that are similar to yours across New Zealand

in the previous 18 months which had resulted in sentences of home detention.

[8] White v R [2010] NZCA 565.

[9] R v Loach HC Dunedin CRI-2009-005-281, 18 November 2009.

[26]     As I have said, the Crown ultimately adopted a neutral stance in this respect. So as I have said, your situation is that you have 10 children, five of whom are still very young, one of them being new born.  I have already spoken of my particular concern about the further burden that will be placed on your 18 year old daughter if you are sent to prison.  There can be little doubt that all your children need you to be around.

[27]     I am satisfied in this case that the imposition of a non-custodial sentence is desirable from your perspective, from your children’s perspective, and also from the perspective of the community generally.  You need to get your life in order and I hope that living with your mother in law and perhaps away from your children for some of the time, may help you to do this.

[28]     Accordingly Ms Porter-Riley I sentence you to nine months home detention which  will  commence tomorrow,  13 April  2011  at  4  pm,  in  order to  give  you sufficient time to travel back to Kaitaia.  This sentence is subject to the following conditions:

(a)       You are to return to Kaitaia immediately and once there you are to travel directly to 48B Puckey Ave, Kaitaia and await the arrival of a

Probation officer and/or a security guard.

(b)You are not to possess consume or purchase alcohol or illicit drugs at the home detention address or at any other place for the duration of the sentence.

(c)       You are to attend any counselling that a Probation Officer may direct.

[29]     Ms Porter-Riley you may stand down.

Rebecca Ellis J