R v Rapana (Senior) HC Rotorua CRI 2010-063-2001

[2010] NZHC 2061

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-063-2001

THE QUEEN

v

JOHN RAPANA (SENIOR)

Hearing:         22 October 20101

Counsel:         S Simmers for the Crown

M Simpkins for the prisoner

Judgment:      22 October 2010

SENTENCING NOTES OF WYLIE J

Solicitors:       Crown Solicitor, P O Box 740, Rotorua 3040

Lance and Lawson, P O Box 2279, Rotorua 3040

R V RAPANA (SENIOR) HC ROT CRI-2010-063-2001  22 October 2010

[1]      Mr Rapana, you appear for sentence today having pleaded guilty to various charges in the Rotorua District Court on 24 April 2010.

[2]      There are seven charges that you, together with others, sold the Class C controlled drug cannabis to persons over the age of 18.  This is an offence pursuant to s 6(1)(e) and 2(c) of the Misuse of Drugs Act.  The maximum penalty for each charge is one of eight years imprisonment.   There are a further six charges that, together with two others, you had in your possession the Class C controlled drug cannabis for the purpose of sale.   This is an offence pursuant to s 6(1)(f) of the Misuse of Drugs Act, and again, the maximum penalty on each charge is one of eight years imprisonment.

[3]      These charges were laid indictably.

[4]      There is also a summary charge of possession of cannabis for the purpose of sale, to which you have also pleaded guilty.   That charge was laid pursuant to s 6(1)(f) and (3) of the Misuse of Drugs Act.

[5]      You  came  before  Judge  Weir  in  the  District  Court  for  sentencing  on

16 September 2010.   The Judge declined jurisdiction, and committed you to this

Court for sentence.

[6]      In accordance with s 3(c) of the Crimes Act 1961, you are deemed to have been convicted on indictment in relation to all charges.

Factual background

[7]      I now turn to the factual background.  In February 2010, the police mounted an operation code named “Hornet”.   It involved a number of undercover police officers visiting various addresses in the Rotorua area in an attempt to purchase controlled  drugs.    The  addresses  targeted  had  been  identified  from  information

received from various sources within the community.  Some of the addresses were referred to as “tinnie houses”.

[8]      On seven separate occasions between 23 February 2010 and 2 March 2010, police officers visited your address in Meadowbank Crescent, Rotorua.   On each occasion, after a brief exchange with you or one of your co-offenders, the officers purchased cannabis tinnies for $20 each.  On some occasions, you or one of your co- offenders were observed to be in possession of more than one cannabis tinnie.  On another occasion the officer asked you what you did for a living, and in response you lifted up a bag of cannabis, and said, “this”.

[9]      On 18 March 2010, the operation was terminated and a search warrant was executed  at  your  address.    During  the  search  the    police  found  a  sock  with  a container inside it, a roll of tin foil, two burnt knives, and a cardboard pipe.

[10]     When spoken to by the police, you admitted that the house was a tinnie house, and that you and your co-offenders sold cannabis from the address.  You also stated that you could not remember the officers coming to the address, and that you drank on a daily basis.

[11]     It was these events which led to the indictable charges.

[12]     The summary charge arises from a search of your house on 22 January 2010. Prior to the police arriving at the address, you gave an associate $800 – comprised of

$10 and $20 notes – to hold.  A total of five cannabis foils, with a weight of one gram each, was located behind a cabinet in the lounge where you were sitting.  The cannabis had a total street value of $100.   When spoken to by the police on that occasion, you denied selling cannabis at the address, and stated that the money and the cannabis tinnies were not yours.

Pre-sentence report

[13]     You are 44 years of age.  You are not in a relationship, but you have seven children from an ex-partner.  You have no formal qualifications, and you were last

gainfully employed some eleven years ago.  You are not in receipt of a benefit, and you have claimed that, instead, you depend on family and friends for your livelihood.

[14]     Departmental records record that you have been diagnosed with tuberculosis, but it appears that you are not taking any medication for that condition.  You have also been assessed as having a harmful pattern of alcohol abuse.  You have reported that  you  usually  drink  a  box  or  more  on  a  daily  basis.    You  are  recorded  as previously having had an association with the Mongrel Mob, which you have since severed.

[15]     Over the past 28 years you have accrued some 74 convictions.  You also had a number of appearances in the Youth Court in your younger days.

[16]     The probation officer offered to discuss the summary of facts with you.  You denied that you were living at the Meadowbank address, claiming that you only went to the address to drink.  You stated that you were living with your daughter at the time.  You claimed that because you drank on a daily basis, you could not remember anything else.

[17]     The probation officer considered that you showed very little insight into your offending.  She noted that, nevertheless, you have expressed a willingness to make amends, and that you have stated that you will attend any counselling that is ordered by the Court.   The probation officer expressed concerns about the genuineness of your desire to make any changes to your lifestyle.  Departmental records show that a sentence of supervision imposed in 2000 had to be reviewed because of your non- compliance.   When you were sentenced to community work in 2002, you were unable to complete the hours within the required timeframe.   Your non-compliant attitude towards prior community-based sentences have resulted in a breach of supervision, four breaches of community work, and three breaches of periodic detention.

[18]     You have a number of prior drug-related convictions, covering the period

1989 through to 2009.  Most are for the possession or sale of cannabis.  Initially you were sentenced to non-residential periodic detention, but as from 1997, you have

generally been sentenced to various terms of imprisonment.   Your prior sentences appear to have had little or no effect on your behaviour.

[19]     The probation officer recommended a sentence of imprisonment.   She also suggested  that  if  I conclude that  a  short  custodial  sentence  is  warranted,  home detention would not be an appropriate sentence.  She noted that you have frequently failed to comply with Court orders.

Submissions

[20]     Turning  to  the  submissions  I  have  received,  I  have  received  helpful submissions from Mr Simmers on behalf of the Crown, and from Mr Simpkins, on your behalf.

[21]     Mr Simmers suggests that the offences are connected, and that concurrent sentences are appropriate.  He acknowledges that the charges of selling cannabis are the lead offences.  He submitted that I should adopt a starting point of three to three and a half years imprisonment.   He submitted that there were various aggravating features to your offending, including the extent of the loss, damage or harm resulting from the offending, your willingness to sell, premeditation, and the commerciality of your operation.   He did not identify any mitigating factors personal to you, but acknowledged that you are entitled to a discount for your early guilty plea.

[22]     Mr Simpkins contended that I should adopt a starting point of two years imprisonment.   He also submitted that you are entitled to a credit for your guilty plea, and that any end sentence should be less than two years.

Purposes and principles of sentencing

[23]     Turning  to  the  purposes  and  principles  of  sentencing,  I  have  taken  into account a number of the purposes of sentencing set out in s 7 of the Sentencing Act

2002.  In particular, I must hold you accountable for the harm that you have done to the community and I must hold you responsible for the harm that you have caused.  I

need to denounce the conduct in which you were involved, and seek to deter you and others from committing the same or similar offences.  Moreover, I have to protect the community from you, while assisting in your rehabilitation and reintegration insofar as I am able to do so.

[24]     The relevant principles of sentencing are set out in s 8, I am required to take into account the gravity of your offending and your culpability, the seriousness of the types of offence to which you have pleaded guilty, and ensure that such sentences that  I pass  are  generally consistent  with  appropriate  sentencing levels  for  other similar offenders committing similar offences.  I am mindful that I must impose the least restrictive outcome that is appropriate in the circumstances.

Analysis

[25]     I now turn to analyse the position.  There is no dispute that the sentences for your offending fall to be determined in accordance with a case called R v Terewi,[1] in which the Court of Appeal held that a starting point of between two and four years imprisonment will normally be appropriate in cases involving commercial dealing at a moderate level.

[1] R v Terewi [1999] 3 NZLR 62 (CA).

[26]     Both  counsel  referred  me  to  other  cases,  all  of  which  had  some  broad similarities to your case.

[27]     The Crown submitted that your case is analogous to a case called R v Abbott.[2]

[2] R v Abbott HC Rotorua CRI-2009-077-1890, 13 May 2010.

In that case, the prisoner pleaded guilty to eight charges of selling cannabis and five charges of being in possession of cannabis for the purpose of supply.  Police officers had visited Mr Abbott’s address and purchased cannabis as part of an undercover operation.  Surveillance of the property had been carried out, showing that between

15 and 40 people had visited the property over the course of a few hours.   When arrested, the prisoner admitted to operating a tinnie house.   The police also found that the prisoner had set up a video surveillance system to monitor people entering his property.   The Court considered that the offending fell towards the top end of

category two  involving  commercial  dealing at  a  moderate  level,  and  adopted  a starting point of three and a half years imprisonment.

[28]     The Crown also referred me to a case called R v Wharawhara.[3]   In that case, the prisoner pleaded guilty to two charges of selling cannabis and one charge of possession for supply.  Police had received information that a large number of people were visiting the prisoner’s address for short periods of time.  The prisoner sold a plastic bag containing cannabis to an undercover police officer for $20, and another bag a few days later to the same officer.  The police located 86 small plastic bags of cannabis, the average weight being a gram, and one bag containing thirteen grams.

$1,290 in cash was also found in the house.  Asher J considered that there were no particular indications of sophistication, given the lack of surveillance or other drug paraphernalia in the house, and adopted a starting point of two years and six months imprisonment.

[3] R v Wharawhara HC Hamilton CRI-2006-019-9951, 28 June 2007.

[29]     Mr Simpkins, on your behalf, submitted that the degree of commerciality involved in your case was limited to you obtaining an income in order to support yourself.   He submitted that there is nothing to suggest that your sales were other than infrequent, and that the level of commerciality involved should not be determined by speculation.  He noted that there were no tick lists found, and that no people approached  your house when the police were executing the search.   He

referred to me R v Curtis,[4]  where Asher J adopted a starting point of three years

imprisonment, and to R v Karena,[5] in which Stevens J adopted a starting point of two years imprisonment.

[4] R v Curtis HC Rotorua CRI-2007-070-243, 9 May 2007.

[5] R v Karena HC Auckland CRI-2006-092-9854, 13 October 2006.

[30]     In my view, the summaries of fact to which you have pleaded guilty show that  while  your  operation  was  relatively unsophisticated,  there  was  a  degree  of commerciality  involved.     You  were  prepared  to  readily  supply  cannabis  to undercover officers on seven separate occasions.   You gave an associate $800 to hold – in $10 and $20 notes.  This represents some forty sales at $20 a “tinnie”.  A tinnie generally contains 0.6 to 0.85 grams of cannabis, and this amount is sufficient for a person to roll and smoke two cannabis cigarettes.  You would often come to the

door with a bag, tin or cylinder containing a number of tinnies, and in conversation, you acknowledged to one of the officers that you sold cannabis for a living.  You also admitted that the house was a tinnie house, that is, a residential address where persons can purchase cannabis.  You were clearly willing to sell the drug, and there was  a  degree  of  premeditation  to  your  offending.    You  had  pre-packaged  the cannabis into tinnies so as to sell the cannabis efficiently.  The police, however, did not carry out any surveillance of your house.  I do not know how much cannabis you sold and I am not entitled to speculate in that regard.

[31]      In my view, it is appropriate to adopt a starting point of three years imprisonment.  Your operation was less sophisticated than that in theAbbott case, but the number of sales to undercover officers, and the number of counts, places your offending beyond that in cases such as Wharawhara or Karena.

[32]     Contrary to  Mr  Simmers’  submissions,  I do  not  think  that  an  uplift  for aggravating factors is appropriate.   The harm resulting from your offending, premeditation, and commerciality are inherent in the charges of selling cannabis, and I have taken these matters into account in setting the starting point.   However, an uplift is, in my judgment, appropriate to take into account the six charges of possession.  Curiously, the summary of facts does not state how much cannabis was found in your possession when the second search was carried out.  In my view, an uplift of six months is appropriate to take into account the various indictable charges of possession of cannabis for the purpose of supply, taking my initial starting point to one of three years and six months imprisonment.

[33]     It  is  also  necessary  to  consider  the  summary  charge  of  possession  of cannabis.    I have  to  determine  whether  or  not  I should  treat  that  charge  on  a cumulative basis, or on a concurrent basis.   As a general proposition, cumulative sentences will often be appropriate if offences cannot reasonably be described as a continuing course of conduct.

[34]     In this case, there was a two-month gap between the two police searches of your property.  It is difficult to characterise the offending disclosed by each charge as a continuing course of conduct.

[35]     Nevertheless, I have looked at the overall extent of your offending, and the degree of commerciality involved in setting my initial starting point.  I have taken into account your willingness to sell and the level of commerciality in setting the starting point for sentencing.   I have also imposed an uplift for the indictable possession charges.  I do not propose to adopt a cumulative sentence in relation to the earlier possession charge.

[36]     Finally, I record that I have considered the totality principle.  In my view, a starting point of three years and six months is not out of proportion to the gravity of your overall offending.

Aggravating and mitigating circumstances personal to you

[37]     Turning to aggravating and mitigating circumstances personal to you, the Crown draws my attention to your long history of criminal offending.   It acknowledges that much of that offending is historical in nature.   It points out, however, that you have three recent convictions for selling cannabis in 2006 and

2009.    It  submits  that  these  warrant  an  uplift  in  sentence.    Mr  Simpkins  quite properly acknowledged that a small uplift in sentence may be necessary.   An additional factor which is relevant in this regard is that the offending which resulted in the indictable charges occurred while you were on bail in relation to the summary charge.  In my view, that also mandates an uplift in sentence.  I uplift your sentence by a further three months, to take into account these aggravating features.

[38]     Apart from your early guilty plea, neither Mr Simmers nor Mr Simpkins identified any mitigating factors personal to you.  It follows that but for your guilty plea, I would have imposed a sentence of three years and nine months in respect of the charges of selling cannabis.

[39]     In relation to your guilty plea, you pleaded guilty prior to committal.  Both the Crown, and Mr Simpkins, submit that a full 33 per cent discount is appropriate.  I accept those submissions.  They are in line with Court of Appeal’s decision in R v Hessell.[6]   I  accept  that  your  guilty  plea  was  entered  at  the  first  reasonable opportunity.

Sentence

[6] R v Hessell [2009] NZCA 450.

[40]     Mr  Rapana,  will  you  please  stand.    On  each  of  the  charges  of  selling cannabis, I sentence you to a term of imprisonment of two years and six months.

[41]     In respect of each of the charges of being in possession of cannabis for the purposes of supply, I sentence you to a term of imprisonment of 12 months.

[42]     All sentences are to be served concurrently, which means that you will serve an effective term of imprisonment of two years and six months.

Other orders

[43]     I  direct  that  all  drug-related  items  that  were  found  at  30  Meadowbank

Avenue are to be destroyed.

[44]     Pursuant to s 32 of the Misuse Drugs Act, I order that the cash found at your home be forfeited to the Crown.

[45]     The Crown has also sought reparation.  I do not know whether you have the ability to pay reparation.  Mr Simpkins, on your behalf, has submitted that you do not have any assets or other means of doing so.  I am not prepared to adjourn the sentencing to permit the appropriate enquiries to be made.  In the circumstances, I make no order for reparation.

[46]     The  pre-sentence  report  suggests  that   I  should  also  deal  with   your outstanding fines.  I am told that you have fines outstanding of some $890 in relation to an unlicensed motor vehicle, and having no warrant of fitness for the vehicle.

[47]     The probation officer has confirmed in Court this morning that it is being suggested that I should remit the fines.   I doubt that I have jurisdiction to do so. Fines  can  only  be  remitted  by  a  District  Court  Judge  under  s  88(3)(h)  of  the Summary Proceedings Act, and the procedure detailed in s 88 of that Act must be complied with.  I decline to make any order in relation to your outstanding fines.

Final remarks

[48]     Mr Rapana, you have been a persistent offender in relation to the sale and supply of cannabis for very many years now.  You have not previously learnt from the increasingly strict sentences which have been imposed on you.   You are now being sentenced to a term of imprisonment of two and a half years.  That will give you plenty of time to reflect on your offending.   You have stated a willingness to make amends, and indicated that you want attend any counselling that will be offered to you.  I hope that you will take such opportunities and, even at this late stage, that

you will try and turn your life around.

Wylie J