R v Rehutai

[2013] NZHC 2554

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2013-016-1077
CRI 2013-016-1504
CRI 2013-016-1620
CRI 2013-016-1785

[2013] NZHC 2554

THE QUEEN

v

JACQUELINE REHUTAI

Hearing:

1 October 2013

Counsel:

F E Cleary for Crown

J C Mathieson for Prisoner

Sentence:

1 October 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1]      Ms Rehutai, you have pleaded guilty to:

a)four charges of possession of cannabis for supply;1

b)one representative charge of supply of cannabis to persons over 18;2

c)one charge of supply of cannabis to person under 18;3 and

d)one charge of possession of methamphetamine.4

1       Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2).

2       Misuse of Drugs Act 1975, s 6(1)(e).

3       Misuse of Drugs Act 1975, s 6(1)(d).

4       Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2).

R v REHUTAI [2013] NZHC 2554 [1 October 2013]

[2]   These pleas were entered in the District Court on 9 August 2013.  It falls to me to sentence you because the District Court has declined jurisdiction.5

[3]  I will tell you now what the sentence of this Court is going to be and then I will set out the reasons for my decision. At the end of this hearing you will be sentenced formally to imprisonment for a term of two years and six months.

Circumstances of the offending

[4]      Your cannabis offending was sustained and it was determined.

[5] On 6 March 2013 police executed a search warrant on a house in Gisborne looking for property stolen in a burglary. This gave rise to the first possession for supply charge.  The police discovered a bag containing 160 grams of cannabis head, a further 140 grams of cannabis leaf, a set of electronic scales and $4,900 in cash. Intercepted text messages reveal that this was a safe house used by you. The cannabis and cash were yours. You devised a scheme for your niece to take the blame. In a text you explained to an associate you still had a further three ounces (84g) of cannabis stored elsewhere, and that you intended to keep selling.

[6]      On 3 May 2013 police executed a search warrant at your house in relation to a stabbing that your partner had committed. Police located 140g of cannabis head, and 15 tinnies. They also found a surveillance camera watching the front of your house and a radio scanner tuned into the police radio frequency. These events give rise to the second possession for supply charge.

[7] You were then released on bail. Undeterred, you continued to buy large quantities of cannabis and resell them as tinnies.

[8] The police searched your house a second time on the morning of 26 June 2013.  Looking through the window as they arrived police officers saw you rolling

5       Some of Ms Rehutai’s convictions were charged under the Summary Proceedings Act 1957, and therefore the jurisdictional limit of 1 year’s imprisonment in s 6(3) of the Misuse of Drugs Act 1975 still applies by virtue of s 400 of the Criminal Procedure Act 2011.

tinnies. They located 18g of cannabis head, 18 tinnies and $925 in cash in your jacket pocket.

[9]  Again, undeterred, that afternoon you sent a text to an associate explaining that you had more cannabis stashed at your neighbour’s house and intended to continue selling. The very next day you restocked with large quantities of cannabis.

[10]     On 11 July 2013 the police searched your house a third time.  They found

$400 in cash, a methamphetamine pipe, 0.2g of methamphetamine, 5g of cannabis head and 22 tinnies.

[11] The representative charge relates to text messages that show you bought cannabis by the ounce and resold it as tinnies on a regular basis from February through to April 2013. You agreed by text message to sell at least 11 tinnies on 25, 30 and 31 March, and 16, 17, 18, and 25 April 2013. Probably, you sold much more. You bought at least two ounces of cannabis wholesale during this time.

[12] The selling cannabis to an under-18 charge relates to an incident on 19 March 2013 when you sold cannabis to your 16 year old niece.

[13] All in all you traded in large quantities of cannabis and tinnies for at least four months. During that time you were undeterred by repeated police raids, each time restarting operations within hours or days. All up this amounted to dealing in at least 530g of cannabis.  That is likely to be the tip of the iceberg. The only thing that saves you from a much greater sentence is the restricted period of time to which these charges relate – February through to April 2013.

Submissions

[14] Counsel for the Crown submits that your offending falls towards the top of category two of R v Terewi.6 That category encompasses small scale commercial dealing. It involves a sentence starting point of two to four years. The Crown says that I should adopt a starting point of three years’ imprisonment.  Then it submits

that a significant uplift for offending while on bail is justified. It does not contend that your prior offending justifies a further uplift. That is a merciful position that the Crown has taken. It is one that I will also adopt. The Crown accepts also that you are entitled to the full 25 per cent discount available for an early guilty plea.

[15] Counsel for the defence, Mr Mathieson, put your offending in the middle of category 2 in R v Terewi. Mr Mathieson accepts that a starting point of three years is appropriate. And that an uplift for your offending while on bail is not inappropriate. Mr Mathieson points to your early guilty plea, to your addiction issues and to your family circumstances (with your partner in prison, leaving you without financial assistance at the time of your offending).

Starting point

[16]   I agree with both counsel that your offending per se justifies a starting point of three years’ imprisonment.

[17] Your offending is comparable to the offending in R v Hill,7 a decision which Mr Mathieson referred to. The Court there adopted that starting point.

[18]    I am not going to add anything for the methamphetamine possession charge. I accept that was for your own use. The sentence that you will serve for that will be concurrent with the sentence that you will serve for the cannabis charges.

Personal aggravating factors

[19]    I turn to personal aggravating factors.

[20]  You immediately reoffended twice while on bail.  You were quite undeterred by detection. You started marketing cannabis again the same afternoon that you were re-bailed. Even if you were eligible for home detention, it is inconceivable in these circumstances that that sentencing option would be available to you. It would simply be a licence, Ms Rehutai, for you to continue to deal drugs from home regardless of what conditions I might impose.

[21] A second consideration that is aggravating is your sale of cannabis to a person under 18 years of age.

[22] Both of these are aggravating considerations and I am going to uplift the starting point by four months to take account of them.

[23]    I have looked at your previous convictions.  You have 26 convictions in total

– two for possession of cannabis and one for cultivation. I accept that your prior offending is at a different level of seriousness. Given the uplift I have already applied, I am not going to uplift your starting point further.

[24] So that brings us to a starting point of three years and four months’ imprisonment.

Personal mitigating factors

[25]    I turn to mitigating factors personal to you.

[26] First, I have read your letter in which you express remorse to being separated from your six children who are aged between one to eighteen years of age. But in that letter your focus is largely on yourself, and not on their welfare.  I am afraid that I see these letters very often.  It is a somewhat formulaic letter and I am afraid it

comes through to me as little more than crocodile tears. I am going to put it to one side. As the Supreme Court observed in Hessell v R8 genuine remorse is less commonly expressed by defendants than self-pity. So I am not going to grant you a discount for remorse.

[27] Secondly, there is your addiction to methamphetamine and cannabis. The pre-sentence report writer notes that you completed alcohol and drug counselling in 2006, but that you actually have no recollection of having done so. You do not seem motivated to change. While you say you are willing to undertake further drug and alcohol counselling I am not willing to offer a discount to reflect that in the absence of concrete steps to realise that intention.  This is not a case like R v Kingi where the

offender had actively engaged with addiction services warranting a discount of five per cent in that case.9

[28] Now, Ms Rehutai, having said that, this morning Mr Mathieson talked about your engaging with the Tikanga Māori programme that is offered in this area. I encourage you to take concrete steps like that to reconnect with your heritage. And also to take concrete steps to address your addiction issues. While I am not going to grant you a discount for that, these matters will count when it comes to a Parole Board consideration. Mr Mathieson can explain to you the significance of  a sentence that is more than two years in terms of the time for early release.

[29] The third consideration that Mr Mathieson mentioned is that until your arrest you were the full time caregiver of your six children aged between one and eighteen. You partner is in prison. I accept that would have added to the financial stresses that you have been under. But that cannot justify, and nor can it materially mitigate, a decision to get by by resorting to criminal drug dealing. It is obvious that your imprisonment is going to cause your family, who are sitting at the back of the Court today, pain and dislocation. But that is something you should have taken into account when you were running your drug dealing operation in full view of those children. There is simply no other option here today other than imprisonment. As I have said you would not be granted home detention, if that were available.

[30]  Now as I say, I have granted no discrete discount for these things but they are all matters that the Parole Board can and will consider when you apply for early release. It is better placed than I am to evaluate how real your remorse and your rehabilitative efforts in prison are.

[31] Finally, however, I do accept that your guilty  plea came at the earliest reasonable opportunity.  I will give you the maximum 25 per cent discount allowable for that.

Final sentence

[32]    Stand please.

[33]    Ms Rehutai you are sentenced to:

a)Two  years  and  six  months’  imprisonment  on  each  of  the  six cannabis charges;

b)One month’s imprisonment on the possession of methamphetamine charge.

[34] All your sentences are to be served concurrently, which means they are served at the same time. That is a total of two years and six months’ imprisonment.

[35]     I make an order under s 32 of the Misuse of Drugs Act 1975 for forfeiture of

$5825 cash seized by the police, and I make an order for the destruction of the surveillance equipment and radio scanner seized at your property.

Stephen Kós J

Solicitors:

Crown Solicitor, Napier

Rishworth Wall & Mathieson, Gisborne for Prisoner