R v Reihana HC Whangarei CRI-2010-027-143

[2011] NZHC 2033

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-027-143

THE QUEEN

v

JEREMY REWETI REIHANA

Hearing:         12 December 2011

Appearances: N J Dore for Crown

R S Garbett for Prisoner

Judgment:      12 December 2011

SENTENCING NOTES OF PETERS J

Solicitors:           Marsden Woods Inskip & Smith, Crown Solicitor, PO Box 146, Whangarei

Counsel:            R S Garbett, Barrister, P O Box 5006, Whangarei 0140

R V REIHANA HC WHA CRI-2010-027-143 12 December 2011

Introduction

[1]      Mr Reihana, you appear for sentence today on 11 charges of conspiring to supply methamphetamine, which is punishable by 14 years’ imprisonment, and one count of receiving property valued at more than $1,000, the maximum penalty for which is seven years’ imprisonment.

Facts

[2]      The charges you face arise out of a Police operation in Northland in which the Police targeted persons they believed were involved in burglaries in the area. The Police obtained warrants to intercept telephone conversations and text messages, from which the Police discovered that you, along with others, had conspired to supply methamphetamine, a class A controlled drug.

[3]      The summary of facts states that, when questioned, you admitted that you and your partner, Nicole Cochrane, were selling methamphetamine, but you also said that she was the main dealer and your role in the matter was to collect payment for the drugs, generally on your way home from work.  Each of the charges to which you have pleaded  guilty relates to a different transaction and it is  evident  from the particulars to those charges that nearly $20,000 worth of methamphetamine was involved and that the period of the offending spanned from March to August 2009, so a period of five to six months.

[4]      On one occasion you received an LCD television for which you appear to have supplied some drugs in return and that is the basis of the receiving charge to which you have pleaded guilty.

Personal circumstances

[5]      Turning to your personal circumstances, you are 31 years old.  You are close to your parents, particularly your mother, and she has supported you since your arrest.   You have two children, one of whom lives with you and another whom Ms Cochrane’s family are looking after at the moment.  By all accounts, you have

been a good father, you are employed and from the reference I have read from Mr

Dawson, you are clearly an excellent tradesman.

[6]      You have a small number of previous convictions including some on drug related matters. They, however, are relatively minor and I propose to put them to one side for the purposes of sentencing you today.

Purposes and principles of sentencing

[7]      When  the Court  sentences  an  offender,  Mr  Reihana,  we have to  remind ourselves of the purposes of sentencing and the principles which guide us as to the appropriate sentence.  When I sentence you today I need to hold you accountable for the harm done by your offending, to denounce your conduct and to promote your rehabilitation and reintegration.

[8]      I must bear in mind the gravity of the offending, to try and  seek parity between offenders and in a case such as this that includes the Cochranes, Ashby and Phillips, all of whom were part of the same enterprise – so that I treat you in a way that is the consistent with the way they have been treated.

[9]      I also need to consider particular circumstances relating to you which might render an otherwise appropriate sentence disproportionately severe and take into account your personal and family background.

[10]     Those involved in the methamphetamine trade, no matter on how small a scale, are committing serious crime.  No one should be under any illusions on that score.   That is because anyone who is involved in the distribution of the drug, whether in large or small quantities, whether for profit or not, is responsible for causing a great deal of misery in our community.   The misery which addiction to methamphetamine brings affects not only those who become addicted to the drug but their families and their friends. Addiction to methamphetamine leads to crime and to loss of jobs, it ruins a person’s future opportunities and prospects and it causes a loss of self respect.   It imposes a great deal of cost, financial and otherwise, on our community and the consequences of even small amounts can be far reaching.

[11]     In this case, there are 11 different charges involving what appear to be 11 entirely different  people  to  whom  this  drug was  supplied.   The way  I view  it, Mr Reihana,  that  is  11  people  directly  affected  by  your  offending,  11  families, partners, children, employers and so on, all of whom may also have been affected by your offending.  That is why a serious view is taken of methamphetamine offending. Once someone is addicted to methamphetamine it is extremely difficult to get off the drug, and for some people it is impossible.

[12]     I also have to bear in mind that I am required by law to impose a sentence that has the least restrictive outcome possible, having regard to all the circumstances. That is an important matter also in this case.

Approach to sentencing

[13]     There is a three step process to be followed in sentencing.  The first step is to establish a “starting point” by reference to the actual features of the offending itself. The second is for me to adjust that starting point if necessary on account of any matters – the positive and the negative – that relate to you personally.  The final step is to take into account your guilty plea.

First step

[14]     In setting the starting point, the first task is to identify the lead offence.  In this  case  that  is  the  11  charges  of  conspiracy to  supply methamphetamine.    In R v Fatu,[1]   the  Court  of Appeal  provided  guidance  as  to  the  different  bands  of offending for manufacturing, importing and supplying methamphetamine.

[1] R v Fatu [2006] 2 NZLR 72.

[15]     In determining the band into which your offending falls, the quantity of the methamphetamine involved is a guiding, but not determinative, factor.

[16]     In this case, the Crown submits that your offending would fall within into band two of Fatu if this were a case of supply.   Band two is appropriate where

methamphetamine is supplied in commercial quantities of between five and 250

grams and it carries a starting point of between three and nine years’ imprisonment. The  amount  of  money  involved  here  indicates  that  you  conspired  to  supply  a quantity of methamphetamine that would fall into band two but I do not know whereabouts in band two.  Considering the sums involved I would suspect it is in the region of 15 to 20 grams.

[17]     The Crown has pointed me to the decision of R v Nicholls where Lang J adopted a starting point of four years two months’ imprisonment on charges of supply involving similar sums.[2]

[2] R v Nicholls HC Auckland CRI-2009-057-1622, 15 December 2009.

[18]     I consider the more appropriate comparison in this case is the starting point adopted in sentencing your partner, Nicole Cochrane.  Ms Cochrane was sentenced on 13 charges of conspiracy to supply.[3]     In that case, the Judge noted that, if the offending had involved supply, as opposed to conspiracy to supply, the starting point would have been three years six months’ imprisonment.  That is a factor relevant to my assessment of the appropriate starting point in this case.

[3] R v Cochrane HC Whangarei CRI-2010-027-143, 18 March 2011.

[19]     Then there is the point your counsel makes which is that your involvement was secondary to Ms Cochrane.  Your counsel has taken me through the summary of facts in some detail and I accept that Ms Cochrane does seem to have played a more substantial role than you.  As I said before, your role seems to have been to collect money on  the way home from  work.   That  is  not  to diminish  in any way the seriousness of what you did or to undermine any of the other comments I have made about the seriousness of this offending.  However, I do accept that Ms Cochrane’s role was more substantial than yours.

[20]     Equally, however, I have to take into account the charge of receiving stolen property which is quite different.  Dealing with the receiving of the LCD television, I take the view that it is intimately connected to your methamphetamine offending. Receiving that TV was part of the wider operation.   Given that, I can say now I

intend to impose a concurrent sentence on that charge of two months’ imprisonment.

[21]     Taking all of these matters into account, and what I accept was a slightly lesser role, had your offending involved actual supply, which it did not, I consider that an appropriate starting point would have been three years’ imprisonment.

[22]  You  have,  however,  been  charged  with  conspiracy  to  supply methamphetamine.  There is a difference between supplying methamphetamine and conspiring to supply methamphetamine because supplying methamphetamine carries a maximum sentence of life imprisonment whereas conspiracy to supply carries a maximum sentence of 14 years’ imprisonment.

[23]     Other offenders who were caught as part of this operation received a discount of 15 per cent from their starting point to reflect the conspiracy element.  I am going to give you exactly the same discount.  That brings your starting point to two years seven months’ imprisonment.  I am satisfied that is a starting point that adequately reflects the totality of your methamphetamine and receiving offending.

[24]     Now I come to the second stage which is to adjust the starting point on account of any matters – the aggravating and the mitigating – which relate to you personally.

[25]     There are no aggravating factors but there are several mitigating factors.

[26]     The first matter is that of character.  As I have said, I am willing to put your

previous offending to one side for today’s purposes because it is largely historic.

[27]     I have read the references which have been provided and I have already referred to Mr Dawson’s.  There is a reference from Mr Devlin who is obviously a person who has made a great contribution to the entire community.   Mr Devlin speaks highly of your parents and of you.  His reference, for me, is tempered by the fact that it contains an incorrect statement namely that you do not have any previous convictions. You do, but on the whole the reference is supportive.  It clear also from your parents’ letter that they are supportive.

[28]     I also take into account that it appears that you have complied with the terms and conditions of your bail. You have been on bail now for almost two years.  It was a condition that you abstain from drugs and alcohol and on the basis of the test results made available to me you have done that.  There has been no report of any breach of bail and that is to your credit, as it indicates a willingness to comply with Court imposed conditions.

[29]     Then there is the issue of your son who is living with you.  The pre-sentence report indicates that you have sole custody of him and, as I understand it from your counsel, you have been a constant presence in his life.  So I must bear in mind the importance of that relationship.

[30]     For all of these matters I propose to reduce your sentence by 10 per cent which takes me to two years, three months’ imprisonment.

[31]     Then there is the matter of your guilty plea.  Your counsel suggests I should allow in your favour the maximum reduction of 25 per cent.  As I said to him, in my view that is quite unrealistic.  You were charged in December 2009, entered some pleas in August 2010, and then joined in an application with other accused to have text messages excluded as evidence.  That indicates an intention to contest some of the charges, if not all of them.

[32]     For those reasons the maximum discount I would allow is 10 per cent.  The Crown has no objection to a discount of 10 per cent.  That would bring the sentence to two years’ imprisonment which does allow me, if I consider it appropriate, to impose a sentence of home detention.  In considering whether I should do so I bear in mind the following matters.

[33]     First, as I say, I am obliged to impose the least restrictive sentence possible. Secondly, it is clear from the pre-sentence report that you are considered at low risk of reoffending.   Thirdly, and this is the most compelling factor  as far as  I am concerned, home detention will allow you to continue to look after your son.  That was an issue in granting Pamela Cochrane home detention and it is an issue in your case also. As the Court made clear to your partner, Nicole Cochrane, it is only in the

most exceptional and extraordinary case that the offender who is involved in drug dealing will not be sent to prison.  I consider that the circumstances to which I have referred puts you into that category.

[34]     I propose to sentence you to 12 months’ home detention.  Mr Reihana, if you breach any of conditions which are going to be attached to that sentence, you need to understand that there is a very real risk that the sentence would be cancelled and you would be imprisoned.

[35]     I  propose  to  impose  the  conditions  set  out  under  the  heading  “Home Detention and Post Detention Conditions” on pages two and three of Appendix One to the report dated 29 November 2011 prepared by the Department of Corrections as to the suitability of home detention. Those conditions are:

Home detention conditions

(a)      Upon receipt of your court and home detention order to immediately report to the Community Probation main office, 17 – 19 Station Road, Kaikohe and await further instructions.

(b)To reside at 40 Johnston Road, Kawakawa and not move addresses without  the  prior  written  approval  of  the  supervising  Probation Officer.

(c)      Not to purchase, posses or consume alcohol and/or illicit drugs for the duration of the home detention sentence.

(d)To  participate  in  and  complete  any other  such  counselling  and/or treatment designed to reduce offending.

Post detention conditions

(e)      To  complete  and  participate  in  any other  such  counselling  and/or treatment designed to reduce your risk of reoffending as directed by a

Probation Officer.   This may include revisiting previously attended programmes.

(f)      You are not to possess or consume alcohol and/or illicit drugs until you are no longer subject to Post Detention Conditions.

(g)Post completion of the home detention sentence you are to continue to reside at 40 Johnston Road, Kawakawa and not move addresses without the prior written approval of a Probation Officer.

[36]     Please stand Mr Reihana:

(a)       On the eleven charges of conspiracy to supply methamphetamine, I

sentence you to 12 months’ home detention.

(b)On the charge of receiving an LCD television, I sentence you to of two months’ home detention.  This sentence to be served concurrently with the sentence of home detention referred to in (a) above.

(c)      The conditions to which I have already referred apply to the sentence on the charges of conspiracy to supply methamphetamine.

[37]     Stand down.

..................................................................

PETERS J