R v Riri HC Rot CRI 2006-063-3699

[2008] NZHC 2333

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-063-3699

THE QUEEN

v

MICHAEL BEVAN RIRI

Charge:          Possession of methamphetamine for supply

Plea:               Not Guilty

Counsel:         A J Gordon for Crown

W Lawson for prisoner

Sentence:       16 May 2008

Imprisonment:  2 years, 3 months

SENTENCING NOTES OF MACKENZIE J

[1]      Michael Bevan Riri you appear for sentence on one count of possession of methamphetamine for supply.  You were found guilty at trial.

[2]      The facts are that on 21 September 2006 police executed a search warrant at your home in Rotorua.  There was located a total of 14.6 grams of methamphetamine along with two sets of electronic scales containing methamphetamine residue.   A

surveillance system was in place.  The quantity of methamphetamine is such that the

R V RIRI HC ROT CRI 2006-063-3699 16 May 2008

presumption applied.  The jury rejected your defence that the methamphetamine was all for your own use.

[3]      You were remanded for a pre-sentence report and sentence.  Because of your disability, as a result of which you are wheelchair bound, I granted bail pending sentencing.  You failed to attend for a pre-sentence report.  However, a pre-sentence report in respect of the same offending had been prepared following your earlier plea of guilty.  That sentencing did not proceed, and you were given leave to vacate your guilty plea, but the fact that the report is available enables me to proceed with sentencing despite your failure to enable that report to be updated.  I also record that your release on bail has meant that you were able to be late to attend sentencing this morning to the extent that a warrant had to be issued for your arrest although you have appeared, so far as I am aware, without that warrant having executed.  The pre- sentence report which was prepared in dated March 2007 indicates that you are now

35 years of age.  You are a paraplegic with limited hand movement as a result of an accident over ten years ago.  You are in receipt of an invalid benefit.  You have an offending history which includes convictions for drugs, dishonesty, driving, and breach of Court orders.  The drug convictions principally involve cannabis, though there is one conviction for possession of utensils for consumption of methamphetamine in 2007.  The previous offending is relatively minor in nature.

[4]      I must  adopt  a  starting  point  having  regard  to  the  circumstances  of  the offending.  I must first fix where the offending fits in the banding scale established by the leading guide line judgment of R v Fatu [2006] 2 NZLR 72. The Crown submits that it falls within band 2, which covers cases involving the supply of commercial quantities of five to 250 grams. Your counsel submits that it falls between the upper end of category 1 and the lower end of category 2 and has advanced a strong submission on your behalf that it should be regarded in all the circumstances as not bearing the elements of commerciality and so be placed in band

1.  Although the total quantity found would put the case squarely within band 2, I accept that a part, possibly a considerable part, of the methamphetamine would have been for your own use.  Apart from the scales, there were no other items consistent with a commercial supply operation, though the presence of the surveillance equipment is a matter of concern.  Weighing up the circumstances as best I can, I

would place you on the cusp between the bottom of band 2 and the top of band 1. There is in any event an overlap in the sentencing range between those bands. Making the best assessment that I am able on the basis of the evidence at trial and in all the circumstances I adopt a starting point of three years.

[5]      I must then consider any aggravating or mitigating personal factors which require an adjustment to that starting point.  A potentially aggravating factor is your previous drug convictions and the fact that you have continued and escalated your offending.  However, the relatively low level of that offending is such that I do not consider any upward adjustment is required to reflect that as an aggravating factor.  I will however come back to it in a moment in another context.   As to mitigating personal factors, your physical circumstances must be taken into account.  You are as I have said confined to a wheelchair and would require assistance on a daily basis while in prison.  That must mean that I must consider whether a custodial sentence would be disproportionately severe to you given those circumstances.  Counsel have referred me to the case of R v Vercshaffelt (2002) 19 CRNZ 638, in acknowledging and submitting that some account must be taken of this.

[6]      I consider that a sentence of imprisonment will be more severe for you than for an able bodied prisoner.   However, I have come to the conclusion that the appropriate recognition for that is a reduction in the length of the sentence rather than the adoption of a non custodial alternative.  As counsel for the Crown points out, you have received what may be seen as lenient treatment for previous offending, but have continued to offend.  That indicates that a deterrent sentence is required and I consider that a non custodial sentence will not carry with it a sufficient deterrent element in your case.  I do not consider that home detention is appropriate.  Your failure to cooperate with the probation service means that the necessary reports, before I could order home detention, are not available.  I could of course delay the sentencing to obtain such reports but for other reasons I have concluded that home detention is not appropriate.  First there is the deterrent aspect that I have mentioned. Second, home detention will not generally be appropriate  for  methamphetamine dealing offence.  The Court of Appeal in R v Hill CA559/07 29 February 2008 has recognised that home detention may be appropriate where there are prospects of rehabilitation but yours is not such a case.  I consider that your response to previous

sentences suggests that the level of your response to home detention is unlikely to be such that that would meet the necessary sentencing purposes in your case.   Those reasons persuade me that I should reflect your circumstances in a reduction of the term of imprisonment, not by an alternative sentence.  A reduction is required which will reduce your sentence to one which would not be disproportionately severe in comparison to an able bodied prisoner.  I consider that an appropriate reduction to reflect your circumstances is one of nine months from the starting point, which leaves an end sentence of two years and three months.

[7]      You are accordingly sentenced to a term of two  years and three months imprisonment.

[8]      I order forfeiture of the drugs and the drug related materials.

“A D MacKenzie J”

Solicitors:         Gordon Pilditch, Crown Office, Rotorua

Lance and Lawson, Rotorua