R v Samuels

[2012] NZHC 3253

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-029-834 [2012] NZHC 3253

THE QUEEN

v

MOEWAKA NGARANGI SAMUELS

Hearing:         4 December 2012

Counsel:         C A Anderson for Crown

C Cull for Prisoner

Judgment:      4 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei
Counsel:

C Cull, 212 Waipapa Road, RD 2, Kerikeri

R V SAMUELS HC WHA CRI 2012-029-834 [4 December 2012]

Introduction

[1]      Moewaka Ngarangi Samuels, you appear for sentence today on one charge of possessing the Class A controlled drug methamphetamine, one of supplying the Class B controlled drug hashish, four of selling the Class C controlled drug cannabis and four of possessing cannabis for sale.  You entered pleas of guilty to all of those charges.  The District Court declined jurisdiction.[1]   That is why you are here today for sentencing.

[1] R v McLeod [1988] 2 NZLR 65 (CA).

[2]      The  charges  arise  out  of  two  separate  aspects.    The  first  concerns  the operation of a tinnie house that was detected during the course of a Police operation that occurred between November 2011 and April 2012.  The second arises out of the search of a vehicle in which you were travelling on 30 April 2012.

[3]      All of the offending occurred either while you were subject to a sentence of home detention or to the post-release conditions.  I propose to address the offending on the basis that what occurred on 30 April 2012 simply formed part and parcel of the enterprise that you were running by way of the tinnie house.

Facts

[4]      Special duties’ constables visited your home between November 2011 and

April 2012.   The particular offending was detected during visits on 17 November

2011, 16 December 2011, 23 March 2012, 19 April 2012 and at the time your vehicle was stopped.

[5]      Having reviewed the information in the summary of facts, it seems to me that this was a relatively small to medium size commercial operation.   There is no evidence of large sums of money having been generated.  While there is evidence that suggests that quantities of drugs were supplied regularly and without the need to have recourse to others to obtain, there is, to my mind, sufficient evidence to point to

a continuing operation.

[6]      Your desire to continue to deal in this way is emphasised by the fact that you were doing so while subject to a sentence of home detention and then the post- release conditions.

[7]      The fact that hashish was sold and that you were found to possess a small quantity of methamphetamine also suggests you had access to various types of drugs during this period.

Analysis

[8]      I assess the nature of the commercial operation as small to medium.[2]   It falls at the midpoint of the range of two to four years imprisonment, which is the range for the starting point.   I will adopt a starting point figure of two years and nine months.

[2] R v Terewi [1999] 3 NZLR 62 (CA) at para [4].

[9]      So far as personal aggravating factors are concerned, these really relate to the prior convictions and to the offending while subject to home detention or release conditions.  I add a further three months for that.

[10]     So far as mitigating factors are concerned, leaving aside the guilty pleas for the moment, I am satisfied that you are now making some efforts to rehabilitate. You are really at a crossroads rather than anything else. You need to be clear of your own destiny and you will hold that in your own hands.

[11]     I propose to give you a credit of one month for the steps you have taken to date.  I would have given more but for the fact that, during the period when you were with the Rautahi Trust, you were in fact offending while going through that programme.   To some extent that can be seen as a rather cynical response to the efforts being made to rehabilitate.

[12]     As far as the guilty pleas are concerned, the circumstances persuade me that I

should give you a full credit of 25% which I round to nine months.[3]   That makes the

[3] Hessell v R [2011] 1 NZLR 607 (CA) at para [75].

end sentence one of two years and two months imprisonment.  That being so, home detention is not available.

Result

[13]     Mr Samuels, you are sentenced as follows:

(a)       On the charge of possessing methamphetamine, you are sentenced to

one month’s imprisonment;

(b)On the charge of supplying hashish, you are sentenced to six months imprisonment;

(c)       On the charges of selling cannabis and possessing cannabis for sale, you are sentenced to a term of two years two months imprisonment.

[14]     All of those sentences run concurrently, so the effective term is two years and two months.

[15]     I make an order for the destruction of the drug exhibits seized during the course of the Police operation.

P R Heath J