R v Siakifilo HC Auckland CRI 2006-092-9756
[2007] NZHC 1676
•27 February 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-092-9756
THE QUEEN
v
TONY ARMSTRONG SIAKIFILO
Hearing: 27 February 2007
Appearances: K E Hogan for Crown
S Tait for Prisoner
Judgment: 27 February 2007
SENTENCING NOTES OF ANDREWS J
Solicitors:
Crown Solicitor, Auckland
S Tait, Auckland
R V TA SIAKIFILO HC AK CRI 2006-092-9756 27 February 2007
[1] Mr Siakifilo you appear for sentencing today having pleaded guilty to one charge of possession of cannabis for supply and one charge of selling cannabis. As I am sure you are aware, the maximum penalty for each of those two offences is imprisonment for eight years.
Relevant facts
[2] You were stopped by the Police on an unrelated matter. As Mr Tait has said in his submission today, a strong smell of cannabis was detected. A search was therefore undertaken pursuant to s 18(2) of the Misuse of Drugs Act 1975. Police eventually found six ziplock bags and they contained a total of 213 individually wrapped cannabis tinnies. The sum of $1,430 mostly in $20 notes was found in your pocket. You admitted to the Police that the tinnies were for sale, that the cash was proceeds and you said you were operating a ‘Dial a Tinnie’ operation.
[3] It is evident from the Court file that you pleaded guilty to the charges at the depositions hearing. The District Court declined to sentence you in that Court and remanded you to this Court for sentencing. I note that Mr Tait has pointed out on your behalf that in fact you co-operated with the Police right from the time the Police stopped you. As I said to Mr Tait earlier, your plea of guilty and your co-operation will be taken into account in your sentencing and you are given credit for it.
General principles
[4] I have to take into account what the law has set out as the purpose of the sentencing in s 7 of the Sentencing Act 2002. In particular, I have to hold you accountable. I have to make you know that you are responsible for what you have done. I also have to consider deterrence, that is so that other people will not commit these offences, and protection of the community. I also have to express the fact that society in general does not approve of what you have done and at the same time the purpose is to help you with getting back into the community as a useful member of it.
[5] Section 8 of the Sentencing Act sets out general principles of sentencing that must be considered. In your case I consider that the following apply.
a) The first is the gravity of your offending, including your responsibility for it.
b)The second is the seriousness of your offending compared with other types of offences.
c) The third is the general desirability of consistency in sentencing levels; and
d)Fourth, I am directed to impose the least restrictive outcome that is appropriate in the circumstances.
[6] Once I have taken those principles and purposes into account I can establish what is called the starting point, which is the sentence that is appropriate for your offending. I then go on to consider your own personal factors; that is matters that relate to you rather than the offence, whether those factors are good or bad.
[7] I note s 16 of the Sentencing Act provides that I have to have regard to it being desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community. However, the Court can impose a sentence of imprisonment in order to achieve the purposes and principles of sentencing that are relevant to your case.
[8] With respect to the offences to which you have pleaded guilty I am satisfied that a sentence of imprisonment is appropriate and as u have heard today, that is accepted by your counsel and I understand, by you.
Starting point
[9] So I turn now to consider what is the starting point. To do that I decide what sentence is appropriate for the most serious offence to which you have pleaded guilty. In this case it is the charge of selling cannabis and I consider what sentence
would be appropriate if you were convicted after a trial and that is the starting point. Then I take into account any, what are called, aggravating or mitigating features relating to the offences. Those are things that make it more or less serious and mean that the starting point should be increased or decreased. Then I go on to consider matters that relate to you personally so as to determine the appropriate sentence and in doing all of that I am following the procedure set by the Court of Appeal in the
case of R v Taueki[1].
Guidelines
[1] R v Taueki [2005] 3 NZLR 372 (CA)
[10] In relation to sentencing on charges relating to cannabis I have guidelines set by the Court of Appeal. In Terewi[2], and you will have heard reference to this, the Court described three bands, or levels, for the offence of cultivating cannabis. Then in Keefe[3] the Court said that the same categories apply for possession for supply and for selling cannabis. Your offending fits in the second band and that is described as small-scale commercial operation. Again, you will have heard both Ms Hogan and Mr Tait say to me that the second band was appropriate. In this band the starting point for your sentence is to be within the range of two to four years of imprisonment.
Aggravating and mitigating features
[2] R v Terewi [1999] 3 NZLR 62
[3] R v Keefe CA 275/02 28 November 2002
[11] Mr Siakifilo as I said earlier the law requires me to look at the aggravating and mitigating features of the offending. The aggravating feature of your offending is the planning, the forethought required and involved in it. I have not found any other features relating to the offending and I have not identified any mitigating factors in relation to the offending, and remember that I will turn to factors concerning you personally later.
Pre-sentence report
[12] I turn now to look at the Probation Officer’s pre-sentence report. You are 25 years old; you have four children the youngest of which are the twin girls now aged eight months. According to the report you have been unemployed for the last two years. You expressed some remorse for your offending and you told the probation Officer that you had no intention of reoffending. You are assessed as having a moderate motivation to change but you also told the Probation Officer that you are addicted to cannabis and have been using it since you were 14. The Probation Officer considered that you have a limited insight into your offending. You justified it to yourself on the basis of getting out of financial difficulties. As I am sure you aware, that is no justification.
[13] Now I turn to consider what the two counsel here in Court have said today about your offending and about you personally.
[14] On behalf of the Crown, Ms Hogan referred me to the number of tinnies found, the cash and your admission that you had a Dial a Tinnie operation. As she pointed out, a mobile tinnie operation is much more readily accessible to the public than would be a tinnie house. She stressed the commerciality of your operation. She submitted that the starting point for an offence for you should be a sentence of three years imprisonment.
[15] On your behalf Mr Tait agreed that your offending was within the second band of Terewi but he puts it at the lower end of that range. He submitted that the starting point should be two to three years’ imprisonment.
Establishing starting point
[16] I have been referred to many examples of sentencing for cannabis possession for supply and for cannabis sale. These were not referred to in Court today but they are referred to in the written submissions that I have considered before coming to Court and I have also looked myself at other instances of sentencing. It is fair to say
that within the band of two to four years sentencing for cannabis sales ranges from about 2½ years to 4 years imprisonment. It appears to depend on the value of the cannabis sold, the number of tinnies or cannabis material involved and the previous history of the person being sentenced.
[17] Clearly your offending is in band two and on the basis of the value of the cannabis involved the number of tinnies and the cash and the type of the operation I fix the appropriate starting point, before considering your personal features, at three years imprisonment.
Personal factors
[18] Having set that starting point I now turn to your personal circumstances. The most significant of these is your early guilty plea to which I now add your co- operation with the Police from time to time of the initial Police search. In respect of those you are entitled to a substantial discount.
[19] I note that you have expressed some remorse for your offending but I cannot see that that was expressed as either a deep remorse or one that is likely to prevent you from offending in the future. I have heard submissions about your family situation. As Mr Tait told me, your partner is expecting your fourth child but as he also correctly pointed out family circumstances carry less weight in relation to drug offending then they might otherwise. Simply put, they are outweighed by the need for deterrence.
[20] On the other side of your personal circumstances it has to be noted that you have a previous conviction for an offence of precisely the same kind. You were sentenced in 2004, you avoided a custodial sentence but at the time you were given a final warning that a future conviction would lead to a custodial sentence and yet here you are being sentenced on that same sort of offence.
[21] However, given the maximum discount that I feel is appropriate for your guilty plea and co-operation in the end result your sentence will be reduced by one- third from the starting point.
Sentence
[22] Accordingly on each of the charges, that is the charge of possession of cannabis for supply and for selling cannabis you are sentenced to two years imprisonment. These are to be served concurrently that is, at the same time.
[23] Further, I make an order for the destruction of the drugs seized and for forfeiture of the sum of $1,430.
Home detention
[24] As I have imposed a term of two years or less imprisonment I am required by s 97 of the Sentencing Act to consider whether to give you leave to apply for home detention and Mr Tait has raised this with me, as you will have heard. Leave can only given if I am satisfied that it would be appropriate to do so taking into account the nature and seriousness of your offending, your circumstances and your background. I have noted Mr Tait’s submissions as to your home background and your present circumstances. However, family circumstances are very seldom ones that would support giving leave to apply for home detention. Essentially, you need to know that involvement in drug dealing will put those you care for and your family at real risk and that is because custodial sentences almost always follow conviction for drug dealing. There would have to have been other factors that would justify my granting leave and I have to say that none have been presented to me. Accordingly, leave to apply for home detention is declined.
[25] Please stand down.
Andrews J
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