R v Silinu'u HC Auckland CRI 2007-092-15349

[2008] NZHC 2498

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-092-15349

THE QUEEN

v

TEVITA SILINU'U

Hearing:         12 August 2008

Appearances: A Bradley for the Crown

S Tait for the prisoner

Judgment:      12 August 2008

SENTENCING NOTES OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

S Tait, PO Box 76 538, Manukau, Auckland 2241

R V SILINU'U HC AK CRI 2007-092-15349  12 August 2008

[1]      Tevita Silinu’u, you appear for sentencing today having pleaded guilty to three charges under the Misuse of Drugs Act 1975.   First there is the charge of possessing the Class A controlled drug lysergide (LSD), for which the maximum sentence is six months’ imprisonment and/or a fine not exceeding $1,000.  Second, a charge of possessing the Class C controlled drug cannabis for the purpose of supply, for which the maximum sentence is eight years’ imprisonment.  Third, a charge of permitting a motor vehicle to be used for the purpose of the commission of an offence under the Misuse of Drugs Act, for which the maximum sentence is seven years’ imprisonment.

[2]      For the purposes of your sentencing today, I have been assisted by helpful written and oral submissions from both the Crown and your own counsel, Mr Tait.  I have also received and considered a pre-sentence report from the Probation Officer.

Facts

[3]      On 30 September 2007, just after midnight, you were in a motor vehicle with your co-offender Salesi Inoke at Ewart Road, Mangere.  You were the driver of the motor vehicle which was registered in the name of your father.  A number of people were seen to approach the car and remain there for a short time before leaving. Members of the public were concerned enough to call the Police.  Police arrived and, acting on the information received, invoked the provisions of s 18(2) of the Misuse of Drugs Act and carried out a search of the motor vehicle.

[4]      In the centre console of the motor vehicle, Police located 28 LSD tablets. Police also located one cannabis tinnie in the small glove box on the front right hand side of the steering wheel.  In addition, in the right hand front pocket of the hoodie worn by Salesi Inoke, Police located 12 cannabis tinnies.

[5]      Mr Inoke admitted to the Police that he had possession of the LSD tablets, but stated that it was for his own personal use and that he did not have the LSD for the purpose of selling it.  You told Police that you had bought the single tinnie from Mr Inoke.

[6]      You are 25 years of age.  You were born in New Zealand of Tongan descent. You currently live with your parents.   You are the youngest child, and have four older sisters.  It is encouraging to see members of your family here in Court today.

[7]      You attended the Seventh Day Adventist High School and completed sixth form.  In terms of further education, you have completed a one-year panel and paint course.  You do not lack for educational achievement.

[8]      You spent three months in Hawaii in 2002.   When you returned to New Zealand you were employed by Farmers Distribution Ltd.   You worked as a hoist reach truck driver for that company.   However, you resigned at the beginning of

2008 as you did not wish to be fired from that position.  You also wanted to organise your affairs pending imposition of sentence by the Court.

[9]      You are not in a relationship and you do not have any children.  You have explained that you have faith and believe in God, but you cannot go to church anymore as you find it hypocritical.

[10]     You have no gang affiliations and you describe yourself as a local Mangere boy.  You say that you are the type of person that people can approach and ask if you want LSD.   You describe LSD as being cheap and providing a better high than cannabis.  This is one feature of your background that has caused me great concern, in that you do not seem yet to appreciate the importance of putting your association with drugs and alcohol to one side.   It is really important that you make a firm decision to do so.

[11]     Prior to this offending, you lived a structured lifestyle.  You worked five or six  days  a  week  but  then  chose  to  use  drugs  as  a  form  of  relaxation.    In  the weekends, you would spend your time drinking alcohol and with friends.

[12]     You have stated that you have been complying with your bail conditions, including the condition of no alcohol or drug use.  Your counsel advise that you have

been suffering from migraines and other ailments which are symptomatic of withdrawal symptoms.

[13]     In relation to the current offending, you have stated that you were in the wrong place at the wrong time.  You said you had been drinking on the Friday night and woke up on Saturday wanting cannabis.  You have stated that the offending was an impulsive act.

[14]     Your Probation Officer reported that you exhibited limited insight into your offending.  This is because you have stated that you have the right to put whatever you want into your body.  You have not recognised the nature of your offending as illegal.   You see yourself as someone who goes against the norms and does the opposite  of  what  others  do.    I  hope  from  the  exchanges  in  Court  today,  you appreciate the importance of changing course away from what you have been doing in the past.

[15]     Your father, Fatai Silinu’u, and cousin Mele, have described you as good and kind hearted.  However, both describe you as having changed considerably over the last 12 months.  I infer that has been as you have been drawn more into reliance on alcohol and drugs.  So you can see it is a bad scene and it is important that you turn your back on it.  Your father has stated that you have expressed remorse to him for your offending and that is encouraging.

[16]     Your Probation Officer has said that you have a harmful pattern of alcohol and drug use, particularly when associating with other people.   But you have now recognised that using alcohol and drugs gives you a short term artificial high and has no long term benefits whatsoever.  The Probation Officer says that you would benefit from alcohol and drug counselling.

[17]     You have accepted full responsibility for your offending and have consented to the imposition of home detention, if appropriate.

[18]     In terms of previous convictions, there is one for excess breath alcohol and one for breach of a local liquor ban.   Monetary sanctions were imposed for those offences.  You also have $360 in outstanding fines.

Crown submissions

[19]    The Crown submitted that a starting point in the vicinity of two years’ imprisonment is appropriate.  That is on the basis that the Crown submits that the cannabis offending falls within category 2 of R v Terewi [1999] 3 NZLR 62.

[20]     The Crown submits that the aggravating features of your offending include the extent of harm to the community and the combination of drugs involved in your possession.    The  Crown  submits  that  there  are  no  mitigating  features  of  the offending.

[21]     So far as mitigation is concerned, the Crown acknowledges that  you are entitled to a discount for your guilty pleas.   Because of the limited insight you demonstrate into your offending, the Crown initially submitted that home detention would not be appropriate in your case.   However Ms Bradley recognises, having reflected further on the specific circumstances of your case, that home detention is an appropriate penalty to impose.  I agree with her submission in this regard.

[22]     The Crown acknowledges that concurrent sentences should be imposed for the other charges on the basis that the possession of cannabis for supply would be the lead offence.

Defence Submissions

[23]     Your counsel, Mr Tait, submitted that the offending falls within category one of Terewi and could be dealt with on a non-custodial basis.  It is probably offending

that is right at the top or just at the bottom of categories one and two respectively, so there is probably not a lot in it.

[24]     Mr Tait submitted that the mitigating factors are your early guilty pleas and remorse and submitted that your previous convictions were minor and do not amount to an aggravating factor in this case.   He agreed that concurrent sentences were appropriate and submitted that there should be a final sentence of either community work and supervision or home detention with suitable conditions.

Relevant purposes and principles of sentencing

[25]     The Sentencing Act 2002 requires that I keep a number of purposes and principles in mind when deciding on an appropriate sentence. In your case, I have specific regard to the following purposes of sentencing as set out in s 7 of the Act:

a)        The need to hold you accountable for the harm done to the victim and the community by your offending (s 7(1)(a));

b)The need to promote in you a sense of responsibility for, and an acknowledgement of, that harm (s 7(1)(b));

c)        The need to denounce your conduct (s 7(1)(e));

d)The need to deter you and others like you from committing the same or a similar offence (s 7(1)(f)); and

e)        The  need  to  assist  you  in  your  rehabilitation  and  reintegration

(s 7(1)(h)).

[26]     In  sentencing  you,  I  also  take  into  account  the  principles  of  sentencing according to s 8 of the Sentencing Act 2002, including:

a)        The need to take into account the gravity of your offending, including the degree of culpability of the offender (s 8(a));

b)The need to take into account the seriousness of the type of offence in comparison  with  other  types  of  offences,  as  indicated  by  the maximum penalties prescribed for the offences (s 8(b));

c)      The need to consider the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances (s 8(e)); and

d)The need to impose the least restrictive outcome that is appropriate in the circumstances (s 8(g)).

[27]     Given that I propose to impose a sentence of home detention, I simply note the presumption against imprisonment in s 16 and whether such presumption is overridden in this case by the provisions of s 7 is somewhat moot.

Features of the Offending

[28]     The Court of Appeal in R v Taueki [2005] 3 NZLR 372 sets out the orthodox approach to sentencing. Accordingly, I will first set a starting point based on the features of the offending, and then adjust the starting point according to any mitigating and aggravating features relating to you as the offender.

[29]     In terms of aggravating features, there is the variety of drugs involved.  There is the extent of loss, damage and harm to the community and the element of premeditation involved in using a vehicle for the purpose for which it was being used on this occasion.

[30]     In terms of mitigating factors related to the offending,  I can identify no applicable factors.

[31]     So far as you, as the offender, are concerned, I do not take into account your previous convictions.  They are not serious enough to warrant any uplift.

[32]     In  terms  of  mitigating  factors,  there  is  your  early  guilty  plea  and  your remorse, which you expressed to your father and which I regard as important as you are going to be spending time with your family.   You can be grateful that your family remains supportive of you.

[33]     In  terms  of  the  case  law  for  possession  of  cannabis  for  supply,  I  have considered  the  cases  of  Terewi;  R  v  Anderson  HC  WHA  CRI  2004-029-110

13 October 2004, Harrison J; R v Taui CA 494/05 14 June 2006; R v Prangley HC AK  CRI  2005-055-1664  16  August  2006,  Heath  J;  Police  v  Baker  HC  WN CRI 2005-485-157 21 February 2006, Miller J; R v Sibley HC WHA S05-029-1338

13 April 2006, Nicholson J; R v Henare HC AK S052123 22 July 2005, Venning J

and R v Karena HC AK CRI 2006-092-9854 13 October 2006, Stevens J.

[34]     In terms of possession of the Class A controlled drug LSD, I have considered the cases of R v Goulding HC AK CRI 2006-019-8388, 29 April 2008. Stevens J; R v Hall HC PMN CRI 2005-054-3898 6 December 2005, Wild J; and R v Wereta HC PMN CRI 2005-054-4849 11 August 2006, MacKenzie J.

[35]     In  terms  of  the  third  charge,  there  is  the  case  of  R  v  Stevens  HC  AK CRI 2006-090-9959 5 July 2007, Stevens J, which I have also taken into account.

Appropriate starting point

[36]     If I were contemplating a term of imprisonment, a two year starting point would be appropriate.   There is no basis, in terms of aggravation, by which that should be increased.  I would need to take into account the totality of the offending, but given that the LSD charge was one of possession only and the charge of permitting a motor vehicle to be used is part of the overall offending, I consider that the  appropriate  starting   point,   bearing   in   mind   the   totality,   is   two   years’ imprisonment.

[37]     In terms of adjusting the starting point, I have taken into account the previous convictions, but do not increase your sentence on that basis.

[38]     You are entitled to significant credit for your guilty pleas, which would mean if I were imposing a sentence of imprisonment, the final sentence would be 18 months’ imprisonment.

[39]     However, I have also considered the provisions of the Sentencing Act in terms of home detention.  I am satisfied that the relevant criteria in s 80A(2)(a) of the Sentencing Act have been met.  The appropriate consents have been obtained and I am encouraged by the fact that you will be residing with your family.   That will provide you with the support that you need as you complete the sentence, and in the period after it.

[40]     The practice of the Court has  been  to  halve  the  appropriate sentence  of imprisonment  when  calculating  the  appropriate  term  of  home  detention:  see R v Lambert HC AK CRI 2005-090-7900 20 November 2007, Stevens J; R v Piper HC AK CRI 2007-004-798 22 November 2007, Keane J; and R v Young & Craig HC HAM CRI 2006-072-577 18 April 2008, Asher J.   I propose to follow that approach.

[41]     I therefore impose a sentence of nine months’ home detention in respect of all charges.  I have considered the provisions of s 80C and whether there should be any special conditions and I will refer to two in a moment.

[42]     The Probation Officer has recommended the following special conditions in addition to the standard conditions.  They are that:

a)       You travel directly from Court to 41 McKinstry Avenue, Mangere when you are released from Court on home detention.   You must remain at that address to be met by the Supervising Probation Officer and the Chubb Security person.

b)You must reside at 41 McKinstry Avenue, Mangere, for the duration of the sentence of home detention.

c)        You must abstain from the consumption of alcohol and illicit drugs for the duration of home detention.

d)You must report to Community Probation and Psychological Services as directed by the Probation Officer.

[43]     I also impose six months’ post-release conditions.   There will be further special conditions that you undertake such programmes related to drug and alcohol counselling as directed by your Probation Officer.  Further, the Probation Officer is to ensure that you undertake such testing for the presence of alcohol and drugs as may be required as and when the Probation Officer thinks fit.  The purpose of that is to ensure that you have an incentive to remain drug free.

[44]     You may stand down.

Stevens J