R v Sisavath HC Auckland CRI 2006-092-16818
[2008] NZHC 2345
•26 May 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-092-16818
QUEEN
v
KIAT SISAVATH
Hearing: 26 May 2008
Appearances: N Walker for Crown
C Comeskey for Offender
Judgment: 26 May 2008
Sentence imposed: Possession of methamphetamine for supply Two years and four months’ imprisonment Cultivating cannabis
One month’s imprisonment (concurrent)
Receiving stolen property
One month’s imprisonment (concurrent)
Forfeiture order made in relation to money found in
Mr Sisavath’s possession
SENTENCING NOTES OF ASHER J
Solicitors:
Meredith Connell, PO Box 2213 Auckland
C Comeskey, Barrister, PO Box 4304 Shortland Street Auckland
R V SISAVATH HC AK CRI 2006-092-16818 26 May 2008
Introduction
[1] Kiat Sisavath, after a trial in this Court you were found guilty and convicted of possessing methamphetamine for supply. At the commencement of the trial you pleaded guilty to cultivating cannabis and receiving stolen property. You were charged jointly with your partner, Tiffany Shirtliff, who was convicted at trial of the same three offences as well as possessing two pipes for drug use.
[2] The charges arose from police execution of a search warrant on
29 November 2006 at a property at 137 Russell Road, Manurewa, which you occupied with Ms Shirtliff. When the police came, you and Ms Shirtliff were in the bedroom you shared. You tried to hide a bag. That bag contained 6.7 grams of methamphetamine. Police found a large quantity of plastic bags described as “deal bags” suitable for containing small quantities of methamphetamine, a cannabis plant approximately 30 centimetres in height and a stolen Toshiba laptop. At least two sets of scales were present. The house was fitted with surveillance equipment so that people entering the property could be seen on a screen. Two glass pipes used for the consumption of methamphetamine were also recovered. You were also found to have cash in your pocket amounting to $1,425. No cash was found in the possession of Ms Shirtliff.
[3] Both you and Ms Shirtliff admitted joint ownership of the methamphetamine. The issue at trial was rather, whether you had the methamphetamine in your possession for the purpose of supply.
Submissions
[4] The Crown originally suggested that a starting point for you in the order of three to three-and-a-half years’ imprisonment would be appropriate. However, during the Crown’s submissions today Ms Walker has modified that submission to a suggestion that a starting point in the area of two years and nine months’ imprisonment would be appropriate. Mr Comeskey on your behalf has submitted that the starting point should be between two and two-and-a-half years’ imprisonment. His core submission was that a final sentence of home detention was
appropriate. The Crown does not accept that home detention would be an appropriate sentence.
Starting point
[5] R v Fatu [2006] 2 NZLR 72 (CA) sets out sentencing bands for methamphetamine offending. Band one, which involves low level supply of amounts lower than five grams, merits a starting point of two to four years’ imprisonment while band two, which involves supply in commercial quantities up to to 250 grams, merits a starting point of between three and nine years’ imprisonment. The Court of Appeal noted specifically that supply in small quantities where there is no commerciality and no other aggravating features could call for a starting point less than those indicated as appropriate for band one: at [34].
[6] Whether or not your possession for supply had a commercial dimension has been a matter of some dispute and has been considered at a disputed facts hearing. You gave evidence that you did not sell methamphetamine and that the cash with which you were found was cash you had been paid for work. You intended to use it to buy drugs. Your stepfather, Pannousack Lieng Philavanh, has given evidence that prior to your arrest in December 2006 you worked for him as a skilled gib-stopper and plasterer. He said that you got paid substantial cash sums for this sort of work, the amounts being sometimes between $500 or $600. Susan Baker, a social worker who has been working with you, gave evidence that in return for you doing some plastering and repair work for her on her house shortly before your arrest she paid you a total of $700 in cash.
[7] There are elements of your evidence which leave me uneasy. You have not explained, for instance, how you could have afforded the $3,000 or more involved in acquiring the methamphetamine in your possession when the police arrested you. The sums that you were able to earn do not seem to be consistent with that sort of cashflow.
[8] However, in the end I have decided to give you the benefit of the doubt. I am going to proceed on the basis that you were not selling methamphetamine. I have
already concluded in an earlier judgment that Ms Shirtliff was not selling methamphetamine. I did not have the same doubts about her position that I do about yours, but I have decided ultimately to reach the same conclusion. Nevertheless, I have no doubt that you did on occasions share methamphetamine with friends and indeed this must have been the conclusion of the jury that found you guilty.
[9] The sentencing bands set out in R v Fatu assume a degree of commerciality. The fact that I am not satisfied to the requisite standard that there was commercial dealing here indicates that a mechanical application of the R v Fatu bands would not be appropriate. Nevertheless the 6.7 grams in your possession was significant and exceeds the amount at which possession is presumed for the purposes of supply, which is five grams, pursuant to Schedule 5 of the Misuse of Drugs Act 1975.
[10] Although that amount would place you within band two of R v Fatu and therefore merit a starting point of three years or more, I propose fixing a starting point slightly less than that. I fixed a starting point in relation to Ms Shirtliff of two years and six months’ imprisonment. I consider that a starting point slightly higher than that is appropriate for you. Your actions in trying to hide the methamphetamine when apprehended, the presence of the cash and the age differential between you (you were 20 at the time and she was 17) indicate to me that you were the leader in your methamphetamine activities. Ms Shirtliff was, at 17, a hopeless addict. I do not consider your addiction to have been as acute. Your actions disclose a greater culpability than do hers.
[11] In reaching a starting point I have concluded that the cultivating cannabis and receiving charges are, as against the serious possession of methamphetamine for supply charge, not of sufficient weight to warrant any uplift. I therefore consider the appropriate starting point to be two years and nine months’ imprisonment.
Personal matters
[12] I now turn to matters that are aggravating or mitigating relating to you personally. I have the benefit of a pre-sentence report. For a relatively young man you have an unfortunate history of relatively minor offending. It discloses
something of a drug orientation and propensity for dishonesty offences. You have been convicted of cultivating cannabis, although you were only ordered to come up for sentence if called upon. You have been convicted for failing to answer District Court bail. You have several convictions for receiving stolen property. You have been convicted for procuring and possessing methamphetamine, driving while suspended and giving false details of your own identity. Further, you have outstanding fines of $19,022. These previous convictions justify some modest uplift as an aggravating factor.
[13] The probation officer who prepared the pre-sentence report on the basis of your record assesses your risk of re-offending as high.
[14] As against this, you have an impressive level of support from your parents and the social worker I have already mentioned, Mrs Susan Baker. They have in various ways sought to impress upon me the fact that you are remorseful in respect of your drug dealing and that you have sought to turn the corner and to lead a drug free life. Clearly you are intelligent and able to obtain the confidence of those you get to know.
[15] I will be dealing with issues relating to your rehabilitation in more detail when I consider Mr Comeskey’s submissions that you should receive a sentence of home detention. For the purpose of assessing the mitigating factors in reaching an ultimate sentence point, I record that you are entitled to credit for your remorse and what I consider to be a genuine wish to rehabilitate. However, your level of commitment to rehabilitation is not in my assessment anything like that shown by your partner, Ms Shirtliff. The credit that I intend giving you is considerably less than the credit I gave to her, and I will be returning to this point when I consider home detention.
[16] I also take into account your relative youth at the time of your offending. You were 20. Again it is not a factor that is nearly as strong in mitigation as it was for Ms Shirtliff, who was 17 at the time. Nevertheless it is a factor I take into account. The discount, of course, is to be weighed against your poor record which I have already mentioned. Nevertheless taking all these factors into account I propose
giving you a significant discount of 15 percent. This means that your final sentence will be two years and four months’ imprisonment. Because of the date of your offending, which occurred before s 80A of the Sentencing Act came into force on
1 October 2007, there is jurisdiction to order home detention. This is despite the fact that your sentence exceeds two years’ imprisonment: R v Hill CA59/07
29 February 2008 at [28].
Home detention
[17] Your counsel submits that home detention is appropriate.
[18] When the matter came before me initially for sentence, your counsel proposed that you live with Mrs Baker. That did not have the support of the probation officer because Mrs Baker in her social work often has people with drug problems in the house. Her home would not offer the appropriate drug-free environment. I might say that it is clear from the probation officer’s report and from what I saw of Mrs Baker in the witness box that she runs an excellent home and that her work is of great benefit to our community. Opposition to her home as a home detention residence simply arises from the sorts of people whom she helps through her work.
[19] The current proposal for home detention is that you stay at the home of your mother and stepfather at 7 Bertran Road, Mt Wellington. Having seen your step- father in the witness box and from what I have read concerning your mother, I have no doubt that they run a good home and would insist that you live in a drug-free environment. As against that, however, there is the fact that you have previously offended while living at your mother’s home. You offended indeed some time after your arrest on these charges. That was in May 2007, when you were found to have stolen motor vehicle parts, and you were ultimately charged and convicted of receiving property. Clearly, then, despite their best efforts, they are not able entirely to control what you do.
[20] In your interview with the probation officer you stated that your preference was to carry out a sentence at Mrs Baker’s address, adding that you would have
compliance issues if you were directed to reside at your mother’s home. I note that your methamphetamine offending occurred from your home, although of course at a different address from your mother’s. The fact that your offending occurred while at home, combined with your conviction for receiving property while you were in your mother’s home last year, leaves me unconvinced that her address is a suitable one.
[21] It was very significant in my decision to sentence Ms Shirtliff to home detention that her risk of re-offending had been assessed at low and her rehabilitative efforts were by any judgment extraordinary and corroborated by a number of people. While I think you do have a genuine wish to be rehabilitated you have not shown anything like her commitment and effort in this regard.
[22] While there was some reference in submissions to your having undertaken some courses when you were in prison for approximately four months after having breached bail last year, there is no evidence that you completed any such courses. Again, while you say you have put your name down for various programmes, there is again no hard evidence of this and you certainly have not been accepted for any particular programme.
[23] Although you endeavoured to indicate you had been entirely drug-free since your arrest on these charges, having heard you today, I do not accept that you have remained entirely drug-free. I do accept that you are trying to turn the corner, but I am left with some concerns as to whether you have in fact succeeded in making a total commitment to giving up drugs.
[24] Thus, although I know this will be a great disappointment to you and to those who have supported you, I do not feel able to sentence you to home detention. In summary my three main reasons for treating you differently from Ms Shirtliff and for declining home detention are:
a) the difference between you and her personally in terms of age and commitment to rehabilitation;
b) the lack of any suitable address for you; and
c) the defiance of authority and unwillingness to accept responsibility for acts of wrongdoing that your previous convictions suggest.
Summary
[25] Mr Sisavath, on the charge of possessing the Class A drug methamphetamine for supply you are sentenced to a term of two years and four months’ imprisonment.
[26] On the charge of cultivating the Class C drug cannabis, you are sentenced to a term of one month’s imprisonment. That sentence is to be concurrent.
[27] On the charge of receiving a stolen laptop worth over $1,000, you are sentenced to a term of one month’s imprisonment. That sentence is to be concurrent.
[28] I order by consent that the money found in your possession is to be forfeited under s 32 of the Misuse of Drugs Act 1975, as it was used to facilitate the commission of an offence.
[29] Mr Sisavath, you have today been very well represented by your counsel and very well supported by various people who obviously love you and think you have an excellent future and want to see you fulfil their hopes. From what I have read about you and heard about you, you are fully able to hold a good job and make good money. It is extremely sad that I have to sentence you to prison today. I do hope that you take every opportunity to make sure that you have got your association with drugs completely beaten. I hope that when you come out you will have nothing more to do with drugs and will rather focus on all the many positive things in your life. You are in many respects a lucky person to have the level of support that you do. If you do focus on those positive things you have a very good life ahead of you and I wish you well.
…………………………….
Asher J
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