R v Tavake HC Auckland CRI-2007-004-1359

[2007] NZHC 1976

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-004-1359

THE QUEEN

v

DINO TAVAKE

Hearing:         7 August 2007

Appearances: Mr L Hamilton for Crown

Ms M Pecotic for prisoner

Judgment:      7 August 2007

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Auckland
Counsel:

Ms L Pecotic, Auckland

R V TAVAKE HC AK CRI-2007-004-1359  7 August 2007

[1]      Mr Tavake, you appear for sentence having pleaded guilty in the District Court to one charge of being in possession of the Class C controlled drug cannabis, for the purposes of supply.   The maximum sentence for that offence is one of eight years imprisonment.    The District Court declined jurisdiction to sentence you and remanded you instead to this Court for sentence.

Factual background

[2]      The facts relating to your offending can be briefly stated.   At about 3.22 pm on 18 January 2006 the police executed a search warrant under s 18(1) of the Misuse of  Drugs   Act   1975   at   a  residential  address   situated   in   Haverstock   Road, Sandringham.   That address is a ground level two bedroom flat within a two storey building.

[3]      When  the  police  entered  the  address  they  found  that  you  were  the  sole occupant.   The police searched the address and found two ounces of dried cannabis plant material contained within two plastic zip lock bags.    The police also found a role of tinfoil, scissors, four tinfoil strips and a cigarette packet containing three tinfoil packages of cannabis plant material.   Those packages held sufficient cannabis material for approximately three to four cannabis cigarettes.    They were in a form that  is widely known as  “tinnies”,  which sell  for  $20  each.      When  you  were searched,  you  were found  to  be  in  possession  of $125  in  cash,  most  of which comprised $20 bills.

[4]      Whilst executing the search warrant the police ensured that their cars were left well away from the address.    In a one hour 20 minute period whilst the police were at the address, approximately 11 people arrived at the property and attempted to purchase cannabis there.   When you were spoken to, you admitted that the cannabis plant material was present for the purposes of sale.

Sentencing Act 2002

[5]      In sentencing you I bear in mind, although I do not propose to spend a great deal of time discussing, the principles contained in the Sentencing Act 2002.    In

cases involving drugs an important consideration is the need to impose sentences that will deter other people from committing similar offences.   In addition, however, it is important that sentences in this field are imposed as consistently as possible with those imposed in other similar cases.   That must necessarily be a broad evaluation, because the circumstances of drug offending vary so  widely  from case to  case. Other cases, whilst of some value, often cannot be readily compared with an instant case because of the variations in factual background.

Starting point

[6]      Both counsel accept that the starting point  in your particular case,  is the guideline decision of the Court of Appeal in R v Terewi [1999] 3 NZLR 62. Both counsel also agree that, broadly speaking, your offending falls within the second category identified in Terewi.     That category of offending ordinarily warrants a starting point of two to four years imprisonment.     The Crown submits that your offending fits squarely within that category and that a starting point of upwards of two years imprisonment is warranted.

[7]      Whilst your counsel accepts that your offending falls within that category, she submits that I would be entitled to infer that any sale of cannabis by you was on an infrequent basis, and that I would be justified in terms of the comments made in Terewi, in adopting a starting point below two years imprisonment.

[8]      It seems to me, however, that  your offending  was clearly commercial  in nature.    Although I accept that I must take into account only the circumstances as found on 18 January 2007, nevertheless they suggest that the police encountered a “full blown” tinnie house when they entered the address on that date.    You were found in possession of a reasonably substantial quantity of cannabis that you acknowledge was for the purpose of selling to other people.   You were also found in possession of cash, indicating that recent selling had occurred, and you were also in possession of items such as tinfoil and scissors that suggested that you were in the middle of a selling operation when the police arrived.

[9]      I accept your counsel’s submission that there is nothing to suggest that you were the mastermind behind this tinnie house, or even that you had a substantial connection with it.   Nevertheless, the fact that you were alone at the address with the items that were found there indicates to me that you were a full-fledged part of the operation.   You were trusted sufficiently to be left in charge of the operation for the day, and you were entrusted with the sale of cannabis during the day.

[10]     Moreover, it is clear from the number of people who called at the house whilst the police were there that this was a reasonably well-established operation although I accept that there is nothing to suggest that you personally had anything to do with the development of the tinnie house business overall.

[11]     In those circumstances I do not see that I would be justified in departing from the starting point identified in Terewi.   The only issue is the extent to which, if at all, your  sentence  should  be  increased  below  the  minimum  suggested  in  that  case, namely one of two years imprisonment.

[12]     Counsel have referred me to other cases including R v Baker HC WGTN CRI

2005-485-157 21 February 2006 Miller J and R v Wong HC AK CRI 2006-092-5126

13  October  2006  Stevens  J.      Ms  Pecotic  submits  that,  although  a  benevolent approach was taken in R v Baker, nevertheless such an approach could be equally apposite in your case.     She submits that the circumstances  in R  v  Wong  were significantly more serious and that your case falls well below the criminality of that in Wong.    As I have said, only limited assistance can be gained from sentencing decisions in other cases because they are so specific and fact dependent.

[13]     Taking all the circumstances in your case into account, I propose to adopt a starting point of two years three months imprisonment in respect of your offending.

Aggravating factors

[14]     You have 11 previous convictions, one of which is cannabis related.    That, however, is in relation to the simple possession or consumption of cannabis and I disregard  it  for  present  purposes.      There  is  nothing  else  about  your  criminal

offending that suggests that you have been involved in this type of offending before. For that reason I do not propose to take your previous convictions as an aggravating factor that operates to increase the starting point that I have adopted.

Mitigating factors

[15]     You appear for sentence at the age of 22 years.     The pre-sentence report records that you are of Tongan descent, but were born in New Zealand and brought up here for the first 11 years of your life.   Your father and mother separated not long after you were born, with your mother returning to Tonga to live.    You lived with your grandmother and a step-brother for some time.    It is clear that you became involved with cannabis from an early age.    This combined with the fact that you have had little formal schooling has led to difficulties for you in obtaining steady employment and you have not been able to achieve or maintain regular employment since your left school in the sixth form.  You now have a young son and you told the Probation Officer that you are in an “off-on” relationship with his mother.     You report, however that you have taken an active interest in the child’s wellbeing and that you are able to visit your son whenever you wish.

[16]     The Probation Report makes the point that you have not been sentenced to a custodial sentence  before.      Neither  have  you  been  sentenced  to  a  sentence  of supervision so that issues in relation to your addiction to cannabis can properly be addressed.     It was for that reason, I would imagine, that the Probation Officer recommended a sentence of supervision together with special conditions.

[17]     For  the  reasons  I  have  already  outlined  I  cannot  impose  a  sentence  of supervision because, in my view, a sentence of imprisonment is the only sentence that is appropriate to reflect the circumstances of your offending.    Nevertheless, I bear in mind the comments of the probation officer in relation to the need to address matters that are of obvious concern in relation to addiction to cannabis.

[18]     Whilst you are not entitled to any discount from your sentence to reflect a previous unblemished record, nevertheless I accept that you are entitled to a substantial discount for the fact that you pleaded guilty at depositions.    Although

this is not the very earliest at which a plea could have been entered, nevertheless I accept your counsel’s submission that your change of plea had in fact been signalled to the prosecution well before you appeared at depositions and you pleaded guilty before the depositions hearing commenced.

[19]     In those circumstances, and taking into account the other matters to which I have referred, I am prepared to give you a full one-third discount in respect of your guilty plea and those other matters.

Sentence

[20]     Mr  Tavake,  on  the  charge  to  which  you  have  pleaded  guilty  you  are sentenced to imprisonment for 18 months.

Home detention

[21]     Given that I have imposed a sentence of less than two years in duration, I am required by the provisions of s 97(3) of the Sentencing Act 2002 to consider whether or not you should be granted leave to serve your sentence by way of home detention. I can only grant that leave if I am satisfied that that should be done taking into account the circumstances and seriousness of your offending, together with other relevant circumstances in relation to you personally.

[22]     In any case involving dealing  in drugs, the  issue of home detention is a difficult one.    Often the fact that drugs are being sold from a residential property will mean that home detention is simply not appropriate for an offender who  is charged with offending of that type.   I accept that your offending did not take place from your own residential premises, but they did take place from another residence. There is also the plain fact that you were prepared to become involved in selling drugs presumably to make money for your own purposes.    Ordinarily, therefore, I would not have contemplated granting you leave to apply for home detention.

[23]     The only factor that makes me hesitate in the present case is the fact that you have never served a sentence of supervision in the past.     There are also clearly

issues in relation to cannabis addiction that may be more easily addressed outside the prison environment  than within it.     For those reasons, and  notwithstanding  the seriousness of your offending, I have concluded that the interests of society generally may be better served if you are granted leave to apply for home detention so that the Parole Board can assess whether or not in fact you should be permitted to serve your sentence in that way.

[24]     As I am sure you appreciate, Mr Tavake, the final decision as to whether or not you should serve your sentence by way of home detention is one that is purely for the Parole Board.   It will need to assess whether the obvious disadvantages that home detention imposes in the circumstances of your case are outweighed by the possible advantages that may be available to you in terms of obtaining assistance for your cannabis addiction.

[25]     For that reason I grant you leave to apply to serve your sentence by way of home detention.

Lang J