R v Te Ata HC Rotorua CRI 2008-063-2139

[2008] NZHC 2541

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2008-063-2139

THE QUEEN

v

TAMARAU TAKURUA TE ATA

Hearing:         28 August 2008

Counsel:         R Bird for Crown

B Foote for Prisoner

Sentence imposed:     Possession of cannabis for supply (x1)

8 months home detention (standard conditions and special conditions imposed at para [19])

Judgment:      28 August 2008

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Rotorua
Counsel:

B Foote, Rotorua

R V TE ATA HC ROT CRI 2008-063-2139  28 August 2008

Background

[1]      Tamarau Takurua Te Ata, you appear for sentence today on one charge of possession of the Class C controlled drug cannabis for supply.  That offence carries a maximum penalty of 8 years imprisonment.  That emphasises the seriousness of the offending on which you have been brought before the Court.

[2]      You  have  also  been  charged  with  stealing  an  electric  fence  unit  and knowingly entering an exotic forest without written permission.  Those are what we call summary offences for which I have no power to sentence.  I will be remanding you back to the District Court to deal with those two more minor charges later.

[3]      You have been committed to the High Court for sentence because of a quirk in the law that does not allow the District Court to impose more than one year’s imprisonment on a charge of this nature.   The fact that you are in this Court for sentence does not remove the need for me to consider whether it is more appropriate to impose a community based sentence than to imprison.

Facts

[4]      On 24 April 2008, a security officer who was passing through the Kaingaroa Forest stopped to speak to you.   Access to the forest is restricted, so the officer wanted to know why you were present.

[5]      During the course of your discussions, the officer noticed a strong scent of cannabis emanating from your vehicle.  On inspection, 28 kilograms of wet cannabis plant and a portable electric fence were found in the vehicle.  That quantity of wet plant is estimated to be between two and a half and three kilograms of dried cannabis plant material.  You admitted that you had taken the cannabis and the fence.  The purpose of taking the cannabis, you said, was for sale.

[6]      As   I   understood   what   you   told   the   security   officer,   you   acted opportunistically in obtaining the cannabis and taking it with you.   However, you

have put a slightly different slant on the facts in an affidavit you have provided for this  Court,  in  which  it  appears  that  you  were  assisting  an  associate  to  retrieve cannabis from the forest.  In any event, I accept that you were not responsible for cultivation of the cannabis.

[7]      You are now 48 years old.   Although you have been before the criminal courts before your convictions are either irrelevant or spent.   For the purposes of today’s sentencing, I treat you as if you were a first offender.

Submissions

[8]      Mr Bird, for the Crown, submitted that I should take a starting point for sentence of between two and two and a half years imprisonment, consistent with a guideline decision of our Court of Appeal by which I am bound.  Mr Bird accepts that the sentencing option of home detention is available.   Initially, the Crown’s position was that a sentence of home detention would be inappropriate, but Mr Bird now abides the decision of the Court on that issue.

[9]      Mr Bird has emphasised in his written submissions the importance of the sentencing goals of accountability, deterrence and denunciation to this sentencing exercise.

[10]     Mr Foote, on your behalf, has put forward a number of powerful mitigating factors in your favour.  The most important of those are the entry of early pleas of guilty which demonstrate acceptance of responsibility for your offending.   Your prior good character and the remorse you have shown are also relevant mitigating factors.

[11]     Mr Foote asserts that your finding the cannabis was merely luck, on the basis that it happened to be located while you were in the forest to gather puha and pikopiko.  Accepting that imprisonment is a viable sentencing option, Mr Foote has submitted that a term of home detention is more appropriate, given the need to impose the least restrictive outcome.

Sentence

[12]     Mr Te Ata, for sentencing purposes, I take the view that you did assist your associate in retrieving cannabis from the forest.  I find it implausible that you would use for personal use the whole of the cannabis retrieved.  But I do take the view that the amount that you would have sold was relatively small.   That puts you in the category of someone who has involvement or potential involvement in small scale cannabis supply.

[13]   The  important  sentencing  goals  are  deterrence,  denunciation  and accountability.   They are off-set by your acceptance of responsibility to a large degree.

[14]     I am required to sentence in a consistent manner with the way in which other similar offenders would be dealt with by the Court and to impose the least restrictive outcome.   The probation officer who completed the pre-sentence report has recommended a mix of community work and supervision.  With respect, that is an unrealistic expectation for offending of this type.   The only issue is whether you should go to prison or be sentenced to home detention.

[15]     I take account of the  fact that there  are  no  aggravating factors,  whether personal or relating to the offence, other than those that are inherent in the offence itself.  The pleas of guilty, your remorse and evidence of prior good character from the excellent references you have provided are mitigating factors.

[16]     The Courts now accept that the sentence of home detention is an important one to be imposed in cases where it is not necessary to impose imprisonment.  It is a sentence that restrains people’s liberty significantly and should never be regarded as a soft option.  The Courts accept that even in a case where deterrence is the principal sentencing goal, home detention may be imposed.

[17]     I accept Mr Bird’s submission that a starting point for sentence in the region of two years would be appropriate.   I would give a credit of 33% for your early guilty pleas and would add a further 10% to reflect other mitigating factors.   A

provisional sentence of something in the region of one year six months would result. That means that you are eligible for a sentence of home detention.

[18]     Your residence has been assessed as suitable for electronic monitoring.  You have been assessed as a suitable candidate.   I do not regard the nature of your offending as disqualifying you from that sentence.

[19]     Imposing the least restrictive outcome appropriate in the circumstances, I order that you serve a sentence of home detention of eight months.   Standard conditions will apply, along with the following conditions I impose, generally to reduce the risk of re-offending:

a)        First, you shall travel directly to 1 Priest Road, Rotorua and await arrival of a probation officer and the monitoring company.

b)Second, you shall reside at 1 Priest Road and not move from that address without the prior written approval of a probation officer.

c)        Third,    you   shall    attend   and   complete    any    drug   or   alcohol rehabilitation programme required by the probation officer.

d)Fourth, you shall attend and complete any other programme required by the probation officer.

e)        Fifth, you shall not have possession of alcohol or drugs during your period of home detention.

f)        Sixth,  you  shall  not  undertake  employment  without  the  written permission of the probation officer.

[20]     Although it is necessary to impose that last condition, I cannot see that the probation officer would decline your employment opportunities that you currently have available.  It is simply a matter of process that must be followed.

[21]     Mr Te Ata, I was somewhat disturbed to read about your response to the proposal of undergoing alcohol and drug counselling.  You need to be aware that if you do not perform adequately in your attempts to complete these programmes, you risk the possibility of re-sentencing which may result in your going to prison.  So, please be very clear about that.

[22]     Accordingly, you are convicted of possessing cannabis for the purpose of supply and you are sentenced to eight months home detention in the terms I have outlined.

[23]     There is a need for the remaining two charges to be dealt with in the District Court, as they are summary in nature.   You are remanded at large to appear for sentence in the District Court at Rotorua on 4 September 2008 at 10am on those charges.

[24]     Mr Te Ata, you have lived a life that has offered some good service to people.  You are inherently, I suspect, a good man.  You need to address the alcohol and drug problems you have, otherwise you do risk the possibility of spending some time in prison in the future.  I hope you understand the predicament in which you how find yourself and will do something to prevent that from happening in the future.

[25]     You will need to remain here in Court until the appropriate documentation has been completed and then you will need to go directly to the home detention address.

[26]     Stand down.

P R Heath J