R v Te Paea HC Auckland CRI-2004-092-12480

[2005] NZHC 1242

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-092-12480

THE QUEEN

v

DORIS RANGI TE PAEA

Charge:          Selling Class C controlled drug;

Permitting premises to be used for commission of an offence against Misuse of Drugs Act

Plea:               Guilty

Appearances: Simon Mount for Crown

Frank Hogan for Prisoner

Sentenced:     25 February 2005

Selling cannabis – 3½ years imprisonment

Permitting premises – 4 months imprisonment (terms concurrent)

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown Frank Hogan (Auckland) for Prisoner

R V TE PAEA HC AK CRI-2004-092-12480 [25 February 2005]

Introduction

[1]    Ms Te Paea, at 56 years of age and with numerous previous convictions for this type of offending, you appear for sentence today having pleaded guilty in the District Court earlier this month to one charge of selling cannabis – a representative charge – and one charge of knowingly permitting your premises to be used for the purpose of selling cannabis.

[2]    The maximum term of imprisonment for which you are exposed is 10 years on the first charge and six months on the second.

[3]    I shall deal first with the facts, Ms Te Paea, before considering the appropriate starting point for your sentence and your personal circumstances. Before doing that, I wish to acknowledge Mr Mount’s careful written synopsis for the Crown and Mr Hogan’s brief but insightful submissions for you today.

Facts

[4]    The facts are not in dispute. You occupied a property in Otara with your associate. You have lived there for some years along with whanau and friends at different times.

[5]    In July 2004 the police gave you a specific warning about selling cannabis; so too did Housing New Zealand in response to some neighbourhood complaints. Nevertheless you took no notice. Police patrols in that area could not help but  observe the heavy foot traffic to your house. Known drug buyers were frequently coming to your property. It was compared to a busy suburban superette. On one occasion when an undercover officer appeared, you told him that you were out of supplies but you openly directed him to what you described as another branch in Bairds Road, Otara. You could not have been more blatant about what you were doing.

[6]    There is no doubt whatsoever that you were running what the police called a tinnie house on an active and large scale. You were willing to sell, as the police say,

indiscriminately to whoever arrived and whoever wanted to buy one of these cannabis tinfoil cigarettes for $20 each. It was a very substantial business.

[7]    The summary of facts does not provide any objective measure of your dealing. I do not have any evidence of large amounts of money found in your possession or similarly large quantities of cannabis. But I have no doubt from the summary, as I have said, that you were running a cannabis selling operation on a major scale over many months and despite police warnings.

[8]    Today Mr Hogan has tendered an explanation on your behalf. He says that some time last year your son was severely assaulted by members of the Tribesmen gang for failing to pay a large debt for drugs. He was hospitalised and then released. In exchange for being spared from further violence towards your son, you agreed to work off his debt, Mr Hogan says, by making your home available for drug distribution.

[9]    In the short time available this morning I have read extracts from your videotaped interview with the police on 3 November 2004. It is plain to me that you were a willing participant, indeed one of the initiators in this operation. Given your background I do not accept for one second that you acted under any form of duress. You frankly told the police that people work from your home around the clock and that you had a fairly well organised and sophisticated drug selling operation. You may not have been at the top but you were an essential cog.

Starting Point

[10]   I now come to the starting point for your sentence; that is, the term of imprisonment which is appropriate to the circumstances of your offending before I take into account any aggravating, or worsening, personal features that would justify an increase or any mitigating, or favourable, features that would  justify a decrease  (R v Terewi [1999] 3 NZLR 62 (CA), para 12).

[11]   The starting point which I impose must reflect the purposes of sentencing set out in the Sentencing Act 2002. They include, as Mr Mount has properly

emphasised, making you accountable for your harm done to the community; promoting a sense of responsibility in you for what you have done; denouncing your behaviour; deterring you and others; and, where, possible, assisting in your rehabilitation and reintegration.

[12]   In this case there are a number of aggravating features. First, as Mr Mount points out, there is the level of premeditation and planning. Second, as I have noted, there is the nature and scale of your operation and your willingness to make a large profit on high volumes from what you were doing. In 1999 the Court of Appeal identified three categories of offending for those who are guilty of dealing in cannabis (R v Terewi (supra)). In my view you fall into the second category; that is, you are dealing on a medium scale for a commercial purpose (with the objective of making a profit). Normally offenders in that category have a starting point of between two and four years imprisonment. In my judgment your case is close to the top of that range. An appropriate starting point for you, Ms Te Paea, would be three years.

Personal Circumstances

[13]   I now come to your personal circumstances. There are a number of aggravating features. They are reflected in your long history of convictions for cannabis dealing offences. Since 1974 you have been convicted of possessing cannabis for supply, selling cannabis oil, possessing LSD for supply, permitting your premises to be used, possession of instruments, and possession of cannabis. You have a clear predilection for this type of offence. Its scale is such that it justifies, in my view, an increase in the starting point of 18 months up to four and a half years imprisonment (R v Ward [1976] 1 NZLR 588).

[14]   However, against that there are mitigating circumstances. First, there is your plea of guilty. I accept what Mr Hogan has told me, that for some time you were in doubt about the wisdom of your decision to plead guilty. Indeed you instructed him after he was engaged to apply to change your plea. As a result of his advice you  have maintained it. I am treating it as an expression of your remorse and of your

responsibility for what you have done. It has also saved the state committing the resources and costs of a trial.

[15]   Second, while your general character is not good, I accept that you have close whanau bonds. You are a mother, a grandmother, and, I am told today, a great- grandmother. I cannot understand why somebody of your age and mine would expose themselves to yet another lengthy term of imprisonment given all that you have been through in the past and being cut off from your loved ones. I can only assume you are motivated by greed, knowing that this is easy money.

[16]   It is not easy for me to send someone of your age to prison given your family ties. In the circumstances I am prepared to allow a larger discount than I would normally apply against the starting point of four and a half years imprisonment on the lead offence and reduce your sentence by one year to three and a half years imprisonment. Accordingly, I sentence you to a term of that duration on the charge of selling cannabis, and to four months imprisonment on the charge of knowingly permitting your premises to be used for the selling of cannabis. Both terms are to be concurrent; that is, served together.

[17]   Ms Te Paea, you know that if you continue like this on your release you are going to be sent to prison for an even longer term. You are a lightening rod or a magnet for those who deal in drugs. Also  you are very visible to the authorities.  You are certain to be detected; you are certain to be returned to prison. I hope this is the last time you ever appear before a Judge for this form of offending. You will have some time to reflect upon it. I hope you use that wisely. I wish  you  well.  Stand down.

Rhys Harrison J