R v Te Rangi HC Auckland CRI 2007-055-779

[2008] NZHC 2283

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-055-779

THE QUEEN

v

HAROLD TE RANGI

Hearing:         29 April 2008

Counsel:         S R Morris for Crown

J J Maddox for Prisoner

Sentence:       29 April 2008

SENTENCING NOTES OF RANDERSON J

Solicitors:           Meredith Connell, PO Box 2213, Auckland

Counsel :           J J Maddox, PO Box 11342, Ellerslie, Auckland

R V TE RANGI HC AK CRI 2007-055-779  29 April 2008

[1]      Mr Te Rangi you appear for sentence today on one charge of possession of cannabis for supply and one of permitting premises to be used for the purposes of drug offending.  The maximum penalty for the first charge is 8 years imprisonment and the second is 3 years imprisonment.

[2]      Your sentencing has been much delayed because of the need  for further probation reports to be obtained and delays in receiving those.  Those delays are not to be laid at your door but rather seem to have been because of administrative difficulties in the Probation Service.

Facts

[3]      The summary of facts, which you do not dispute, shows that in April 2007 a search warrant was executed at your South Auckland home which you rented from the Housing Corporation.   You and several associates were present.   The police discovered a total of 166 cannabis tinnies in the house having a combined street value of $3,320.

[4]      A substantial quantity of loose cannabis was also located along with two sets of scales and numerous pieces of pre-cut tinfoil.   The total weight of the loose cannabis was 232 grams with a street value, once packaged into tinnies, of $9280. The police also located $690 in cash and your former wife handed to the police an additional $800 you had given her earlier that morning.  The premises were equipped with video surveillance technology.

[5]      You admitted to the police buying cannabis by the ounce and selling it in tinnies from your home.   You also admitted enlisting assistance from others and allowing them to sell their tinnies from your address.  You claimed to sell around

100 tinnies per day and the police estimate of your income for the month of March alone, immediately prior to the execution of the warrant, was in excess of $60,000.

[6]      You pleaded guilty in August 2007 before depositions and your case has been transferred to this Court for sentence.

Pre-sentence report

[7]      The initial pre-sentence report received in October 2007 shows that you are aged 61 years.  You are the father of four children but you do not currently have any dependants.  A significant factor in your sentencing is your health difficulties.  You are currently on an invalid’s benefit because of chronic health problems.  You use a wheel chair and crutches to move about and you are unable to walk even a short distance unaided.  You told the probation officer who first interviewed you, that you have heart problems and that shortly before the execution of the warrant at your home you suffered a serious brain haemorrhage which resulted in your admission to hospital.   You have difficulties in breathing and suffer from sleep apnoea.   To an extent, these difficulties have been verified by your former partner with whom you still enjoy a supportive relationship.

[8]      I also  had  made  available to  me today a  medical  report  from  a  general practitioner who largely confirms the health difficulties which you described to the first probation officer.  The medical report confirms that you have gross swelling of the legs, that you need to go to the heart clinic from time to time and that you have blood tests usually once a week.  The report also confirms that you had a brain clot in April last year and you are taking anti-coagulants for that.  You attend the surgery of the general practitioner about once every 3 months.  The medical report suggests that you should not have any long term problems from the blood clot so long as you continue to take your anti-coagulant drugs.

[9]      However, your on-going difficulties in your health are a major factor in terms of your sentencing.

[10]     In explanation of the offending, you told the probation officer you agreed with the police summary of facts, but stated you started selling cannabis in a small way.   You say you were coerced by gang members into allowing your home to be used as a tinnie house with a significant extension of the selling operation.

[11]     You told the probation officer you accepted that although you are not a drug user yourself, your own decision to sell cannabis provided the gang with the impetus

to increase the sale of drugs from your home.  You have been assessed by the first probation officer as having a low risk of reoffending and the probation officer considers you are highly motivated not to offend again.

[12]     I have to say that the second probation officer who interviewed you more recently for home detention purposes had a less rosy view and has expressed some concerns about your potential to reoffend based on your current circumstances and from some statements which you made to that second probation officer.

[13]     You have some previous convictions but they are more than 40 years old and I put them aside for present purposes.  You have not previously been sentenced to a term of imprisonment.

Crown Submissions

[14]     At an earlier hearing, submissions were received from the Crown and on that occasion both the Crown and defence agreed that your sentencing falls in the second category of the Court of Appeal tariff case R v Terewi [1999] 3 NZLR 62. Category

2 offending would normally attract a sentencing range of two to four years imprisonment.   It is appropriate for smaller scale offending having a commercial element.  In my view, this offending could not be categorised as small scale.  I would put it in the medium range which suggests a starting point towards the top of the two to four year range.

[15]     It was submitted in previous submissions by the Crown that a starting point about the middle of the range was appropriate.   Counsel recognised, however, the substantial discount available to you in respect of mitigating factors including your assistance to the police.  In a second memorandum the Crown indicated that it would not oppose a sentence of home detention provided the proposed address was suitable.

Home Detention Report

[16]     Accordingly I directed that a report be obtained in relation to home detention and that report has now been received.   It indicates that the address is technically suitable for electronic monitoring.   The proposed address is Flat 1, 3 Don Street, Papakura.  It is not the address where your offending occurred.  Had it been I would not be considering home detention.   The report says that there are no immediate concerns about the suitability of the proposed occupants of the address.  Apart from yourself, you live there with your daughter who is aged 25 years.

[17]     The probation officer did raise an issue about the electronic bracelet you would need to wear if home detention were considered.  The swelling of your ankles is such that you will have to wear the bracelet around your wrist.   It has been suggested that that may not be as secure and more easily tampered with than an ankle bracelet.   The probation officer advises the Court you have been informed there will be a zero tolerance policy in relation to any tampering with the electronic equipment and I can confirm that you will be required to comply strictly with all conditions of your sentence should electronic monitoring and home detention be considered appropriate.

[18]     The second probation officer indicated some concerns about your potential for reoffending as I have already indicated, but the Crown does not resile from its earlier stance that home detention would not be opposed.  It has not expressed any concerns today about any of the issues raised by the probation officer.  The home detention conditions are recommended which I will deal with at a subsequent stage including some special conditions.

Defence Submissions

[19]     Mr Maddox has made on an earlier occasion submissions on your behalf and urges the Court to follow the suggested home detention sentence.

Assessment

[20]     The difficulty in your case is that most community based forms of sentencing are not appropriate having regard to your age and health.  In particular, you are in no position to pay a fine and a sentence of community work is not feasible because of your health situation.

[21]     I am reluctant to send you to prison because I am satisfied that your health condition is such that it would impose upon you a much more severe burden than would be the case for a younger fit person.

[22]     Your offending warrants a starting point of around three and a half years imprisonment.  However, you are entitled to a substantial discount for your guilty plea, your remorse, and your age and health circumstances.  That would justify an overall discount of about 18 months imprisonment which brings me to a sentence of two years imprisonment.  The permitting charge would warrant a concurrent term of six months imprisonment.

[23]    However in terms of home detention, I am satisfied in terms of s 15A Sentencing Act 2002 that the purposes of sentencing could not be achieved by any less restrictive sentence and that you would otherwise be sentenced to a short term sentence of imprisonment.

[24]     In terms of s 80A Sentencing Act, I must be satisfied of certain matters including, in particular, that the proposed residence for home detention is suitable, that the relevant occupants understand the conditions of home detention and that they consent to the residence being occupied for the purpose of such a sentence.  I must also be satisfied that you understand the conditions of home detention and agree to comply with them.  I am satisfied that those relevant conditions have been met and I have had available to me the forms which you and your daughter have completed in relation to home detention.

Result

[25]     I impose a sentence in your case of 12 months home detention with the standard conditions set out in s 80C Sentencing Act and the following special conditions under s 80D Sentencing Act:

a)        You are to reside at Flat 1, 3 Don Street, Papakura and not to move address without the prior written approval of a probation officer.

b)        You are not to operate any business from the address.

c)        You are to abstain from the consumption of alcohol and any illicit drugs for the duration of the home detention period.

[26]     This is a case Mr Te Rangi where you can regard yourself as fortunate to have the opportunity to serve a sentence of home detention instead of the sentences of imprisonment which would undoubtedly otherwise have been imposed.   I hope you understand that and you realise that if you fail to comply in any respect with the home detention sentence conditions you will be brought back before this Court and that you will then face the prospect of a rather more severe sentence than I have

imposed upon you today.  Do you understand that?  Prisoner:  Yes.

A P Randerson, J Chief High Court Judge