R v Tini

[2013] NZHC 2184

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-1557 [2013] NZHC 2184

THE QUEEN

v

TEAEA METUA TINI

Hearing:                   27 August 2013

Counsel:                  E C Rutherford for the Crown

S Tait and J M Hudson for the Prisoner

Judgment:                27 August 2013

SENTENCING NOTES OF BROWN J

Solicitors:      Crown Solicitors, Auckland

Counsel:       S Tait, Manukau

R v TINI [2013] NZHC 2184 [27 August 2013]

[1]      Mr Tini you appear for sentence today having pleaded guilty in the District Court at Manukau on 16 April 2013 to a charge of possession of cannabis for supply pursuant to s 6(1)(f) of the Misuse of Drugs Act 1975.   The District Court has declined jurisdiction to sentence you because the sentence that could be imposed upon you in the District Court was potentially inadequate to meet the circumstances of your offending.   That is why you are being sentenced in the High Court.   The maximum sentence in the High Court is eight years imprisonment.

Background facts

[2]      A brief outline of the facts is as follows.

[3]      In the afternoon of Waitangi Day 2013 you were driving a motor vehicle which  was  stopped  by police on Alfriston  Road,  Manurewa but  only after  you intentionally tried to avoid the police.  The police smelt the presence of a cannabis odour in the vehicle and executed a search of you and the vehicle.  A plastic drink bottle  containing  six  tinnies  was  located  underneath  the  driver’s  seat  and  two snaplock bags, each containing 28 grams of cannabis plant material, were located underneath the passenger seat. The total weight of the cannabis was 68 grams.

[4]      Located in the front pocket of your trousers was the sum of $211 in cash.

[5]      In explanation you stated that five of the tinnies were for personal use but you declined to offer any explanation for the rest and as the Probation report recognises, the quantity of cannabis involved could not plausibly be said to be for personal use at least on one occasion, namely the big Waitangi Day party that you said you were heading to.   So you have admitted a charge of possession of cannabis for supply and that is a sensible course to take.

Personal circumstances

[6]      You are 30 years of age.  You live with your sister, father and niece.  You are the caregiver to your father who suffers from Alzheimers disease.  You have three children to a previous partner who is present today.  Your separation is due to your historical convictions for assaulting your partner and one of your children.

[7]      You have a harmful pattern of drug use but you have recognised the link between the current offence and your prior offences.

[8]      The probation service reports that you are embarrassed about your current situation and that you have indicated that you are sick of using drugs.  However it is said that your level of remorse could not be accurately gauged beyond this but I note that since that time you have not only attended but completed a CADS alcohol and drug assessment and you have completed the eight session Getting Started alcohol and drug education programme.

[9]      You  have  however  continued  to  offend  in  spite  of  previously  serving restrictive sentences of home detention and imprisonment and your risk of offending, as the Crown notes, is assessed as medium.

Previous convictions

[10]     Your offending appears to have commenced when you were only 14 years old.   In the period until you were 19 your convictions included convictions for assault on a female and child and use of a firearm against a law enforcement officer. You then went without convictions for a period of seven years until 2009 when you were first convicted for possession for supply of cannabis plant.   For that offence you received a sentence of 150 hours of community work.  You received a second sentence for that offence in June 2012 and you were sentenced to a term of imprisonment for four months and it is of concern to the Court that that sentence does not seem to have deterred you from offending on this occasion.

Principles and purposes of sentencing

[11]     The Sentencing Act 2002 requires that I keep a number of purposes and principles in mind when deciding on your sentence.  I have to have specific regard to the various purposes in the Act: the need to hold you accountable for the harm done to the community; the need to promote in you a sense of responsibility for, and an acknowledgement of, that harm; the need to denounce your conduct; and the need to deter you and others like you from committing the same or a similar offence.

[12]     I have to take into account certain principles of sentencing according to s 8 of the Sentencing Act 2002, including: the need to take into account the gravity of your offending, including the degree of your culpability; the need to take into account the seriousness of this type of offence in comparison with other types of offences; the need to consider the general desirability of consistency with appropriate sentencing levels in other cases; and the need to impose the least restrictive outcome that is appropriate in your circumstances.

[13]     The  Court  of Appeal  in  R  v  Taueki1   sets  out  the  orthodox  approach  to sentencing.  I will first set a starting point based on the features of the offending and then adjust the starting point according to any mitigating and aggravating features relating to you the offender.

Submissions of counsel

[14]     Mr Tait submits that the Court of Appeal decision in R v Terewi2  is the guideline judgment in relation to this sort of offending.  That identified three broad categories for cannabis cultivation but it applies by analogy to cases of supply. Category 2 encompasses small scale cultivation for a commercial purpose.   The starting point is generally between two and four years but where sales are infrequent and of a limited extent a lower starting point may be justified.

[15]     That leads Mr Tait to submit that the present case falls at the lower end of band 2 of Terewi and that a starting point of two years imprisonment is appropriate. He acknowledges the need for some uplift for your two previous convictions for possession for supply and he submits a 25 per cent discount should be applied in relation to your guilty plea.

[16]     The Crown agrees the offending here falls at the lower end of category 2 of

Terewi  as it involves small scale dealing.  The Crown argues that the offending is similar to the case of R v Awa3 where the amounts of cannabis were comparable and

1      R v Taueke [2005] 3 NZLR 372.

2      R v Terewi [1999] 3 NZLR 62 (CA).

3      R v Awa HC Auckland CRI-2007-035-2195, 17 February 2009

moderate amounts of cash were found.  The Crown says that a starting point in the vicinity of 24-26 months is the appropriate period.

Analysis

[17]     I consider the appropriate starting point is 25 months.

[18]     As far as aggravating and mitigating features are concerned the Crown points to your two previous convictions for supply in 2009 and 2012.  You were sentenced to four months with standard release conditions for the most recent of those.  The Crown argues for a moderate uplift and  I consider an uplift of three months is appropriate to reflect those prior convictions.

[19]     So far as the discount for a guilty plea is concerned the plea was given at a relatively early stage but the informant’s case is comparatively strong.   I consider that a 20 per cent discount is appropriate.  But  I round that to six years to reflect your remorse and I am going to add another year for the extent of your voluntary engagement with CADS and the fact that you have completed the Getting Start eight course and I have sighted this morning the two certificates of achievement from CADS in that respect.

[20]     Consequently the effective sentence with a starting point of 25 and uplift of three and discounts of six and one, is 21 months or one year 9 months imprisonment.

[21]     Standing back and looking at the matter in the round I am satisfied that were I to impose imprisonment that would be a proper sentence.   But your counsel has advocated a sentence of home detention.

[22]     The  probation  report  states  that  the  Department  of  Corrections  records indicate you were compliant with a prior sentence of home detention and so there are no objections to a further sentence of home detention being imposed.  The Crown has  also  indicated  that  a  period  of  home  detention  may  be  appropriate  in  this instance.  It is said that a sentence of home detention will allow you to complete your rehabilitation programme in the community and you have expressed a preference for home  detention  in  your  letter  dated  27 August  2013.    In  that  letter  you  have

expressed sorrow for the hurt that you have caused to your family and you state that you are truly sorry for your actions.

[23]     I also have letters before me today from your sisters that are very supportive of you and very persuasive in what they say.  In particular your sisters have indicated that releasing on home detention would be very beneficial to the family dynamic and it would allow you to care for your father who suffers from Alzheimers disease and for whom you are the caregiver.  You have also indicated you would be willing to undertake a sentence of community work which would be combined with a sentence of home detention.

[24]     I have carefully considered the home detention provisions in the Sentencing Act and I have to say that only by the narrowest of margins I am satisfied that a sentence of home detention can be imposed on you.   I do urge you to take this chance because there will certainly not be another one.  The next time, if there is a next time, there would just be simply no possibility other than that you would be imprisoned for a significant period.

[25]     I have  a  home  detention  report  which  indicates  that  the  proposed  home detention residence at [address] is suitable.   I will set out the conditions and requirements in a moment, but it is important that you appreciate the seriousness of your offending.   In addition to the sentence of home detention which will be for

12 months, there will be a sentence of 150 hours community work and in that way you will be required to actually put something back into the community and in doing so I do hope you appreciate the chance you have been given.

[26]     The following are the conditions of home detention:

(a)      From here you will go directly to [address] and await the arrival of the probation officer and a representative from the monitoring company;

(b)You are to reside at the address of [address] for the duration of the sentence and not to move address without prior written consent from a probation officer;

(c)      You are to attend an assessment for any programme as directed and if deemed suitable to attend and complete the programme to the satisfaction of your probation officer and programme provider and I note that you have been also referred to a CADS Action Relapse Prevention Programme; and

(d)You are not consume or be in possession of any alcohol or illicit drugs for the duration of the home detention.

[27]     The post detention conditions which will operate for six months:  you are to attend and complete any programme or counselling not already completed by home detention.

[28]     Mr Tini you have been given a big break today.  The presence and support of your family has been not insignificant in bringing me to that conclusion and in releasing you on home detention.   I want you not only to think hard about the opportunity you have been given but the loyalty and support they have shown to you and I expect you to reciprocate that in the discharge of the sentence that I have given you.

[29]     I will make an order for the destruction of the drugs pursuant to s 32 of the

Misuse of Drugs Act 1975.

[30]     Mr Tini you may stand down.

Brown J