R v Tonihi HC Napier CRI 2006-020-3900
[2007] NZHC 1751
•23 May 2007
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2006-020-3900
THE QUEEN
v
TRISTINA TONIHI
Hearing: 23 May 2007
Appearances: R Collins for the Crown
K Guthrie for the prisoner
Judgment: 23 May 2007
SENTENCING REMARKS OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 609, Napier
K Guthrie, PO Box 101, Hastings
R V TONIHI HC NAP CRI 2006-020-3900 23 May 2007
Introduction
[1] Tristina Tonihi, you have pleaded guilty to a total of nine charges under the Misuse of Drugs Act 1975. Five of these are for possession of the Class C controlled drug cannabis for the purpose of sale or supply, for which the maximum sentence is eight years’ imprisonment. The other four charges relate to selling the Class C controlled drug cannabis, for which the maximum penalty is also eight years’ imprisonment.
[2] For the purposes of your hearing today, I have been assisted by the helpful written and oral submissions from your counsel, very thorough submissions both written and oral from the Crown, a pre-sentence report from the Probation Service, a letter from the Social Worker from Child Youth and Family who works with your three grandchildren, letters from counsel for those children and a letter from the Hawke’s Bay District Health Board. As well, there are several references from people (including your daughter) who speak highly of the abilities that you have to look after your three grandchildren. I will come back to that aspect a little later on.
Facts
[3] In March 2006, the Police in the East Coast and Hawke’s Bay regions launched Operation Nacre, which targeted the supply of controlled drugs in that area. Your offending was uncovered as a result of this operation.
[4] On 27 March 2006, an undercover officer went to your address in Hastings and arranged to purchase two tinnies of cannabis from you for $40. You presented the officer with a tin containing eight tinnies and told him to select the two that he wanted.
[5] On 5 May 2006, the undercover officer returned to your house and asked to purchase two tinnies. You again presented him with a tin containing nine tinnies, selected two and sold them to him for $40.
[6] On 1 June 2006, the undercover officer came to your house and arranged to purchase two tinnies. You showed him a tin, this time containing 14 or 15 tinnies, you selected two and sold them, again for $40.
[7] On 2 November 2006, the undercover officer again arrived at your address and asked to purchase two tinnies. You opened a plastic bag contained in your bag and handed him two in exchange for $40. On that occasion, there were another five remaining in the bag.
[8] Coming then to 16 November 2006, the Police searched your home. You were there with your three young granddaughters. The Police found a total of 62 tinnies in three locations: in a tin by your bed, in a bread bag in a soda stream machine in your kitchen and in a plastic salt container. You told the Police that you received drops of 50 tinnies a week and that your cut was 30%, meaning that you were receiving about $300 per week from these sales. You said that you only started dealing cannabis that year, in order to support your drug habit and help to care for your grandchildren. You said that you were dealing from the home and that your partner sold cannabis from the home when you were not there.
Pre-sentence report and personal circumstances
[9] You are 51 years of age and come from a large family of 18 children. You have spent most of your life in the Hawke’s Bay, working as a member of a shearing gang, taking on seasonal work and caring for your family. At present, you are caring for your three granddaughters aged seven, six and four years. By all accounts, you are providing a loving and stable home for these children to allow them a normal functional childhood in the face of other family difficulties.
[10] You have been in a relationship with your partner for ten years. He is currently serving a custodial sentence. You have recently had surgery on your knee to remove bone fragments from a previous injury and you are on medication to control your pain. You say that you used cannabis for relaxation but have stopped doing so, although the pre-sentence report states you are not receiving any treatment from addiction services. Should you be prepared to do so, the Probation Officer
thinks you are at present a low risk of re-offending. Your counsel has referred in submissions to the fact that you are now receiving treatment for your cannabis use at Nga Punawai Aroha.
[11] In relation to the question of receiving treatment, I refer to the passage in the probation report which indicates that you know the agencies to go to. I would normally commend to you the need to take urgent steps in that regard and to double your efforts to be and remain drug free, particularly over the next period. This is because it may well assist you, if and when the Parole Board is considering any aspects of your case. So in a sense, the remedy is in your own hands and it is really important that you turn your back on cannabis once and for all – not just for yourself, but in the interests of these three little girls about whom I am quite concerned.
Prior convictions
[12] You have several previous convictions but you have no convictions for drug related offending. There are offences for breach of community work and you have outstanding fines totalling $1745.
Crown submissions
[13] The Crown says that you were selling at the retail level of the cannabis supply chain, which is an aggravating factor in your case. The Crown does acknowledge that you admitted your guilt at an early opportunity and should be given credit for that. It is further acknowledged that your personal circumstances would be a mitigating factor to the limited extent that the law allows that in cases of commercial cannabis dealing.
[14] Mr Collins, for the Crown submits, and your counsel agrees, that your case falls within category 2 of the tariff case R v Terewi [1999] 3 NZLR 62, which says that a starting point of two to four years’ imprisonment is appropriate for small scale dealing in cannabis.
[15] Your counsel accepts that your offending was clearly commercial and at the retail end of the chain. A number of cases were cited that are similar to yours and I have considered those carefully.
[16] Your counsel emphasises that you have not previously committed a drug related offence and referred to the fact that you have commenced counselling at Nga Punawai Aroha. Reference was made to your age, your very early guilty pleas and the fact that you did not instigate any of the purchases. It is said that you are genuinely remorseful for what you have done and the effect on the wider community.
[17] Your counsel submitted a starting point of two and a half years’ imprisonment was appropriate and also submitted that, should a term of two years’ imprisonment or less be imposed, I should grant you leave to apply for home detention and deferment of the start date, about which I will say some more in a moment.
Purposes and principles
[18] There are a number of purpose and principles in the Sentencing Act 2002 that I am required to keep in mind. I refer to the need to hold you accountable for the harm done to the community and to promote a sense of responsibility in you for that harm. On behalf of the community, as sentencing Judge, I must also denounce your conduct and reflect the need to deter you and others from committing the same or a similar offence.
[19] In terms of the principles, I need to take into account the gravity of the offending and your degree of culpability, the seriousness of your offending, and bear in mind the maximum penalties prescribed. Then I must take into account the desirability of consistency in sentencing and impose the least restrictive outcome.
[20] The Court of Appeal in R v Taueki [2005] 3 NZLR 372 set out the correct approach to sentencing. It requires me to set the starting point based on the features of the offending, and then adjust the starting point according to any mitigating and aggravating features.
Aggravating features
[21] Under s 9 of the Sentencing Act I must consider your previous convictions, but these are generally low level and historical. You have however shown a willingness to flout orders of the Court through your conviction for breach of the terms of your community work.
Mitigating features
[22] Under s 9(2) of the Sentencing Act, I recognise your early guilty pleas, your remorse and the various mitigating factors mentioned by your counsel. In particular, I recognise the fact that you are a long term user of cannabis but have now taken steps to turn your life around and finally turn your back on cannabis. I regard it as particularly important that, as I said before, you continue to take steps and to seek the help that is available to you in that regard. You are entitled to credit for the fact that at 51 years of age this is your first drug related conviction.
[23] Finally, your counsel mentioned that it was the undercover officer that approached you. You did not instigate any of these particular purchases.
Starting point
[24] Taking into account all of these matters and the guideline of category 2 in Terewi I consider that the appropriate starting point is two and a half years’ imprisonment.
[25] Then I have to consider the effect of the mitigating factors that I have referred to. I have already listed these and there are several that can be taken into account. I am going to give you a significant discount for those mitigating factors.
[26] I am going to impose an effective sentence of 18 months’ imprisonment on all charges, but they will be concurrent. I will fix that sentence on the basis that it reflects the overall totality of the criminality in this case and it properly takes into account the mitigating factors to which I have referred.
Leave to apply for home detention
[27] Your counsel has drawn my attention to the fact that where a term of imprisonment of not more than two years is imposed, under s 97 of the Sentencing Act I must consider whether to grant you leave to apply for home detention.
[28] I have carefully considered the provisions of s 97(3) which require me to consider the nature and seriousness of the offences, the circumstances and background of the offender and any other relevant matters.
[29] Because of the particular circumstances and in particular because of your personal circumstances and background, I am going to grant you leave to apply for home detention. In particular, I take into account the fact that you are responsible for the care of your three young granddaughters. I have also taken into account the letter from your daughter who wrote to me and expressed a wish that if I could see the way clear to enable you to continue to look after the three grandchildren that would be of great benefit, not only to the children, but also to other members of the family and the wider whanau. I have already noted that the ages of three young girls runs from seven down to four years of age. They are very young children and they need good guidance from you as their grandmother and guardian. Moreover, without your love and ongoing care, they undoubtedly face an uncertain future.
[30] The grant of such leave means that you will need to apply to the Parole Board for leave to have home detention. I cannot prejudge what decision the Parole Board will make, but Ms Guthrie has indicated that she will assist you in that matter and
you should be very grateful for that. It will be important as you approach the hearing of that matter to make sure that you have continued to remain drug free and you might well think about getting yourself tested to prove that to the Parole Board. Secondly, you should continue with the steps towards rehabilitation, counselling and programmes so that you really do turn your back on cannabis for good. Continuing down this path will also mean that you would cease using your home as a venue for selling cannabis. This will be important because the Courts have typically been reluctant to grant leave where someone has been dealing in drugs from the home: see for example R v Paki CA165/05 5 September 2005 at [12].
Deferral of start date
[31] When leave to apply for home detention is granted, deferral of the commencement of the sentence of imprisonment becomes an issue. Your counsel has applied on your behalf for deferral of the start date of the sentence of imprisonment under s 100 of the Sentencing Act. Under that section, I may defer the start date of the sentence of imprisonment for a period of up to two months on humanitarian grounds, or if I am satisfied that there are exceptional circumstances justifying deferral of the start date of the sentence.
[32] I have considered the cases of R v Karena HC AK CRI 2006-092-9854
13 October 2006, Stevens J and R v Crampton HC TAU S 316/03 13 February 2003, Priestley J, which I referred to your counsel yesterday. In the latter case, Priestley J in a not dissimilar context of offending under the Misuse of Drugs Act involving the selling of cannabis and possession of cannabis for the purposes of supply, allowed an application for leave to apply for home detention. He then went on to find, in the circumstances of that case, that there were strong grounds of a humanitarian nature which allowed him to defer the start date of the term of imprisonment. Those grounds were the complete dependency of the children, the fact that two of them were suffering health problems and that the youngest was not yet weaned.
[33] The case for the existence of humanitarian grounds, in your case, is made out by the lack of care options in the interim (apart from you) for your grandchildren.
[34] Mr Collins, for the Crown, has responsibly acknowledged in Court today that this type of order is open to the Court in the circumstances of this case.
[35] Accordingly, the basis of humanitarian grounds and in order to benefit the three little girls, your daughter and your wider family, I am going to defer the start date of the sentence of imprisonment by up to two months from today’s date or until the Parole Board considers your application, whichever is the sooner.
[36] Pending the hearing by the Parole Board of the application for leave to apply for home detention, you will continue on bail. The terms of your bail will be the same as those up until today except for the address at which you will reside. The address is 45A Cartia Crescent, Flaxmere, Hastings.
[37] You may stand down.
Stevens J
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