R v Vailea

[2010] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA510/2009

[2010] NZCA 67

BETWEEN  THE QUEEN

Appellant

ANDUNALOTO RAHERA VAILEA Respondent

Hearing:         8 March 2010

Court:            Ellen France, Miller and Allan JJ Counsel:      B D Tantrum for Crown

W N Dollimore for Respondent

Judgment:      15 March 2010 at 11.30 am

JUDGMENT OF THE COURT

The application for leave to appeal against sentence is granted but the appeal is

dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]      The respondent was sentenced on 23  July  2009  to  a  term  of  18  months imprisonment.  She had pleaded guilty to seven counts of selling cannabis or having

R V VAILEA CA510/2009  15 March 2010

possession of cannabis for the purposes of sale, plus charges of receiving, possession

of  methamphetamine, possession  of  utensils  (methamphetamine) and breach  of

District Court bail.[1]

[1] R v Vailea HC Hamilton CRI 2007-019-010321, 23 July 2009.

[2]      The Solicitor-General seeks leave to appeal against the sentence on the basis the sentence is manifestly inadequate and wrong in principle.  The application raises issues about the appropriateness of the starting point adopted and of the discount for mitigating factors.

Factual background

[3]      The charges faced by the respondent arose out of a police investigation into drug  dealing  by  the  Mongrel  Mob  in  the  Waikato  region  between  March  and December  2007.           Woodhouse J,  in  sentencing  the  respondent,  observed  that  the investigation revealed an organised criminal structure.  The top tier involved those at the highest echelon of the gang.  The second tier comprised senior patched members who were responsible for obtaining and distributing drugs to those in the third tier, like the respondent.

[4]      The  facts  giving  rise  to  the  offending  are  described  by  Woodhouse  J  as follows:

[6]      There  was  a  search  on  1  August  2007.   A  methamphetamine  pipe was found.  [The respondent] admitted it was [hers].  A stolen television was also found.

[7]      There   was   a   further   search   on   27   August.   The   police   found quantities  of  cannabis  in  tinnies  and  ounce  bags,  cash  in  different  places, another methamphetamine pipe in [the respondent’s] bedroom, and another stolen television. [The respondent] admitted that this television was stolen.

[8]      [The  respondent  was]  living  at  this  house  with  other  members  of

[her] family. The property was rented in [her] father’s name.   [Her] father was convicted on a charge of permitting the premises to be used for selling

cannabis  over  the  period  from  27  August  to  6  December  2007.   ...  [her]

mother  has  also  been  convicted  on  charges  arising  out  of  this.  In  another bedroom – this is on the 27 August search – in another bedroom occupied by [her] sister and her [sister’s] boyfriend, the police found a further 2 tinnies and $4,930 in cash.

[9]      There  was  a  further  search  on  6  December  2007  when  the  police operation  came  to  an  end.  The  police  found  11  cannabis  tinnies  in  [the respondent’s]  bedroom  and  6  more  in  other  places.  There  was  more  cash, including $1,845 in [her] father’s possession.  In the bedroom of [her] sister and her [sister’s] boyfriend the police found 20 tinnies and $4,550 in cash.

[10]     Further evidence of [the respondent’s] involvement and the nature of

it  –  and  the  involvement  of  members  of  [her]  family  –  was  obtained  by undercover  police  officers  on  three  occasions  in  November  when  tinnies were  sold by [the respondent] or  members  of [her] family,  including [her] mother. In addition, on one occasion, [the respondent] offered to sell 2 ounce bags  for  $250.  There  was  further  evidence  of  [the  respondent’s]  dealings with  a  patched  gang  member  to  obtain  supplies  of  cannabis  and  make payment to him.

[5]      When she was interviewed by the police on 6 December 2007, the respondent admitted   selling   cannabis.  The   respondent   said   she   did   so   to   support   her methamphetamine habit.  She said she got the cannabis from a patched gang member who supplied methamphetamine to her for her own use.   The respondent stated that all of her family sold cannabis, and that anyone at home “who could be bothered” would sell.  The respondent said that between 50 to 100 tinnies a day had been sold from  the  home  over  the  preceding  two  to  three  months.   Before  that,  she  said  20 tinnies a day were being sold.

Sentencing remarks

[6]      In setting a starting point Woodhouse J rejected the Crown’s submission that

the offending came within category 3 in R v Terewi[2]  warranting a starting point in

the region of five years imprisonment. Although not expressly stated, it appears that the Judge saw this offending as falling within category 2 in Terewi which would justify starting points between two and four years imprisonment. In making  that assessment, Woodhouse J emphasised, amongst other  matters,  that  the  respondent was at “the bottom of the pecking order” and that it was likely the respondent was drawn into the offending by her brother’s active involvement in the gang.[3]

[2] R v Terewi [1999] 3 NZLR 62 (CA).

[3] At [21].

[7]      The Judge considered the appropriate starting point was two years and nine months imprisonment.  That figure was increased by three months to take account of

the totality of the offending.  Woodhouse J further uplifted the starting point by three months  to  reflect  the  fact  that  the  offending  occurred  whilst  on  bail. The  Judge acknowledged that uplift was very lenient.

[8]      From the starting point of  three  years  and  three  months  imprisonment,  the

Judge discounted the sentence by 12 months for personal circumstances and a further

30  per  cent  for  the  guilty  pleas,  resulting  in  an  end  sentence  of  18  months imprisonment.  The Judge refused to grant home detention.

Submissions

[9]      In  essence,  the  Solicitor-General  challenges  three  aspects  of  the  Judge’s approach  to  sentencing.                  First,  Mr  Tantrum,  on  behalf  of  the  Solicitor-General, submits that in setting the starting point at two years and nine months imprisonment, the  Judge  ignored  the  fact  the  respondent  operated  at  the  highest  level  within  tier three of the drug-selling scheme.  It is not disputed that she dealt directly with senior members of the gang in the second tier.   Secondly, Mr Tantrum says that the three- month uplift for offending while on bail was inadequate in itself, especially where the respondent offended twice while on bail and had relevant previous convictions. Finally,   the   Solicitor-General   challenges   the   12-month   discount   for   personal mitigating factors and the nine-month discount for the guilty pleas.

[10]     Mr  Dollimore  submits  that  Woodhouse  J  correctly assessed  the  role  of  the respondent as, essentially, a low level seller.   Mr Dollimore argues that the Judge’s approach to the other matters raised by the Crown was one open to the sentencing Judge.

Discussion

[11]     Because of the way we resolve the matter, we can deal with the case briefly.

[12]     In terms of the starting point, as  Mr  Tantrum  accepts,  it  was  open  to  the

Judge to place the offending within  category  2  of  Terewi  although  Mr  Tantrum

submits placement should have been at the high end of that category.  The uplift for offending whilst on bail could have been higher, as the Judge accepted.   However, that uplift has to be considered along with the uplift for totality.

[13]     The  Solicitor-General’s  complaint  has  much  more  force  in  relation  to  the discount  for  personal  circumstances.                 As  we  shall  discuss  further  shortly,  the personal  circumstances  identified  by  the  Judge  are  not  particularly  cogent  or compelling.   In  addition,  those  factors  have  a  limited  role  given  the  need  to  deter drug dealing.

[14]     The  approach  to  the  discount  for  personal  circumstances  means  that  the sentence  imposed  is  undoubtedly  a  lenient  one. That  in  itself  is  not  necessarily problematic. That  is  because,  as  was  observed  in  R  v  Fate,  “in  appropriate circumstances”  extending  mercy  to  an  offender  is  “a  legitimate  function  of  the criminal justice system”.[4]   This Court in R v Ngeru stated, however, that while an appellate court “will respect” the exercise of mercy, the discretion is not unfettered and “the sentence ultimately imposed must take into account the interests of society in ensuring in appropriate cases that, notwithstanding the promptings of mercy, the sentence will still reflect the seriousness of the crime”.[5]   The authorities make it clear that  there  must  a  basis  for  the  approach  taken  and  it  follows  that  the  matters  on which the judge relies ought to be articulated clearly.

[4] R v Fate (1998) 16 CRNZ 88 (CA) at 94.

[5] R v Ngeru CA459/94, 1 May 1995 at [4]-[5].

[15]     As  we  have  noted,  there  is  not  a  great  deal  of  cogency  in  the  factors identified in this case.   The high point is the suggestion in the sentencing remarks that the offending is the product of oppression or of similar constraints arising out of the familial involvement in the offending.

[16]     That said, we have ultimately concluded that it would not be appropriate for the Court to disturb the sentence imposed.   The factor that tips the balance in this respect  is  a  practical  one,  namely,  that  we  were  advised  at  the  hearing  that  the respondent is due to be released on 17 March 2010.   In light of that fact, we grant leave to appeal but dismiss the appeal.

[17]     We  add  that  several  of  those  involved  in  offending  arising  out  this  police operation have been sentenced, some to longer terms, but Mr Tantrum did not invoke disparity  as  a  ground  of  appeal. Further,  we  understand  that  there  are  still  three persons to be sentenced in relation to this offending. However, although we have limited information about the factual circumstances of those three cases, we would not  see  the  approach  taken  in  the  respondent’s  case  as  having  any  particular relevance to these three further sentencings or, indeed, to other cannabis offending.

Solicitors:

Crown Law Office, Wellington for Appellant