R v Wade HC Whangarei CRI 2010-088-004946
[2011] NZHC 881
•27 July 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2010-088-004946
THE QUEEN
v
TROY OKIOKI WADE
Hearing: 27 July 2011
Counsel: E P Henderson for the Crown
J W Watson for the Prisoner
Judgment: 27 July 2011
SENTENCING NOTES OF WYLIE J
Distribution:
E P Henderson: [email protected]
J Watson: Fax: 09 438 0512
R V T O WADE HC WHA CRI 2010-088-004946 27 July 2011
[1] Mr Wade, you appear for sentence today having pleaded guilty to various charges. I itemise those charges as follows:
April and May 2010:
(a) Possession of the Class C controlled drug cannabis for supply. This is an offence pursuant to s 6(1)(f) of the Misuse of Drugs Act 1975. The maximum penalty is eight years’ imprisonment.
(b)Receiving property exceeding $1,000 in value. This is an offence pursuant to ss 246 and 247(a) of the Crimes Act 1961. The maximum penalty is seven years’ imprisonment.
(c) Unlawful possession of a shotgun. This is an offence pursuant to s 50(1)(a) of the Arms Act 1983. The maximum penalty is three years’ imprisonment and/or a $4,000 fine.
(d)Possession of an explosive without a lawful, proper and sufficient purpose. The explosive was ammunition. This is an offence pursuant to s 45(1)(b) of the Arms Act 1983. The maximum penalty is four years’ imprisonment and/or a $5,000 fine.
November 2010:
(a) Possession of the Class C controlled drug cannabis for supply. This is an offence pursuant to s 6(1)(f) of the Misuse of Drugs Act. The maximum penalty is eight years’ imprisonment. This charge was laid jointly against you, and your de facto partner, Christine Mackie.
(b)Theft of a controlled drug, namely cannabis. This is an offence pursuant to s 6(1)(a) of the Misuse of Drugs Act. The maximum penalty is seven years’ imprisonment.
[2] You were to be sentenced on all counts in the District Court on 16 May 2011. The District Court declined jurisdiction. The matter has been sent to this Court for sentencing.
Relevant Facts
The April/May offending
[3] Sometime between 1 April 2010 and 8 May 2010, you were outside the Tikipunga shops. You were approached by two males who were unknown to you. They offered to sell you two Toshiba laptops valued at over $1,000 each. Knowing them to be stolen property, you agreed to trade two cannabis tinnies in exchange for the laptops.
[4] At about 1.00 pm on 8 May 2010, the Police were called to a domestic incident at your address in Tikipunga, near Whangarei. You were present. So was your de facto partner, Ms Mackie, and your four young children. On entering the premises the Police detected a strong smell of cannabis. They searched the house pursuant to s 18(2) of the Misuse of Drugs Act, and found a cannabis bong and 15 tin foil wrapped packages, or tinnies, each containing about one gram of cannabis in the bedroom. In a bucket in the lounge, the Police found four bags of cannabis plant in what are commonly known as ounce bags. The combined weight of the four bags was 105 grams of cannabis plant material. Also in the bucket were 20 grams of loose cannabis leaf and 40 pre-cut pieces of tin foil. The Police further found a bag containing $1,090 in $5, $10, $20 and $50 denominations under your Honda vehicle.
[5] In the main bedroom, the Police found the stock, barrel and forestock of a 12 gauge sawn-off shotgun. In the kitchen above the fridge, there were three live 12 gauge shotgun shells, and 44 live .22 calibre rounds. The Police also found the two stolen laptops earlier noted.
[6] You do not have a current firearms licence.
[7] When spoken to by the Police, you admitted to knowingly trading two tinnies for the two “hot” laptops. You also admitted to selling cannabis to support your drug addiction and to provide extra cash for the family. You accepted that the cash found under the vehicle was profit from sales of cannabis. You explained that you had purchased the shotgun for your own protection, and that the ammunition was yours.
The November Offending
[8] At about 10.30 am on 3 November 2010, you and your partner were at your home address. The children were not present. Police executed a search warrant looking for stolen property. On entering the property, the Police smelt a strong odour of cannabis and they observed cannabis sitting on the kitchen table. A thorough search was then carried out. Police found 35 grams of cannabis head material on the kitchen table, along with pre-cut pieces of tin foil, measuring scales, and scissors. On the kitchen floor there was a bucket which contained 15 zip-lock ounce bags containing cannabis head material. On top of the microwave, there was a small ball of cannabis, known as hash or hashish, weighing approximately five grams.
[9] Police also located $9,000 in the pantry in $1,000 bundles, wrapped in a paper bag. Inside Ms Mackie’s handbag, found in the lounge, was $720 in cash. In your bedroom, the Police found $2,795 in cash. Altogether, a total sum of $12,515 in cash was found in the house.
[10] In explanation you stated that you had stolen 16 ounce bags of cannabis. You stated that 15 of the ounce bags were in the bucket, and the other ounce bag had been cut up by you and placed in the container on the kitchen table. You then said that the scales were to be used for baking cakes, and that the square pieces of tinfoil were to be used to put highlights in Ms Mackie’s hair for her birthday. In relation to the cash, you stated that Ms Mackie’s father was dying of cancer and that he had given you and Ms Mackie $15,000.
Pre-Sentence Report
[11] Mr Wade, you are 32 years old. You were born in Auckland, and you affiliate with the Tainui, Tuhoe and Te Whānau Apanui iwi. You have six brothers and three sisters. You attended Nga Tapu Wai College, leaving in the fifth form to enrol in a life skills programme. You worked as a chemical assistant for Auckland Anodisers, but left after 12 months, apparently because of an allergic reaction from the chemicals. You stated that you met your first partner during this time, and that you had a son who passed away as an infant. You say that you then moved to Whakatane, where you spent two years and pursued kickboxing.
[12] You then moved back to Auckland where you met Ms Mackie. You have been together for some 10 years. You and Ms Mackie have a son and three daughters.
[13] You describe your childhood as firm, but not abusive. You reported that your parents have always been supportive of you, and that you remain in contact with them and with your siblings.
[14] You stated that you used to be in a gang, but that you moved from Auckland to leave that life behind for the benefit of your children.
[15] Prior to your incarceration, you were on an unemployment benefit. You have said however that you have aspirations to write music and to produce your own CD. You are currently negotiating with “One Mic Records” to do so. You have also stated that you have been exploring the possibility of going to polytechnic.
[16] A departmental screening test was carried out and it suggested that you do not have any harmful pattern of alcohol or drug use. You report being in good health. You have outstanding fines of some $7,775.58 and you had a payment plan in place before your incarceration.
[17] A number of references have been annexed to the submissions which have been filed by Mr Watson on your behalf, and submissions which were earlier filed on
your behalf in the District Court. These come from a whānau advocate, the manager of One Mic Records, your mother, Ms Mackie, Ms Mackie’s sister, and various friends. They all speak of you in favourable terms. Many speak of your commitment to rehabilitate yourself. I have also received two letters from you. You acknowledge your wrongdoing and apologise to Ms Mackie and your children.
[18] You state that you deeply regret your offending and that you have disappointed yourself, and let down your partner and children. You accept full responsibility for your actions and accept that you will be separated from your family. You acknowledge that you only have yourself to blame.
[19] You have six previous convictions. One of those convictions is relevant for present purposes. It was for the possession of cannabis for supply in 1996. You were fined $200. Your other convictions are for resisting Police, operating a vehicle carelessly, driving with excess breath alcohol (on two occasions), and fighting in a public place.
[20] You explained to the probation officer that you were selling or swapping cannabis for money or items to subsidise your own income because you were struggling to support your family. You admit that you swapped cannabis for the laptops but denied telling Police that you knowingly traded them for the “hot” laptops. In relation to the possession of the pistol and ammunition, you said that you had been given those items some time ago. You said that the gun was in pieces, and that you intended to put it together to use for hunting. You acknowledge that you have made a lot of bad decisions, and you accept that your children and partner were the victims of your offending. You state that Ms Mackie was not involved in any of the offending, and you extend your apologies to the Court, and to her, for your actions.
[21] The report states that the main factor identified as contributing to your offending is your concern regarding the support of your family. You state that you are listed with Work and Income NZ on a Work Track programme, but that you have not had much success in obtaining employment. Other contributing factors were
seen as being your offending supportive associates, and your admitted personal drug use.
[22] Although you have not been assessed as having a harmful pattern of alcohol and drug use, you have self-referred to the Northland District Health Board Addiction Services. You have been accepted into the Making Changes Group, an educational programme running one day a week for four weeks which teaches participants skills around their use of alcohol and drugs. You consider your family and whānau to be a source of support, but not your associates. You have expressed a willingness to attend a Tikanga Māori programme and an anger management programme, saying that you have an urge sometimes to commit acts of violence.
[23] The report notes that you have expressed genuine remorse for your offending. You have acknowledged the impact your decisions have had on your family. The probation officer assessed you as being at low to medium risk of reoffending and as presenting a low risk to the community.
[24] The Northland Health Alcohol and Drug Services have provided an assessment for you. It states that you admit to chronic cannabis use from your teenage years, with only a few periods of abstinence in between. It records that you self-referred to Addiction Services because you wish to discontinue the use of cannabis, and that you have tried numerous times over the years to do so.
[25] The pre-sentence report dated 18 September 2010 recommended home detention, while the report dated 14 April 2011 recommended a short term of imprisonment, with release conditions. A home detention report was annexed. An address in Jack Street, Otangarei was offered as being suitable for electronic monitoring. It is a property owned by Housing New Zealand, and tenanted by your brother-in-law.
Submissions
[26] Ms Henderson for the Crown referred me to the case of R v Terewi.[1] That is a decision of the Court of Appeal which discusses cannabis-related offending. Ms Henderson submitted that the lead offences are the two charges of possession of cannabis for supply. She submitted that both offences sit at the upper end of band 2 in Terewi, and that a starting point of four years’ imprisonment in totality is appropriate for each. She submitted that the November offending is more serious, in that there was a larger amount of cannabis involved and there was greater evidence of sale volumes given the money recovered by the Police. She also submitted that there should be a further uplift for the fact that the November offending occurred while you were on bail in relation to the April/May offending, and that both sets of offending occurred while you were already under sentence. She submitted that cumulative terms of imprisonment are available for the dishonesty and Arms Act offending, and suggested that a range of nine to 12 months would be appropriate. She acknowledged that if cumulative terms of imprisonment were considered unsuitable in light of the totality principle, that the lead charge (that is the November cannabis-related offending) required a significant uplift to reflect the totality of the offending. She submitted that an uplift in the region of nine to 12 months would be appropriate.
[1] R v Terewi [1993] 3 NZLR 62.
[27] Mr Watson on your behalf also referred to Terewi. He accepted that your offending fell into Category 2 identified in that case. He acknowledged that the fact that children were present in the house is an aggravating feature, and that the possession of a firearm and ammunition associated with the drug-related offending adds a serious overtone which can reflect in an uplift to the lead sentence. He submitted that the November offending, whilst not connected with the offending in April/May 2010, was similar in kind, and that therefore concurrent sentences might be appropriate. He analysed the appropriate sentences as follows:
(a) For the April/May cannabis offending, an appropriate starting point
should be between two and three years’ imprisonment.
(b)For the November 2010 cannabis offending, an appropriate starting point should be between two and a half and three and a half years’ imprisonment.
(c) The possession of a firearm would attract a sentence of between six
and nine months’ imprisonment.
(d) Receiving stolen property would attract a penalty of between six and
nine months’ imprisonment.
(e) The commission of the offending while on bail would attract an uplift of between three and six months’ imprisonment, as should the offending on the occasion when children were present.
(f) There should be appropriate reductions for the early guilty pleas.
[28] The end sentence suggested by Mr Watson was in the range of three years’
imprisonment.
Principles of Sentencing
[29] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved. I am also mindful of the need to deter others from committing the same or similar offences. That is a primary factor in drug-related offending. I have taken into account the gravity of the offending with which you were involved, including your degree of culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences. I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances.
[30] I have also taken into account the aggravating features noted in s 9 of the Act. In particular, I note that the offending was committed while you were on bail, or subject to sentence. Secondly, I have considered the damage or harm likely to have resulted from your offending. This Court has recognised that cannabis offending is endemic within Northland and that that offending leads directly to a considerable amount of dishonesty offending as well.[2] Further, there was premeditation. An element of premeditation is always present in offences of possession for supply. In the present case, there was clear premeditation. You were packaging the cannabis for sale. The possession of firearms is also indicative of premeditation in that you were in a position to defend yourself if there was a possible attack on your property. Your previous convictions are also an aggravating circumstance, although only one is drug related. Under s 9(4)(a) of the Act, I am entitled to take into account other aggravating features which I consider are relevant. In the present case, the presence of young children on the premises is an aggravating factor. The drug offending took place in the home, and significant quantities of cannabis were kept within the home. The drug was being packaged on the kitchen table, and other cannabis material was found in the kitchen.
Analysis
[2] R v Toetoe HC Whangarei CRI 2009-027-2553, 20 April 2010.
[31] In my view, the lead charge is that of possession of cannabis for supply which occurred in November 2010. That offending involved a significant amount of cannabis material. In addition, the Police found pre-cut pieces of tin foil, measuring scales and scissors as well as a number of zip-lock ounce bags containing cannabis material. The amount of cash found, $12,515, was also significant although I acknowledge that the source of that cash is in dispute. Ms Henderson argued that the circumstances are such that I can treat the money as a float which was being used to fund your drug supply operation. Given that there is dispute in regard to the source of those funds which will need to be resolved at a separate hearing, I do not take the amount of money found in the course of the November 2010 search into account for
present purposes.
[32] The offending falls within Category 2 discussed in R v Terewi. Category 2 encompasses small-scale sale and supply for a commercial purpose, that is with the object of deriving a profit. The starting point in sentencing is generally between two and four years’ imprisonment, but where sales are infrequent, or of limited extent, a lower starting point may be justified.
[33] It is readily apparent from the Police search of the property in November
2010, that your cannabis dealing was a commercial operation of some significance. There are also aggravating features to your offending in November. In particular, the fact that the offending was taking place in the kitchen, where you, your partner, and your four children lived. I acknowledge however that the children were not present at this stage, but they lived in the home, and cannabis was clearly being prepared for sale within the dwelling. Further, the offending in November was committed while you were on bail for the offences which had been committed earlier in April/May
2010. You were also at the time subject to a sentence of community work which had been imposed in October 2007 for resisting the Police. Were I considering the November 2010 offending in isolation, I would adopt a starting point of three years’ imprisonment.
[34] I also have to consider the other offending to which you have pleaded guilty. Pursuant to s 84(1) of the Sentencing Act, cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences. Pursuant to s 84(2), concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind, and are a connected series of offences. In determining whether two or more offences committed by one offender are a connected series of offences, the Court may consider the time at which they occurred, the overall nature of the offending, or any other relationship between the offences that the Court considers is relevant.
[35] Here, I have considered the cannabis-related offending which occurred in April/May 2010, and the similar offending which occurred in November 2010. While they are not connected in time, they are the same kind of offending. The offending occurred in the same residential dwelling, and the overall nature of the
offending was the same. In the circumstances, I am prepared to treat the offending on a concurrent basis, but the cannabis-related offending which occurred in April/May 2006 does require an uplift to my starting point in regard to the November 2010 offending. I uplift my starting point by six months to recognise the cannabis-related offending which occurred earlier in the year.
[36] It follows that my starting point in relation to the charges of being in possession of cannabis for supply in both April/May 2010 and November 2010, and the charge of theft of cannabis, is one of three years and six months’ imprisonment.
[37] I now turn to consider the Arms Act offences. These offences were laid summarily. Arms Act charges are treated as a serious aggravating feature where they occur at the same time as drug-related offending. Although they are different in kind, the Courts have, at various times, accepted both concurrent and cumulative sentences as being appropriate. Concurrent sentences were imposed in R v Caldwell,[3] R v Fonotia,[4] and Bishop v R,[5] but cumulative sentences were imposed in R v Faifua,[6] R v Bunning,[7] and McDonald v R.[8]
[3] R v Caldwell CA24/06, 29 June 2006.
[4] R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [40].
[5] Bishop v R [2010] NZCA 66.
[6] R v Faifua CA287/05, 27 March 2006.
[7] R v Bunning CA378/04, 6 April 2005.
[8] McDonald v R [2011] NZCA 97.
[38] I am prepared to treat the Arms Act offences concurrently due to the circumstances of your case. I accept that the shotgun was broken down and the ammunition was not stored with it. Nevertheless, possession of firearms associated with drug-related offending has a sinister overtone, which needs to be reflected in an uplift to the lead sentence. I uplift the sentence by a further three months to recognise the Arms Act offences.
[39] The receiving offence is different in kind. It is also discreet in time. I am not prepared to treat this offending on a concurrent basis. It seems to me that it should
be dealt with cumulatively. Having considered the sentence that the Court of Appeal
imposed in Bishop v R,[9] it seems to me that a one month cumulative sentence in relation to the receiving charge is appropriate.
[9] Bishop v R [2010] NZCA 66.
[40] I now turn to consider personal aggravating and mitigating features.
[41] First, there are your previous convictions. I am not persuaded that they are relevant. The one conviction in relation to drug-related offending occurred in 1997. I do not consider that that offending justifies a further uplift in the sentence.
[42] There are mitigating factors. First, there are your guilty pleas. In relation to the April/May offending, you indicated guilty pleas would be entered to the charges at the third call, although there were subsequent calls of the matter thereafter. At the time, the leading decision was that of the Court of Appeal in R v Hessell, which suggested that a one-third reduction in the sentence would be appropriate for an early guilty plea. [10]
[10] R v Hessell [2009] NZCA 450.
[43] In relation to the November offending, you entered a guilty plea at the third call of the matter on 25 November 2010. The Crown acknowledges that you are entitled to a discount in the region of 25 per cent in relation to that plea. By that stage, the Supreme Court decision in Hessell v R applied. [11] It limited discounts for guilty pleas to 25 per cent.
[11] Hessell v R [2010] NZSC 40.
[44] Here, I have not treated the April/May offending cumulatively, but rather, have dealt with it on a concurrent basis. It seems to me that the appropriate course is to grant you a discount of 12 months from the sentence I would otherwise have imposed. That is a little in excess of 25 per cent, and recognises that some of your pleas were entered at a time when a 33 per cent discount for an early guilty plea was available.
[45] I also accept that you have expressed considerable and genuine remorse, and that you have taken steps to try and rehabilitate yourself. These are separate
mitigating factors, and I am prepared to allow you a further and relatively generous discount of three months to recognise these matters.
[46] Mr Wade, will you please stand.
[47] In respect of each of the charges of being in possession of the Class C
controlled drug cannabis for supply in April/May 2010, and again in November
2010, and in respect of the charge of the theft of a controlled drug, namely cannabis, you are sentenced to a term of imprisonment of two years and six months. The sentences are to be served concurrently (that is at the same time).
[48] In respect of the charge of receiving property, you are sentenced to a further one month imprisonment, such sentence to be served cumulatively (that is on top of the previous sentence).
[49] In respect of each of the charges of unlawful possession of a firearm, and possession of explosives, you are sentenced to a term of imprisonment of nine months, such terms of imprisonment to be served concurrently.
[50] It follows that the final end sentence that I am imposing on you is one of two years and seven months’ imprisonment.
[51] Mr Wade, you have taken a number of steps to try and rehabilitate yourself. You are clearly remorseful for your actions and you acknowledge your offending. You have a partner and four children. You have every reason to turn your life around, and it appears that you genuinely wish to do so. I hope that you will be successful in those endeavours and that we will not see you in this Court again.
Forfeiture
[52] By consent, I make an order forfeiting all drugs and drug-related paraphernalia found on the premises in the course of both the May search and the November search. I also make an order forfeiting the sum of $1,090 which was found in the course of the May search. Mr Watson on Mr Wade’s behalf accepted
that that money was a float and it is appropriate to make an order forfeiting that sum to the Crown. I do not make any order in respect of the $12,515 in cash found in the house in the course of the November search. Mr Wade has no interest in that money. Ms Mackie asserts that it was a gift from her father. It will be necessary to hold a separate hearing to determine that issue.
[53] Mr Wade, you may stand down.
Wylie J
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