R v Wharawhara HC Hamilton CRI 2006-019-9951
[2007] NZHC 1930
•28 June 2007
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2006-019-9951
QUEEN
v
SHANE STEVEN WHARAWHARA
Hearing: 28 June 2007
(Heard at Hamilton)
Appearances: J Mackie for Crown
R Laybourn for Prisoner
Judgment: 28 June 2007
Sentence imposed: Supply of cannabis for sale (x2)
One year and nine months’ imprisonment
Possession of cannabis for sale (x1)
One year and nine months’ imprisonment
Sentence to be served concurrently
Application to apply for home detention denied
SENTENCING NOTES OF ASHER J
Solicitors:
Almao Douch PO Box 19173 Hamilton
R Laybourn, Barrister, PO Box 936 Hamilton
R V WHARAWHARA HC HAM CRI 2006-019-9951 28 June 2007
[1] Mr Wharawhara you have pleaded guilty to the following offences against the Misuse of Drugs Act 1975:
a) Two charges of selling cannabis for sale; and
b) One charge of possession of cannabis for supply.
Facts
[2] The Police received information in August and September 2006 that a large number of people were visiting your address at 92 Silverdale Road Hamilton, for short periods of time.
[3] On 8 December 2006 a Police constable knocked on your door. You opened it and retrieved a small plastic bag containing cannabis from a nearby fridge, which you gave to the officer in exchange for a $20 note.
[4] On 14 December 2006 the Police officer returned to the address where he again purchased a small plastic bag of cannabis for $20 from you.
[5] A short time later the Police executed a warrant on your address. They located 86 small plastic bags full of cannabis, the average weight being a gram. There was also one bag containing 13 grams of cannabis. The cannabis was estimated to be worth between $1,980 and $2,475. The bags were found together with $1,290 in cash, the majority of which was in $20 notes. Five people arrived at the house to purchase cannabis during the execution of the search warrant.
Submissions
[6] Both counsel agree that this case falls within category two referred to in R v Terewi [1999] 3 NZLR 62 (CA). Mr Mackie for the Crown submits that this means that the starting point should be between two to four years. He submits that an appropriate end sentence is in the range of 15 to 18 months. Your counsel, Mr Laybourn, has not in his oral submissions taken particular issue with that final proposition.
Sentencing principles
[7] As both counsel are agreed the guideline decision in this area is R v Terewi. That case sets out sentencing guidelines with respect to the cultivation of cannabis. However, the guidelines in that case have been extended to apply to the related offences of possession of cannabis for supply or the sale of cannabis: R v Keefe CA 275/02 28 November 2002.
[8] The second category referred to in R v Terewi is small scale cultivation of cannabis plants for a commercial purpose. It was stated that the if the sales were infrequent or of a very limited extent, a lower starting point might be justified.
[9] I will approach the issue of sentencing by first considering the circumstances of the offending to fix a starting point and then move to matters relating to you personally to reach the final sentence.
The offending
[10] The nature of your offending is very clear to see. You were running what is traditionally known as a ‘tinnie house’, selling small quantities of cannabis to those who might knock on your door. There are no particular indications of sophistication. There was no surveillance equipment. There is no report of scales or other equipment in your house, which might indicate a highly commercial operation. Presumably there was some person who supplied you with the cannabis and you were the small scale retailer. The amount of money found in your possession was, in terms of what is typical in these sorts of cases, modest, and presumably a good portion of it would have to be used to pay for the next lot of cannabis.
[11] I am prepared for these reasons to treat your offending as towards the lower part of category 2, but not at the lowest. In all the circumstances I consider the appropriate starting point for sentence purposes to be a sentence of two years and six months’ imprisonment.
[12] I now turn to matters relating to you personally. I have the benefit of a helpful pre-sentence report. You are 43 years old. You have had regular employment, although I note that you have not been regularly employed for approximately a year. You are a drug and alcohol user but there is no evidence that you are an addict or have any real problems in this area. The impression given by the pre-sentence report is that you sell cannabis to supplement your income, and that certainly up to the point of seeing the probation officer, you did not think there was very much wrong with selling cannabis to adults.
[13] You are assessed as having a low risk of reoffending. A reason for this is presumably your devotion to your family. All the indications are that you are a good father to your five children. You have been actively involved in their schooling and they are clearly a priority for you. You have been attending some counselling sessions run by the Hamner Clinic.
[14] As against this, your Police record shows a prior conviction in September 2004 of possession of cannabis for supply. You were imprisoned on that count for six months and granted leave to apply for home detention. I am told that you did not in fact seek it given the shortness of the sentence. You have previously been convicted in January 2000 for possession of cannabis. You also have some other unrelated convictions.
[15] I now apply these facts to the sentencing process. The most significant mitigating factor is your plea of guilty. I accept Mr Laybourn’s submission that the plea was entered shortly after the completion of Police disclosure and therefore something in the order of the full discount is appropriate. Some weight can be placed on the fact that that you are a good member of your community and a good father, although such matters can only be given limited recognition in the sentencing process where drugs are involved.
[16] If that had been all you would have been entitled to a full third discount. However, I cannot go quite that far because there is the aggravating factor of your previous and relatively recent conviction for possession for supply. This limits the amount of discount that I can give to you.
[17] In all the circumstances I consider the appropriate sentence to be one year and nine months’ imprisonment.
Leave to apply for home detention
[18] I now turn to the question of home detention. Mr Laybourn seeks leave to apply on your behalf, and in any event it must be considered by the Court.
[19] Leave can only be given if the Court is satisfied that it would be appropriate, taking into account the matters set out in s 97(3) of the Sentencing Act 2002. The relevant matters are the nature and seriousness of the offence and the circumstances and background of the offender. Given your home life and your commitment to being a good father I would have considered giving you leave but given the circumstances of your previous offending I do not consider it would be appropriate. I do not consider it relevant that you did not apply for home detention the last time leave was granted to you. What is important is that you do not appear to have learned from that previous conviction. I also note that you were selling from your home and that in itself is a factor which weighs against the grant of leave to apply for home detention, as it would after all enable you to go back to the place of your offending.
[20] I therefore decline to grant you leave to apply for home detention.
Result
[21] It is very sad that a person such as you, a man obviously devoted to his family and committed to his children’s welfare, is in this situation. Your family will now have to suffer for your wrongdoing and will be without you for some time. Clearly you have a good future ahead of you if you wish to avoid further criminal behaviour, and I very much hope you do so.
[22] I sentence you to a term of imprisonment of one year and nine months on each of the three charges. Those terms are concurrent.
[23] I order that the cash found at your home of $1,290.00 is forfeited to the
Crown pursuant to s 32 of the Misuse of Drugs Act 1975.
…………………………….
Asher J
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