R v Whiu - [2013] NZHC 950

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-027-1172 [2013] NZHC 950

THE QUEEN

v

GEORGINA WHIU

Hearing: 3 May 2013

Appearances: D B Stevens for Crown
S Nicholson for accused

Judgment: 3 May 2013

SENTENCING REMARKS OF ALLAN J

Solicitors
Crown Solicitor Whangarei
S Nicholson, Kerikeri stemicnic@xtra.co.nz

R V WHIU HC WHA CRI 2012-027-1172 [3 May 2013]

[1] Ms Whiu, you appear for sentence today, having pleaded guilty to three charges of selling cannabis and two of possession of cannabis for supply. In each case the maximum penalty is eight years imprisonment.

Factual background

[2] On 20 April 2012, two undercover police officers visited an address at Kaikohe. They were looking for your son, Thomas Busby. One of the police officers walked up the driveway. You met him there with two tinnies in your hand. That undercover officer selected one and paid $20 for it. A second officer came onto the property and an identical transaction occurred.

[3] On 11 May 2012, the first officer returned to the same property. Again you were present and sold him one cannabis tinnie.

[4] The two charges of possession of cannabis for supply reflect the fact that on the two occasions on which you sold to the first undercover officer, you had further tinnies available for sale.

[5] The Kaikohe property is not yours. It is occupied by other members of your whanau, including Mr Thomas Busby and his family, and your former partner. You lived elsewhere at the time but you agreed to stand in for your son Thomas at his home, where he had established a tinnie house business, which Mr Stevens accurately describes as at a relatively moderate level. Mr Busby has since been sentenced to a substantial term of imprisonment for his activities.

Personal circumstances

[6] You are 43 years old and have a large family of ten children, four of whom are living with you, the youngest being little more than a year old, and the Court is told that you are expecting another child in September. To all intents and purposes you have a clean record. You told the probation officer that you agreed to assist your son in the hope of developing a better and closer personal relationship with him, in

the context of a certain amount of family disharmony. You are determined not to offend again, and the probation officer thinks it is unlikely that you will do so.

Sentencing authorities

[7] For offending of this type, sentencing Judges are guided by the judgment of the Court of Appeal in R v Terewi.1 That Court identified three separate sentencing bands for cases involving cannabis offending. Category two covers small scale
cultivation for commercial purposes. Subsequent cases have made it clear that it

applies also to the possession for supply and sale of cannabis.2

The Court of Appeal

prescribed a starting point of between two and four years imprisonment for offences within that band, although where sales are infrequent and limited in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Whiu

Details

AGLC: R v Whiu [2013] NZHC 950
Case: [2013] NZHC 950
Decision Date: 3 May 2013

CaseChat Overview and Summary

Georgina Whiu has been sentenced in the High Court of New Zealand at Whangarei for multiple charges of selling and possessing cannabis with intent to supply. Whiu pleaded guilty to three charges of selling cannabis and two charges of possession of cannabis for supply. Each of these charges carries a maximum penalty of eight years imprisonment. The court was tasked with determining an appropriate sentence, considering the nature and circumstances of the offences, as well as Whiu's personal background and prospects of rehabilitation.

The court considered the gravity of the offences, which involved selling cannabis to undercover police officers on multiple occasions at a property not owned by Whiu but occupied by her extended family. The court noted that Whiu's involvement was motivated by a desire to foster a closer relationship with her son, who had established a cannabis business at the property. The court also took into account Whiu's personal circumstances, including her large family, young children, and her clean criminal record prior to these offences. The court recognised that Whiu was assisting her son, Thomas Busby, who had already been sentenced to a significant term of imprisonment for similar activities.

In determining the sentence, the court applied the principles set out in the Court of Appeal case of R v Terewi, which outlines sentencing bands for cannabis-related offences. The court identified that Whiu's offences fell within the second category, for which the starting point is between two and four years imprisonment. However, given the nature of the offences and Whiu's early guilty plea, the court determined an appropriate starting point of two years imprisonment, reduced to 18 months due to the plea discount. Given that this is a short-term sentence, the court considered home detention as an alternative to imprisonment, taking into account Whiu's family responsibilities and low risk of reoffending.

Ultimately, the court sentenced Georgina Whiu to eight months of home detention, with specific conditions to ensure compliance and support Whiu's rehabilitation. The sentence includes requirements for Whiu to reside at a specified address, abstain from alcohol and drugs, and participate in counselling and treatment programs. The court's decision reflects a balanced approach, aiming to address the seriousness of the offences while also considering Whiu's personal circumstances and prospects for rehabilitation.

Orders