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 [email protected]

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 number, then a

lower starting point may be appropriate.

[8]      The starting point is fixed by reference to the gravity of the offending, then I must consider aggravating and mitigating factors affecting you personally.  Those are factors that make the offence worse, and those it make it less serious.  That produces

a final sentence.

[9]      Counsel have referred me to a number of cases, including in particular Lord v R, where a starting point of two years nine months imprisonment was upheld for offending similar to this, but that was somewhat more serious, as counsel agree.3   I have taken those various cases into account.   I have also derived some assistance from the recent judgment of Collins J in R v Davis, where Mr Davis had been

charged with three counts of selling cannabis and one of possession with intent to

supply.4

As  here,  he  had  sold  tinnies  to  undercover  police  officers  on  three

occasions.  Collins J reviewed a number of authorities which were properly placed on the cusp of offending between categories one and two of Terewi.  He considered that  Davis  was  one  of  the cases  where  a starting point  of less  than  two  years

imprisonment was appropriate.  He fixed one year nine months.

1 R v Terewi [1999] 3 NZLR 62 (CA).

2 R v Gray [2008] NZCA 224.
3 Lord v R [2012] NZCA 276.

4 R v Davis [2013] NZHC 239.

[10]     I consider an appropriate starting point here to be two years imprisonment.  It would have been less had all the offending occurred on one day, but it is plain that your assistance to your son was continuing over a substantial period.  In other words, these were not isolated one-off transactions.

[11]     The Court of Appeal in Terewi has made it clear that where drug offending is

concerned, little significance can be attached to a previous good record.5

So I cannot

allow a discount for that.  But I do propose to take it into account a little later, as I

will shortly explain.    You are however, entitled to a discount of 25% for an early guilty plea. That reduces the end sentence to 18 months imprisonment.

[12]     Because that is less than two years imprisonment, and is known as a short term sentence, you qualify for consideration for home detention.  I am satisfied it is proper to substitute a sentence of home detention.  This was isolated offending.  You have a virtually clean record.  Moreover, you have family responsibilities for young children who include a toddler, and now another one to be born later in the year.  I

agree with the probation officer that your risk of re-offending is low.

[13]     Until very recently there were problems about home detention because a suitable address could not be found, but the Court is told that you have now found a rental property at 22 Puia Road, Ngawha Springs where you will be able to live with your children.

[14]     The  term  of  a  sentence  of  home  detention  is  usually  about  half  of  the equivalent sentence of imprisonment, because you must serve the whole of the sentence of home detention, whereas there is a parole entitlement after one half of a short term sentence of imprisonment has been served.   But it is not a strict arithmetical exercise.  I am going to sentence you to a little less than half in order to

reflect your previous good record, for which I consider you deserve a little credit.

5 At [13].

[15]     Ms Whiu, on each of the five charges for which you appear for sentence, you are  sentenced  to  eight  months  home  detention.  There  will  be  the  following

conditions:

(a)	Once you have left the Court you must travel immediately to 22 Puia Road, Ngawha Springs to arrive at 2 pm today, and there to meet with
a representative of the monitoring company and the probation officer;
(b)	You are to reside at 22 Puia Road, Ngawha Springs, and are not to move  from  that  address  without  the  prior  written  approval  of  a
probation officer;
(c)	You are not to purchase, possess or consume alcohol and/or illicit
drugs for the duration of the sentence;
(d)	You are not to permit alcohol and/or illicit drugs on the premises of
the detention address of 22 Puia Road, Ngawha Springs;
(e)	You are to undertake and complete appropriate counselling/treatment
to the satisfaction of the probation officer and treatment provider.  The details of those programmes are to be determined by the probation
officer;
(f)	You are to undertake and complete an alcohol and drug counselling
programme, to the satisfaction of the probation officer and treatment provider.    Again,  the  details  of  any  such  programme  are  to  be determined by the probation officer.
[16]	The	last two conditions relating to counselling and treatment are to inure for

six months after completion of your sentence of home detention.   The probation officer may require you for six months after your eight months home detention sentence to undertake and complete whatever programmes are appropriate.

C J Allan J