R v Wiapo - [2012] NZHC 1269

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2011-088-3508 [2012] NZHC 1269

THE QUEEN

v

RAYMOND WIAPO BRONWYN ALICE ANDRELL

Hearing: 7 June 2012

Counsel: D Stevens for Crown
A Fairley for prisoners

Judgment: 7 June 2012

SENTENCING REMARKS OF LANG J

R V RAYMOND WIAPO HC WHA CRI-2011-088-3508 [7 June 2012]

[1] Ms Andrell and Mr Wiapo, you appear for sentence having each pleaded guilty in the District Court to two charges of selling cannabis and one charge of offering to sell cannabis. Each of those charges carries a maximum sentence of eight years imprisonment. The District Court declined jurisdiction to sentence you because it only had jurisdiction to sentence you up to one years imprisonment. For that reason it committed you to this Court for sentence.

Background

[2] Your offending occurred as a result of an operation that the Whangarei police carried out in August 2011. On the afternoon of 11 August 2011, an undercover police officer drove to your residential address in Whangarei. When he arrived at the address, he found a female standing at the bottom of the steps outside the address. The undercover officer spoke to this person and she told him she was there to buy cannabis tinnies.

[3] While the officer and the female were standing outside the address, a motor vehicle pulled into the drive. You were both in the vehicle and you walked into the house. When you asked the undercover officer how he had heard about you, he told you that he had been told about you by somebody at his work. You indicated your acceptance of that situation, notwithstanding the fact that you had never met or seen this person before.

[4] Once inside the address, you sold the undercover officer two tinnies of cannabis. The undercover officer was also present when conversations occurred with the female visitor, also relating to the purchase of cannabis.

[5] You asked the officer how many he wanted and he replied “two”. He then handed you the sum of $40. You then provided him with two parcels of cannabis wrapped in baking paper. You told the officer to be careful that they did not unwrap, and he then left the address with the cannabis.

[6] On the afternoon of the following day, the undercover police officer returned to your address. When he arrived, he was met by your 14 year old son. The undercover officer spoke to your son regarding the purchase of cannabis and your son asked the officer if he had been to your address before. When he received confirmation from him that he had been there before, your son told the officer that you, Ms Andrell, were just making up the tinnies. You, Ms Andrell, told the officer that you were just making them up and that it would not take long.

[7] Your son then took a cannabis tinnie from his pocket and handed it to the officer. He told the officer that his mother was making up…

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 Wiapo

Details

AGLC: R v Wiapo [2012] NZHC 1269
Case: [2012] NZHC 1269
Decision Date: 7 June 2012

CaseChat Overview and Summary

Raymond Wiapo and Bronwyn Alice Andrell were convicted of multiple charges of selling and offering to sell cannabis. The District Court declined jurisdiction due to the maximum one-year imprisonment sentence it could impose, and thus transferred the matter to the High Court for sentencing. The court considered the principles of deterrence and denunciation in determining the appropriate length of sentence, taking into account the seriousness of the drug dealing and the offenders' prior criminal history. The court found that the offending was not at the lower end of the scale, and imposed a starting point of two years and six months imprisonment for Andrell and one year and ten months for Wiapo, with credit given for their early guilty pleas.

The court considered various aggravating and mitigating factors. Aggravating factors included the offenders' previous drug-related convictions and their willingness to sell drugs to anyone who approached them, even involving a minor child in the operation. Mitigating factors included the offenders' guilty pleas and their personal difficulties, such as Andrell's heavy reliance on cannabis as a coping mechanism and Wiapo's history of self-harm and substance abuse. However, given the nature of the offending and the need to preserve the principles of deterrence and denunciation, the court decided not to impose a sentence of home detention.

The court ultimately sentenced Andrell to two years imprisonment and Wiapo to one year and ten months imprisonment, to be served concurrently. The court also ordered the forfeiture of the cash found at their property during the police operation.

Orders