R v Wiapo
[2012] NZHC 1269
•7 June 2012
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 the other tinnie. A short time later, you, Ms Andrell, returned holding the other tinnie in your hand. You asked your son whether he had given the undercover officer the other tinnie and he replied that he had. You then handed the officer the second tinnie and took $40 from him. The undercover officer then left the address.
[8] At the termination of the operation, the police searched your home address on the morning of 17 August 2011. When they did so, they found $590 in cash and three grams of cannabis. No charges were laid in relation to this cannabis, and I infer from this that the police accepted that you were in possession of the three grams of cannabis for your own use and not for the purposes of supplying others.
Sentencing Act 2002
[9] As I sure you now know, in any case involving the sale of drugs, the response of the courts must be generally to impose a sentence of imprisonment. That is really the only way the principles of deterrence and denunciation can be reinforced. The real issue in a case such as this is to determine the appropriate length of any sentence, having regard to broadly similar cases, and also having regard to the need to impose a sentence that is the least restrictive outcome appropriate to the circumstances of the offending and the offender.
[10] The starting point in any case involving dealing in the Class C controlled drug drug cannabis is governed by the decision of our Court of Appeal in R v Terewi[1]. Your offending falls within the second band of offending identified in Terewi. That involves small to moderate scale dealing in cannabis, and calls for a starting point of between two and four years imprisonment.
[1] R v Terewi [1999] 3 NZLR 62
[11] I do not consider that your offending could be said to be at the bottom end of that range for several reasons. First, you were quite clearly prepared to sell to virtually anybody who arrived at your address, whether or not you knew anything about them at all. Second, it is clear from what transpired and your acceptance of the fact that the officer had heard about you from someone at work that this operation had been ongoing for some time. Third, you were prepared to allow your 14 year old son, who himself has very real difficulties, to become actively involved in a drug dealing enterprise. This was not the chance or opportunistic sale of a couple of tinnies of cannabis. Rather, it reflects a preparedness by you both to sell drugs to anybody who arrived at your address, and to involve your son in that process.
[12] For that reason, as I have said, I do not consider you fall at the bottom of the range of the second band identified in Terewi. I consider that an appropriate starting point is one of two years six months imprisonment.
[13] I see no need to distinguish between your respective roles in this operation. Quite clearly, you were equally culpable for what was happening at the address.
Aggravating factors
[14] You both have previous drug-related convictions and these are potentially an aggravating factor that may justify an uplift to the starting point I have selected.
[15] Ms Andrell, you have a previous conviction for being in possession of cannabis for supply. That offending occurred on 26 October 2005, and on 7 June
2006 you were sentenced to one year’s imprisonment on that charge. Following your release, you were sentenced in 2009 on charges of procuring or being in possession of cannabis and being in possession of a needle or syringe. You received a sentence of community work on that occasion.
[16] The fact that you have already been convicted of a drug dealing offence is a serious matter. You appear today having offended again in a reasonably serious way, notwithstanding the fact that you know that the courts take a very dim view of people who deal in cannabis. You must have known of the risk that you faced if you went back to dealing in cannabis, and you must have reached the conclusion that the reward to be obtained from dealing in cannabis was sufficient to overcome the risk. You therefore made a calculated decision to return to dealing in cannabis.
[17] For that reason I am satisfied that an uplift is required in your case. This is not to punish you again in respect of past offending. Rather, it reflects the fact that you were knew what the risks were and you were not prepared to learn from the sentence that you have already received some years ago. I therefore propose to apply an uplift of four months to reflect that factor.
[18] Mr Wiapo, you also have previous convictions. You have a conviction for being in possession of cannabis, or procuring cannabis, and also another charge involving utensils. Those charges were, however, dealt with by way of fine and they obviously fell towards the lower end of the scale. Importantly, you have not been involved in drug dealing before. For that reason, notwithstanding your previous convictions, I do not propose to apply an uplift in your case.
[19] You need to know, however, that you are now marked out by your present convictions as a drug dealer. If you decide to become involved in this type of activity in the future, you can rest assured that any sentence you receive is likely to be increased to reflect the fact that you will not have learned from the sentence I am imposing today.
[20] I now turn to mitigating factors personal to you.
[21] Ms Andrell, you appear for sentence with a very sad history. Obviously, your life has been a very real struggle for at least ten years now. You have been heavily involved with cannabis since at least 2001. Your use of cannabis has increased to the point where I have viewed a letter from a doctor who says that it is now a part of the coping mechanism that you have for the difficulties that you face in your life. One of these is the difficulty posed by your 14 year old son, who as I have already said, has significant difficulties of his own.
[22] You now need to take stock of where you are at, because it is not going to be easy for you to withdraw from such heavy use of cannabis. Indeed, I have no doubt that you got into the present offending as a means of financing your drug habit. You have undertaken some rehabilitative steps, but an awful lot more is going to be required before you have any hope of becoming drug free in the future. I give you such credit as I can, but given your history and your dependence on cannabis, I cannot allow a great deal for this.
[23] The real credit that I can give you is for your guilty plea. That came at a relatively early stage, and I am prepared to allow a full discount in relation to it. Taking the rehabilitative steps and the guilty plea into account, I am prepared to reduce the sentence imposed on you by ten months, which leaves you with an end sentence of two years imprisonment.
[24] Mr Wiapo, you are entitled as well to credit for your guilty plea. You obviously have significant issues in your life as well. You have had a number of traumatic episodes in recent years in which you have engaged in episodes of self- harm, and you have also attempted suicide on at least one occasion. Your use of alcohol and drugs is now at an alarming level. Your counsel has provided me with a letter dated 6 June 2022 from the Salvation Army in which your use of alcohol is considered to be at a “risky” level. Your drug consumption falls within a range that is now considered dependent. You, too, are going to have to address your drug and
alcohol use in a meaningful way, or the reality will be that you will be before the
Court on many future occasions.
[25] I propose to allow you a discount of eight months in relation to your guilty plea, which leaves an end sentence, in your case, of one year ten months imprisonment.
Home detention
[26] Given that the end sentences in both cases is one of two years imprisonment or less, it is necessary for me to consider whether, as your counsel suggests, home detention should be considered.
[27] In your case, Mr Wiapo, you do not have an address, and your counsel seeks an adjournment to enable you to proffer an address that you have recently come across. Finding a suitable address at which to serve a sentence of home detention has been a real issue for you, because this will now be the fifth or sixth address that you have proffered, and all of them to date have been found to be unsatisfactory for one reason or another.
[28] You, Ms Andrell, have found an address at which you could serve a sentence of home detention.
[29] In any case involving commercial dealing in drugs, the courts have a real reluctance to sentence an offender to home detention. This is for all kinds of reasons, one of the most important of which is that it may send the wrong message to those involved in dealing drugs. Some may see a sentence of home detention as being a lighter sentence than a sentence of imprisonment.
[30] Another factor is that it can send the offender back into the environment from which he and she has come, and into which he or she may again become involved in dealing drugs.
[31] I have reached the conclusion that I should not sentence either of you to home detention. I have reached that conclusion for two principal reasons.
[32] First, your offending cannot be said to fall towards the bottom end of the scale. In R v Hill[2] the Court of Appeal noted that when a sentence of home detention is imposed on a drug dealing charge, the dealing will normally be found to be towards the lower end of the scale. It is important to preserve the integrity of the principles of deterrence and denunciation so that appropriate sentences are imposed in relation to drug offending that does not fall at the bottom end of the scale. As I
[2] R v Hill [2008] NZCA 41.
have already indicated, I consider that your offending falls well above that level.
[33] Secondly, I have a very real concern as to whether either of you will be able to properly engage in rehabilitative efforts unless you are in a full-time custodial environment.
[34] Ms Andrell, your addiction is so deep-seated that it is going to require very significant efforts by both you and those around you to enable you to combat it. Given the level of your current dependence, I have a very real concern that if you were returned to any form of home environment, you would virtually inevitably resort to consuming cannabis again. That may well lead to the temptation to deal in cannabis, because the only realistic way in which you could finance your drug habit is through selling cannabis in the way that you have on this occasion.
[35] Mr Wiapo, you may have been a candidate for home detention, but for two factors. First, you are now viewed as being dependent on the drug. There is a very real risk that if you are permitted to serve your sentence by way of home detention then you, too, will succumb to the temptation of using cannabis.
[36] Secondly, you have very recently apparently offended again, notwithstanding the fact that you were on bail awaiting sentence today. Your counsel tells me that you have pleaded guilty to, or about to plead guilty to, a charge of being in
possession of ten grams of cannabis. That is a serious matter given the fact that you
knew that the Court would be giving anxious consideration today to your future. Your failure whilst on remand on bail to stay clear of drugs means that the Court could have no confidence really that you would abstain from being involved with cannabis if sentenced to home detention.
Sentence
[37] On each of the charges to which you have pleaded guilty, Ms Andrell, you are sentenced to two years imprisonment.
[38] On each of the charges to which you have pleaded guilty, Mr Wiapo, you are sentenced to one year ten months imprisonment.
[39] All sentences are to be served concurrently.
Forfeiture
[40] There will be an order for the forfeiture of the cash that the police found at your property on 17 August 2011.
Lang J
Solicitors:
Crown Solicitor, Whangarei
Counsel: A Fairley