R v Wiki

[2013] NZHC 3439

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-077-1751 [2013] NZHC 3439

THE QUEEN

v

WARREN WIKI

Hearing:                   17 December 2013

Appearances:           F Pilditch for Crown

J N Briscoe for Prisoner

Judgment:                17 December 2013

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Rotorua
Counsel:

J N Briscoe

R v WIKI [2013] NZHC 3439 [17 December 2013]

[1]      Mr  Wiki,  you  appear  for  sentence  today  having  pleaded  guilty  to  three charges  of  being  in  possession  of  methamphetamine  for  supply,  one  charge  of offering to supply methamphetamine, one charge of supplying methamphetamine and  a charge of offering to  sell  cannabis.   All  of the methamphetamine-related charges carry a maximum sentence of life imprisonment.  The charge of offering to sell cannabis carries a maximum sentence of eight years imprisonment.

Background

[2]      Your  offending  came  to  light  after  the  police  commenced  a  large  scale operation designed to detect drug dealing activities occurring in the Bay of Plenty area.  During the police operation, they obtained access to a number of intercepted communications that demonstrated quite clearly that you were dealing in methamphetamine and cannabis on a regular basis.  Over the period of the operation, you were offering to sell cannabis and methamphetamine to others on a virtually daily basis.   The summary of facts records that you had at least 26 different customers, many of whom you were dealing with on a very regular basis.

[3]      It  is  not  possible  from  the  intercepted  communications  to  definitively determine how much methamphetamine and cannabis you supplied during the period in question.  The Crown can definitely point to the fact that you supplied a total of five grams of methamphetamine.  During the course of the operation, however, you discussed supplying a total of 31.9 grams of methamphetamine.

[4]     I take your culpability to be that of a busy street dealer selling both methamphetamine  and   cannabis   in   relatively  small   amounts   to   friends   and associates.

Sentencing Act 2002

[5]     In any case of commercial dealing in methamphetamine, a sentence of imprisonment must be the appropriate starting point.  That is the only way in which the sentencing principles of deterrence and denunciation of this type of offending can properly be given effect.   Importantly, however, it is necessary to select a starting point that reflects sentences imposed in other broadly similar cases.

Starting point

[6]      The  starting  point  to  be  imposed  in  relation  to  your  offending  is  to  be determined having regard to the decision of the Court of Appeal in R v Fatu.1   In that case, the Court of Appeal identified the starting points to be applied in respect of methamphetamine offending having a commercial element.  For cases involving the supply  of  up  to  five  grams  of  methamphetamine  (Band  1),  a  starting  point  of between  two  and  four  years  imprisonment  will  be  appropriate.    For  offending

involving between five and 250 grams of methamphetamine, the starting point will be between three and nine years imprisonment (Band 2).

[7]      Counsel agree that your offending falls either towards the top of Band 1, or towards the bottom of Band 2.  I consider that the methamphetamine offending alone would attract a minimum starting point of three years three months imprisonment. The fact that you were also prepared to supply cannabis to your associates also needs to be taken into account.  I apply an uplift of six months imprisonment to reflect that factor.   This produces a starting point of three years nine months imprisonment before taking into account aggravating and mitigating factors that are personal to you.

Aggravating factors

[8]      You present with one aggravating factor, and this relates to your previous convictions  for  drug-related  offending.     You  have  convictions  for  offending involving cannabis as far back as 1984.  Of particular relevance for present purposes is a sentence of two years imprisonment imposed on you on 11 April 2008 on a charge of being in possession of cannabis for supply.  This is of significance because it demonstrates that you were a drug dealer when that offending occurred in May

2006.  The offending must also have been reasonably significant for you to receive a sentence of two years imprisonment.

[9]      Notwithstanding the fact that you had served this sentence, you had carried on to commit other offences involving cannabis in 2011.  Then you became involved

in the present offending, and in a significant way.   This clearly demonstrates, Mr

1      R v Fatu [2006] 2 NZLR 72 (CA).

Wiki, that as at the time of the present offending you were prepared to be a prolific drug dealer notwithstanding the fact that you knew that the courts would take an extremely dim view of your activities if you were caught.  Your previous convictions are therefore relevant, not because you need to be punished again in respect of them, but because it makes your present offending that much more serious.

[10]     I propose to apply an uplift of five months to reflect that factor.  This leads to a sentence of four years two months imprisonment before taking into account mitigating factors personal to you.

Mitigating factors

[11]     You appear for sentence at the age of 48 years.   You have a reasonably formidable list of previous convictions some of which, as I have already indicated, are for drug related offending.

[12]     Importantly, however, you appear to have taken a firm grip on your life in recent times.  Whilst you were on remand you completed ten weeks of a 12 week drug rehabilitation course.  Although you were eventually ejected from this course for failing to comply with rules to the smoking of cigarettes, the report produced by the  institution  in  question  records  that  you  had  made  considerable  progress  in dealing with drug related issues during your stay there.  You also presented to the probation officer who prepared the pre-sentence report as being genuinely motivated to address your issues and to stay free of drugs in the future.  You also expressed remorse for the present offending.

[13]     In any case involving serious drug offending, personal circumstances can only be given limited weight.  Nevertheless, it would be wrong for the Court not to recognise  the  attempts  you  have  made  to  free  yourself  from  a  life  so  heavily involved in drug dealing activity.  I propose to recognise these factors by applying a discount of six months.  This reduces the starting point I have selected to three years eight months imprisonment.

[14]     I now need to consider whether to apply a further discount in relation to the period that you spent subject to very strict bail conditions.  As your counsel points

out, you spent five months in custody before being admitted to EM bail approximately 18 months ago.  Since that time, you have been subject to a 24 hour curfew at a specified address.   Not surprisingly, this has led to tension between yourselves and the occupants of the address.  That is to be expected when adults are forced to spend significant periods of time cooped up together in close proximity.

[15]     The Court has a discretion to reduce a sentence to reflect the fact that an offender has been subject to very restrictive bail conditions.2     There are no set guidelines regarding the manner in which the discretion is to be applied.  Generally speaking, the Court will look at the length of time on remand subject to conditions, together with the extent to which the conditions were in fact restrictive.

[16]     I am satisfied that I can give concrete recognition to the length of time you have spent subject to strict bail conditions.  I propose to reduce the sentence by ten months to reflect this factor.  This leaves an end sentence of two years ten months imprisonment before taking into account your guilty pleas.

[17]     These were entered well prior to trial, and certainly prior to the guilty pleas entered by many of your co-offenders.  In Hessell v R,3 however, the Supreme Court said that the maximum discount available for a guilty plea is 25 per cent.  In your case, I propose to apply a discount of nine months to reflect this factor.  This leaves an end sentence of two years one month imprisonment, which leaves you outside the range available for a sentence of home detention to be imposed.

[18]     I wish to add, however, Mr Wiki, that even if I had got to a sentence of two years imprisonment, the nature and gravity of your offending was such that I could not, in all conscience, have imposed a sentence of home detention, notwithstanding the efforts you have made to rehabilitate yourself. At the end of the day, you were an offender  who  was  substantially  involved  in  the  sale  of  methamphetamine  for personal gain.   It would send an entirely wrong message to the community if you were to receive a sentence of home detention, particularly having regard to your

earlier convictions and the sentences you have received.

2      R v Faisandier CA185/00, 12 October 2000.

3      Hessell v R [2010] NZSC 135.

[19]     By my calculations the sentence I will impose means that you will be eligible to apply for parole in approximately three months time.   I have no doubt that the parole authorities will take into account all of the mitigating factors identified in the material that has been produced to me for sentencing today.

Sentence

[20]    On each of the methamphetamine related charges, you are sentenced to concurrent terms of two years one month imprisonment.  On the charge of offering to supply cannabis, you are sentenced to five months imprisonment.   That sentence, too, is to be served concurrently with all other sentences.

[21]     Stand down.

Lang J