R v Wolland
[2012] NZHC 442
•16 March 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2011-092-13222 [2012] NZHC 442
THE QUEEN
v
RICHARD WOLLAND
Hearing: 16 March 2012
Appearances: I Brookie for Crown
M Sweetman for Wolland
Judgment: 16 March 2012
SENTENCING REMARKS OF ALLAN J
Solicitors:
Crown Solicitor Auckland [email protected]
Manukau Public Defence Service Manukau [email protected]
R V WOLLAND HC AK CRI 2011-092-13222 [16 March 2012]
[1] Mr Wolland, you appear for sentence this morning on one charge of possession of cannabis for supply. There is an unfortunate procedural background to this case. Following an early guilty plea you were sentenced in the Manukau District Court by Judge Moses on 29 November 2011, to 18 months imprisonment. It was subsequently realised that the sentence exceeded the Judge’s sentencing jurisdiction under the Misuse of Drugs Act 1975. The Judge recalled his sentence and, having declined jurisdiction, directed that you be sentenced in this Court, where the maximum available penalty is eight years imprisonment.
Factual background
[2] On 18 August 2011, the police conducted a search of your residence at Mangere. There, they located 14 individual ounce bags containing about 370 grams of cannabis with a street value in excess of $5,600, 23 tinnies, and $4,800 in cash. You readily accepted that the cannabis and the cash were yours, that you had been selling one ounce bags of cannabis to family and friends, and the tinnies were for your own use. You said you had incurred a substantial debt, which you are unable to repay without earning significant sums from cannabis dealing.
[3] Remarkably, at that time you were serving a sentence of home detention, imposed upon you for identical offending by Lang J in this Court on 18 February
2011.
Personal circumstances
[4] You are 35 years old and of Tongan/European decent. You were born and raised in Tonga by your grandparents and came to New Zealand aged 14 years. The offending occurred in your mother’s house where you live with your partner and your two young children. It seems that you have had some difficulty in obtaining employment, and that financial pressures were at least partially responsible for your offending yet again. The pre-sentence report discloses however that you have been a long time user of cannabis. To your credit, you now say that you would appreciate
help in beating the habit and breaking free of a drug-related lifestyle. But it is a logical assumption that you chose to help yourself financially by dealing in cannabis, partly by reason of the fact that you are yourself a consumer of it, and are comfortable with a lifestyle in which cannabis plays a major role.
[5] Since you have been in custody your father passed away. As one can understand that has had a significant effect on you.
[6] The probation officer is impressed by the extent to which you have expressed your remorse and regret for this offending, noting that it arose because you could not find work and needed money to support your family. It needs to be said however Mr Wolland, that your prospects of finding and retaining employment are unlikely to improve until you stop using cannabis which has a detrimental effect on all sorts of activities .
[7] I accept that you are genuine in expressing your regret for what occurred, and in your claim that you would cooperate in any counselling programmes aimed at steering you away from drug offending. But I cannot ignore the fact that, within months of being sentenced to home detention by Lang J, you were offending again in precisely the same way.
[8] Over the past 20 years or so, you have accumulated a dismal record of criminal offending, some of which was truly serious. You served long sentences of imprisonment for rape and for aggravated robbery. More particularly for present purposes, I note that there are three prior cannabis related convictions, culminating in the offending for which you were sentenced by Lang J. On that occasion in August 2010, the police were called to your residence because you were thought to be engaging in deliberate damage to the property. When the police arrived, they found a number of tinfoil squares and a bag of cannabis containing about 48 grams.
[9] Lang J adopted a starting point of two years three months imprisonment, uplifted that by two months in order to recognise your previous cannabis offending (but not your other convictions), and then allowed a discount of seven months or
20% for your guilty plea, so producing an end sentence of one year ten months
imprisonment. He then substituted a sentence of 10 months home detention, but it is clear from reading His Honour’s sentencing notes that you were very close on that occasion to a sentence of imprisonment.
Sentencing principles
[10] I suspect you will be well aware Mr Wolland, of the approach the Court takes when sentencing for criminal offending. I cannot do better than repeat what Lang J said to you in February last year.
[4] The courts adopt a reasonably uniform approach when it comes to drug dealing. As you well know, people who deal in drugs in any quantity go to prison. That is the only way in which the Court can properly send a message that drug dealing will not be tolerated. Issues of deterrence and denunciation are always to the forefront when it comes to dealing in drugs.
[5] At the same time, however, the courts are required by the Sentencing Act 2002 to ensure that the sentences that it imposes are consistent with those imposed in relation to other offending in similar cases. It is also required to impose a sentence that is the least restrictive outcome in the circumstances, and that provides, so far as possible, for rehabilitation and reintegration of the offender into the community.
Counsels’ submissions
[11] Both counsel have filed detailed and helpful written submissions. I am grateful to them for that. Briefly, counsel for the Crown suggests a final sentence in the region of two years six months imprisonment, reached from a starting point of about two years. Your counsel suggests a starting point of two years imprisonment, reduced by mitigating factors to something significantly less than that. It is accepted that home detention is not now appropriate, and I agree it is simply out of the question given your apparent inability to refrain from repeat offending.
Starting point
[12] Mr Wolland, as you may know, the Court is required to fix a starting point which recognises the overall gravity of the offending. It is then necessary to
consider whether there are any aggravating factors which make the case worse, and finally the Court considers mitigating factors, those which may reduce the overall gravity of the offending.
[13] Starting points for cannabis cases are largely governed by the decision of the Court of Appeal in R v Terewi.1 Counsel agree that this is a category 2 case, which includes small scale dealing for commercial purposes. The starting point for such cases is between two and four years imprisonment. The personal circumstances of those sentenced for commercial drug dealing are normally regarded as of only minor relevance. Generally personal circumstances can cut in only for first offenders or those with a compelling case. I do not see how I can do much for you here, given your history.
[14] Counsel have cited a number of previous cases. I am grateful to them for the significant work they have done. I have considered a number of the authorities; those which are of special assistance here include Tupaea, Turoa, and Matehe.2
[15] I consider that this case can properly be placed at about the middle of band 2 and so I adopt a starting point of two years nine months imprisonment, which I believe to be consistent with the comparable cases. This starting point is higher than that advocated by Mr Sweetman, but I do not see how I can sensibly adopt a lower starting point than that determined by Lang J last year, in a case which was much less serious than this. There is evidence here suggesting an active business on at least a moderate scale. Last year, the quantity of cannabis located was little more than 10% of what was found in the present case. Moreover, a very significant quantity of cash was recovered, and you accept that most, but not all, of the cash was related to recent cannabis dealings.
Aggravating factors
[16] I propose to impose an uplift on two separate grounds. First, this offending occurred while you were at home serving a sentence of home detention. In R v Paku
1 R v Terewi [1999] 3 NZLR 62.
2 R v Tupaea HC Auckland CRI 2006-057-2050, 15 May 2007, R v Turoa HC Auckland CRI 2008-
055-1629, 31 October 2008 and R v Matehe HC Invercargill CRI 2010-025-904, 3 August 2010.
detention was very lenient.3 I agree. There will be a six months uplift on that account. Moreover, it is essential that your prior record be recognised. Lang J added two months in order to recognise your prior cannabis related offending (but not your other offences which, like him, I put to one side). However, I must now take into account also the fact that you have committed a further serious offence. In my view, there must be an uplift of three months to take account of your prior cannabis related offending.
[17] All of these offences have occurred recently. On 29 May 2009 you were fined $200 on a charge of being in possession of cannabis; four months later you received a sentence of one year’s supervision and 75 hours community work on a charge of selling or supplying cannabis. Then followed the offending for which you were sentenced by Lang J. There is a troubling pattern here. It seems you are not much deterred by the increasing severity of the sentences imposed for your cannabis related offending.
[18] The total uplift for aggravating factors is accordingly nine months. That takes the sentence to three years six months.
Mitigating factors
[19] I now turn to mitigating factors. The principal consideration here is your guilty plea which was entered at the earliest possible time. It is appropriate to allow the full discount of 25% that is available where responsibility is accepted at the outset.
[20] But I am not prepared to allow any further discount for remorse as is suggested by Mr Sweetman on your behalf. It is said that you are highly motivated to turn your life around, and strongly committed to rehabilitation. I can only applaud those sentiments and you can be assured of support if you are determined to succeed.
But an additional discount for remorse is reserved for extraordinary cases, as the
3 R v Paku [2011] NZCA 269 at [18].
discount for the guilty plea to be generous, having regard to the fact that conviction was inevitable if the case was defended.
[21] Besides, I am proposing to impose an end sentence of two years five months imprisonment, which is a reduction of 13 months from the uplifted starting point of three years six months. That involves a discount of something more than 25%. There is therefore a degree of lenience in the final outcome. I should say that to the extent the discount for mitigating factors exceeds 25%, there is in effect something for remorse and also the predicament you have found yourself in jurisdictionally, because you had to come back and face a sentence in this Court when you would have thought the sentence in the District Court was final.
[22] This sentence significantly exceeds that imposed by Judge Moses in the District Court. In the context of a busy sentencing list, it seems possible that certain factors which have been carefully considered in this Court were either overlooked or not drawn to the Judge’s attention in the lower Court. It appears from the information provided to the Court that in particular Judge Moses did not have before him the sentencing notes of Lang J. If he had had those notes, I expect the outcome in the District Court would have been a somewhat higher sentence than was imposed.
Sentence
[23] Mr Wolland, on the charge of possession of cannabis for supply you are sentenced to two years six months imprisonment. It is accordingly not possible to impose the special conditions which Mr Sweetman suggested in the context of a lower sentence. However, I specifically draw the attention of the prison authorities to your firm desire to break free of your present regrettable pattern of cannabis related offending. They will no doubt consider what counselling or educational programmes might usefully be offered to you so that, during the remainder of your sentence and in the period immediately following your release, you have all the
support you need to set out on a new path in your life. Your family and in particular
4 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [72].
C J Allan J
2