Tawaka v Police HC Nelson CRI 2011-442-18

[2011] NZHC 1603

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2011-442-18

STEVE THOMAS TAWAKA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 August 2011

Counsel:         R W Ord for Appellant

S K O'Donoghue for Respondent

Judgment:      17 August 2011

JUDGMENT OF SIMON FRANCE J

[1]      Mr Tawaka lived in a rental property with his partner and six children.   A search warrant  was  executed,  and  evidence  of  cannabis  cultivation  and  selling discovered.    His  partner  subsequently pleaded  guilty to  cultivation,  and  selling. Mr Tawaka pleaded guilty to selling.

[2]      The summary of facts records that at the time of the warrant he told Police:

He would sell approximately 30 tinnies a week for $20 each.

[3]      The pre-sentence report records that Mr Tawaka:

... agreed with the presented summary of facts, and went on to say “I am sorry for what I did.  I will do anything to get and give my kids what they want. This was the easy option”.

STEVE THOMAS TAWAKA V NEW ZEALAND POLICE HC NEL CRI 2011-442-18 17 August 2011

[4]      At sentencing the Judge took a starting point of a prison sentence, noting that Mr Tawaka was not a user and had no addiction.  It was a commercial decision to sell.  In terms of R v Terewi a starting point of 14 to 15 months was taken.[1]   Credit for the guilty plea reduced it to 10 months.   Home detention was available.   The pre-sentence report recommended community detention but the Court regarded home detention as the appropriate response.  A sentence of five months’ home detention was imposed.[2]   His partner received a term of ten months.[3]

[1] R v Terewi [1999] 3 NZLR 62; (1999) 16 CRNZ 429 (CA).

[2] Police v Tawaka DC Nelson CRI 2011-042-408, 17 May 2011.

[3] Police v Anderson DC Nelson CRI 2011-042-642, 17 May 2011.

[5]      Mr Tawaka appeals.  On his behalf, Mr Ord initially filed brief submissions challenging whether the least restrictive outcome had been imposed.   He also challenged the Judge’s assessment that it was a joint enterprise.  In his submission the available material showed Mr Tawaka’s partner to be the driving force.

[6]      The respondent then filed its submissions.  This produced from Mr Ord some “Submissions in Reply” and then subsequently “Further Submissions in Reply”.  The latter submissions run to 16 pages and advance propositions that existing authorities misunderstand or wrongly interpret s 6(3) of the Misuse of Drugs Act 1975, and Terewi.

[7]      The thrust of the s 6(3) submission appears to be that, when it applies, the maximum penalty for the offence is one year’ imprisonment.   Alternatively, it is submitted that referring in an information to s 6(3) is misleading and represents a defect  in  the  information  because  it  wrongly suggests  the  maximum  penalty  is

12 months.

[8]      Concerning Terewi, it is submitted that it is inapplicable to low level sales of cannabis.   Terewi was a cultivation case, in which category one was limited to cultivation  without  sales.     So  category one  cannot  apply  to  low  level  sales unaccompanied by cultivation.  This in turn means a starting point of imprisonment

for low level selling was not appropriate or required.

[9]      At  the  hearing  I  declined  Mr Ord  the  opportunity  to  develop  these submissions orally.   There have been numerous decisions on the effect of s 6(3). They have recently been listed by Ellis J in Tahiti v R.[4]    They are uniform in their conclusion  that  s 6(3)  does  not  alter  the  maximum  penalty  for  the  offence  but imposes a jurisdictional limit on the District Court, which may alternatively refer the case to a Court which is not so restricted.  I did not wish to add my analysis to the topic, which I regard as settled.   Equally I do not regard the Terewi point as sustainable.  It runs contrary to the Court of Appeal decision in R v Gray by which both the sentencing Court, and me on appeal, are bound.[5]

[4] Tahiti v R HC Auckland CRI 2010-404-330.

[5] R v Gray [2008] NZCA 224.

[10]     Accordingly  I  requested  Mr Ord  in  his  oral  submission  to  focus  on  the particular case.  In that context a concern I expressed to Mr Ord is that none of these issues he had addressed could possibly arise in a situation where an offender has admitted selling 30 tinnies a week.  A sentence of five months’ home detention was far from the most severe response available and is, in my view, unimpeachable on appeal.  The proposition advanced on Mr Tawaka’s behalf that imprisonment was not the appropriate starting point would require a revision of sentencing policy which is not open to me.

[11]     Concerning who was more responsible, the respective roles, or degrees of enthusiasm,  with  which  each  member  of  a  couple  partake  in  the  offending  is generally of little import.  Mr Tawaka’s partner accepted sole responsibility for the cultivation and received a longer sentence.  However, the cultivation was occurring in the house where they lived with their children, and both Mr Tawaka and his partner sold cannabis on a regular basis.  The different sentencing outcomes capture the  difference  in  culpability,  and  the  sentence  Mr Tawaka  received  is  plainly

available and in accordance with authority.

[12]     The appeal is dismissed.

Simon France J

Solicitors:

R W Ord, Barrister & Solicitor, Nelson, email:  [email protected]
S K O’Donoghue, Crown Solicitor, Nelson, email:  [email protected]