The Queen v Raihana - [2007] NZCA 152

IN THE COURT OF APPEAL OF NEW ZEALAND
CA 479/06
[2007] NZCA 152
THE QUEEN
v
HORI TE IHI RIMITIRIU RAIHANIA
Hearing:16 April 2007

Court:Glazebrook, Randerson and Ronald Young JJ
Counsel:M J Faleauto for Respondent

M D Downs for Appellant

Judgment:24 April 2007 at 3pm

JUDGMENT OF THE COURT

Leave to appeal is granted but the appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1]       The Solicitor-General seeks leave to appeal against a sentence of 400 hours community work imposed by Judge Hubble in the District Court following the respondent’s conviction after trial for possession of cannabis for supply. The appeal is brought on the grounds that the sentence was wrong in principle and manifestly inadequate.
The facts
[2]       On 22 July 2005 the police searched a storage unit leased by the respondent and found approximately 5.5 kgs of cannabis plant material. The majority of this was of good saleable quality. Most of the material had been broken down into approximately 20 small snaplock bags each containing one ounce of cannabis and 12 one pound bags. Evidence was adduced that the cannabis was worth approximately $40,000–$90,000. A set of electronic scales was also found in the storage unit.
[3]       The evidence disclosed that the respondent had leased the unit since December 2000 under a false name. The respondent regularly visited the storage unit over a period of approximately one month prior to his arrest, staying only for a few minutes on each occasion.
[4]       The respondent denied selling cannabis and storing the drug for that purpose. He testified that he possessed all of the cannabis for palliative relief. He had been involved in a serious car accident in 1980. Although the respondent continues to suffer health problems as a consequence of that accident, the verdict clearly implies that the jury rejected the respondent’s evidence on the critical issue.
The Judge’s sentencing remarks
[5]       The Judge noted that, despite the jury’s verdict and the clear evidence of commercial drug dealing, the respondent continued to deny he was involved in selling cannabis. The Judge regarded the sheer quantity of the drug as the principal aggravating circumstance. However, he considered that there were substantial mitigating circumstances. He took into account the respondent’s previous good character including the fact that he had no prior convictions of any kind. He accepted that the respondent had severe health problems resulting from the accident and that he had been introduced to cannabis for pain relief. He noted that, by the time of sentencing, the respondent had been in custody for approximately one month.
[6]       While accepting that the case clearly fell within Band 2 of R v Terewi [1999] 3 NZLR 62 (which would have warranted a starting point of between two and four years imprisonment), the Judge considered the respondent’s case justified his exercising the prerogative of mercy. The Judge was clearly influenced by the presence in court of a substantial number of the respondent’s whanau and eloquent pleas…

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 The Queen v Raihana

Details

AGLC: The Queen v Raihana [2007] NZCA 152
Case: [2007] NZCA 152
Decision Date: 24 April 2007

CaseChat Overview and Summary

The case of The Queen v Raihana arose from the conviction of the respondent for possession of cannabis for supply. The respondent, Raihana, was found with approximately 5.5 kilograms of cannabis in a storage unit he leased under a false name. The police had discovered the cannabis during a search and estimated its street value to be between $40,000 and $90,000. Despite Raihana’s denial of involvement in the commercial sale of cannabis and his claims of using the drug for palliative relief due to a car accident, the jury found him guilty.

The legal issue in this case centred on whether the sentence imposed by the District Court was appropriate. Raihana was sentenced to 400 hours of community work, which the Solicitor-General argued was manifestly inadequate given the commercial scale of the offending. The appeal was based on the premise that the sentence was both wrong in principle and manifestly inadequate, considering the quantity and quality of the cannabis found.

The Court of Appeal considered the broad discretion afforded to sentencing judges and the mitigating circumstances presented. The sentencing judge had acknowledged the significant quantity of cannabis and the commercial nature of the offence but also noted Raihana’s good character, lack of prior convictions, and his severe health issues. The presence of Raihana’s whanau and their plea for a restorative justice approach also influenced the sentencing decision. The appeal judges noted that while the case clearly warranted a custodial sentence, Raihana had completed his community service in good faith and had adhered to the terms set by the sentencing judge. Additionally, Raihana had accepted his guilt before the Court of Appeal. Given these factors, the Court found it unjust to impose a custodial sentence despite the appeal being allowed.

Orders