Wano v The Queen

[2019] NZHC 800

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-20

[2019] NZHC 800

BETWEEN

SONIA TE AU WANO

Appellant

AND

THE QUEEN

Respondent

Hearing:	11 April 2019
Appearances:	G Schweizer for Appellant M Jenkins for Respondent
Judgment:	11 April 2019

ORAL INTERIM JUDGMENT OF LANG J

[on appeal against sentence]

WANO v R [2019] NZHC 800 [11 April 2019]

[1]    Ms Wano pleaded guilty in the District Court to numerous drugs-related charges and a charge of receiving stolen goods. On 17 January 2019, Judge Hollister- Jones sentenced Ms Wano to two years three months imprisonment.1 She now appeals against sentence on the basis that the Judge erred in several respects when imposing sentence. This led him to impose a sentence that was manifestly excessive.

The charges

Offending on 6 April 2018

[2]    On 6 April 2018 the police executed a search warrant at Ms Wano’s address. They had obtained the warrant because they believed they might find stolen property at the address.

[3]    When the police arrived at the address Ms Wano walked out of a garage carrying a fishing tackle box. When the police searched the garage, they found a cannabis bong. They then invoked their powers of search under s 20 of the Search and Surveillance Act 2012. This resulted in the discovery of 1.96 grams of methamphetamine. In addition, they found two mature cannabis plants containing head material and 400 grams of dried cannabis head material. Of the latter, 74 grams had been packaged into small zip lock bags which are commonly sold on the street for

$20 each. Digital scales and unused empty zip lock bags were also found at the address.

[4]    In the garage the police found a bag containing $1,800 in $50 notes. In addition, they found bags containing tradesmen’s tools that had been stolen in a spate of thefts from work vehicles a few weeks previously. These had a value in excess of

$5,000.

[5]    As a result of the items that the police found on 6 April, Ms Wano was charged with being in possession of cannabis for supply, being in possession of methamphetamine and being in possession of a cannabis pipe. She was also charged with receiving stolen property having a value in excess of $5,000.

1      New Zealand Police v Wano [2019] NZDC 1399.

[6]    Ms Wano first appeared in Court on these charges on 7 April 2018 and was admitted to bail. One of her bail conditions was that she was not to be in possession of, or consume, non-prescription drugs.

[7]    On 10 May 2018 Ms Wano pleaded guilty to the charges laid in relation to the items found at her address on 6 April 2018. She was then remanded on bail for sentence on 26 July 2018.

Offending on 11 May 2018

[8]    The police went to Ms Wano’s address again the next day. They saw that the same fishing tackle box was present. This had a transparent lid, through which they could see plastic bags. They then invoked their warrantless powers of search again and searched the box. Inside the box they found two glass methamphetamine pipes. They also found 14 small zip lock plastic bags containing a total of one gram of cannabis. Ms Wano told the police the box was hers, and that she had used it when she previously dealt in methamphetamine. She said she did not deal in methamphetamine any more. Ms Wano was charged with being in possession of the cannabis and pleaded guilty to that charge on 26 July 2018. She was then remanded on bail on all charges for sentencing on 15 October 2018.

Offending on 23 August 2016

[9]    In the early hours of 23 August 2018, Ms Wano was a passenger in a vehicle that was stopped by police at a routine traffic stop. Located in her possession was a carry bag that contained a small silver briefcase. When the police searched the briefcase, they found three methamphetamine pipes, a set of scales and numerous zip lock bags. Ms Wano told the police the briefcase belonged to her niece. She was charged with being in possession of a methamphetamine pipe as a result of this incident and initially denied the charge. She ultimately entered a guilty plea to that charge on 17 January 2019 and was sentenced on that charge on the same date along with the remaining charges.

The sentence

[10]   The Judge considered the lead charge was that of being in possession of cannabis for supply on 6 April 2018. Taking into account the cash and other drug- related paraphernalia found at her address on that date, the Judge considered the evidence pointed to Ms Wano being involved in a small scale commercial dealing operation. He assessed the offending as falling at the lower end of Band 2 identified in R v Terewi,2 and adopted a starting point of two years imprisonment on that charge. The Judge then added an uplift of two months to reflect the charge of being in possession of methamphetamine and the cannabis bong. He added a further uplift of four months to reflect the fact that Ms Wano had been found in possession of a considerable quantity of stolen tools as well. This produced an end starting point of two years six months imprisonment on the charges relating to the search of Ms Wano’s address on 6 April 2018.

[11]   The Judge then added an uplift of two months to reflect the fact that Ms Wano had been found in possession of cannabis again on 11 May 2018. He also added an uplift of three months to reflect the fact that Ms Wano was found in possession of methamphetamine pipes on 23 August 2019. The Judge noted that the fact that the police also found a set of scales and numerous zip lock bags on that date showed “a concerning aspect” to Ms Wano’s possession of the pipes.

[12]   By these means the Judge  arrived  at  an  end  starting  point  of  two  years 11 months imprisonment. He added a further uplift of one month to reflect the fact that the offending on 11 May and 23 August 2018 had occurred whilst Ms Wano was on bail. This led to a sentence of three years imprisonment before taking into account mitigating factors.

[13]   Dealing with these, the Judge first considered a submission that he should apply a discount to reflect Ms Wano’s remorse. He noted, however, that in a pre- sentence report prepared in July 2018 Ms Wano had said she would never offend in a similar way again. That statement was made prior to the incident on 23 August 2018,

2         R v Terewi [1999] 3 NZLR 62 (CA)

.

when she was found in possession not only of three methamphetamine pipes but also items indicating drug dealing activity. She had then failed to cooperate in the preparation of the pre-sentence report following the August offending. The Judge considered there was no other evidence of substantial involvement in any rehabilitative steps. For these reasons he did not consider a discount for remorse was warranted.

[14]   The only discount the Judge was prepared to afford Ms Wano related to her guilty pleas. He applied a discount of nine months, or 25 per cent, to reflect this factor. This resulted in the end sentence of two years three months imprisonment. That sentence precluded a sentence of home detention.

[15]   The Judge imposed the sentence of two years three months imprisonment on the charge of being in possession of cannabis for supply. He imposed concurrent sentences on the remaining charges.

The argument

[16]   Ms Schweizer advances five grounds in support of the appeal against conviction. These are:

(a)The Judge set an overall starting point that was too high for the offending on 6 April 2018.

(b)The Judge erred in applying uplifts for the subsequent offending and for offending whilst on bail.

(c)The Judge failed to have regard to totality principles.

(d)The Judge failed to apply a discount to reflect Ms Wano’s remorse.

(e)The Judge failed to recognise that a sentence of home detention was not only the least restrictive outcome but also the most appropriate outcome in the present case.

Decision

The starting point for the offending on 6 May 2018

[17]   I do not consider the Judge can be criticised for concluding that the cannabis offending fell at the lower end of Band 2 identified in Terewi. The quantities of cannabis found in Ms Wano’s possession, together with the cash and other indications of drug dealing activity, clearly justified the conclusion that Ms Wano was selling cannabis on a commercial level in order to feed her acknowledged methamphetamine habit. Indeed, Ms Wano herself acknowledges that this was the case. The offending therefore fell within the lower end of Band 2 identified in Terewi. A starting point of two years imprisonment on the cannabis charges was amply justified.

[18]   Ms Schweizer takes issue with the application of uplifts to reflect the charge of being in possession of methamphetamine and receiving stolen tools. She says that a starting point of two years imprisonment was sufficient to recognise Ms Wano’s overall culpability in relation to the offending that occurred on 6 April 2018.

[19]   I do not accept this submission. Indeed, I consider Ms Wano was fortunate not to be charged with being in possession of methamphetamine for supply having regard to the zip lock bags that were found in her possession and the fact that the cash was in

$50 denominations. One inference to be drawn from these factors is that Ms Wano may have been selling small amounts of methamphetamine as well as cannabis to feed her habit. Had she been charged with possession of methamphetamine for supply, the starting point would have been between two and four years imprisonment having regard to the starting points identified in R v Fatu.3 Furthermore, the quantity of methamphetamine in her possession was large for a person who was merely using it and not selling it. In those circumstances I do not see how an uplift of two months imprisonment on the methamphetamine charge could be criticised.

[20]   Similarly, the receiving charge related to entirely separate offending. Ms Wano has never supplied a satisfactory explanation for the fact that a quantity of stolen goods having significant commercial value were found at her address. She has said only that

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

they were left there the previous weekend by a third party. The receiving charge obviously warranted an uplift. The only question is the extent of the uplift. The uplift had to take the form of a sentence of imprisonment because of the other charges that Ms Wano faced. Having regard to the value of the goods, I do not see how an uplift of four months imprisonment can be questioned.

[21]   I am therefore satisfied that the overall starting point of two years six months imprisonment that the Judge selected in relation to the offending on 6 April 2018 was well within the available range.

Uplifts for subsequent offending and totality

[22]   Ms Schweizer argues that the Judge should not have applied uplifts in relation to the offending that occurred on 11 May and 23 August 2018. Again, I do not accept that submission because it was  entirely  separate  offending  and  occurred  whilst Ms Wano was on bail. Furthermore, by 11 May 2018 Ms Wano had already pleaded guilty to the charges relating to the incident on 6 April 2018. She therefore took a significant risk by being in possession of cannabis again just one day later.

[23]   Ms Schweizer contends that if an uplift for the 11 May offending was to be applied, it should be no greater than one month. Having regard to the fact that the offending occurred whilst Ms Wano was on bail, however, I consider that submission to be unrealistic. I take the view that an uplift of two months was justified to reflect this offending.

[24]   I take a different view in relation to the offending that occurred on 23 August 2018. On this occasion the only offence committed by Ms Wano was the possession of pipes. The Judge was clearly influenced in his selection of starting point on this charge by the fact drug dealing paraphernalia were found in Ms Wano’s possession on 23 August. Ms Wano was not, however, charged with any other form of drug dealing activity on that date. Standing alone, the possession of the pipes could never justify a sentence of three months imprisonment even taking into account the fact that she was on bail at that time for other drug-related activity. I consider an uplift of no more than one month was justified for that charge.

[25]   I also consider the Judge erred in applying an uplift for the offending whilst on bail. I consider the sentences  selected in  relation to the offending on  11  May and 23 August already took that factor into account.

[26]   It follows that I consider an end starting point of two years nine months imprisonment was appropriate having regard to totality principles and that an end starting point of three years imprisonment was too high.

Mitigating factors

[27]   For the reasons given by the Judge I do not consider a discount for remorse was warranted.

[28]   Applying a discount of 25 per cent for guilty pleas, the sentence reduces to one of two years imprisonment.

Home detention

[29]   This means Ms Wano would be eligible for a sentence of home detention. The Judge was not obliged to consider that issue because the end sentence he reached was above the two year threshold. Had he been required to consider it, however, I think it likely that he would have decided against home detention on the basis of the facts then available. At that stage Ms Wano was still clearly addicted to methamphetamine and had shown little interest in rehabilitative efforts.

[30]   Ms Wano has now spent three months in prison and I accept Ms Schweizer’s submission that she is now likely to view matters in a greatly different light. Furthermore, I consider the interests of the community require a rehabilitative sentence because that is the only realistic means by which Ms Wano will be able to remain drug-free and offence-free in the future.

[31]   I have therefore given consideration to the prospect that she be released on home detention. My preference would be that she attend a residential facility to ensure she lives in a structured environment in which others can supervise her progress

closely. Any breach of the conditions of home detention in that context would also mean that she would be required to return to prison immediately.

[32]   I have received helpful assistance today from a probation officer who is familiar with drug rehabilitation programmes, both in this area and in the northern region. She advises me that there is currently a lengthy wait for admission into residential programmes. In addition, the screening process prior to admission can take some months. It therefore seems unrealistic to require Ms Wano to wait in prison until she is admitted to a residential programme.

[33]   I am therefore minded to consider a sentence of home detention subject to three caveats. The first is that the address at which Ms Wano sought to serve a sentence of home detention is still available. Secondly, that she is now minded to engage wholeheartedly in rehabilitation. Thirdly, I wish to be satisfied that meaningful drug rehabilitation programmes would be available whilst Ms Wano is serving a sentence of home detention.

Result

[34]   The appeal is adjourned part-heard to the criminal callover in the High Court at Rotorua on Friday 3 May 2019 at 9 am. I direct that an updated PAC report is to be obtained addressing the issues referred to in this judgment. I have been advised that a report should be available within the next two weeks, which means that I could finally determine the appeal when it is next called on 3 May 2019.

Lang J

Solicitors:

Crown Solicitor, Rotorua

G A M Schweizer, Barrister, Rotorua