Wipa v The Queen

[2004] NZCA 205

IN THE COURT OF APPEAL OF NEW ZEALAND

CA72/04

THE QUEEN

v

KEVIN DIKE WIPA

Hearing:23 August 2004

Coram:Glazebrook J
Robertson J
Baragwanath J

Appearances:  Appellant in person

S P France for Crown

Judgment:30 August 2004 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]       Mr Wipa was convicted in April 1996 in the District Court at Otahuhu of five cannabis related offences and one count of breach of bail. He was sentenced to a total of four years imprisonment. This is a rehearing of Mr Wipa’s appeal against sentence which was dismissed on 22 August 1996 after an ex parte hearing.

Background

[2]       Mr Wipa’s cannabis convictions relate to five incidents that occurred between August 1993 and March 1996. In the first incident police stopped Mr Wipa who was driving a car containing a large quantity of cannabis in deal bags. The second incident related to a search warrant executed on a Mangere address where Mr Wipa was seen running through the house and throwing a plastic bag containing a large quantity of cannabis out of a window. Police found further cannabis at the house along with evidence of large scale dealing. In the third incident Mr Wipa sold cannabis to an undercover police officer. In the fourth incident police were at a house looking for Mr Wipa on another matter when he jumped out of the window and ran off dropping a bag containing a large quantity of cannabis. The fifth incident related to a large quantity of cannabis together with a considerable quantity of cash that police found in the boot of a car Mr Wipa was driving. Finally, the count of breach of bail related to Mr Wipa’s failure to appear to answer charges when he had been released on bail.

The sentence

[3]       Judge Treston noted as aggravating features the number of charges, the fact that Mr Wipa offended while on bail for the same matters and that he breached bail, the significant amount of cannabis involved, the total street value of nearly $50,000, Mr Wipa’s previous drug convictions and the lengthy period of offending.

[4]       The Judge took account of Mr Wipa’s early guilty pleas, drug dependency and his family commitments and support and the physical, sexual and emotional abuse suffered by him as a child. He was not, however, prepared to impose a suspended sentence with supervision for drug treatment as he considered the offending too serious and repetitive, involving as it did a large amount of drugs and significant potential for profit.

[5]       The charge of possession for supply in relation to the second incident had been laid indictably and carried a maximum term of imprisonment of eight years. The other charges were also laid indictably but Mr Wipa had pleaded guilty to those prior to depositions and accordingly on those counts the maximum sentence available to the Judge was one year’s imprisonment.  The Judge recognised his power to decline jurisdiction and send Mr Wipa to the High Court for sentence but decided that an appropriate sentence would be obtained in the District Court by the imposition of cumulative sentences.

[6]       Mr Wipa was sentenced to two years imprisonment in relation to the second incident, six months in relation to the first incident and nine months in relation to the third incident, the sentences to be cumulative. In relation to the fourth and fifth incidents, Mr Wipa was sentenced to two nine month terms to be concurrent with each other but cumulative on the others. On the remaining count of breach of bail, Mr Wipa received a term of three months imprisonment to be served concurrently.

Appellant’s submissions

[7]       Mr Wipa did not file written submissions for the rehearing but extensive submissions had been filed for the original appeal. These earlier submissions concentrated on the personal circumstances of Mr Wipa, including his long term solvent, alcohol and drug abuse and his determination to undertake treatment. They also referred to a loan from Mr Wipa’s mother that Mr Wipa wished to repay, which provided an explanation for the scale of offending.

[8]       Before us, Mr Wipa submitted that the sentencing Judge had failed to take proper account of the mitigating factors related to the offending. Mr Wipa accepted that he had sold cannabis. He said, however, that this was only to support his habit and his family and that his level of involvement in drugs could not be equalled with that of large scale drug dealers.

[9]       He also alleged that he had been pressured into pleading guilty by two probation officers who had since been dismissed from the service for misconduct. The probation officers had, according to Mr Wipa, distorted the facts. They had promised him that, if he went along with that, he would not go to prison. He said also that the Judge had not allowed the probation officers time to complete their report before sentence.

[10]     Mr Wipa also referred to some fellow prisoners who had been convicted of serious violent offending but who had received similar sentences to him and who had been released before he was. His submission was that their offending was clearly more serious than his and that, therefore, his sentence should have been lower.

Crown submissions

[11]     The Crown submitted that the scale of the offending leaves little doubt that Mr Wipa was a significant dealer in cannabis. The amount and quality of the cannabis, together with large quantities of cash, indicate a significant cannabis dealing operation. Also of note, in the Crown’s submission, is that there was repeat offending close in time indicating not only the size of the business but Mr Wipa’s determination to maintain the business despite being caught on several occasions. In the Crown’s submission, Mr Wipa showed no inclination to desist even when he was apprehended and facing other charges and this disregard for the law had to be reflected in the sentencing exercise.

[12]     The Crown submitted that a sentence at the top end of the range was required to reflect the well-established principle of general deterrence in drug cases and, in Mr Wipa’s case, the need also for a sentence that reflected individual deterrence and denunciation. The global starting point of five years, incorporating as it did all the aggravating features and capturing all Mr Wipa’s charges was one well open to the sentencing Judge. Similarly a one year discount for the guilty plea was appropriate, given that Mr Wipa was either caught in possession of the cannabis or dealt directly with undercover officers, making any recourse to a defence of personal use a hopeless prospect.

Discussion

[13]     The matters now raised by Mr Wipa, relating to the probation officers pressuring him to plead guilty, can have no relevance to a sentence appeal. They could have relevance to a conviction appeal but Mr Wipa does not appeal against his conviction. Mr Wipa was, in any event, represented by counsel at the relevant times and he accepts that he supplied cannabis to support his habit and his family.

[14]     With regard to the allegation that the probation report was incomplete, this was not the case. The completed probation report that was before the Judge had, however, recommended a further remand so that Mr Wipa could complete an eight week assessment at the Support and Sobriety Residential Programme. As recognised in the probation report that assessment could only have served a useful purpose if there was to be a community based sentence. As indicated, the Judge did not consider that to be an option in this case.

[15]     As to Mr Wipa’s submission that his sentence was disproportionate to those imposed on his fellow prisoners, the proper comparator is sentences for drug offending. In those terms, Mr Wipa’s sentence was unexceptional. That other prisoners for other unrelated offences may have been treated too leniently or even that tariffs for other offending may be too low by comparison to tariffs for drug offending, is not a reason for adjusting Mr Wipa’s sentence, although it may be a reason (if there is an inappropriate disparity) to adjust upwards the tariffs for violent offending.

[16]     Finally, there is Mr Wipa’s submission that the Judge failed to give proper weight to the mitigating factors. The question here is whether the normal rule that personal circumstances play little role in drug sentencing should have been relaxed in Mr Wipa’s case, given his very tragic personal circumstances, his strong desire for rehabilitation and the clear progress made towards that, using his considerable musical talents. The sentencing Judge carefully considered whether a sentence that enabled Mr Wipa to undertake a residential drug and alcohol programme should be imposed. He decided, however, that the level of offending was such that this was not an available option. The Judge was clearly entitled to take that view and, given the level of offending, would likely have been required to do so.

Result

[17]     The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington