R v Vailea [2010] NZCA 67 (15 March 2010)

Last Updated: 4 April 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA510/2009
_{[2010] NZCA 67}

BETWEEN THE QUEEN

Appellant

AND UNALOTO RAHERA VAILEA Respondent

Hearing: 8 March 2010

Court: Ellen France, Miller and Allan JJ Counsel: B D Tantrum for Crown

W N Dollimore for Respondent

Judgment: 15 March 2010 at 11.30 am

_{JUDGMENT OF THE COURT}

The application for leave to appeal against sentence is granted but the appeal is

_dismissed.

REASONS OF THE COURT

_{(Given by Ellen France J)}

Introduction

[1] The respondent was sentenced on 23 July 2009 to a term of 18 months imprisonment. She had pleaded guilty to seven counts of selling cannabis or having

R V VAILEA CA510/2009 15 March 2010

possession of cannabis for the purposes of sale, plus charges of receiving, possession

of methamphetamine, possession of utensils (methamphetamine) and breach of

District Court bail.[1]

[2] The Solicitor-General seeks leave to appeal against the sentence on the basis the sentence is manifestly inadequate and wrong in principle. The application raises issues about the appropriateness of the starting point adopted and of the discount for mitigating factors.

Factual background

[3] The charges faced by the respondent arose out of a police investigation into drug dealing by the Mongrel Mob in the Waikato region between March and December 2007. Woodhouse J, in sentencing the respondent, observed that the investigation revealed an organised criminal structure. The top tier involved those at the highest echelon of the gang. The second tier comprised senior patched members who were responsible for obtaining and distributing drugs to those in the third tier, like the respondent.

[4] The facts giving rise to the offending are described by Woodhouse J as follows:

[6] There was a search on 1 August 2007. A methamphetamine pipe was found. [The respondent] admitted it was [hers]. A stolen television was also found.

[7] There was a further search on 27 August. The police found quantities of cannabis in tinnies and ounce bags, cash in different places, another methamphetamine pipe in [the respondent’s] bedroom, and another stolen television. [The respondent] admitted that this television was stolen.

[8] [The respondent was] living at this house with other members of

[her] family. The property was rented in [her] father’s name. [Her] father was convicted on a charge of permitting the premises to be used for selling

cannabis over the period from 27 August to 6 December 2007. ... [her]

mother has also been convicted on charges arising out of this. In another bedroom – this is on the 27 August search – in another bedroom occupied by [her] sister and her [sister’s] boyfriend, the police found a further 2 tinnies _{and $4,930 in cash.}

[9] There was a further search on 6 December 2007 when the police operation came to an end. The police found 11 cannabis tinnies in [the respondent’s] bedroom and 6 more in other places. There was more cash, including $1,845 in [her] father’s possession. In the bedroom of [her] sister and her [sister’s] boyfriend the police found 20 tinnies and $4,550 in cash.

[10] Further evidence of [the respondent’s] involvement and the nature of

it – and the involvement of members of [her] family – was obtained by undercover police officers on three occasions in November when tinnies were sold by [the respondent] or members of [her] family, including [her] mother. In addition, on one occasion, [the respondent] offered to sell 2 ounce bags for $250. There was further evidence of [the respondent’s] dealings with a patched gang member to obtain supplies of cannabis and make payment to him.

[5] When she was interviewed by the police on 6 December 2007, the respondent admitted selling cannabis. The respondent said she did so to support her methamphetamine habit. She said she got the cannabis from a patched gang member who supplied methamphetamine to her for her own use. The respondent stated that all of her family sold cannabis, and that anyone at home “who could be bothered” would sell. The respondent said that between 50 to 100 tinnies a day had been sold from the home over the preceding two to three months. Before that, she said 20 tinnies a day were being sold.

Sentencing remarks

[6] In setting a starting point Woodhouse J rejected the Crown’s submission that

the offending came within category 3 in R v Terewi[2] warranting a starting point in

the region of five years imprisonment. Although not expressly stated, it appears that the Judge saw this offending as falling within category 2 in Terewi which would justify starting points between two and four years imprisonment. In making that assessment, Woodhouse J emphasised, amongst other matters, that the respondent was at “the bottom of the pecking order” and that it was likely the respondent was drawn into the offending by her brother’s active involvement in the gang.[3]

[7] The Judge considered the appropriate starting point was two years and nine months imprisonment. That figure was increased by three months to take account of

the totality of the offending. Woodhouse J further uplifted the starting point by three months to reflect the fact that the offending occurred whilst on bail. The Judge acknowledged that uplift was very lenient.

[8] From the starting point of three years and three months imprisonment, the

Judge discounted the sentence by 12 months for personal circumstances and a further

30 per cent for the guilty pleas, resulting in an end sentence of 18 months imprisonment. The Judge refused to grant home detention.

Submissions

[9] In essence, the Solicitor-General challenges three aspects of the Judge’s approach to sentencing. First, Mr Tantrum, on behalf of the Solicitor-General, submits that in setting the starting point at two years and nine months imprisonment, the Judge ignored the fact the respondent operated at the highest level within tier three of the drug-selling scheme. It is not disputed that she dealt directly with senior members of the gang in the second tier. Secondly, Mr Tantrum says that the three- month uplift for offending while on bail was inadequate in itself, especially where the respondent offended twice while on bail and had relevant previous convictions. Finally, the Solicitor-General challenges the 12-month discount for personal mitigating factors and the nine-month discount for the guilty pleas.

[10] Mr Dollimore submits that Woodhouse J correctly assessed the role of the respondent as, essentially, a low level seller. Mr Dollimore argues that the Judge’s approach to the other matters raised by the Crown was one open to the sentencing Judge.

Discussion

[11] Because of the way we resolve the matter, we can deal with the case briefly.

[12] In terms of the starting point, as Mr Tantrum accepts, it was open to the

Judge to place the offending within category 2 of Terewi although Mr Tantrum

submits placement should have been at the high end of that category. The uplift for offending whilst on bail could have been higher, as the Judge accepted. However, that uplift has to be considered along with the uplift for totality.

[13] The Solicitor-General’s complaint has much more force in relation to the discount for personal circumstances. As we shall discuss further shortly, the personal circumstances identified by the Judge are not particularly cogent or compelling. In addition, those factors have a limited role given the need to deter drug dealing.

[14] The approach to the discount for personal circumstances means that the sentence imposed is undoubtedly a lenient one. That in itself is not necessarily problematic. That is because, as was observed in R v Fate, “in appropriate circumstances” extending mercy to an offender is “a legitimate function of the criminal justice system”.[4] This Court in R v Ngeru stated, however, that while an appellate court “will respect” the exercise of mercy, the discretion is not unfettered and “the sentence ultimately imposed must take into account the interests of society in ensuring in appropriate cases that, notwithstanding the promptings of mercy, the sentence will still reflect the seriousness of the crime”.[5] The authorities make it clear that there must a basis for the approach taken and it follows that the matters on which the judge relies ought to be articulated clearly.

[15] As we have noted, there is not a great deal of cogency in the factors identified in this case. The high point is the suggestion in the sentencing remarks that the offending is the product of oppression or of similar constraints arising out of the familial involvement in the offending.

[16] That said, we have ultimately concluded that it would not be appropriate for the Court to disturb the sentence imposed. The factor that tips the balance in this respect is a practical one, namely, that we were advised at the hearing that the respondent is due to be released on 17 March 2010. In light of that fact, we grant _{leave to appeal but dismiss the appeal.}

[17] We add that several of those involved in offending arising out this police operation have been sentenced, some to longer terms, but Mr Tantrum did not invoke disparity as a ground of appeal. Further, we understand that there are still three persons to be sentenced in relation to this offending. However, although we have limited information about the factual circumstances of those three cases, we would not see the approach taken in the respondent’s case as having any particular relevance to these three further sentencings or, indeed, to other cannabis offending.

Solicitors:

Crown Law Office, Wellington for Appellant

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[1] R v Vailea HC Hamilton CRI 2007-019-010321, 23 July 2009.
[2] _{R v Terewi [1999] 3 NZLR 62 (CA).}

[3] At [21].

[4] _{R v Fate (1998) 16 CRNZ 88 (CA) at 94.}
[5] R v Ngeru CA459/94, 1 May 1995 at [4]-[5].