R V PAREKURA HC ROT CRI-2009-087-779 [2009] NZHC 1061 (18 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                                 CRI-2009-087-779



                                           QUEEN



                                               v



                     
     HARRY HERBERT PAREKURA



Hearing:        18 August 2009

Appearances: HJ Derrick for Crown
             R Gowing for Offender

Judgment:       18 August 2009

Sentence imposed:        Possession of Class C drug, Cannabis, for supply
                     
   12 months home detention (with conditions)



                         SENTENCING NOTES OF ASHER J




Solicitors:
Ronayne Hollister-Jones
Lellman, Crown Solicitor, Tauranga
Gowing & Co. PO Box 548, Whakatane


R V PAREKURA HC ROT CRI-2009-087-779 18 August 2009

[1]
   Mr Parekura, you have entered a plea of guilty and have been convicted on
one count of possession of cannabis for supply. The
maximum penalty is eight
years' imprisonment.


[2]    On 15 April 2009, the police executed a search warrant on your home at
81
Hardie Avenue, Kawerau. The police located in the wardrobe of the master
bedroom six ten-litre buckets full of cannabis head material.
      The sixth bucket
contained a mixture of cannabis leaf and seeds, which was half full. Located in
another bedroom wardrobe was
some loose-leaf cannabis material sitting on
newspaper. A further small amount of loose-leaf cannabis was found in a plastic bag
in a cupboard above the pantry in the kitchen.


[3]    The combined weight of the cannabis material was 6.137 kilograms, which
had
an estimate street value on a sale by pound basis of $33,750.


[4]    The Crown submits that the appropriate starting point for
sentence is about
three years' imprisonment. It proposes some modest uplift for your past record.
Even if you are eligible for home
detention in terms of the amount of the proposed
sentence of imprisonment, the Crown opposes a sentence of home detention.


[5]
   Your counsel, Mr Gowing, proposes a somewhat lower starting point of
approximately 30 months' imprisonment. He submits that if
you are eligible for
home detention, that home detention should in all the circumstances be the type of
sentence imposed.


Starting
point


[6]    I turn first to consider the starting point that should be imposed.     Both
Ms Derrick for the Crown and Mr Gowing
observe that the case appears to fall in the
second band of R v Terewi  [1999] 3 NZLR 62.             Although that case created
sentencing tariffs in respect of cultivating cannabis, the tariffs can be applied to
possession
for supply: R v Keefe CA275/02 28 November 2002. Category 2 in R v
Terewi was defined as follows in that case, at [4]:

       Category
2 encompasses small-scale cultivation of cannabis plants for a
       commercial purpose, ie with the object of deriving profit.
The starting point
       for sentencing is generally between two and four years but where sales are
       infrequent and of very
limited extent a lower starting point might be
       justified.

That category is to be contrasted with Category 3, which is for
the most serious class
of offending involving large-scale commercial growing usually with a considerable
degree of sophistication
and organisation.


[7]    The R v Terewi categorisation is not entirely apt for this sort of case. This is
because there were absolutely
no indicia of commerciality in what was found by the
police when they executed the search warrant. What was found was simply very
large amounts of cannabis leaf and seeds, consistent with your assertion that you
accumulated the cannabis basically for your own
use and that of your wife and
friends. It was stated in the probation report that you might on occasions swap
cannabis for a wild
pig or for beer or for the odd $20 now and again. On the
information that is available this explanation that you have given appears
to be true.
It means that you have not, as described in Category 2 of R v Terewi, had cannabis
for a "commercial purpose". The overriding
purpose was for your own use but there
were some side benefits that could on a broad meaning of the word be regarded as
commercial.


[8]    While the amount that you had in your possession could well warrant a
Category 3 sentence if there was serious commerciality
involved, I am satisfied that
such a categorisation would be quite inappropriate given the lack of commerciality.
Despite the reservations
I have mentioned, I place you in Category 2 of R v Terewi.


[9]    I have also considered a number of other comparable cases that
have been
referred to me. These include R v Rakatau CA404/06 23 February 2007, where a
starting point of two years and ten months
was considered to be at the top of the
range, where the amount of cannabis involved was 4.8 kilograms, and there were
some greater
indications of commerciality than here, in that 72 snaplock bags were
located. There was also in that case an acknowledgement that
there were some sales
to other persons, and scales were found. The amount found here was considerably
greater than that in R v Rakatau
but there were no snaplock bags, scales, or other

indicia of commerciality, and I note that the Court of Appeal regarded that sentence
as at the top of the range.


[10]   I have also considered R v Potene HC TNG CRI-2008-070-2553
8 August 2008, Asher J, (3.35 kilograms
­ starting point two years six months'
imprisonment); and R v Cook HC ROT 10 July 2008 Woodhouse J, (cultivation of
40 plants and
other material found ­ starting point of three to three-and-a-half years'
imprisonment). In all the circumstances, I fix a starting
point of two years ten
months' imprisonment.


Personal matters


[11]   It is necessary to consider matters relating to you personally.
       You are
46 years old. I have the benefit of a pre-sentence report. You have been residing
with your de-facto wife of 24 years
and with your two children aged ten and nine at
the home at Hardie Avenue. You have three adult children and four grandchildren.
Your record does not indicate any serious criminal propensity save for your
connection with cannabis. In 1999 you were convicted
of cultivating cannabis and
possession of seeds. On the cultivation charge you were sentenced to one year three
months' imprisonment.
There has also been some earlier possession of cannabis
counts. You have been unable to obtain full-time employment for approximately
the
last nine years, but recently secured a full-time position at a sawmill in Kawerau.


[12]   The pre-sentence report indicates that you are
a good father and you are
strongly supported by your de-facto wife. Your current employer verifies that you
have had full-time employment
since 11 May this year. I have two testimonials, one
from a former employer indicating that you are of good character and are a reliable
person. You are assessed as being at a low risk of re-offending.


[13]   Given your offending of cultivation of cannabis some nine
years ago, some
modest uplift is required. I consider that uplift should be two months' imprisonment,
increasing the starting point
to three years' imprisonment.

[14]   Despite the positive aspects of your character and past that I have mentioned,
no discount
is appropriate, given that past record, for good character or remorse.
You are, however, entitled to a full discount for your guilty
plea of one-third. That
reduces the end sentence to two years' imprisonment.


Home detention


[15]   Both counsel have focused
on the issue of home detention. The Crown
opposes home detention, pointing out that you will be continuing to live in the home
where
you were found with this cannabis. Ms Derrick also points out that you were
living in the same home in 1999 when the previous offending
occurred, the growing
there being in a field near to your home. She refers to aspects of the pre-sentence
report which indicate that
cannabis is in your lifestyle and that having it at least once
a day is somewhat ingrained. Your whanau support your use of cannabis
given that
they get gifts of cannabis from you. This is a powerful submission that Ms Derrick
has made, which has force.


[16] 
 Your counsel Mr Gowing, however, urges me to impose a sentence of home
detention. He points out that you are recorded by the probation
officer as having
expressed remorse for the offending. The enormity of the possibility of return to
prison has hit you hard. You
have expressed a willingness to engage in interventions
to address your identified needs to reduce the risk of re-offending.


[17]
  I note that the probation officer states that a sentence of home detention will
provide the framework where community based interventions
could be delivered to
reduce the risks of re-offending in the future. The probation officer recommends
community work or home detention
with certain conditions aimed to reduce your
dependence.


[18]   In considering whether I should grant home detention, I bear in
mind that the
sentence can only be imposed under s 15A(1) if the Court is satisfied that the
purpose for which the sentence is being
imposed cannot be achieved by any less
restrictive sentence or combination of sentences, and the Court would otherwise

sentence
you to a short-term sentence of imprisonment. The term I have indicated at
two years' imprisonment is such a short term.


[19] 
 I must recognise that home detention is a stand-alone sentence under the
Sentencing Act 2002. As is observed in R v Iosefa CA472/08
3 November 2008, it
is a real alternative to imprisonment and does in itself carry with it the principles of
deterrence and denunciation.
It was stated there at [41]:

       It is clear parliamentary policy that for short-term sentences, those of two
       years or
less, the restriction on liberty through home detention can more
       appropriately be imposed by a sentence of home detention
than by
       imprisonment.

Mr Gowing points out that you will be closely monitored by your probation officer if
you are on home
detention. There will be random visits, which are likely to reveal a
reversion to bad habits.    It must be recognised that although
less serious than
imprisonment, home detention is a major intervention into lifestyle and liberty, and a
severe penalty in its own
right.


[20]   I have reached the view that the appropriate sentence to be imposed here is
home detention. Given the fact that you
now have a permanent job, you have a real
reason not to commence re-offending. You appear to be an intelligent man and you
must recognise how reckless
and foolish you would be to re-offend. Your long-term
chances of rehabilitation and the long-term benefit to the community of this
will be
better served if you are in your home, although with the restrictions of home
detention, working for their benefit and towards
a better future. Clearly you did not
learn your lesson last time in 1999 when you were sentenced to imprisonment, but
there may be
a better chance that you will learn your lesson this time with a sentence
of home detention with a maximum period of one year, and
with you co-operating
with the probation officer and working through the programmes she recommends.


[21]   You are sentenced to
home detention for a period of one year. I impose the
following conditions:

       a)      Upon release from Court you are to travel
directly to 81 Hardie Street,
               Kawerau, and await the arrival of a probation officer and security
               officer.


       b)      You are to reside at 81 Hardie Street, Kawerau, for the duration of the
               sentence.


       c)   
  You are not to possess or consume alcohol and/or drugs for the
               duration of home detention.


       d)      You
are to comply with the requirements of electronic monitoring, as
               directed by a probation officer.


       e)    
 You are to attend and complete an appropriate drug and alcohol
               programme to the satisfaction of the probation office
and programme
               provider.


       f)      You are to complete the Tikanga Mäori Programme to the satisfaction
    
          of the probation officer and programme facilitator.


       g)      You         are     to        attend     and     
 complete       such
               counselling/programme/treatment to address identified offending
               behaviour or other
programme as may be directed by the probation
               officer and to the satisfaction of the probation officer and programme
               provider.


[22]   I note also that post-detention conditions should comprise conditions e), f)
and g) of the special
conditions already set out for home detention.


[23]   Mr Parekura, as you have heard, I have been persuaded that home detention
is the appropriate sentence for you. It will give you an opportunity to keep your job,
stay with your family and fulfil the potential
you clearly have as a good person. The
Crown will undoubtedly keep a copy of these sentencing notes and if you are
involved in further
cannabis offending, that will be seen as showing that even when
given a chance like this you cannot be trusted to take it. That is
what the view will

be if you start re-offending. So you have everything going for you in the future. I
urge you to take all the
good things in your life and to put cannabis to one side.




                                                             ................................
                                                                                  Asher J