R V AIAVAO HC ROT CRI-2006-070-7259 [2009] NZHC 43 (3 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                                         CRI-2006-070-7259



                                          QUEEN



                                              v



                       
 CHERIE TEHUKARERE AIAVAO



Hearing:        3 February 2009

Appearances: H Wrigley for Crown
             H Edward for the offender

Judgment:       3 February 2009

Charge/s:       Possession Class A methamphetamine for supply; Possession Class B
            
   MDMA for supply; Possession of a pistol without lawful purpose
                (x2).
Original
Sentence:       Two years and three
months' imprisonment

Sentence:       Seven months' home detention (taking into account period of time
                spent in prison
of five months)
                Conditions imposed.



               ADDITIONAL SENTENCING NOTES OF ASHER J




Solicitors:
Ronayne
Hollister-Jones, Crown Solicitors, PO Box 13063, Tauranga 3141
A Balme, PO Box 13079, Tauranga 3141




R V AIAVAO HC ROT CRI-2006-070-7259
3 February 2009

[1]    Cherie    Aiavao,   you   have   been      found   guilty   of   possession   of
methamphetamine and MDMA
and on two counts of possession of a pistol without
lawful purpose. On 5 September 2008 Stevens J sentenced you to an effective total
sentence of two years and three months' imprisonment. That sentence was imposed
in relation to the charge of possession of a Class
A drug for supply. The lesser
sentences on the other charges were concurrent.


[2]    You were fortunate at the time to come before
the Court when a sentence of
home detention was available for a sentence of that length. The law now is that such
a sentence is not
available if the sentence of imprisonment exceeds two years'
imprisonment. Stevens J was aware of this and because of your youth
and remorse
was prepared to grant you leave to apply to this Court for home detention under s 81
of the Sentencing Act 2002. He undoubtedly
had in mind the decision of R v Hill
CA559/07 29 February 2008, where it was determined that the transitional provision
in s 57 of
the Sentencing Amendment Act applied, and that the only requirement
before a sentence of home detention could be imposed was the
existence of a power
to imprison (para [28]).


[3]    Your efforts to date to obtain a sentence of home detention under s 80I of
the
Sentencing Act 2002 have been thwarted by the fact that there has been no suitable
address available. A proposed address whereby
you would stay with your sister was
deemed to be unsuitable.     Fortunately your mother, Priscilla Aiavao, has now
obtained new
accommodation and is able to accommodate you at home. She now
has a four bedroom house where she resides with her partner, Andrew
Daw, and her
two children.


[4]    The home detention report prepared by the probation officer assesses her
address at 14 Crombie
Street, Bellevue, Tauranga, as suitable. This most recent
report of 3 February 2009 also assesses you as suitable for a community
based
service. It seems that while you have been in prison you have worked within prison
programmes and have been assessed favourably.

[5]    I am satisfied that for the reasons referred to by Stevens J in his sentencing
notes, particularly your youth and remorse
and because you now have a suitable
address where you will live with your mother who is clearly determined to look after
you and
help you, that home detention is a suitable sentence


[6]    Given the gravity of your offending involving as it did Class A drugs
and
firearms and in particular the sentence that you have of two years and three months'
imprisonment, the appropriate period would
have been the maximum period of home
detention of 12 months. There is the complication here that you have served almost
five months
of your prison sentence. Given the fact that the home detention order
that would have been made at the time of your sentencing would
have been no more
than 12 months, I consider it fair to deduct from the home detention order a
deduction to reflect that time in prison.


[7]    I consider
that the correct approach is to equate the deduction with the time
you have spent in prison. You have spent in prison almost five
months and I will
deduct five months from the home detention sentence. I appreciate of course that the
five months that you have
spent in prison has been a harder sentence than it would
have been if that five months had been spent on home detention. Nevertheless,
your
offending was grave and I do not ignore the benefit that you have had from the
anomalous situation that applied in the transitional
period.      Thus I deduct five
months from the sentence of 12 months' home detention that I would otherwise have
directed.


[8]
   You are sentenced to seven months' home detention. I therefore cancel the
sentences of imprisonment.        I record, however,
that but for the period of
imprisonment served the sentence of home detention would have been 12 months.


[9]    I direct that the
following post-conditions shall apply:


       a)      Upon release from the Rotorua High Court travel directly to
            
  14 Crombie Street, Bellevue, Tauranga, and await the arrival of the
               home detention probation officer and security
officer.

       b)     To reside at 14 Crombie Street, Bellevue, Tauranga, and not to move
              address without the prior
written approval of a probation officer.


       c)     To abstain from the purchase, possession or consumption of alcohol
    
         and/or illicit drugs for the duration of home detention.


       d)     If it meets the necessary criteria, to undertake
a pre-programme
              interview and complete Departmental programmes to the satisfaction
              of the probation officer
and programme facilitator.


       e)     To attend alcohol and drug assessments, counselling and/or
              programmes, including
residential, to the satisfaction of the probation
              officer.


       f)     To undertake any other assessment, counselling
or programmes,
              including residential, as may be directed to the satisfaction of the
              probation officer.


[10]   These are important directions and they require you not to purchase or have
in your possession or consume in any way alcohol
or drugs during this period. You
will need to attend any programmes that the probation officer directs that you attend.
Your lawyer
will explain to you in detail what those conditions mean and what you
need to do.


[11]   I also make the following post-detention
condition, which is that you are to
continue to attend alcohol and drug assessments, counselling and/or programmes as
may be directed
by and to the satisfaction of the probation officer. That condition
will apply for a period of six months from the end of the detention.




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