R V ALI HC WHA CRI 2008-088-4124 [2009] NZHC 556 (15 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY
                                                    CRI 2008-088-4124



   
                                 THE QUEEN



                                               v



                            MOHAMMED
JEFFREY ALI



Hearing:       15 May 2009

Appearances: A L Hyndman and Mr Coleman for Crown
             J Watson for Ali

Judgment:
     15 May 2009


                     SENTENCING REMARKS OF ALLAN J



Solicitors:
Crown Solicitor Whangarei
J Watson, Whangarei




R V ALI HC WHA CRI 2008-088-4124 15 May 2009
[1]    Mohammed Jeffrey Ali you appear for sentence this morning having pleaded
guilty to a number of offences, and having been remanded for sentence in this Court
by order of the District Court.           There
are two charges of supplying
methamphetamine and two of offering to supply methamphetamine. They each carry
maximum penalties of
life imprisonment.


[2]    There are three charges of possession of cannabis for supply, and four of
selling cannabis. Each of those
charges carries a maximum penalty of eight years
imprisonment.


[3]    You have also pleaded guilty to receiving a laptop computer
and accessories
valued at $1200 (maximum penalty seven years imprisonment), and boxes of
Paracetemol and Nicorette chewing gum valued
at $800 (maximum penalty one
years imprisonment).


[4]    Finally, there are two charges of breach of supervision orders, for which
the
maximum penalty is three months imprisonment, or a fine not exceeding $1000.


Factual background


[5]    In July 2008 Whangarei
police commenced an operation intended to target
drug offending in the Whangarei and mid-North area. Undercover police officers
were
deployed. They purchased, or offered to purchase, drugs at a number of
addresses, including yours. At that address you lived with
your partner, Ms Hemara
and your child. Ms Hemara has subsequently pleaded guilty to a lesser range of
offences and has been sentenced
to eight months home detention.


[6]    On 2 August 2008 two undercover officers visited your house, and indicated
a desire to purchase
cannabis. You removed the lid of a Tupperware container and
disclosed some 15-20 cannabis tinnies.       That evidence supports a
charge of
possession for supply. One of the officers then purchased two of the tinnies for $20
each. The next day two further tinnies
were purchased for $20 each. Later that
afternoon, in response to a request for methamphetamine, you supplied a ziplock bag
of methamphetamine
for $200. Following a discussion about the possibility of
further cannabis supplies, you removed the lid of the Tupperware container
to
disclose some six cannabis tinnies. That evidence supports the second charge of
possession of cannabis for supply. One of the
undercover officers purchased two of
the tinnies for $20 each. On that occasion, you told both officers that you intended
opening
up for business 24 hours a day.


[7]    Later, on 20 August 2008, two officers returned to your house. One of the
officers purchased
a bag of methamphetamine for $200, and observed that you had a
further bag which was available for sale for $100. Two further cannabis
tinnies were
purchased for $20 each, and there was a discussion about the possibility of further
supplies of methamphetamine. You
agreed to supply two $200 bags the following
day.


[8]    The police executed a warrant on 21 August 2008. At that time they found
11 cannabis tinnies, a number of $20 notes in a shoulder bag, a number of tick lists
and a quantity of tinfoil. You admitted that
the tinnies were in your possession for
supply, and further that you had sold a large number of tinnies from your address
over the
preceding months. You said that the drug sales were made on commission
for another person, whose identity you would not disclose.
You indicated that
initially you had sold about ten cannabis tinnies per week, but later that you derived
about $60-120 a day as
commission from the sale of cannabis.


[9]    On the basis of those admissions the police calculate that total cannabis sales
were likely to have been between
$36,500 and $73,000 had they extended over a full
12 months.


[10]   At the time of the search the police also found a large box
containing a
number of sealed boxes of Paracetemol and Nicorette chewing gum, which you
indicated had fallen off a truck, and a laptop
computer and accessories, later found to
have been stolen from an educational institution in South Auckland.
Personal circumstances


[11]   You are 29 years of age and of Maori and Fijian parentage. Prior to your
arrest you resided with your partner and co-offender
and your three year old
daughter. You say you have not consumed alcohol since 2006, and that you have not
consumed drugs since you
were 16 years of age. You have offended for purely
financial reasons and, in your own words, to gain status among your associates
in the
criminal fraternity.


[12]   Your upbringing was not ideal. You were abandoned by your mother soon
after birth, and were
brought up by your father, who died when you were ten years of
age. You did not have a good relationship with your stepmother, and
after a period
in Fiji, returned to live with your paternal uncle and aunt.


[13]   You have a number of previous convictions including
four for excess breath
alcohol, one for common assault, and several for disorderly behaviour and various
driving offences.


[14]
  There is little in the Probation report to suggest that you are particularly
remorseful for what has occurred. Indeed, you candidly
accept that, with knowledge
of the likely legal consequences, you simply continued to offend by reason of your
desire for money and
status.


[15]   The pre-sentence report contains a somewhat negative assessment of your
preparedness to comply with community based
sanctions. In particular, you have
done little to complete an active sentence of community work, and there are several
breaches of
supervision conditions.


Sentencing principles


[16]   In determining an appropriate sentence I need to hold you accountable for
the
harm done to the community by this offending. I must do what I can to assist in
promoting in you a sense of responsibility for
and an acknowledgement of the harm
drug related offending does. The Court is bound to denounce your conduct and to
impose a penalty
which contains an element of deterrence, both for you and for
others minded to commit the same sort of offence, and there is an element
of
community protection in the Court's approach to sentencing for drug offences.


[17]   Having said that, the Court is bound to
do what it can to assist in your
rehabilitation and reintegration into the community. I take into account the matters
set out in
s 8 of the Sentencing Act 2002 and the need to impose the least restrictive
outcome that is appropriate in the circumstances of this
particular case.


Discussion


[18]   Sentencing for offending involving Class A drugs is governed by the tariff
decision in R v
Fatu  [2006] 2 NZLR 72. Band 1 of Fatu is concerned with low level
supplies of less than five grams, which attracts a starting point of between two and
four
years imprisonment. Band 2 involves the commercial supply of quantities
between five and 250 grams, which attracts a starting point
of between three and
nine years imprisonment.


[19]   Sentencing for offences involving cannabis, a Class C controlled drug, is
governed by R v Terewi  [1999] 2 NZLR 63. There, three categories were discussed.
Category 1 is concerned with supplies on a non-commercial basis. That is not the
case here.
Category 2 involves small scale commercial dealing in cannabis with the
object of deriving a profit. The starting point is generally
between two and four
years with a lower starting point when sales are infrequent.


[20]   Counsel are agreed that the cannabis offending
falls within band 2 of Terewi.
But while Mr Watson contends for band 1 in respect of the methamphetamine
offending, Ms Hyndman contends
that this is a band 2 case. In my opinion, the case
falls within band 1 of Fatu and at the top end of band 2 of Terewi. You concede
that
your sole purpose was to make money, and you have accepted that the scale of the
offending was significant. On the evidence,
it appears that you were a full time drug
dealer who intended to make a great deal of money out of your activities.
[21]    I accept
you were not the ultimate source of the cannabis, nor indeed of the
methamphetamine, but you were carrying on business in a serious
and sustained
fashion. In my view a starting point of four years imprisonment is appropriate in
respect of the cannabis offences.


[22]    For the methamphetamine related offending, I consider that a starting point of
four years imprisonment is also appropriate.
That places the offending at the top of
band 1 of Fatu. Direct evidence is confined to supplies totalling considerably less
than
five grams, but you freely accept you were in the business of selling
methamphetamine in an on-going way simply to make money.


[23]    I propose to take the cannabis offending as the lead offences, by reason of the
admitted scale of your cannabis operation,
and to take a starting point of four years
imprisonment for each of the cannabis charges. But it is necessary to impose a
significant
uplift in order to recognise your other offending, and to give effect to the
totality principle.


[24]    There will be a further
allowance of one year for the methamphetamine
offences. That is necessary in order to reflect the scope and range of your offending,
in that you are a drug dealer who habitually dealt in both class A and Class C drugs
for profit.


[25]    I add a further six months
in respect of the receiving charges. They are quite
different in type from the drugs charges and involve additional culpability.


[26]    That produces a starting point of five and a half years imprisonment. From
that I am prepared to deduct a generous discount
of two years, something more than
one-third, in order to reflect your guilty pleas, entered at an appropriately early stage.
That
produces a sentence of three and a half years imprisonment, which I am
satisfied reflects the scale of your criminal activities.
Sentence


[27]   On each of the seven cannabis related offences you are sentenced to three and
a half years imprisonment. On each
of the four methamphetamine related offences
you are sentenced to two and a half years imprisonment. On the charge of receiving
the
laptop computer you are sentenced to 12 months imprisonment. On the charge of
receiving the paracetemol and confectionery you are
sentenced to three months
imprisonment. On the two charges of breach of supervision you are convicted and
discharged.


[28]   All
of the sentences are to be served concurrently. The result is you will
serve a sentence of three and a half years imprisonment.


[29]   Your current sentence of community work is cancelled.


[30]   I make an order forfeiting to the Crown the sum of $40 found
by the police
on the occasion of the execution of the warrant. I am not prepared to make an order
for reparation of the moneys expended
by the police in the purchase of drugs. To do
so in the present circumstances would be futile.




C J Allan J