R v Ririnui [2012] NZHC 3053 (16 November 2012)

Last Updated: 23 November 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2012-070-4640 [2012] NZHC 3053

THE QUEEN

v

HEMIONA WILLIAM RIRINUI

Hearing: 16 November 2012 (Heard at Rotorua)

Counsel: R W Jenson for the Crown

G C McArthur for Mr Ririnui

Judgment: 16 November 2012

_{SENTENCE OF WOODHOUSE J}

Solicitors / Counsel:

Mr R W Jenson, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

Mr G C McArthur, Barrister, Tauranga

R V RIRINUI HC TAU CRI-2012-070-4640 [16 November 2012]

[1] Mr Ririnui, you may remain seated while I explain the sentence I am going to impose – and it will be a sentence of imprisonment, as you will, I am sure, have realised.

[2] You appear for sentence on four charges to which you have pleaded guilty:

(a) Cultivating cannabis with a maximum penalty of 7 years imprisonment.

(b) Possession of cannabis for supply with a maximum penalty of 8 years imprisonment.

(c) Conspiracy to supply cannabis with a maximum penalty of 7 years imprisonment.

(d) Participating in an organised criminal group which has a maximum penalty of 10 years imprisonment.

Facts

[3] A short outline of the facts is as follows. On 8 November 2011 you were sentenced to imprisonment for a total of 1 year and 6 months for two offences committed in 2010 of selling cannabis. Police obtained recorded conversations between you, while you were in prison, and your partner, Nikki Whare. Ms Whare is a co-accused. The recorded conversations were in March and April 2012. These conversations establish that, with the assistance of Ms Whare, you were involved in organising the harvesting, processing and supply of cannabis or particularly the harvesting and processing. This was being done with others who have also been charged.

[4] You accept that the total amount of cannabis head that had been harvested weighed around 14 pounds and had a commercial value of around $28,000. The Crown has information indicating that the quantity may have been more but on this

sentencing it is not in a position to prove that the commercial quantity available for sale was more than 14 pounds and accepts the $28,000 figure although there is evidence that it could be higher. I emphasise that these are factual conclusions for the purpose of your sentencing, and I say that because there are others who are still facing charges.

[5] Your instructions to Mr McArthur, who appears on your behalf, are that the cannabis had been planted before you went into prison in November 2011. You also instructed Mr McArthur that the harvest was to be distributed three ways. You also claim that half of your share was to be sold and you were going to keep the other half for your own consumption. But I treat that with a degree of scepticism.

Personal factors

[6] You are aged 29. You and your partner and co-accused, Ms Whare, have been in a partnership for approximately 10 years and have three children.

[7] The probation officer says that you expressed remorse and said that this appeared to be sincere and profound. In addition, I have received a letter from you which states that you are remorseful. Mr Ririnui, it is easy to express remorse after the event and it is often done in the hope that it will reduce a sentence but without genuine remorse being present. Against the stated remorse is the fact that you were involved in organising these criminal activities through your partner while you were in prison and after you had been convicted for the two separate offences of selling cannabis. And you have two earlier convictions for selling cannabis in 2006. They resulted in a sentence of imprisonment of 1 year with leave to apply for home detention. There are four convictions for other offences but these are not relevant and I leave them completely to one side.

Sentence

[8] To assess your sentence I need to fix what is called a starting point in relation to the lead offence. The lead offence could be the cultivation of cannabis or possession of cannabis for supply. I will take the cultivation as the lead offence.

The starting point for the lead offence is the sentence assessed having regard to the offending itself before considering any increase for other offences and any further increase or reductions for personal factors.

[9] A Court of Appeal decision called Terewi[1] sets out categories of sentencing depending on the gravity of the offence. Both counsel submit that your offending comes within category 2, and I agree. Category 2 fixes the starting point within a range of 2 to 4 years although that is not absolutely rigid. Category 2 is for small scale cultivation or, by inference from that Court of Appeal decision, smaller scale supply or possession for supply. I am satisfied that this was a small scale and not particularly sophisticated cultivation or, more broadly, a small scale and not very sophisticated operation.

[10] For the Crown, Mr Jenson submitted that the starting point should be between

3 to 4 years imprisonment – that is, at the upper end of category 2 of the Terewi case. Mr McArthur on your behalf submitted that the starting point should be 3 years. Mr Jenson submitted that this should be increased by 12 months because you have pleaded guilty to the offence of participating in an organised criminal group and because of what is described as “the presence and involvement of firearms”. In relation to the involvement in an organised criminal group Mr McArthur submitted, in essence, that this was not a case of organised crime of the sort that the offence is primarily concerned with. On the basis of the information available to me I agree with Mr McArthur’s submission. The information indicates that you were one of the organisers and you had associates who did some of the work, but as I have already said, it does not have the appearance of a sophisticated organisation. And it was not a sophisticated operation.

[11] The Crown’s submission in relation to a firearm does not arise from a charge against you in relation to a firearm. It arises out of one of the recorded conversations on the prison phone in which you and your partner talk about your gun. Mr McArthur submitted that the transcript relied on by the Crown is insufficient to indicate that you were involved with weapons in the context of the cannabis offences

_{with which you are charged. I agree with that submission. Although I do agree with}

the submission for the purpose of this sentence I do need to make very plain that if firearms are in some way associated with drug activities, even if there is no firearms charge, that may be a seriously aggravating factor.

[12] I consider that the starting point for cultivation of cannabis should be 2 years

8 months imprisonment. If possession for supply was taken as the lead offence the starting point would be the same having regard to your share. And in that regard I note that although some of the cannabis that was going to go to you may have been for personal use, you were involved at least indirectly in all of the cultivation and all of the intended sales, and whether the sales were to be made by you or to be made by others with whom you were involved.

[13] In coming to this conclusion about the starting point I have had regard, of course, to what is said in Terewi and to the relevant principles and purposes of sentencing prescribed in the Sentencing Act and I have also had regard to the cases referred to me by counsel and to some other cases of broadly similar offending.

[14] There does need to be an increase to the starting point for the other offences for which you are now being sentenced. There must be a further increase for your previous convictions for similar offending and, in particular, because of the fact that this offending occurred while you were in prison. It is unnecessary in this case to assess separate amounts of uplift for the different elements. The overall increase in my judgment should be 12 months. It could have been higher – it would have been higher – but I have made some allowance for the fact that the probation officer, who of course spoke directly with you, assessed your expressions of remorse – and I use his words – as “sincere and profound”. This takes the sentence at this stage of the assessment to a total of 3 years 8 months imprisonment.

[15] The only other consideration is that you pleaded guilty and you did so at an early stage. Mr McArthur has submitted on your behalf that the reduction should be

20%. He responsibly acknowledged that the case against you was strong. On the other hand, you pleaded guilty at an early stage – prior to committal and as soon as Mr McArthur had gone through a substantial number of disclosed documents. I am satisfied that you are entitled to a reduction of 20% for the guilty pleas. The result

Mr Ririnui is an end sentence for the lead offence of 2 years 11 months imprisonment.

[16] The remaining matter that I need to consider is the effect of this sentence in relation to the previous sentence. You have been in prison since November 2011. The advice I have is that the previous sentence expired in August of 2012 – that is to say, August this year. There are statutory limits on the matters that I can take into account in relation to previous sentences. But there are certain adjustments that can be made to ensure that the totality of sentences that are served effectively consecutively are not excessive in relation to all of the offending. Making a further adjustment within the statutory limits that apply to sentencing, I consider that the final sentence to be imposed on you should be 2 years 6 months imprisonment.

Formal sentence

[17] Mr Ririnui, you should now stand.

[18] For cultivation of cannabis and for possession of cannabis for supply, you are sentenced to imprisonment for 2 years 6 months.

[19] For conspiracy to supply and participation in an organised criminal group, for each of those offences you are sentenced to imprisonment for 2 years. All of those sentences are to be served concurrently – so the total is 2 years 6 months.

[20] Mr Ririnui, the probation officer made the assessment of your expressions of remorse that I have indicated as being sincere. And I really hope that they are because continued offending of this sort, or in relation to any other drug offending, is bound to result in longer sentences of imprisonment. This sentence, although you may not feel it at the moment, is one which has given you as much opportunity as I

_{can reasonably give you to turn your life around. You should now stand down.}

Woodhouse J

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[1] R v Terewi [1999] 3 NZLR 62 (CA)