R v Keresoma [2014] NZHC 2803 (30 October 2014)

Last Updated: 8 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-225 [2014] NZHC 2803

THE QUEEN

v

_{ISAIAH TIMOTHI KERESOMA}

Hearing:	30 October 2014
Appearances:	E J McCaughan for the Crown G N E Bradford for the Defendant
Sentence date:	30 October 2014

_{SENTENCING NOTES OF THOMAS J}

Solicitors:

Meredith Connell, Auckland.

Counsel:

G N E Bradford, Auckland.

R v KERESOMA [2014] NZHC 2803 [30 October 2014]

Introduction

[1] Mr Keresoma, you appear for sentence having pleaded guilty to the following charges:

(a) one representative charge of manufacturing methamphetamine; (b) one representative charge of supplying methamphetamine;

(c) one charge of attempting to manufacture methamphetamine; and

(d) one representative charge of possessing a firearm.

[2] The maximum penalty on the manufacturing and supplying charges is life imprisonment. On the attempt charge the maximum penalty is 10 years and on the possession of a firearm charge, the maximum is four years.

Facts

[3] The facts of the offending in respect of the representative charge of manufacturing methamphetamine are that between 19 January 2012 and 23 February

2012 you assisted Mr Davoren and other associates to manufacture an unidentified amount of methamphetamine on four different occasions. Your role was to provide various pieces of equipment for the manufacture, including a parr bomb and a steam distiller. On occasions, you also provided other material such as salts, pH sticks and bags of ice.

[4] The facts relating to the supply charge are that between 8 and 26 August 2012 you supplied methamphetamine on 18 different occasions to seven different purchasers. The total amount of methamphetamine supplied was no more than four and a half grams.

[5] With regard to the charge of attempting to manufacture methamphetamine, the facts are that at about 12.05 am on 30 August 2012 the Police executed a search

warrant on an address on Vine Street in Mangere East. You and two associates were located in a large garage at the rear of the property. In the garage the Police located items consistent with an attempt to manufacture methamphetamine, such as a parr bomb, chemicals used in the manufacture of methamphetamine, and equipment such as a gas burner and pH meters. The parr bomb was warm to the touch and was found to contain extraction of pseudoephedrine from pharmaceutical preparations. The material weighed 16.4 grams.

[6] In respect of the representative possession of a firearm, on 30 August 2012 the Police searched a house at Sam Place in Mangere. In a bedroom they located your passport, a Remington shotgun, a disassembled twelve gauge under/over shotgun and a belt containing 25 twelve gauge shotgun rounds. Both of the shotguns were operational.

Personal circumstances

[7] You do have a criminal record and you have served in the past a sentence of home detention. The Crown, however, does not seek an uplift for your previous offending.

[8] You attended secondary school until age 18. You then went to work for Aotea Centre’s in-house security for about five years. Then you undertook some study towards a Bachelor of Education. You say you did one year of that. What that demonstrates to me, Mr Keresoma, is that you do have some ability and it is a shame indeed, that you have choose the path that you have. In 2010 you worked full-time as a bouncer for various bars in the city. You also began work as a compliance manager with a local auto company. Prior to being remanded in custody, you had spent time installing extractors and range hoods in commercial kitchens. You received a good report from your prior employers.

[9] You told the probation officer that you have been an active member of the Assembly of God Church in Manurewa since you were 12 but that your interest dwindled once you became involved in the current offending. In the past however, you have been actively involved with the church and occasionally mentored the

Youth Group. You re-established links with the church after you were arrested for the current offences.

[10] You have three daughters from two previous relationships and an 11 month old daughter with your current partner, with whom you have been for four to five years. Your partner has a six year old child from a previous relationship, who calls you father.

[11] You are in good health and have no gang affiliations. You have some outstanding fines and I have invited counsel to make application for remission of those fines once sentencing has been completed.

[12] In respect of the current offending, you told the probation officer that “money was the main draw-card”. You began experiencing financial problems in 2010 and those issues worsened at the same time as your relationship was undergoing difficulties. You expressed remorse about your offending, calling it “a huge regret” and indeed you have spoken to that today and I commend you for standing up and making that statement. You have given a genuine apology and specifically apologised to your children and your partner. You say you have now undertaken two and half years of reflection and you are ashamed for what you allowed yourself to be drawn into. You know that it has destroyed your family and expressed regret that you did not “settle for what [you] had”. The probation officer says you demonstrated good insight into the harmful effects of drugs.

[13] The probation officer identifies your offending-supportive attitudes and entitlement, substance abuse and associates as the key factors contributing to your offending.

[14] I note that during a sentence of home detention between April and December

2013, and pursuant to post-detention conditions, you attended the department’s Medium Intensity Rehabilitation Programme, the follow-up maintenance sessions and drug and alcohol counselling with Care New Zealand. You say that you have been “abstinent” for about two and a half years now.

[15] The probation officer describes your response to the rehabilitative interventions as satisfactory. Your partner has noticed a change in your behaviour. You appeared willing to engage in any other interventions directed by the case manager. The probation officer assessed your risk of re-offending as moderate, and notes the seriousness of the offending. Your risk of harm to others is assessed as low to moderate.

[16] Unsurprisingly the probation officer recommends a sentence of imprisonment.

Sentencing indication

[17] I gave you a sentencing indication on 18 September 2014. Pursuant to s

116(2) of the Criminal Procedure Act 2011, that indication is binding unless information has since become available to the Court and I am satisfied that the information materially affects the basis on which the indication was given.

[18] At the sentencing indication, it was agreed that the representative charge of supplying methamphetamine fell within Band 1 of R v Fatu, and should attract a starting point of two years’ imprisonment. That starting point reflects your conduct as a street level dealer over period of three weeks with about seven customers.

[19] In respect of the charge of attempting to manufacture methamphetamine, a starting point of two years and three months’ imprisonment was agreed to be appropriate. That was starting point imposed on the two other offenders in respect of the same charge.

[20] In respect of the firearms charge, it was accepted that one firearm was disassembled and there was no evidence that firearms had been used in connection with the other charges. A starting point of six months’ imprisonment was agreed upon.

[21] On the representative charge of manufacturing methamphetamine, I indicated a starting point of four and a half years should be taken. It was relevant that your

involvement was limited to the provision of equipment and chemicals knowing they would be used for the manufacture of methamphetamine. You did not supply any precursor substances as they are defined in the legislation. The offending took place on four different occasions over a period of one month.

[22] On that basis I indicated a total starting point of nine years and three months’ imprisonment was appropriate. Applying the totality principle, I reduced this to a global starting point of seven years and 10 months’ imprisonment or 94 months.

[23] I accepted that you would be entitled to a 15 per cent discount. That recognised not only the considerable saving to the state of your trial concluding, but also the issues concerning late disclosure and the Crown attempt to produce finger print evidence at a very late stage, in respect of which an admissibility decision had not been made. The discount also reflects the fact that the Crown had originally alleged that you had supplied considerably more methamphetamine, before a close analysis of the evidence led it to reduce the amount.

[24] Applying the 15 per cent guilty plea discount would leave an end sentence of

six years and seven months’ imprisonment.

Defence submissions

[25] Mr Bradford on your behalf seeks a further discount on the basis of personal circumstances, namely: the fact you have responsibilities as father to your children; the lengthy amount of time you spent on bail waiting trial; and the fact that your offending was at the lowest end of the commercial spectrum.

Crown submissions

[26] The Crown says that Mr Keresoma must show that his personal circumstances are extraordinary in order to receive a discount in respect of personal factors. The Crown relies on the case of Whare v R, where the Court of Appeal stated:¹

Personal circumstances are of course relevant to sentencing for commercial drug related offending. But this Court has emphasised they are “relegated in

¹ Whare v R [2014] NZCA 354 at [12].

importance” to the need for deterrence. Moreover the Supreme Court has confirmed the importance of deterrence in this class of drug offending. This Court in R v Bryant noted “mitigation for personal factors is usually reserved for those situations where the combination of factors takes the case out of the usual range which one sees repeatedly in this area”.

Analysis

[27] I agree with the Crown. I do not consider any personal circumstances in this case justify a discount. The fact that you have children is not a qualifying personal circumstance.

[28] There is one factor, however, which the Crown accepts should be taken into account and that is the length of time that you spent on electronically monitored bail. You were on EM bail for a six month period starting in October 2012. In April 2013 you were sentenced to home detention and, when that sentence came to an end, you were then admitted to bail with a curfew from 9 pm – 7 am. I do not consider the fact of bail subject to curfew is sufficient to justify any discount.²

[29] In R v Aram, Stevens J gave a discount of one year off a sixteen year sentence for the time the Mr Aram had spent on bail under restrictive conditions.³ For 18 months, he had been allowed to leave the house to go to his restaurant business, and could only move between the two places at certain times.

[30] In contrast in R v Nichols, the Court of Appeal upheld the sentencing judge’s

decision not to allow such a discount, stating:⁴

[37] While Mr Nichols faced significant restrictions he was on bail with conditions and not on remand in custody. He was in the comfort of his own home, with his family and with the freedom to move around his farm day and night, and around his township during the day

[31] I note that to a limited extent those circumstances could be seen to apply to your situation on EM bail, that is, you were in your home and you were with your family. In saying that, however, it has been recognised that electronic bail does

_{amount to a restriction on a person’s freedom to the extent that allowance should be}

² See R v Aram HC Auckland CRI-2004-004-7049, 12 October 2006 and R v Nichols CA406/02

_{CA417/02, 16 June 2003.}

³ _{R v Aram HC Auckland CRI-2004-004-7049, 12 October 2006.}

⁴ R v Nichols CA406/02, 16 June 2003.

made to some degree. It certainly does not entitle you to a reduction of six months being the period of electronically monitored bail. In my assessment that entitles you to a discount from the starting point of three months and from there the discount for your guilty plea as indicated needs to be factored in.

Outcome

[32] For those reasons Mr Keresoma, you are sentenced to a term of imprisonment as I indicated at your sentencing indication but with allowances as I have just articulated. So your total term of imprisonment will be for six years and four months. That is imposed on the one representative charge of manufacturing methamphetamine.

[33] On the representative charge of supplying methamphetamine you are

sentenced to one year and eight months’ imprisonment.

[34] On the charge of attempting to manufacture methamphetamine, you are

sentenced to one year and eleven months’ imprisonment.

[35] On the representative charge of possessing a firearm, you are sentenced to

five months’ imprisonment.

[36] All sentences are to be served concurrently.

_{[37] I make an order for destruction of the firearms and ammunition.}

Thomas J