R v Kaihau [2016] NZHC 1044 (19 May 2016)

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R v Kaihau [2016] NZHC 1044 (19 May 2016)

Last Updated: 27 June 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-057-001428 [2016] NZHC 1044

THE QUEEN

v

_{TAUROA KAIHAU}

Hearing:	19 May 2016
Appearances:	J M Pridgeon for the Crown S D Cassidy for the Defendant
Sentencing:	19 May 2016

_{SENTENCING NOTES OF WOOLFORD J}

Solicitors: Kayes Fletcher Walker (Crown Solicitor), Manukau

_{Counsel: Mr S D Cassidy, Barrister, Auckland}

R v KAIHAU [2016] NZHC 1044 [19 May 2016]

Introduction

[1] Mr Kaihau, you are here today for sentence. The reason is that you were involved in a drug ring, which sold or supplied methamphetamine throughout a number of South Auckland communities. Two of your co-offenders, Mr McGarry and Mr Albert, were sentenced some time ago and I sentenced three other of your co- offenders today – Ms Norton, Mr Philip and Mr Rowan.

[2] The maximum penalty for the offence of supplying methamphetamine to which you have pleaded guilty is life imprisonment.

Facts

[3] The offending in which you were involved was discovered as a result of a Police operation code named “Operation Cesium”. The operation targeted the sale and supply of methamphetamine in Wiauku, Pukekohe and other South Auckland communities. It began in late 2013 and involved, among other aspects, significant interceptions of electronic data from cell phones being used by your group to co- ordinate your offending. The operation was terminated on 28 May 2014, at which point you and the other offenders were arrested and charged.

[4] As for your particular offending Mr Kaihau, your offending covered a time period between 13 November 2013 and 8 May 2014. You regularly purchased between one and two grams of methamphetamine from your co-offender, Ms Norton. Like your co-offender, Mr Rowan, you broke these down into small quantities and on-sold them to members of the community. Over the six-month period you supplied between 25 and 50 grams. In addition to your own dealing you also facilitated purchases of methamphetamine by Ms Norton from other suppliers known to you. When Operation Cesium terminated you were arrested at your home address with two bags containing 0.1 gram of methamphetamine and $1,040 in your wallet.

Approach to sentencing

[5] I will adopt a three stage approach.¹ The first step is to set a starting point based on the features of the offending itself and taking guidance from previous cases. The second step will be for me to consider your personal circumstances and adjust this starting point based on any aggravating or mitigating features they contain. The final step is to give a discount for guilty plea where appropriate.

Starting point

[6] As I indicated, the total amount of methamphetamine you supplied is agreed to be between 25 and 50 grams, although this morning you instructed counsel that you had reservations about the quantities involved. In the absence of evidence establishing the precise quantity, however, I will consider it to be at the lower end of the range. This puts your offending in the lower end of band 2 which, as I said to Mr Rowan when I sentenced him, warranted a starting point of between three and nine years imprisonment.

[7] The Crown seeks a starting point of four years imprisonment. It submits, and I agree, that the best guidance is the sentences imposed on your co-offenders Mr Albert and Mr McGarry. Like you, Mr Albert and Mr McGarry were making purchases of one or two grams from Ms Norton and on-selling these as relatively low level street dealers. While your dealing was commercial it was not sophisticated or large scale, although I also bear in mind that you played a role in facilitating supplies to Ms Norton from other dealers.

[8] In Mr McGarry’s case the total supply was around 3.2 grams of methamphetamine and the starting point was three years and three months imprisonment, I note, however, that his took into account that he made his final supply while on bail, which certainly was an aggravating factor. Mr Albert had supplied 80 grams of methamphetamine and received a starting point of four and a half years imprisonment. Counsel on your behalf also refers to R v Wiki in which a

total quantity of 31.9 grams attracted a starting point of three years and three months.²

[9] Notwithstanding Mr McGarry’s breach of bail, I consider that your offending must be placed at a more serious level given the much greater quantity you supplied. Having considered the submissions of your counsel, however, I accept that your offending can be placed closer to Mr McGarry’s starting point than Mr Albert’s. I therefore propose to adopt a starting point of three years and six months imprisonment.

Adjusting the starting point

[10] In terms of personal factors Mr Kaihau, you are 46 years old. You have a number of previous convictions with many relating to driving offences, dishonesty offences and non-compliance with Court orders or conditions. You have some minor drug convictions, but none that have resulted in any term of imprisonment. In these circumstances I have decided not to apply an uplift but nor, of course, can I give you a discount for previous good character.

[11] I note that your own drug use is again identified as a factor contributing to your offending and you are assessed as having a medium risk of re-offending. You do not have a good record of compliance with Court orders or community-based sentences.

[12] In terms of mitigating factors, however, you do express remorse for your actions and you informed the writer of your pre-sentence report that you no longer indulge in drugs. The other relevant factor which is personal to you is that you suffered a very serious car accident when you were 20 years old. This left you paralysed from the waist down. You have nevertheless achieved a good level of independence, you are otherwise in good health and regularly spend time at the gym. You have currently been living with your 13 year old daughter and two grandchildren, though you have been subject to a 24 hour EM bail curfew for the last

19 months.

[13] I am prepared to give you a modest discount of five percent for your expression of remorse and efforts to stop using drugs. That equates to two months imprisonment. A discount is also appropriate to reflect the fact that being paralysed from the waist down will make imprisonment unusually severe for you.³ Having regard to the discount given to a very similar offender in R v Wallis, your sentence will be reduced by six months.⁴ A further five month discount is likewise appropriate for the considerable time you spent on EM bail. This is the same discount that I gave this morning to Ms Norton, but I note that while your period of bail was longer than hers, in your case there were a number of instances of non- compliance.

[14] These discounts bring your sentence before taking account of your guilty plea to two years five months imprisonment.

Guilty plea discount

[15] Like your co-offenders you are then entitled to a 20 per cent discount for your guilty plea, which means a further reduction of six months. Your end sentence will therefore be one year and 11 months imprisonment.

[16] This is a short-term sentence, which means that you are eligible to have your sentence commuted to one of home detention. The writer of your pre-sentence report does not recommend it. She says that given the seriousness of your offending, the duration of it and the associated impact on the wider community, you should go to prison. At first I was inclined to agree. My concern is that you have a poor record of compliance with Court orders and with drug offending this can be particularly problematic. I have already given you a substantial discount because you are in a wheelchair, but when looking at whether to commute a sentence of imprisonment to one of home detention, I am entitled to look at it again in an assessment of your overall circumstances. You live in rental accommodation with your 13 year old daughter and two young grandchildren. They would lose their home if you were to go to prison. You are in a wheelchair. You have never received a sentence of

_{imprisonment before. A sentence of home detention would, on the other hand,}

³ _{Sentencing Act 2002, s 8(4).}

⁴ R v Wallis [2013] NZHC 1786.

enable me to impose special conditions which would require you to attend a drug assessment and a drug treatment programme if thought necessary. It is important that you are put in the best position to help your whanau and it is for that reason I have decided to commute your sentence of imprisonment to 12 months home detention with special conditions.

Forfeiture

[17] The Crown applies for an order that the $1,040 cash seized from you be forfeited to the Crown. To make this order I must be satisfied that the money was received by you in the course of or consequent upon the commission of an offence against s 6 of the Misuse of Drugs Act 1975.⁵ The circumstances satisfy me that this was the case and your counsel does not oppose forfeiture. I make the order sought accordingly. I also make an order forfeiting and allowing the destruction of all drugs and drug paraphernalia found as a result of Operation Cesium.

Conclusion

[18] Mr Kaihau on the charge of supplying methamphetamine you are sentenced to 12 months home detention on the special conditions, which are set out in your pre- sentence report.

.....................................

_{Woolford J}

⁵ Misuse of Drugs Act 1975, s 32(3).