Hauraki v The Queen

[2020] NZHC 405

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-33

[2020] NZHC 405

BETWEEN

RAINA TIPUNA HAURAKI

Appellant

AND

THE QUEEN

Respondent

Hearing:	26 February 2020
Appearances:	H Leabourn for the Appellant C Taylor for the Respondent
Judgment:	5 March 2020

JUDGMENT OF GORDON J

This judgment was delivered by me on 5 March 2020 at 3.30 pm

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Whangarei Counsel: H Leabourn, Auckland

HAURAKI v R [2020] NZHC 405 [5 March 2020]

Introduction

[1]    The appellant, Raina Tipuna Hauraki, pleaded guilty to six counts of offering to supply methamphetamine1 and one count of possession of methamphetamine for supply.2 She also pleaded guilty to one count of conspiring to pervert the course of justice. On the drugs charges she was sentenced to two years, six months’ imprisonment. On the charge of conspiring to pervert the course of justice, she was sentenced to three months’ imprisonment. The sentences were to be served cumulatively, so the final sentence was two years, nine months’ imprisonment.

[2]    Ms Hauraki now appeals that sentence on the ground it was manifestly excessive.

Factual background

[3]    On 6 September 2018, at about 10.30am, the police executed a search warrant at 19A Weaver Street, Whangarei. Ms Hauraki was at the address sitting in the driver’s seat of her car, which was parked on the front lawn. The police detained Ms Hauraki for the purposes of executing the search warrant. A search of the vehicle and a personal search were undertaken. Three snap-lock bags containing methamphetamine were found in Ms Hauraki’s underwear. The three bags contained a total of 1.94g, divided into 1.19g, 0.55g and 0.2g. The search of the vehicle located three sets of digital scales, many unused snap-lock bags, a scooping tool used to divide methamphetamine, a glass pipe which can be used to smoke methamphetamine and $1,850.00 in cash. Ms Hauraki was holding a mobile phone in each hand. A third mobile phone without a SIM card was found in the driver’s door. Ms Hauraki was remanded in custody.

[4]    On 8 September 2018, Ms Hauraki phoned her mother from prison. In that conversation, Ms Hauraki said to her mother: “I am going up on possession, possession for supply of meth … they got two grams and my phone. So are you able to cancel my phone numbers?” Her mother subsequently asked: “… how much is it looking like?” Ms Hauraki answered “Well it depends, it depends on these phones. Whatever, they’ve got f… all to go off, if without the phones … Mum, can you cancel

1 R v Hauraki [2019] NZDC 20138 at [17].

2 At [1].

those numbers ASAP please?” Her mother said “Yeah I’ll try.” The following day Ms Hauraki contacted her mother by phone again and supplied her with a number for one of the phones and a PIN.

[5]    On 8 November 2018, the police executed a production order on Ms Hauraki’s mobile phone provider. Her efforts to cancel the phone numbers had no effect as the police were able to recover text messages sent to and from the phones. These messages included an exchange with a third party on 4 September 2018 arranging the sale of 0.1g of methamphetamine for $70. Other messages between June and September 2018 offer quantities of 0.1g, 0.25g, 1g, 1.5g and 0.5g to the recipients.3

[6]    The total amount of methamphetamine found with Ms Hauraki at the time of the search and the amounts offered for supply was 5.39g.4

District Court decision

[7]    Ms Hauraki pleaded guilty to the charges on 2 August 2019 and was sentenced on 10 October 2019. The Judge sentenced Ms Hauraki according to the guideline judgment of R v Fatu. Under the Fatu regime, Ms Hauraki’s offending fell within band 2: three to nine years’ imprisonment. The Judge considered that Ms Hauraki’s offending was at the lower end of band 2. The Judge referred to s6(4) of the Misuse of Drugs Act 1975, which contains a presumption of imprisonment for those who deal in Class A drugs. The Judge determined that, based on the evidence of paraphernalia and text messages, Ms Hauraki was a drug dealer.5

[8]    The Judge began with a starting point of three years imprisonment for the drug offending, per Fatu. As Ms Hauraki’s attempts to pervert the course of justice “strike at the heart of justice”, he applied an uplift of six months.6

3      The Judge incorrectly added 1g to these amounts at [4] but it was not included in his total, which still exceeded 5g.

4 The Judge reached an incorrect total of 5.49g at [5].

5      R v Hauraki [2019] NZDC 20138 at [8].

6 At [11].

[9]    The Judge assessed Ms Hauraki’s personal circumstances. He examined her two previous convictions for dealing in methamphetamine.7 The Judge also noted her previous offending in the form of unlawful possession of a firearm while dealing methamphetamine and escaping from lawful custody. The Judge gave an uplift of three months for previous offending.

[10]   The Judge gave a discount of 15 per cent for a late guilty plea. The viability of home detention was assessed, and rejected, due to Ms Hauraki’s moderate risk of re- offending, 38 previous convictions from 2006 to 2018 and moderate risk of harm to others. The Judge noted that Ms Hauraki’s associates were a key negative influence in her life. The Judge accepted the s 27 report disclosed her “appalling upbringing” and her ongoing association with gang members. The judge gave a five per cent discount for matters addressed in the s 27 report.

Submissions

Appellant’s submissions

[11]   Mr Leabourn for Ms Hauraki submits the sentence was manifestly excessive and raises two key points for consideration:

(a)Application of the sentencing principles in Zhang;

(b)(Alternatively) the manner in which the total quantity of methamphetamine was calculated for the purposes of assessing the Fatu bands.

[12]Mr Leabourn also challenges the discounts allowed by the Judge.

[13]   As to the first point, Mr Leabourn submits the Judge erred by applying Fatu given the imminent release of R v Zhang and failed to recognize the likely impact of Zhang. In support of this submission he states Ms Hauraki was dealing in methamphetamine in order to support a drug habit; the finding of a pipe used to smoke methamphetamine is the evidence advanced by Ms Hauraki to support this claim.

7 At [12].

[14]   During the course of the hearing, Mr Leabourn raised the second point as an alternative submission. His submission focuses on the manner in which the Judge calculated the total quantity of methamphetamine which the defendant was said to hold. The amount found in her possession was 1.94g and the text messages disclosed offers to supply 3.45g. The Judge added these two amounts together to give a total of 5.49g (though the total amount is 5.39g but nothing in this appeal turns on this error in calculation). As the amount of methamphetamine exceeds 5g, the Judge placed the offending in band 2 of Fatu.

[15]   Mr Leabourn submits this methodology is flawed. It was only by the addition of the amounts in the offering to supply charges to the amount in the possession for supply charge that brought the amount of methamphetamine into band 2 and then only just, as the amount was 5.39g.

[16]   In a related submission Mr Leabourn says it was speculative for the Judge to say the amounts making up the offering to supply charge were separate amounts in addition to the amount in the possession for supply charge. In effect he submits there was a double-counting.

[17]   Mr Leabourn further submits the discount for the s 27 cultural report was inadequate, that the Judge attached to much weight to Ms Hauraki’s previous convictions for drug dealing (there were only two relevant convictions) and that the guilty plea discount was not sufficient. Mr Leabourn also submits the uplift for perverting the course of justice was too great because the perversion was ineffective and may have assisted the police case by drawing attention to her phone records.

[18]   Mr Leabourn concludes that the sentence ought to have been one of eight to 12 months’ imprisonment and that home detention and a focus on rehabilitation should have been considered.

Crown submissions

[19]   Mr Taylor for the Crown submits that at the time of sentencing, Fatu was the correct guideline judgment, and that it cannot be contested that the offending in

question fell at the lower end of band 2. As Ms Hauraki filed her notice of appeal after judgment was given in Zhang, and not before, Zhang does not apply.

[20]   Mr Taylor submits that the sentence was not manifestly excessive, that it was appropriate and within range of comparable low-level methamphetamine dealing sentences.8 Further, the sentence uplift of only three months for perverting the course of justice was generous. As to the uplift for previous offending, the Crown refers to the fact Ms Hauraki had recently served a sentence for supplying methamphetamine. The 15 percent discount for guilty plea was also generous, as the plea was made after the second trial call over following a sentence indication. Lastly the Crown sought to uphold the Judge’s determination that a sentence of home detention was inappropriate.

Approach to appeals against sentence

[21]   Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow the appeal if it is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.

[22]   In determining whether to impose a different sentence, the Court does not substitute its own view for that of the original sentencing Judge.9 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.10 The focus is on the result rather than the process by which the sentence was reached.11

[23]   In order to allow this appeal, I must be satisfied in accordance with s 250 of the Criminal Procedure Act that an error occurred in determining the sentence, and that a different sentence should be imposed.

8      See R v Day HC Hamilton CRI-2005-019-434, 31 March 2006; Constable v Police [2014] NZHC 2940 and Keeley v R [2019] NZCA 269.

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

10     At [30]–[35]; and Te Aho v R [2013] NZCA 47 at [10].

11     Tutakangahau v R, above n 9, at [36].

Discussion

Zhang

[24]   In Zhang, the Court of Appeal held that its decision “only applies to sentences that have already been imposed, if … an appeal against the sentence has been filed before the date the judgment is delivered”.12 Zhang was delivered on 21 October 2019 and the appellant’s notice of appeal was filed on 24 October 2019. As the sentence appeal was filed outside of the window provided in Zhang, Zhang does not apply.

[25]The relevant tariff case, correctly referred to by the Judge, is Fatu.13

Quantity

[26]   Mr Leabourn submitted in the alternative, that even if Fatu applies, there is a basis for his submission that the sentence was manifestly excessive. He submits the Judge was wrong to find that the offending fell within band 2 of Fatu. It should have been band 1.

[27]   Fatu provides guidelines for sentencing for offending involving the supply, importation  or  manufacture  of  methamphetamine.  It  adopted  the  guidelines  in R v Arthur, which was the Court of Appeal’s response to the reclassification of methamphetamine as a class A controlled drug. In Arthur, the Court of Appeal suggested three sentencing bands for offending involving the supply of methamphetamine:14

(a)Low-level supply (less than 5g): two to four years’ imprisonment;

(b)Commercial quantity (5g to 250g): three to nine years’ imprisonment;

(c)Large commercial quantity (250g or more): more than eight years’ imprisonment.

12     R v Zhang [2019] NZCA 507, [2019] 3 NZLR 648 at [185].

13     R v Fatu [2006] 2 NZLR 72 (CA).

14     R v Arthur [2005] 3 NZLR 739 (CA) at [21].

[28]   The Court of Appeal noted in Fatu that 5g is the weight adopted in statute which engages the presumption to supply. While Arthur was expressly not a guideline judgment, the general approach was adopted by the Court of Appeal in Fatu with minor adjustment for supply.15 That adjustment was the addition of a fourth band for the supply of very large commercial quantity (which is not relevant here).16

[29]   The overlap between the bands was to preserve some flexibility around the role of the offender in the supply of methamphetamine:17

Our sentencing ranges overlap between categories. Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band, with the converse applying to those whose role is less significant.

[30]   However, quantity, subject to an assumption about purity of 60 per cent or more which could be tested if in dispute, was the basis for culpability.

[31]   The issue I understood Mr Leabourn to be raising is how the quantity should be calculated where there are charges of offering to supply and possession for supply. The Judge simply added the two amounts together. Mr Leabourn submits this is not justified.

[32]   This submission cannot be sustained. The guidelines in Fatu apply to any offending connected with the sale or supply of methamphetamine.18 The factor determining where the offending lies is determined primarily by weight with some overlap in the bands to allow flexibility for role.19 Ms Hauraki was charged with two types of methamphetamine supply offences: possession for supply and offering to supply. The method of determining the weight adopted by the Judge was appropriate. The quantities are set out in the table below:

15     R v Fatu [2006] 2 NZLR 72 (CA) at [33].

16 At [34].

17 At [31].

18     At [33]-[34].

19 At [31].

Date	Charge	Amount (grams)
9/6/2018	Offering to supply	0.10
25/6/2018	Offering to supply	0.25
24/8/2018	Offering to supply	1.00
26/8/2018	Offering to supply	1.50
26/8/2018	Offering to supply	0.50
4/9/2018	Offering to supply	0.10
6/9/2018	Possession to supply	1.94
TOTAL	5.39

[33]   Even if there is overlap in the weight between the amount offered and the amount supplied, for example because the offer to supply on 4 September was not concluded and the amount offered remained in the possession of Ms Hauraki and found on her during the police raid on 6 September, the offence is one of offering to supply, not supply. The act of offering is the action required, not supply, so whether or not there is overlap between the two quantities in the offering and possession charges, there is no double counting.

[34]   This was the approach taken by the Court of Appeal in upholding a starting point in Keeley v R.20 The defendant was charged with a number of offences, including offering to supply methamphetamine and possession of methamphetamine for supply. The Court of Appeal considered the quantity by weight of the methamphetamine offered or in the possession of the defendant for the purposes of determining the correct band in Fatu. The defendant was arrested with approximately 3.6g of methamphetamine in his possession. This would come within band 1. However, the Crown also produced text messages indicating the defendant had agreed to supply 7.15g of methamphetamine.21

[35]   The Crown’s submission in Keeley was that the defendant’s offending was not on the cusp of the band (5g) but twice that quantity. This submission can only have been made as a result of adding the two quantities together to give a total of 10.75g. The Court of Appeal considered the Crown’s submission was correct.22 The methodology for calculating weight for the purpose of applying the Fatu bands to

20     Keeley v R, above n 8.

21 At [10].

22 At [11].

supply offences approved by the Court of Appeal in Keeley was the same as that used by the Judge in sentencing Ms Hauraki.

[36]   I am also satisfied this is correct in light of the Court of Appeal’s analysis in Zhang. I have already found the guidelines in Zhang do not apply to this appeal but the Court of Appeal carefully addresses the question of determining culpability in methamphetamine offending. Only to that extent, I note that the Court of Appeal affirmed, while acknowledging criticisms of the approach, that quantity based on weight remains “the first determinant of sentencing” though not the only factor in assessing culpability.23 This is because “[q]uantity remains a reasonable proxy both for the social harm done by the drug and the illicit gains made from making, importing and selling it.”24 I acknowledge that the Court of Appeal went on to retain the quantity bands in Fatu with “significant modifications” but for the purposes of this appeal the rationale for sentencing based on quantity is clear.25

[37]   One further point from Zhang is relevant to my conclusion. The Court of Appeal decided that the division of offending into supply, importation and manufacturing will not continue. The reasons for this are that the offences are all subject to the same punishment in s 6(2) of the Misuse of Drugs Act “because the harm caused is identical regardless of the method.”26 There are certain aggravating features which are associated with particular types of offending which attract a higher starting point but the Court of Appeal confirms there are no distinctions to be drawn between types of methamphetamine offending. Offering to supply is to be treated the same as possession for supply. In my view, this reasoning also applies to the Fatu supply bands. There is no distinction, if that is what Mr Leabourn is attempting to draw, when it comes to sentencing Ms Hauraki on the offering and possession offences which both come within the supply bands in Fatu. This is confirmed by Zhang.

[38]   The focus on quantity in sentencing in supply, importation and manufacture offences connects culpability with the amount of methamphetamine entering a supply chain at different points because the methamphetamine will eventually come into the

23     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [103].

24 At [103].

25 At [118].

26 At [121].

hands of users and cause the destructive effects the classification under the Misuse of Drugs Act is designed to address. Offering to supply and possession for supply are two points in a supply chain where offences are created. Offering to supply presumes the offender has access to the amounts of banned substances offered but possession or supply is not a requirement of that offence.

[39]   In any event, the possibility that certain transactions were not concluded appears remote on the evidence in the summary of facts. The text messages closest in time to 6 September 2018 (the date of the possession for supply charge) indicate concluded transactions with immediate arrangements to supply.  For example, on     4 September, an offer was made by Ms Hauraki (“Give u doli”), a location for the transaction arranged (“I’m in Kensington g. Mains Ave. Bottom shops?”) and confirmed by Ms Hauraki (“Sweet”). The only logical inference which can be drawn from this exchange is that the quantity offered was supplied promptly and so out of Ms Hauraki’s possession when the police apprehended her two days later. To exclude this quantity in the manner suggested  by  Mr  Leabourn  would  wrongly  reduce  Ms Hauraki’s culpability. The next most recent offer was ten days prior to the search, and the others before that, so those quantities must have been out of Ms Hauraki’s possession by that time.

[40]   The Judge took the correct approach to determining weight and was correct to find Ms Hauraki’s offending was at the bottom of band 2 in Fatu in setting the starting point.

[41]   The sentence of two years and nine months was not manifestly excessive under the Fatu regime. It is within the range of sentences imposed in analogous cases, including R v Day (8.4g, sentence of three years, nine months’ imprisonment), Constable v Police (five to six grams, two years, nine months’ imprisonment) and Keeley v R (10.75g, three years, nine months’ imprisonment).27

27     See R v Day; Constable v Police and Keeley v R, above n 8.

Other matters

[42]   Mr Leabourn submits a higher discount is justified for the matters raised in the s 27 cultural report. The writer of the report refers to what she describes as “significant” disadvantage and deprivation that Ms Hauraki has experienced. She says:

This includes the dysfunction within her family and the breakdown of her family unit, being placed in the care of whānau from a young age, being subject to hidings and eventually returning to the care of her mother, wayward behaviour as an adolescent, early uptake of alcohol and drugs, exiting school without any formal qualifications, and her gang affiliation as an adult.

[43]   I do not consider the factors the writer mentions warrant more than the five per cent discount given by the Judge. There is only a loose causal link with the offending.

[44]   Mr Leabourn submits that the guilty plea discount of 15 per cent was inadequate and a discount of 20 per cent or even 25 per cent was more appropriate. He submits that any delay arose from the time waiting for the s 27 cultural report to be prepared. In addition, the Court of Appeal decision in Zhang was anticipated and was expected to address matters relevant to Ms Hauraki’s sentencing. However before me Mr Leabourn accepted that the sentencing hearing was not in fact adjourned to await the Zhang decision.

[45]   I do not consider the 15 per cent discount was inadequate. It came after the second trial callover on 2 August 2019 following a sentence indication. The preparation of a cultural report should not have delayed a guilty plea. Such reports would normally be prepared after the entry of a guilty plea.

[46]   Mr Leabourn also submits that with the various discounts, Ms Hauraki would have qualified for home detention, which he submits would have been a realistic possibility. Given the view I take on this appeal, it is unnecessary to express a concluded view on home detention. But I do observe that Ms Hauraki would have been an unlikely  candidate  because  the Adult  EM  Bail  Suitability  Report  dated 2 September 2019 records the difficulties she faced in complying with court-ordered conditions in the past:

The defendant has previously been subject to EM Bail in 2015. It is noted that she breached on at least seven occasions, whilst subject to EM Bail; the majority of these instances of non-compliance were for deviating from approved absences. On the 25th November 2015, the defendant absconded and was subsequently arrested on the 27th January 2016.

[47]The assessment concludes:

Given that the defendant’s non-compliance with EM conditions and that she has shown a tendency to deviate from approved EM absences; she is assessed as unsuitable for the purpose of EM Bail.

[48]   And, in any event, in his oral submissions Mr Leabourn did not pursue his submission that home detention should be substituted if the appeal was allowed with a resulting sentence of two years or less.

[49]   Finally, Mr  Leabourn submits that the Judge placed too  much weight  on  Ms Hauraki’s previous convictions and the uplift for attempting to pervert the course of justice was excessive.

[50]   As to the previous convictions, the Judge was correct to take into account the fact Ms Hauraki had recently completed a sentence for supplying methamphetamine. That was an opportunity for her to address her offending and make changes in her life. The offending for which she was being sentenced indicated she had not done so. As to the uplift, this was for a separate offence. Overall my conclusion is that the sentence was not manifestly excessive. Accordingly, it cannot be said the uplift was excessive.

Conclusion

[51]   As the sentence was not manifestly excessive, no error occurred in imposing sentence. Therefore s 250 of the Criminal Procedure Act 2011 is not satisfied and a different sentence should not be imposed.

Result

[52]The appeal is dismissed.

Gordon J