Hohipa v R
[2015] NZCA 485
•14 October 2015 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA251/2015 [2015] NZCA 485 |
| BETWEEN | DENNIS MCCALLY HOHIPA |
| AND | THE QUEEN |
| Hearing: | 29 September 2015 (supplementary memorandum received 2 October 2015) |
Court: | Winkelmann, Dobson and Gilbert JJ |
Counsel: | T Epati for Appellant |
Judgment: | 14 October 2015 at 11 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentence of six years’ imprisonment is quashed. The appellant is resentenced to four years two months’ imprisonment in relation to the charge of conspiracy to supply methamphetamine.
____________________________________________________________________
REASONS OF THE COURT
(Given by Winkelmann J)
The appellant, Mr Hohipa pleaded guilty to a charge of conspiracy to supply methamphetamine and was sentenced in the Gisborne District Court by Judge Adeane to six years’ imprisonment.[1] He now appeals against that sentence on grounds that:
(1)the starting point of seven and a half years’ imprisonment was too high having regard to the nature of the conspiracy and Mr Hohipa’s role in it;
(2)the Judge erred in concluding that Mr Hohipa’s guilty plea did not come at the first opportunity, therefore giving a 15 per cent discount as opposed to a full 25 per cent discount;
(3)a reduction in sentence of only four months was inadequate recognition of 14 months spent on electronically monitored bail;
(4)in all the circumstances the end sentence of six years’ imprisonment was manifestly excessive.
[1]R v Hohipa [2015] NZDC 8196.
Mr Hohipa was sentenced on the basis of the summary of facts agreed for sentencing purposes for Ms Edwards and him. The summary of facts placed Ms Edwards as a principal offender, and described Mr Hohipa as involved in the offending throughout the period but at a lower level than his co-offender. It said that it was Ms Edwards who had control of the money and the drugs.
At the time of the offending these two were living together. Between 1 September 2012 and 14 October 2013 police undertook a surveillance operation which caught them within its net.
As to the particulars of the offending, on 22 separate occasions Ms Edwards received methamphetamine from Auckland. From July to October 2013, almost all of the trips to Auckland to buy the methamphetamine for on-supply were undertaken by another offender, Mr Paul Campbell. Although Mr Campbell was directly distributing to the Gisborne market the purchases of methamphetamine he made for Ms Edwards enabled him to obtain a better wholesale price.
Mr Hohipa travelled with Ms Edwards, Mr Campbell or another appointed associate on nine occasions when methamphetamine was purchased. There was a tenth unsuccessful trip which resulted in Mr Hohipa being hospitalised with stab wounds. Mr Hohipa can be connected to trips in which under six ounces (five ounces and 24 grams) were obtained, obtaining unknown amounts on three further trips and liaising with Mr Campbell on three occasions in respect of amounts that Mr Campbell obtained for Ms Edwards, including a final amount of two ounces intercepted on termination. Mr Hohipa also undertook some debt collection and, much later, would text potential buyers.
The agreed summary of facts described a separate conspiracy to purchase one kilogram of methamphetamine for $400,000 to be sourced from China. Mr Hohipa was not a party to that conspiracy. The summary of facts also recorded that when Mr Hohipa and Ms Edwards’ house was searched, $13,770 in cash was found buried in the front garden along with other property which had been traded for methamphetamine.
First ground of appeal: starting point too high
In sentencing Mr Hohipa the District Court Judge identified the harm that methamphetamine does to communities and said:[2]
People like you stand to make big profits. It is not a huge amount of money, but $13,000-odd in cash was found at the home you and Ms Edwards occupied when the bust went down. Although your counsel maintains that it is part of a separate conspiracy, it is clear enough that Ms Edwards was engaged in a single transaction plan where $400,000 worth of methamphetamine would be brought into this community shortly before Christmas. I think there was a suggestion that it may have been to cater for the demands generated by a couple of functions that were being held in this District.
[2]R v Hohipa, above n 1, at [5].
In characterising the offending the Judge referred to it as a major operation, and said that while Mr Hohipa’s part might not have been the biggest, he facilitated the operation:[3]
Not only did you run the errands and deal with the principal sellers in Auckland, you also made arrangements with prospective purchasers, advising them of when product would be available, and it is said that you collected Ms Edwards’ debts.
[3]At [6].
After adjusting for the fact that Mr Hohipa was charged with conspiracy rather than with supply, the Judge still considered the offending sat at the top of band 2 of the tariff case R v Fatu.[4] He did not think the Crown starting point of seven and a half years could be faulted. After taking into account Mr Hohipa’s guilty plea and time spent on restrictive bail conditions, he arrived at a final sentence of six years’ imprisonment.
[4]At [8]; R v Fatu [2006] 2 NZLR 72 (CA).
For Mr Hohipa Ms Epati submits that the starting point of seven and a half years’ imprisonment was too high. While in terms of the quantity of methamphetamine the offending did sit toward the top of band 2 of Fatu, she says the starting point needed to be reduced to reflect that Mr Hohipa was being sentenced for conspiracy not supply, and that he was a relatively minor player in the scheme of the overall operation. Ms Epati submits that the Judge may have erred in fixing upon a starting point because he took an incorrect view of the facts upon which Mr Hohipa was to be sentenced.
Ms Epati submits that a starting point of six years would more accurately have reflected the seriousness of the offending and Mr Hohipa’s culpability.
We accept that the sentencing notes support counsel’s submission that the Judge proceeded upon a mistaken view of the facts when selecting the appropriate starting point. The Judge referred to Mr Hohipa standing to make big profits, and in connection with this referred to the money found at his house, when the agreed summary of facts recorded that Mr Hohipa had no control over the drugs or the cash generated by the offending. The Judge also appears to link Mr Hohipa to the conspiracy to purchase one kilogram of methamphetamine, a conspiracy in which, on the summary of facts, he was not involved.
In light of this we have concluded we should undertake the exercise of selecting a starting point having regard to the summary of facts, and the authorities relied upon by counsel.
In terms of the quantity of methamphetamine Mr Hohipa’s offending entailed, we accept the Crown submission that it was in excess of six ounces. We will proceed on the basis that Mr Hohipa was involved with methamphetamine which concerned at least 170 grams. In terms of R v Fatu, this places it in band 2 for supply type offending, five grams to 250 grams.[5] The indicative sentencing range for band 2 is three years to nine years.
[5]At [34](b).
Account then needs to be taken of the fact that Mr Hohipa pleaded guilty to conspiracy to supply, not supply. The starting point also must reflect the particular role of Mr Hohipa in the offending.
The Crown accepts he was not the principal offender, but nevertheless says he had a senior role within the conspiracy. However we consider that because he had no control over the methamphetamine or the money Ms Epati’s characterisation of his role is more apposite; Mr Hohipa was a foot soldier. Although he was busy in undertaking the tasks assigned to him, he was not in any sense driving or planning the offending.
A similar case is R v Bogue.[6] In that case, Mr Lean drove another offender (Mr Bogue) to locations where two incidents of supply took place. The quantity of methamphetamine supplied by Mr Lean was seven ounces. The Judge selected a starting point of five years and six months.[7]
[6]R v Bogue [2014] NZHC 2754.
[7]At [39].
Although the quantity of methamphetamine is roughly comparable to that involved in Mr Hohipa’s offending, it is clear that Mr Lean’s role in the offending was more peripheral. The extent of Mr Hohipa’s involvement and the nature of his role indicates a higher starting point is appropriate.
Also of assistance is R v Weston, where the Judge adopted a starting point of four years’ imprisonment for one of the offenders, Ms Meihana-Sua.[8] She had assisted in making arrangements to purchase one ounce of methamphetamine and had travelled with her husband to collect it. Through text messages she also facilitated one supply of a small quantity of methamphetamine. The Judge accepted that she did not benefit financially from the conspiracy.
[8]R v Weston [2014] NZHC 3260.
In our view, having regard to the quantity of methamphetamine, the nature of the offence, and Mr Hohipa’s particular role, a starting point of six years six months was appropriate in this case.
Ms Epati also raised with us as relevant to the setting of the starting point, information before the sentencing Judge that Mr Hohipa is an addict, and as the pre‑sentence report recounted, his offending occurred “in a context where he was addicted to the methamphetamine and was ‘drip fed’ by Ms Edwards in exchange for protecting her from ‘bullies’”. The Judge also had information that Mr Hohipa had been accepted into a residential drug treatment programme, but was unable to take up his place as Ms Edwards was already in residence. We consider that the nature of Mr Hohipa’s role in the offending is adequately reflected in the starting point we have selected, and that no further adjustment is required to reflect this additional fact.
Second ground of appeal: the Judge gave too little credit for the guilty plea
The Judge made deductions on account of Mr Hohipa’s guilty plea, but declined to give full credit because the guilty plea was late, arriving at the end of what he characterised as a relatively tortuous pre-trial process. Although noting the argument that some of the delays came about because of shortcomings in disclosure, he considered that to be a red herring and said:[9]
At the end of the day one person knew exactly what the truth was and he cannot claim to have come forward at the first available opportunity to admit it. That is where 25 percent discounts belong. In my view, a sentence discount of 15 percent, which is equivalent to 14 months, is to be allowed to you.
[9]R v Hohipa, above n 1, at [9].
The relevant chronology is as follows. Mr Hohipa was arrested in October 2013 and initially jointly charged with Ms Edwards with offering to supply and supplying methamphetamine. He was also jointly charged with Ms Edwards and Mr Campbell with conspiring to supply methamphetamine. In December 2013, an additional charge was filed, possession of methamphetamine for the purpose of supply, again jointly with Ms Edwards and Mr Campbell.
He pleaded not guilty to all four charges in January of 2014.
In August of 2014, the Crown withdrew all charges and replaced them with a single charge of conspiring with Ms Edwards and others to supply methamphetamine between 3 September 2013 and 25 October 2013. The summary of facts for that charge contained the allegation that Mr Hohipa had been involved in the conspiracy to supply one kilogram of methamphetamine.
In September 2014 there was a pre-trial admissibility hearing in the District Court, to determine Mr Hohipa’s objection to the admissibility of voice identification evidence linking Mr Hohipa to various intercepted telephone conversations and text messages. Although unsuccessful in the District Court the objection was eventually successful in the Court of Appeal. The Court of Appeal decision was delivered in March of 2015.[10] The same day that decision was released, counsel for Mr Hohipa gave notice that she would seek a reconsideration of the co-conspirator’s ruling in light of the decision. The Crown then raised the possibility of a disputed facts hearing to address issues of quantum and individual culpability.
[10]Hohipa v R [2015] NZCA 73.
Counsel for Mr Hohipa and the Crown engaged in fruitful discussion as to the facts for sentencing and in April 2015 an amended summary of facts was agreed. Significantly, that summary of facts clarified for the first time that Mr Hohipa was not involved in the conspiracy involving the one kilogram of drugs, and that he was not in control of the methamphetamine or the cash. On 20 April 2015 Mr Hohipa entered a guilty plea on the basis of those agreed facts.
Ms Epati submits that given this background, Mr Hohipa can fairly be said to have entered a guilty plea at the first reasonable opportunity because it was only once the amended summary of facts was agreed, that he could enter his guilty plea.
The Crown submits that Mr Hohipa did not plead guilty at the first reasonable opportunity. If he disputed the facts, then he should have entered a guilty plea, and proceeded to a disputed facts hearing. The Crown notes that the co‑offender, Mr Campbell, who pleaded guilty to the original drug charges and unrelated driving charges on 4 December 2013, received a full 25 per cent discount for his early guilty pleas and it would be wrong in principle to provide Mr Hohipa with the same full discount in the circumstances where his guilty pleas were entered 16 and a half months after one of his co‑offenders. The 15 per cent discount given for what was a relatively late guilty plea was entirely reasonable and could justifiably have been as low as 10 per cent.
We are satisfied that the facts initially alleged against Mr Hohipa were such that he could not reasonably be expected to plead guilty to them on the basis that he would then challenge those facts at a disputed facts hearing. The charge may have been the same, conspiracy to supply, but the offending described was fundamentally different to and substantially more serious than the offending he later admitted. The facts as alleged in the original summary of facts cast him as an offender playing a similar role to Ms Edwards and Mr Campbell, and involved in a very large scale operation. It alleged his offending involved in the vicinity of 1 kilogram of methamphetamine. This would have placed him well beyond the cut off for band 3 of Fatu offending.[11]
[11]R v Fatu, above n 4, at [33](c).
We therefore accept Ms Epati’s submission that Mr Hohipa was entitled to a full discount for his early plea. He pleaded guilty as soon as the summary of facts reflected the offending he was prepared to plead guilty to, and the Crown accepted reflected his involvement.
Third ground of appeal: too little discount for time spent on electronically monitored bail
Mr Hohipa spent 14 months on electronically monitored bail living at his uncle’s house on a small rural property in Morere. He was subject to a 24-hour curfew. He was allowed to leave the property to attend court, his lawyer’s office, and to go out to buy food once a week. The only exception to this routine in the 14 months was a one-off trip to visit family which meant he was away from the property for 24 hours. Mr Hohipa was fully compliant with all conditions of bail during the 14 months.
The Judge rejected an argument that there should be two years of deduction on account of the 14 months on electronically monitored bail. He allowed only a four month discount for that constraint upon Mr Hohipa’s freedom of movement.
Although the Crown acknowledges that the four-month discount given by the Judge was very modest, it says that there is no arithmetical formula to be applied in determining the appropriate discount, and the level of discount is ultimately within the discretion of the sentencing Judge.[12]
[12]Rangi v R [2014] NZCA 524.
We are satisfied that four months was an inadequate discount to reflect 14 months spent on the most restrictive form of bail: bail with a 24-hour curfew. However a reduction for the full 14 months is not appropriate, as some freedom of movement was permitted to Mr Hohipa, if only very limited. In these circumstances, we consider that Mr Hohipa should have received a reduction in sentence in the vicinity of 12 months on account of time spent on bail with a 24-hour curfew.
Conclusion
Undertaking a sentencing exercise in light of these various findings leads inevitably to the conclusion that the end sentence imposed by the Judge of six years’ imprisonment was manifestly excessive. Adopting a starting point of six years, six months, a reduction of 12 months from that should have been made on account of time spent on very restrictive bail terms. Mr Hohipa was then entitled to a 25 per cent reduction on account of his guilty plea. Applying that discount we arrive at a final sentence of four years two months’ imprisonment.
Result
The sentence of six years imprisonment is quashed. Mr Hohipa is resentenced to four years two months’ imprisonment in relation to the charge of conspiracy to supply methamphetamine.
Solicitors:
Rishworth Wall & Mathieson, Gisborne for Appellant
Crown Law Office, Wellington for Respondent
22
3
0