JOHNATHAN PAEKAU AND THE KING - [2024] NZHC 3115

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-465

[2024] NZHC 3115

BETWEEN
JOHNATHAN PAEKAU

Appellant

AND

THE KING

Respondent

Hearing: 14 October 2024

Appearances:

L O Smith for Appellant

O J Southern and A L-S Chan for Respondent

Judgment:

25 October 2024

JUDGMENT OF O’GORMAN J

[Appeal against sentence]

This judgment was delivered by me on 25 October 2024 at 10 am

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:
Lorraine Smith, Barrister, Auckland Kayes Fletcher Walker, Auckland

PAEKAU v R [2024] NZHC 3115 [25 October 2024]

[1] This is an appeal against the sentence of Judge G A Andrée Wiltens delivered on 15 August 2024.1 The appellant was sentenced to four years and six months’ (54 months’) imprisonment for representative charges of:

(a)supplying methamphetamine;

(b)offering to supply methamphetamine; and

(c)possession of methamphetamine for supply.

[2] The appellant contends that there was an error made by the Judge in not giving a discount for personal background and deprivation factors, beyond a 10 per cent discount given for addiction. The appellant submits that the matters referred to in a psychologist’s report dated 8 August 2024 justify a further discount. Accordingly, failing to give any discount for those other factors caused the sentence to be manifestly excessive.

Legal principles

[3] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.3 The focus is on the end sentence imposed, rather than the process by which it is reached.4

[4] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.5

1      R v Paekau [2024] NZDC 19421.
2      Criminal Procedure Act 2011, s 250.
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
4 At [36].
5 At [32].

[5] Appellate courts do not indulge in mere tinkering with a sentence.6 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

The offending

[6] The appellant is a patched senior member of the King Cobra gang. A police investigation in 2022 established that the appellant was involved in the sale and distribution of methamphetamine. The appellant regularly directed prospects and lower ranking members to undertake drug deals at his behest.

[7] On 25 August 2023, police executed a search warrant at the appellant’s home address and found three small yellow ziplock bags containing 15 grams of cannabis and 60.93 grams of methamphetamine, some of which was packaged for sale.

[8]In total, throughout the eight-month period of offending, the appellant:

(a)supplied at least 61 grams of methamphetamine;

(b)offered to supply 129.25 grams; and

(c)was in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 3115
Decision Date: 25 October 2024

CaseChat Overview and Summary

The case of Johnathan Paekau against the King involves an appeal against the sentence imposed by Judge G A Andrée Wiltens on 15 August 2024. Paekau was sentenced to four years and six months’ imprisonment for charges of supplying, offering to supply, and possessing methamphetamine for supply. The appellant contends that there was an error in the sentence due to the Judge's failure to give a discount for personal background and deprivation factors beyond the 10 per cent discount for addiction. The primary legal issue was whether the Court should allow the appeal against the sentence, given the alleged error in not applying additional discounts for personal background factors.

The Court examined whether the sentence was manifestly excessive or wrong in principle, focusing on the end sentence rather than the process. The Court noted that appellate courts do not engage in mere tinkering with a sentence and generally will not intervene where the sentence falls within the range justified by accepted sentencing principles. The Court found that the sentencing Judge had misread the psychologist's report, incorrectly interpreting that Paekau, not his father, was dumped in a rubbish bin at birth. Additionally, the Court disagreed with the Judge's view that Paekau’s account of his relationship with his mother was inconsistent, finding instead that the complexities of his feelings reflected his traumatic childhood and abandonment.

The Court accepted that Paekau’s background of abuse, abandonment, and deprivation contributed to his involvement in drug addiction and dealing. The Court concluded that a further 10 per cent discount should have been given for these additional personal background and deprivation factors beyond addiction, resulting in a combined discount of 20 per cent. This reduction in sentence by 10 months was deemed material and not mere tinkering. The Court allowed the appeal, quashed the original sentences, and substituted a sentence of three years and eight months’ imprisonment for each charge, to be served concurrently.

Orders