JOHNATHAN PAEKAU AND THE KING
[2024] NZHC 3115
•25 October 2024
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 possession of 120.93 grams for the purposes of supply.
District Court proceeding
[9] The appellant first appeared for this offending on 25 August 2023. On 21 December 2023, the appellant sought a sentence indication. That took place on 4 June 2024. The appellant accepted the indication of a starting point of eight years’ imprisonment and a discount of 25 per cent for a guilty plea on the same day.
[10] The appellant was then sentenced on 15 August 2024. In accordance with the sentence indication, the Judge adopted a starting point of eight years’ imprisonment and granted the full 25 per cent discount for his guilty pleas.
6 R v Boyd (2004) 21 CRNZ 169 at [38].
[11] The appellant sought a discount for the information contained in a number of reports canvassing the appellant’s personal factors:
(a)a psychological assessment report by Jim van Rensburg dated 8 August 2024;
(b)a report from the Grace Foundation dated 5 August 2024 and a further report dated 8 August 2024; and
(c)a pre-sentence (PAC) report dated 8 August 2024.
[12] The Judge was sceptical about alleged abandonment as a baby (this was a misreading of one report) and he highlighted inconsistencies in the appellant’s accounts of his relationship with his mother, concluding that Mr Paekau might not have given a true account of what actually happened during his upbringing.
[13] The result reached in the sentencing notes seems to have been that a 10 per cent discount was given for addiction, but that no further discount was given for other personal background and deprivation factors:7
I can readily see that you are deeply involved with methamphetamine and that you are addicted to that, but I cannot accept the entire account that you have given to Mr van Rensburg which is what Ms Smith invites me to do. Thirty per cent is not possible. I will give you a 10 per cent discount for your background (addiction) and how that has affected your offending.
[14] Against the starting point of eight years’ (96 months’) imprisonment, Mr Paekau was given the following discounts totalling 42 months (almost 44 per cent), comprising:
(a)25 per cent (24 months) for an early guilty plea;
(b)10 per cent (rounded to 10 months) for background (addiction) factors;
7 R v Paekau, above n 1, at [12].
(c)six months (just over six per cent) for remorse;
(d)three months (approximately three per cent) for time spent on electronically monitored bail.
[15]The end sentence was four years, six months’ imprisonment.
Discount for personal background factors
[16] Section 8(i) of the Sentencing Act 2002 provides that in sentencing an offender, the Court must take into account the offender’s personal, family, whānau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.
[17] The personal circumstances and background of the appellant are also considered under s 27 of the Sentencing Act. As noted in Mullan v Police, s 27 contemplates that a separate person, apart from an offender but at an offender’s request, can be called by them to speak about the matters outlined in s 27(1).8
[18] In Berkland v R,9 the Supreme Court acknowledged that there “will always be connections between the different dimensions of an offender’s background and their choice to offend, although the nature and strength of those connections will vary”.10 Background and deprivation factors impact sentencing only when it can be established that they “causatively contribut[ed]” to the offending, though it is no longer necessary to establish they were the “operative” or “proximate” cause.11 For example, contributory mental illness can explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment. Contributory deprivation can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely.12
8 Mullan v Police [2023] NZHC 962 at [23]–[24].
9 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
10 At [107] per Winkelmann CJ, William Young, Glazebrook and Williams JJ.
11 At [109].
12 At [109].
[19] The causative contribution of background may be displaced, in whole or in part, where the offending is particularly serious. In the context of commercial dealing in controlled drugs, the contribution of background to complex and orchestrated offending may be significantly reduced or even negated by other sentencing goals such as community protection, particularly where the individual has exhibited increased agency by carefully assessing and navigating the risks of detection.13 However, that does not mean background will be irrelevant in relation to more significant roles. Where imprisonment is unavoidable, background factors that contribute causatively to an offender’s degree of culpability may still mitigate sentence length.14
Submissions of the parties
[20] The appellant contends that the Judge made two errors that led him not to give any weight to, or separate discount for, the deprivation factors referred to in the psychological report beyond the fact of addiction:
(a)The Judge misread the psychological assessment report and wrongly concluded that Mr Paekau asserted he was dumped in a rubbish bin at birth, when in fact it was Mr Paekau’s father who was born in Samoa and dumped in a rubbish bin. This error caused the sentencing Judge to “have grave concerns” about the report.
(b)The Judge also regarded Mr Paekau’s comments about his relationship with his mother as inconsistent, further undermining any confidence in Mr Paekau’s narrative, whereas the complex nature of the relationship was not a contradiction, but rather a response to Mr Paekau’s traumatic childhood and sexual abuse.
13 At [111].
14 At [112].
[21] As for the report being “hearsay”, counsel for the appellant accepts that some corroboration of self-reported events would have been helpful, but Mr Paekau had good grounds not to want to ask his family for corroboration, and neither his father nor his grandparents could have been asked to do so given the nature of what Mr Paekau described.
[22] The appellant submits that the matters referred to in the psychological report justify a discount of 15–20 per cent, based on Kissling v R:15
The extent to which the formal reports supplement or add to the cultural matter canvassed orally by Mr Kissling at sentencing remains unclear. But Mr Carruthers for the Crown accepted that the matters contained in the reports were of a kind that would, ordinarily, attract a discount at sentencing. So, we propose to take that as our starting point. And we are prepared to assume for the purposes of the discussion below, that the appropriate discount here would—as submitted on behalf of Mr Kissling—be in the order of 15 per cent.
[23] The Crown’s position is that the 10 per cent already allowed by the Judge for addiction was the full amount that was appropriate for all background factors, for the following reasons:
(a)The commerciality of the offending in this case is inconsistent with the psychological report writer’s opinion that the appellant was supplying to support his own addiction.
(b)The causative contribution of the appellant’s background factors may be displaced, at least in part, by the seriousness of the offending. The appellant was organising the sale of methamphetamine on a commercial scale and using his role as a senior member of the King Cobras to direct others to assist.
(c)There was little information to corroborate the appellant’s account of events.
(d)Even accepting the appellant’s description of his background, the respondent submits that a discount of 10 per cent for all of those factors
15 Kissling v R [2023] NZCA 37 at [15] (footnote omitted).
is consistent with the 10 per cent discount given in Berkland. In that case, Mr Berkland’s upbringing involved poverty, trauma, chaotic home circumstances, and poor educational outcomes. Mr Berkland engaged in regular abuse of drugs and alcohol from childhood, commenced methamphetamine use in his early thirties, and became a heavy user following the death of his older brother. The fact that the Court of Appeal took a less serious view of Mr Berkland’s offending than the lower courts left “more scope for allowance for personal mitigating factors”.16
(e)The respondent distinguishes Zhang v R,17 where a 30 per cent discount was contemplated for addiction-related personal circumstances,18 on the grounds that the offending in this case is serious and involves commercial dealing well beyond fuelling personal use.
[24] To the extent that a higher discount could have been allowed, the respondent submits that any adjustment would be small and amount to tinkering so should not be entertained.
Analysis
[25] I accept the appellant’s submissions that the sentencing Judge made an error when he interpreted the passage of the psychologist’s report as referring to Mr Paekau being dumped in a rubbish bin, when it was in fact Mr Paekau’s father. That passage in the report is as follows:
Mr Paekau’s father was of Samoan heritage and his mother Maori. His father was an aggressive man, who had a very sad background. He was conceived when his paternal grandmother was raped by her uncle. When he was born, he was dumped into a rubbish bin, where Mr Peakau’s aunt found him and brought him to New Zealand, where his grandmother’s sister brought him up. He could never understand that his father would say that he loved his wife and children, but then proceeded to beat them up, but said over the years he came to understand that.
16 Berkland v R, above n 9, at [151].
17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
18 At [149].
[26] In addition, I do not see any inherent contradictions in Mr Paekau’s description of his complex feelings about and relationship with his mother. In the psychologist’s report, Mr Paekau himself recognises that the blame he placed on his mother as a 9-year-old for his father leaving was “counter-intuitive” and unfair. He was also deeply affected by the ordeal of his mother going to Invercargill with his two siblings, leaving him behind with an abusive father. When he was 15 and his mother moved back to Auckland, Mr Paekau still carried those resentments. By that time, Mr Paekau’s antisocial behaviour meant that she would not entertain the thought of him moving back in with her. Despite this, after the intervention of his grandmother, he did stay with his mother for a short while but was then involved in a serious fight with members of a gang, so his mother took him back to live with his grandparents, which led to further problems.
[27] I accept the submission made by Ms Smith on behalf of Mr Paekau that the complexities of his feelings for his mother reflect Mr Paekau’s traumatic childhood and feelings of abandonment, but he does feel genuine love and respect for his mother who has always sought to provide a positive influence in his life. There is nothing in the underlying accounts or the opinion of Mr van Rensburg that suggest these accounts are unreliable. To the contrary, Mr van Rensburg stated that Mr Paekau “[i]mpressed him as sincere and honest about the detailed overview of his life…”.
[28]The overall conclusion of Mr van Rensburg was as follows:
Mr Paekau’s dysfunctional childhood and development to adulthood provide a clear nexus to the conditions in which he became involved in drug addiction and dealing. It is evident from the detailed description of his background that it is reasonable to assume that he in fact became addicted to methamphetamine to the extent that he had to start supplying it to support his own addiction.
Mr Paekau is at a high risk of general offending, and at a high risk of future substance abuse. However, he has reached a point where he is in the process of desisting from substance abuse. It is never possible to predict with any certainty whether a person who is addicted to substances will relapse or not. For someone with a long history of addiction, like Mr Peakau, the risk is high. But, if he is able to remain drug-free for a period of 12 months, and if he has a solid social structure around him, he could well overcome the addiction. He is highly motivated.
[29] Reviewing the detail of his personal background as summarised in the psychologist’s report, I accept that Mr Paekau suffered abuse, abandonment and deprivation in his upbringing, and this was an operative cause of him becoming involved in drugs and seeking the social support and sense of belonging within a gang that led to this drug offending. In summary:
(a)Coming from his own dysfunctional background, Mr Paekau’s father was violent towards his wife and his three children. Being the eldest of the three children, Mr Paekau was regularly beaten from the age of six or seven.
(b)His father left the family when Mr Paekau was nine years old, leaving the family very poor and unable to survive on his mother’s income alone. After 11 months, his father returned to the family, but the beatings continued.
(c)When Mr Paekau was 11 years old, his mother left for Invercargill with his two younger siblings, leaving Mr Paekau alone with his violent father. This made Mr Paekau feel terribly abandoned by his mother. There was no money in the house, so Mr Paekau had to steal food to survive and began smoking cannabis, stealing it from his father.
(d)By the age of 13, he began to roam the streets and became popular with older youth because of his easy access to cannabis at home. At this age, he was arrested by the police for stealing a few items from a mall. When the police delivered him home, he received the “biggest hiding of his life”, and his father strangled him to the point of unconsciousness, because his actions had caused the police to come to his home where his father and friends were smoking cannabis.
(e)His father began sending Mr Paekau to stay with his grandparents over weekends and during holidays. While he was staying at his grandparents’ house, another person would sexually abuse Mr Paekau.
(f)By the age of 14, Mr Paekau was basically living on the streets and would sleep most nights under a bridge in Manukau. He said he would steal people’s shoes from doorsteps to take to a tinny house where he would exchange them for cannabis.
(g)At the age of 15, he briefly lived with his mother, but after a serious fight with members of a gang, was taken back to his grandparents. He could not tolerate that situation so returned to live with his father.
(h)After a severe beating by his father, he left to live with another relation and met someone who introduced him to methamphetamine. Mr Paekau then became a regular user of methamphetamine. Over time he owed several people large sums of money for buying methamphetamine on credit and turned to selling the drug to pay his debts.
(i)At one point Mr Paekau was drug-free for a year and had a job, but he then relapsed to drug use. Shortly afterwards, he met an old friend who was a member of the King Cobra gang. He craved the brotherhood love and good life that his friend boasted about and was welcomed to the gang as a prospect. He progressed to becoming a member and relished his newfound sense of belonging within the gang. He climbed quickly within that hierarchy because of his good performance at the tasks he was given.
[30] For sentencing purposes, background factors need not be formally proven by admissible and independent evidence. For example, for s 27 reports there is no rigid formula for the provision of s 27 information,19 and it is common for such reports to provide information that is sourced from a defendant.20 In Berkland, the position was summarised as follows:21
19 Berkland v R, above n 9, at [141] and [212].
20 Mullan v Police, above n 8, at [23].
21 Berkland v R, above n 9, at [129].
While independent evidence is likely to be more cogent than self-report, there is no reason to disqualify the latter from consideration as incapable of proving the relevant fact. Rather, whether a mitigatory factor (if contested) is proved to the required standard will be for the sentencing judge who must consider all the circumstances of the case in the usual way.
[31] I am satisfied that the background summarised in the psychologist report is credible based on Mr van Rensburg’s assessment of those matters, along with corroborating information in the Grace Foundation letter and the PAC report.
[32] In terms of the discount amount, I consider that a further 10 per cent should have been given for the other personal background and deprivation factors beyond his addiction (which received a discount of 10 per cent):
(a)I acknowledge that a 10 per cent discount was given in Berkland for the combined effect of Mr Berkland’s deprived background and the role of addiction in his offending. However, the background factors there seem less causatively connected with the gang aspects of the drug offending. While Mr Berkland had an abusive father, his father left by the time Mr Berkland was five years old, and he remained in the care of his hard-working mother. Mr Berkland suffered poverty, lack of education and trauma due to sexual abuse (as did the appellant), but not abandonment by his mother leaving him subjected to ongoing physical abuse throughout his youth. In terms of assessing the impact of this background on moral culpability, I consider this justifies a greater discount further along the range towards the 30 per cent contemplated for addiction-related factors.22 I do not accept the respondent’s suggestion that Mr Berkland had a lesser role within the gang23 or that the commercial nature of the offending was less serious in that case (the Supreme Court’s starting point for the methamphetamine charges against Mr Berkland was 13 and a half years).
22 At [36], referencing Zhang v R, above n 17, at [149].
23 At [71] (updating the significant role profile table) and [73] finding that Mr Berkland was a right-hand man to the leader, and he received cash and drugs for his work, but he had no executive discretion or wealth accumulation as a profit-taker.
(b)Along with the 10 per cent discount already given for addiction, a combined 20 per cent is more than the 15 per cent that the Court of Appeal was prepared to assume in Kissling, but in that case Mr Kissling was educated, came from a good background, and was introduced to gang life through an uncle.24
(c)It is still significantly less than the top 30 per cent discount contemplated in Zhang for addiction-related personal mitigating factors. This recognises that other sentencing goals such as deterrence and community protection have particularly high importance for commercial scale drug offending, and that Mr Paekau did have some agency in seeking to advance to a senior role within King Cobras and engaging in conduct beyond fuelling his own addiction.
(d)In making my assessment, it is material that Mr Paekau now appears to have insight that he needs to disengage from the King Cobra gang and stop using substances. While remorse and rehabilitation are separate, this supports the appellant’s position that his background causatively led him to this offending (he therefore has reduced moral capability), and with the right guidance and support he can turn his life around and intends to do so. The combination of mitigating adjustments, including this one, are designed to respond to those matters.
[33] Increasing the addiction-related discount from 10 per cent to 20 per cent for additional causative background factors has the effect of reducing the sentence by 10 months, which is of material benefit to Mr Paekau and beyond tinkering. In any event, I consider it important to correct errors in the sentencing decision that implied Mr Paekau’s account of his personal background was inconsistent and unreliable and therefore potentially untruthful, whereas I see no grounds for that conclusion.
24 Kissling v R, above n 15, at [12].
Result
[34] The appeal is allowed. The sentences of four years and six months’ imprisonment imposed on each charge to be served concurrently are quashed. On each charge, a sentence of three years and eight months of imprisonment is substituted. The sentences imposed on all three charges remain concurrent.
O’Gorman J
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