JOMAR ABADINES RAGAY AND THE KING

[2024] NZHC 3819

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2024-476-000005

[2024] NZHC 3819

BETWEEN

JOMAR ABADINES RAGAY

Appellant

AND

THE KING

Respondent

Hearing:

13 November 2024

Appearances:

C J Lange for Appellant

S M H McManus and C J Mitchelmore for Respondent

Judgment:

13 December 2024

JUDGMENT OF BOLDT J

[1]    Jomar Ragay is a farm worker and a Filipino national, in New Zealand on an essential worker’s visa. On 24 August 2023, Judge C B Savage sentenced him to two years and eight months’ imprisonment on one charge of possession of methamphetamine for supply and one of unlawful possession of a firearm.1 Mr Ragay seeks leave to appeal out of time against his sentence, arguing it was manifestly excessive.

[2]    Mr Ragay argues the Judge sentenced him on an incorrect factual basis. While Mr Ragay pleaded guilty, and was sentenced on the basis of an agreed summary of facts, he says his lawyer at sentencing, Mr John Black, should not have accepted the summary was accurate. Mr Ragay contends the summary overstated the significance of his role.

1      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a) (maximum penalty of life imprisonment); and Arms Act, s 45(1) (maximum penalty of four years’ imprisonment).

RAGAY v R [2024] NZHC 3819 [13 December 2024]

[3]    While Mr Ragay initially sought to challenge his sentence on other grounds as well, including that he should have received a greater discount for the time he spent on bail, and a further discount to reflect the fact he is a foreign national who speaks limited English, those grounds were abandoned in argument.

[4]    Because he makes allegations which directly impugn the performance of counsel who appeared at sentencing, Mr Ragay supplied a waiver of privilege. He and Mr Black swore affidavits and gave evidence.

Background

[5]    In September 2021, the Christchurch Police began an operation which focused on a group in South Canterbury who were involved in the sale and supply of methamphetamine. The Police obtained interception warrants over several suppliers, and as a result they identified Mr Ragay and his partner Allannah Keen.

[6]    On 2 November 2021, Police executed a search warrant at Mr Ragay’s address. In his vehicle they located 54.6 grams of methamphetamine in bags of various sizes. They also found a semi-automatic .22 rifle behind the pantry in the kitchen.

[7]    Mr Ragay was interviewed by Police. The interview was lengthy and it appeared Mr Ragay was open about his involvement in the offending. He told Police he began selling methamphetamine after his parents died, and that he did so to make money to support his family in the Philippines. He said that he and Ms Keen sold methamphetamine together, and that he kept the money and told her how much to sell. He also said he used methamphetamine, albeit in moderate amounts. He admitted he intended to sell the methamphetamine that was found in his car. Mr Ragay told Police the firearm they located belonged to Ms Keen, not him.

[8]    Mr Ragay was on bail (albeit not electronically monitored) for around one year and eight months prior to his sentencing in August 2023. The bail conditions were not especially restrictive — his curfew required him to be at his bail address between 7:00 pm and 3:00 am.

[9]    Mr Ragay initially faced seven charges, including supplying methamphetamine and possession of ammunition. Eventually, five charges were withdrawn, and he pleaded guilty to possession of methamphetamine for supply and possession of a firearm.

[10]   Mr Ragay was represented by Mr Jay Lovely when he entered his pleas. There was no suggestion, at least at that time, that Mr Ragay took any issue with the summary of facts.

[11]   The first hint that Mr Ragay may seek to resile from his admissions appeared in the pre-sentence report. It noted:

Mr Ragay has denied selling methamphetamine and stated he admitted selling methamphetamine in the police interview in order to provide some protection for his then partner and her children.

According to Mr Ragay he was never involved in the sale and supply of methamphetamine but stated he took to hiding methamphetamine in his vehicle to assist his partner with her addiction issues. According to Mr Ragay his address being repeatedly visited by unknown individuals, had annoyed him but triggered arguments with his partner when he raised his concerns.

[12]   In May 2023, Mr Lovely prepared sentencing submissions which sought to advance the same benign explanation for Mr Ragay’s possession of the methamphetamine. Mr Lovely proposed to submit that Ms Keen’s addiction resulted in her being in debt to gang-related suppliers in Christchurch. He planned to invite the Judge to find Mr Ragay rationed her use to ensure she could sell enough to meet her debts, and did not consume the methamphetamine herself.

[13]   Mr Lovely took a statement from Ms Keen. By then she had been sentenced to home detention. She said Mr Ragay took her methamphetamine to prevent her consuming it, and released it back to her in smaller quantities. She said she had been dealing, but he had not. She accepted the firearm was hers.

[14]   Despite the inconsistency between the new account and the agreed summary, Mr Lovely did not indicate a disputed facts hearing might be required.

[15]   Between preparing his written  submissions  and  Mr  Ragay’s  sentencing, Mr Lovely took a break from legal practice. Mr Black took over Mr Ragay’s representation, and appeared for him at sentencing.

[16]   Mr Black took no issue with the facts outlined in the summary, and accepted Mr Ragay and Ms Keen were involved in a joint dealing operation. Mr Black confined his factual submissions to contending there was no evidence Mr Ragay played a “higher operational role” than Ms Keen, as there was no evidence he kept the profits or sold directly. He accepted Mr Ragay had purchased the methamphetamine in his vehicle and was motivated by financial gain.

[17]   Mr Black submitted Mr Ragay played a smaller role in the dealing operation than Ms Keen, as reflected in the withdrawal of the supply charges. Mr Black sought a starting point of between 27 and 30 months’ imprisonment. He acknowledged a two to three month uplift for Mr Ragay’s possession of the firearm would be appropriate.

District Court Sentencing

[18]   The leading case governing sentences for methamphetamine dealing is  Zhang v R.2 Given the quantities involved, the Judge noted that Mr Ragay’s offending fell squarely within Band 2 of Zhang, indicating a starting point of between two and nine years’ imprisonment.3

[19]   The Judge considered whether there were grounds to distinguish Mr Ragay’s offending from Ms Keen’s. Ms Keen was sentenced to home detention because her dealing was motivated by her own severe addiction. The Judge considered Mr Ragay’s offending more serious because he, by his own admission, had been dealing to make money.4

2      Zhang v R [2019] NZCA 504.

3      R v Ragay [2023] NZDC 18909 at [10].

4      At [6]–[7] and [11]–[12].

[20]   The Judge concluded the appropriate starting point was three and a half years’ imprisonment.5 He added four months to reflect Mr Ragay’s possession of the firearm, leading to an adjusted starting point of 46 months’ imprisonment.6

[21]   From that, the Judge reduced the sentence by 15 per cent in recognition of Mr Ragay’s belated pleas of guilty. He also accepted Mr Ragay’s offending had brought shame on New Zealand’s Filipino community, and observed:

[15]… I would allow a credit of 15 per cent as an acknowledgment of your previous good record, your genuine remorse and the impact culturally [of] the shame that you feel for the impact you have had on your community. That is a 30 per cent reduction from a starting point of 46 months. I will call that 14 months.

[22]   The 14-month discount reduced Mr Ragay’s sentence to 32 months, or two years and eight months’ imprisonment. Given the sentence exceeded two years, no question of home detention arose.

The appeal

[23]   In his affidavit Mr Ragay said he was intially unaware he was able to appeal against his sentence, and that he learned of his right to do so only some time after sentencing. As a result, his appeal was around four months out of time. The Crown did not oppose leave to appeal out of time, and I grant leave accordingly.

[24]   Mr Lange, on behalf of Mr Ragay, argues the sentencing proceeded on an incorrect factual basis. Judge Savage was faced  with a summary which indicated  Mr Ragay was dealing for financial gain, whereas he now says he was involved only to a limited extent, intending to protect Ms Keen from her addiction. Mr Lange submits Mr Ragay lied to Police to protect Ms Keen, and that he was never involved in dealing for profit.

[25]   Confronted with the obvious obstacle to that submission, namely Mr Ragay’s acceptance of the summary of facts, Mr Lange argued the fault lay with Mr Black. Mr Lange says Mr Lovely intended to present the “revised” factual position at

5 At [11].

6      At [13]–[14].

sentencing, but Mr Black relied on the summary of facts rather than the new, less culpable, version of events available in light of Ms Keen’s statement.

[26]   Mr Ragay and Mr Black both swore affidavits. The Crown opposes Mr Ragay’s application for leave to adduce further evidence on appeal, contending the account he now offers is neither fresh nor credible.7

[27]   Because Mr Ragay seeks to challenge the conduct of his counsel, I am satisfied his evidence is fresh; plainly, the concerns he raises about his representation could not have been advanced in the District Court. While the Crown drew attention to obvious inconsistencies between Mr Ragay’s affidavit and the admissions he made to Police, it was not possible to make a final ruling on its credibility without seeing Mr Ragay and Mr Black’s respective accounts tested in cross-examination, and accordingly I received Mr Ragay’s affidavit on a preliminary basis.

[28]In his affidavit, Mr Ragay said:

7.Allannah’s drugs would from time to time be put in my car to stop her from using. On the day of my arrest we had a disagreement and I had told her it was the drugs or me. I put her drugs into my car to stop her from using and her friends from visiting.

…

9.I was interviewed by the Police after being arrested. I had not previously been arrested and some of my answers were not correct. I thought if I told the Police I was using drugs and selling it would help Allannah.

10.I was not involved in the selling of drugs........ From time to time I

would put the drugs in my car to limit her use when I was at work. I was aware she was selling drugs to family and friends.

11.Mr Lovely was to advance the sentence on that basis.

12.When Mr Black took over, he wanted to treat the case differently. When I disagreed, he would point to my statement and tell me that is what I told the Police. I did not know what to do. No one had explained to me that it was the lawyer’s role to give me advice and for me to tell them what I wanted to do. The first time I was told about that was when Mr Lange saw me to discuss the appeal.

7      Lundy v R [2013] UKPC 28, [2014] 2 NZLR 277 at [120]; and Mark v R [2019] NZCA 121 at

[16].

[29]   Mr Ragay said he had no interpreter when he spoke with Mr Black. He denied receiving money for drugs or telling Ms Keen how much to sell.

[30]   Mr Black firmly rejected Mr Ragay’s account.  Mr Black said he met with  Mr Ragay twice, on 26 June and 12 August 2023, and that they went through the summary of facts and the relevant parts of Mr Ragay’s Police interview. Mr Black said Mr Ragay gave no indication he wished to resile from the summary or his admissions to Police. Mr Black said he clearly explained his role to Mr Ragay at both meetings, and that Mr Ragay’s employer was present both times. Mr Black acknowledged he did not enlist the assistance of the interpreter on either occasion, but said Mr Ragay gave no indication he was having any difficulty understanding their discussions.

[31]   Mr Lange invites me to accept Mr Ragay’s account of his interactions with Mr Black, and to reject Mr Black’s evidence. He submits Mr Ragay’s new account disclosed offending that was far less culpable than the summary indicated. In effect, Mr Lange invites me to conclude Mr Black made an error when he did not obtain instructions from Mr Ragay to contest the summary, and that Mr Black should have sought a disputed facts hearing.

[32]   Rather than return the matter to the District Court, Mr Lange invites me to scrutinise Mr Ragay’s evidence from the perspective of a sentencing Judge, and, if I accept his account, to reassess Judge Savage’s sentence on the basis of the facts as I find them.

[33]   Mr Lange initially advanced two other grounds of appeal, but as noted above, both were abandoned in argument. Mr Lange accepts Mr Ragay had already received a discount to reflect his membership of the Filipino community and the shame it brought upon them. Indeed, it is unclear why the Judge regarded that as a mitigating factor at all. And while Mr Lange initially argued Mr Ragay should have received discrete credit for the time he spent on EM bail, it emerged Mr Ragay had not been on EM bail. His curfew, which spanned the eight hours before he began work each morning, was not onerous.

[34]   In argument, Mr Lange acknowledged Mr Ragay can have no complaint about either the starting point or the final sentence unless I agree the summary of facts should be disregarded in favour of the new version of events he now offers.

Discussion

[35]   The approach to appeals against sentence is well settled. Under s 250 of the Criminal Procedure Act 2011, I must dismiss the appeal unless I am satisfied, for any reason, there was an error in the sentence and a different sentence should be imposed. In accordance with orthodox principles, an appeal can be allowed only if the sentence was manifestly excessive, represented a material error of principle or if there are exceptional circumstances.8

[36]   My focus is on the sentence the Judge imposed; it does not particularly matter how he constructed that sentence as long as it was reasonably available. If the same outcome could have been reached by a different route, the sentence will not be manifestly excessive.

[37]   In the end, the case is straightforward. Having seen Mr Ragay’s account tested in cross-examination I have no hesitation in rejecting it. Even before he was cross- examined, his evidence made little sense. He said he was protecting Ms Keen by taking responsibility for the methamphetamine. But the account he gave Police did not exculpate Ms Keen;  instead, it described a joint operation which he directed.   Mr Ragay said Ms Keen was the person involved in the hands-on transactions. Rather than protecting Ms Keen, he implicated them both.

[38]   In cross-examination, Mr Ragay admitted he had told Police he had recently sourced methamphetamine on a trip to Christchurch, and that he would tell Ms Keen how much to sell. He gave evidence he had not been telling the truth when he made those admissions, but could not explain why he constructed such an elaborate lie, particularly as it did nothing to assist Ms Keen. In evidence he denied the firearm was Ms Keen’s, claiming it belonged to friends of hers. Yet he told Police the gun did

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]–[39].

belong to Ms Keen. Once again, he could not explain why, if he was seeking to protect her, he implicated Ms Keen in an offence she had not committed.

[39]   Mr Ragay’s account fell apart entirely in re-examination. When Mr Lange, seeking to rehabilitate Mr Ragay as a witness, asked whether he really had started selling methamphetamine after his parents died, Mr Ragay replied:

Yeah, I accept that. I accept that I sell when my parents passed away, but not, not supporting my family from selling the drugs.

[40]   When Mr Lange asked him to clarify his answer, Mr Ragay replied “Yep. I accept that I sell when my parents pass”. He explained he sold methamphetamine to friends.

[41]   Having observed Mr Ragay give evidence, I have no doubt he would have been disbelieved if he had advanced his new account at a disputed facts hearing. There is no basis to depart from the summary of facts, or to doubt the admissions he made to Police.

[42]   By contrast, I have no hesitation in accepting the evidence of Mr Black. I do not accept there was  any misunderstanding between Mr Ragay  and him.  I  find   Mr Black properly explained his role, and that Mr Ragay did not indicate he disputed any aspect of the summary.

[43]   Indeed, in light of Mr Ragay’s confirmation he had been selling methamphetamine, and his admission to Police he was planning to sell the 54 grams in his possession, it is apparent a starting point somewhat greater than the three and a half years selected by the Judge would have been available.

[44]   Those conclusions resolve the appeal. As already noted, Mr Lange accepted the appeal cannot succeed unless I find Mr Ragay’s new account credible. It is not.

Conclusion

[45]   In light of the evidence that emerged in this Court. Mr Ragay’s final sentence of two years and eight months’ imprisonment can only be described as lenient.

Result

[46]I grant leave to appeal out of time.

[47]   I accept Mr Ragay’s affidavit is fresh, but in light of my finding it lacked credibility, I decline his application for leave to adduce further evidence on appeal.

[48]The appeal is dismissed.

Boldt J

Solicitors:

Christopher J Lange Barrister, Christchurch for Appellant Crown Solicitor, Timaru for Respondent