Karaitiana v The King
[2023] NZHC 122
•8 February 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-141
[2023] NZHC 122
BETWEEN INGA KARAITIANA
Appellant
AND
THE KING
Respondent
Hearing: 1 February 2023 Appearances:
A Hill for the Appellant
Z Smart for the Respondent
Judgment:
8 February 2023
JUDGMENT OF HARVEY J
This judgment was delivered by me on 8 February 2023 at 3.30 pm.
…………………………..
(Deputy) Registrar
Solicitors:
Andrew Hill, Rotorua
Gordon Pilditch, Office of the Crown Solicitor, Rotorua
KARAITIANA v R [2023] NZHC 122 [8 February 2023]
Introduction
[1] Inga Karaitiana was sentenced to two years, three months imprisonment by Judge E P Paul at the Rotorua District Court on 21 October 2022,1 on six charges of possessing methamphetamine for supply;2 and two charges of supplying methamphetamine.3 He now appeals that sentence to this Court.
[2]The two issues for determination on this appeal are:
(a)Is a discount for cultural factors and addiction appropriate?
(b)Is a discount for time spent on EM bail appropriate?
Facts
[3] Mr Karaitiana and his associate Ms Collier supplied methamphetamine in the Rotorua area between July and October 2021.
[4] On 25 July 2021 Mr Karaitiana confirmed with Ms Bowen that $200 was acceptable for half a gram of methamphetamine. The next day Mr Karaitiana instructed Ms Collier how to conduct sales for five grams of methamphetamine. On 27 July 2021 Mr Karaitiana and Ms Bowen arranged to meet, communicating about how far they were from the meeting location and when they arrived. Mr Karaitiana informed Ms Bowen that as he had supplied two grams of methamphetamine, she owed $800.
[5] On 28 July 2021 Ms Bowen messaged Mr Karaitiana complaining that she had only received one gram of methamphetamine which had already been sold. She asked Mr Karaitiana for two grams of methamphetamine as she would be back and forth all night if only given one gram amounts. Following that, on 29 July 2021 Mr Karaitiana asked Ms Collier how much methamphetamine she had left. She replied that she only had five and a half grams and that the six grams she was given was underweight.
1 R v Karaitiana [2022] NZDC 20932; and Criminal Procedure Act 2011, s 244.
2 Misuse of Drugs Act 1975, s 6(1)(f) and (2).
3 Misuse of Drugs Act 1975, s 6(1)(c) and (2).
Mr Karaitiana stated that he weighed the six grams himself and reminded Ms Collier “no dunking”, suggesting that she took half a gram for personal use.
[6] On 9 August 2021 Mr Karaitiana’s associates, Ms Collier and Ms Woodmass, discussed purchasing methamphetamine and informing Mr Karaitiana that there was “$5,400 here”. Mr Karaitiana replied to Ms Woodmass from Ms Collier’s phone that
$7,000 should have been delivered to Ms Woodmass and that he will make up for it.
[7] On 9 October 2021 Mr Karaitiana received a message from his son that he had seven grams of methamphetamine available for him. Several days later, on 13 October 2021, Mr Karaitiana’s son messaged him again confirming that he had four and a half grams of methamphetamine left.
[8] On 14 October 2021 Police carried out a search warrant at Mr Karaitiana’s address, whilst he was present. They found a shoulder bag containing approximately
14 grams of methamphetamine in two quarter ounce bags. Cumulatively, Mr Karaitiana possessed 60 grams of methamphetamine for supply and supplied three grams.
District Court decision
[9] Judge Paul referred to the charges, Mr Karaitiana’s three-month attendance at the Anti P Ministry, his upbringing, exposure to drugs, violence, and gang lifestyle. The Judge stated that the sentence indication was three and a half years and that the discount for guilty plea was fixed at 25 per cent. He acknowledged that the s 27 Sentencing Act 2002 factors including Mr Karaitiana’s substance abuse, exposure to criminal offending and lack of education provided a credible account for his poor choices. The Judge noted the limited effect of these factors but in acknowledgement of Mr Karaitiana’s attempt at rehabilitation awarded a 10 per cent discount for addiction and cultural matters.
[10] The Judge cumulatively allowed a 35 per cent discount, said to be 15 months, for the guilty plea, addiction and cultural matters. This led to an end sentence of two years, three months’ imprisonment. Accordingly, home detention was not available.
Approach on appeal
[11] It is well settled that for a first appeal against sentence to succeed, the appeal court must be satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 An appellate court intervenes if the sentence is wrong in principle or manifestly excessive.5 Usually, it will not typically intervene if the sentence is within the range that is properly justified by accepted sentencing principles. The appellate court focuses on the final sentence imposed rather than how the sentenced was reached.
Is a discount for cultural factors and addiction appropriate?
Crown submissions
[12] Mr Smart submitted that the Supreme Court’s judgment in Berkland v R is the leading authority on sentencing concerning possession and supply of methamphetamine.6 According to counsel, that decision adjusts the guidance from Zhang v R in taking a more “holistic and individualistic approach” to sentencing. In the context of the appellant’s claim that the learned Judge erred when combining addiction and cultural factors into one discount, in Berkland a final discount of 10 per cent was given for both background and addiction factors combined. Mr Smart underscored that combining discounts for addiction and cultural factors is not an incorrect approach.
[13] As to the appellant’s contention that a 20 to 30 per cent discount should have been applied for cultural and background factors alone, counsel submitted that this argument was rejected by the Court of Appeal in Berkland on the basis that those factors were not the “operative cause” of the offending. Mr Smart pointed out that Zhang relied on proving a “demonstrative nexus” with personal background having contributed to the offending. In contrast, the Court of Appeal’s decision in Carr v R, a less stringent standard of “causative contribution” was adopted so that there was no requirement for offenders to establish that deprivation was the proximate cause for the offending. Importantly, counsel argued that the Supreme Court adopted the reasoning
4 Criminal Procedure Act, ss 244, 250(2) and (3).
5 Tūtakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 Berkland v R [2022] NZSC 143.
of Carr that causative contribution is the deciding factor in the context of mitigation, which was a lower standard than operative or proximate cause.
[14] Mr Smart then submitted that in applying Berkland to the present appeal, Mr Karaitiana’s background fell short of the causative contribution threshold. While a difficult background and deprivation can drive low level offending for financial support, possessing Class A drugs at commercial quantities cannot be seen as a result of a negative upbringing.
[15] Counsel also argued that nothing in Mr Karaitiana’s background and personal factors establish a causative contribution to the offending with an emphasis on the scale of the supply for sale. Accordingly, Mr Smart submitted that the Judge acted correctly in not providing a larger discount for personal factors.
[16] Turning to the issue of addiction, counsel contended that Mr Karaitiana was dealing in significant quantities of methamphetamine on numerous occasions for personal profit and not for the principal purpose of personal use. According to the framework set out in Zhang, Mr Karaitiana’s dealing was at the lower to middle range of Band 2 which is described as commercial quantities. Mr Smart cited Zhang where the Court of Appeal confirmed that commercial dealing was likely to be inconsistent with the impairment of the ability for rational choice and that diminishes culpability and justifies a discount in the sentence.7
[17] Moreover, Mr Smart submitted that the appellant does not appear to be at the behest to any addiction to methamphetamine. Mr Karaitiana said he does not miss it and has turned it down recently. Clearly, the time spent in custody and efforts at rehabilitation confirm that Mr Karaitiana is not controlled by addiction. Accordingly, counsel contended that this suggested commercial benefit was the principal driver for the offending which must necessarily qualify mitigation for addiction.
[18] In any case, Mr Smart submitted that the Judge made a correct assessment which allowed for addiction and provided the appropriate discount which he concluded in the circumstances was nowhere close to 30 per cent but was more than a
7 Zhang v R, above n 7, at [147].
nominal figure when setting 10 per cent for addiction and personal background in total. Mr Smart underscored that this approach was consistent with both Berkland and Zhang.
Mr Karaitiana’s submissions
[19] Mr Hill submitted that Judge Paul erred by giving insufficient discounts for addiction and cultural factors.
[20] Counsel contended that a separate 10 to 30 per cent discount should have been awarded for cultural factors. Mr Hill relied upon factors in the s 27 report including Mr Karaitiana’s exposure to a gang lifestyle, his appearances in the youth justice jurisdiction, exposure to family violence, poverty, time in state care, lack of education, substance abuse and a lack of connection to his Māori or Samoan culture. Relying on Carr v R, Poi v R, Bishop v R, and Biddle v R, counsel argued that due to Mr Karaitiana’s cultural background, he should have been entitled to at least a 20 per cent discount.8
[21] Mr Hill submitted that Mr Karaitiana should have been awarded between a five to 10 per cent discount for his addiction issues. He noted that whilst Mr Karaitiana was dealing commercial quantities of methamphetamine and would have been financially motivated, his serious methamphetamine addiction cannot be ignored. Referring to Zhang v R, counsel contended that whilst commercial dealing is typically inconsistent with the impairment of rational choice, the two may co-exist in cases of substantial offending.9
[22] In summary, Mr Hill submitted that the combined total of a 10 per cent discount for cultural and addiction factors was too light. While the commercial aspect of the dealing was acknowledged, counsel underscored that addiction issues were also highly relevant at the time the sentence was handed down. Overall, counsel argued that a discount of between 20 and 30 per cent was appropriate.
8 Carr v R [2020] NZCA 357; Poi v R [2020 NZCA 312; Bishop v R [2020] NZHC 2364; and Biddle v R [2021] NZCA 57.
9 Zhang v R [2019] NZCA 507.
Discussion
[23] The cultural factors outlined in the appellant’s submissions and detailed in the Cultural Report are mitigating features of the offender that must be considered.10 A patched member of Black Power by 25, gang culture was a normal part of Mr Karaitiana’s life. Mr Karaitiana had a disrupted and dysfunctional upbringing due to family violence, poverty and his time in state care. He also claimed that he rarely attended school as he was selling drugs from primary school age to support his family, which his parents approved of. He has never had long-term, stable employment, and was frequently recruited to participate in drug operations by Black Power associates.
[24] I accept that there is a clear link between Mr Karaitiana’s upbringing, especially his involvement in drug dealing from a very young age without parental sanction, and his present offending. This particular feature was not emphasised in Judge Paul’s decision.
[25] I also accept, as did Judge Paul that Mr Karaitiana’s substance abuse and addiction issues were a driving factor of his offending, but not the only one. According to Mr Karaitiana, he started using cannabis at the age of 10 and methamphetamine at
16. He stated that using methamphetamine made it easier for him to stop drinking. At 18 Mr Karaitiana was using methamphetamine every day. He estimated that prior to his incarceration he was using approximately an ounce of methamphetamine a week. Under the Diagnostic and Statistical Manual of Mental Disorders Assessment, Mr Karaitiana meets the criteria for severe methamphetamine and severe cannabis use disorder.
[26] The severity of Mr Karaitiana’s addiction needs to be balanced against the substantive commercial quantity of methamphetamine Mr Karaitiana was charged with. There needs to be a degree of caution with self-reporting, but I note that Mr Karaitiana reported use of an ounce of methamphetamine per week, and the total amount of methamphetamine possessed for supply between July and October 2021 is 60 grams, which is just over two ounces. Whilst it may appear that the financial motivation for commercial dealing is inconsistent with the impairment of rational
10 Sentencing Act 2002, s 8(i).
choice, the two can co-exist.11 I am satisfied that is the case here but agree with Judge Paul that addiction motivated the offending only in part.
[27] Although I acknowledge the Crown’s submissions in relation to Mr Karaitiana’s abstinence in prison, I agree with Mr Hill that the relevant point of time was when the offending was committed.
[28] After taking account of counsels’ submissions, including the authorities cited, I consider that a total discount of 15 per cent is justified.
Is a discount for time spent on EM bail appropriate?
Mr Karaitiana’s submissions
[29] Mr Hill argued that in accordance with ss 9(2)(h) and 9(3A) of the Sentencing Act, Mr Karaitiana’s time on EM bail from 25 May 2022 to late August 2022 should have been taken into account. He emphasised that Mr Karaitiana was on EM bail with strict conditions including no access to telephones or internet capable devices and a 24/7 curfew. Mr Hill submitted that Mr Karaitiana should receive a modest discount of one or two months for time spent on EM bail.
Crown submissions
[30] Regarding the appellant’s submissions on time spent on EM bail and rehabilitative efforts, Mr Smart submitted that if a modest discount of one or two months was contemplated then counsel did not need to be heard. That said, counsel highlighted that this was essentially a discretionary matter. That said, the Crown would adopt a neutral stance in any case.
Discussion
[31] I accept that Mr Karaitiana has spent time on restrictive EM bail at the Anti P Ministry as part of a rehabilitation course. His counsel’s submissions indicate that bail only ceased when the Anti P Ministry facility closed in August 2022 leaving
11 Zhang v R, above n 7, at [146]-[147].
Mr Karaitiana without an approved bail address. In accordance with his EM bail conditions Mr Karaitiana voluntarily returned to custody.
[32] It is accepted that discounts for time spent on EM bail are determined by the duration of time spent on EM bail and the restrictions imposed,12 and that there are occasions where no allowance is granted.13 When defendants are on EM bail for a short time, little credit may be available.14 I accept that Mr Karaitiana’s time on EM bail could have been longer if not for the facility shutdown and that this was out of his control. Mr Karaitiana’s compliance with his bail conditions supports the award of a discount for his time spent on EM bail.15 As identified in the appellant submissions this could be up to 50 per cent to reflect the restrictive conditions.
[33] Having carefully considered counsel’s submissions I consider no discount should be given. The time spent on EM bail was short. Although Mr Karaitiana may have spent more time on EM bail, he was not actually subject to restrictive conditions. His time spent in custody is automatically deducted as time served. Crediting a hypothetically longer stay on EM bail risks double-crediting. Further, given my findings on the discounts above, in light of the totality principle a further discount would lead to a sentence that does not adequately reflect Mr Karaitiana’s offending. Commercial methamphetamine dealing is a serious offence and in Mr Karaitiana’s circumstances I consider a short-term sentence of imprisonment or home detention would be inadequate.
[34] The application of a 40 per cent discount (being 25 for guilty plea and 15 for s 27 report matters) leads to a final sentence of two years, one month: a reduction of two months. That is a significant amount all told in light of the overall length of the sentence which I do not consider is “tinkering”.
12 Paora v R [2021] NZCA 559 at [53].
13 Tamou v R [2008] NZCA 88 at [19]; and Senior v R [2016] NZCA 389 at [99].
14 Longman v Police [2017] NZHC 2928 at [13].
15 Chong v R [2022] NZHC 869 at [50].
Decision
[35] Inga Karaitiana’s appeal against the District Court’s 21 October 2022 sentencing is allowed. Mr Karaitiana’s end sentence of two years, three months is quashed and replaced with a sentence of two years, one month.
Harvey J
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