Karetu v The King

[2024] NZHC 207

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-69

[2024] NZHC 207

BETWEEN

BOYCEE LINTON JUNIOR KARETU

Appellant

AND

THE KING

Respondent

Hearing:

16 February 2024

Appearances:

B P Kilkelly for Appellant

M E A Brosnan for Respondent

Judgment:

19 February 2024

JUDGMENT OF MANDER J

This judgment was delivered by me on 19 February 2024 at 11.30 am pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

KARETU v R [2024] NZHC 207 [19 February 2024]

[1]    Boycee Karetu was sentenced in the District Court at Dunedin to a prison term of two years and four months’ on charges of possession of methamphetamine for supply;1 a representative charge of offering to supply that drug;2 possession of LSD for supply,3 obstructing police,4 and possession of ammunition.5 He appeals that sentence, alleging that inadequate reductions were made for mitigating factors which resulted in a manifestly excessive sentence.6

Factual background

[2]    Dunedin police became aware that Mr Karetu was dealing in methamphetamine, and had done so over a four-month period between July and October 2021. Evidence was collected that showed he was selling and offering to supply points, quarters and half grams of methamphetamine to a limited group of associates.

[3]    On 2 December 2021, he was returning to his motor vehicle when he was stopped by police and arrested. $1,660 in $20 notes was found in his shoulder bag. In the backseat of the vehicle, 14 bundles of notes amounting to $16,000, all in $20 notes were located, as were utensils for the consumption of illicit drugs and digital weighing scales.

[4]    Mr Karetu initially refused to be the subject of a search but was subsequently found to have two pill boxes and a package strapped to his body. The pill boxes contained 34.7 g of methamphetamine. A number of what are known as quarter packs in the drugs trade were also located on him. These have a market value of between

$2,800 to $3,500 each. Also found were 81 tabs of LSD valued at some $3,240. The total value of the methamphetamine found was $23,150.

[5]    A subsequent search warrant executed on Mr Karetu’s address resulted in the location of eleven 12-gauge shotgun shells.

1      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a) — maximum penalty life imprisonment.

2      Section 6(1)(c) and (2)(a) — maximum penalty life imprisonment.

3      Section 6(1)(f) and (2)(a) — maximum penalty life imprisonment.

4      Summary Offences Act 1981, s 23(a) — maximum penalty three months’ imprisonment or a

$2,000 fine.

5      Arms Act 1983, s 22B(1) and (2) — maximum penalty a $10,000 fine.

6      R v Karetu [2023] NZDC 12540.

District Court sentencing

[6]    After a careful examination of the circumstances of Mr Karetu’s offending and the application of relevant guideline sentencing decisions,7 Judge Phillips arrived at a starting point of three years and six months’ imprisonment. An uplift of six months was imposed for the LSD offending and a further uplift of three months imposed to reflect that Mr Karetu’s offending occurred while he was subject to release conditions. This resulted in an overall starting point of four years and three months’ imprisonment. No complaint is made that this starting point for the combined offending was other than within range.

[7]    In relation to the issue of personal aggravating and mitigating factors no uplift was imposed for Mr Karetu’s criminal history which, while not insignificant, did not include any previous offending against the Misuse of Drugs Act 1975. Credit of 20 per cent was extended to him for his guilty plea. Submissions made on his behalf at sentencing relating to personal background factors, including Mr Karetu’s addiction issues, resulted in a 15 per cent reduction. A further 5 per cent credit was extended to him for his rehabilitative efforts.

[8]    Because Mr Karetu had been subject to electronically monitored bail (EM bail) for over 12 months, a further credit was provided of five months to reflect that fact. Judge Phillips also remitted Mr Karetu’s outstanding fines that totalled $6,270 as there was little likelihood of him being able to make payment. The fines were substituted with two months’ imprisonment. These calculations resulted in the end sentence of two years and four months’ imprisonment.

The appeal

[9]Four grounds were raised on the appeal. It is alleged:

(a)the Judge should have allowed a 25 per cent credit for the guilty pleas because Mr Karetu pleaded guilty immediately after the charges had been amended;

7      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Berkland v R [2022] NZSC 143, [2022]

1 NZLR 509.

(b)credit should have been given for the cash that was subsequently made the subject of a civil forfeiture order;

(c)the five per cent credit for Mr Karetu’s rehabilitation work should have been greater; and

(d)at least a six-month credit for the 12-month period spent on EM bail should have been extended to Mr Karetu.

[10]I address each of these grounds in turn.

Analysis

Credit for guilty plea

[11]   Mr Kilkelly, who argued the appeal on behalf of Mr Karetu, submitted that a full credit of 25 per cent should have been provided for the entry of guilty pleas. It was submitted these were entered at the first available opportunity after the drugs charges had been amended as a result of discussions between the appellant’s trial counsel and the Crown. I do not consider this argument has merit.

[12]   Both the Crown and the defence proposed a credit of 20 per cent, which the sentencing Judge adopted. Mr Karetu did not plead guilty at the first reasonable opportunity and the reduced credit properly reflected that fact. Mr Karetu initially appeared in the District Court on 2 December 2021 and the proceeding progressed to a case review hearing. Mr Karetu elected trial by jury and appeared at a first jury call- over on 2 June, where he maintained his not guilty pleas, and a backup trial date was scheduled for July of that year. He appeared for a further call-over on 17 August, at which time he pleaded guilty.

[13]   The Crown acknowledges that prior to the entry of the guilty pleas it agreed to amend the charges, but this amounted to no substantive change to the allegations relating to the lead charge. The Crown agreed to amend a representative charge of supplying methamphetamine to a representative charge of offering to supply the drug. The Misuse of Drugs Act does not distinguish between the seriousness of supplying

and offering to supply methamphetamine. Both charges carry the same maximum penalty of life imprisonment and the same sentencing guidance applies. Because of the nature of drug offending and the difficulties associated with gathering evidence of such activities, very often, while there may be proof of negotiations and transactions occurring between parties, in the absence of any actual seizure of the drugs the subject of a particular transaction, it is difficult to prove that deals which were likely executed, were actually completed. The Crown did agree to amend the charge of unlawful possession of ammunition to a lesser charge which is fineable only. However, the fact the Crown and defence were in agreement at sentencing that Mr Karetu could be convicted and discharged on that charge, as indeed he was, illustrated how peripheral this offending was.

[14]   I accept the Crown’s submission that the alterations to the charges made no material difference either to the facts of Mr Karetu’s offending or to his overall culpability. Guilty pleas are often the result of understandings reached between the prosecution and defence. Whether negotiated pleas reset the clock when assessing the appropriate credit to be afforded for pleading guilty will be a matter of assessment for the sentencing Judge, which will depend upon the individual circumstances of each case. In the present case, the parties’ consensus at sentencing that a 20 per cent discount would be appropriate accurately reflected the reality of the situation. While there were amendments to some of the charges, that process did not adequately account for the delay in the entry of the pleas.

Lack of credit afforded for a forfeiture order

[15]   Mr Kilkelly submitted that the Court should have provided a credit for the forfeiture of the $17,660 found in Mr Karetu’s possession. This took place after sentencing when an assets forfeiture order in respect of that cash was made by Dunningham J, effectively by consent, as result of proceedings under the Criminal Proceeds (Recovery) Act 2009.8 In support of that submission, reference was made to the Court of Appeal’s decision in Duthie v R.9 In that case, the appellant appealed successfully against the length of a prison sentence for methamphetamine offending

8      Commissioner of Police v Karetu [2023] NZHC 1585.

9      Duthie v R [2023] NZCA 312.

as a result of successfully arguing that his house had been the subject of a forfeiture order. A 25 per cent discount provided at sentencing was considered to be too low and was replaced with a 35 per cent credit on appeal.

[16]   Mr Kilkenny argued the District Court should have afforded Mr Karetu further credit for the inevitable forfeiture of the cash found in his possession. At the time of sentencing, Judge Phillips observed that forfeiture of the money was no longer sought by the Crown as it was intending to pursue it in the civil jurisdiction and proceedings were already before this Court. An order was made only nine days later. It was argued that, by not seeking forfeiture at sentencing, Mr Karetu was denied the opportunity of receiving further credit.

[17]   Again, I do not consider this ground has merit. The reliance on the Court of Appeal’s approach in Duthie is misplaced. In that case, the Crown sought an instrument forfeiture order in respect of the appellant’s house, which was valued at some $325,000.10 The house had not been used for the purposes of the offending and had been legitimately purchased. It was the appellant’s only major asset and was primarily used as his residence. There was no evidence he had used any financial gain from his offending to acquire additional equity in the property, which was many times greater than the value shown to have been obtained by the appellant from his offending. The Court of Appeal observed in that case that the instrument forfeiture order made pursuant to the Sentencing Act 2002 served as a real penalty that went some way to meeting the sentencing principles of personal and general deterrence.11

[18]   The argument made on behalf of Mr Karetu under this ground fails to recognise the difference between an instrument forfeiture order made under the Sentencing Act and proceedings brought pursuant to the Criminal Proceeds (Recovery) Act. The Sentencing Act specifically requires a sentencing Judge to take into account when sentencing an offender any instrument forfeiture order made under that Act.12 There is no equivalent requirement in the Criminal Proceeds (Recovery) Act which specifically states that a conviction is not a prerequisite for civil forfeiture

10     Sentencing Act 2002, ss 10B and 142N.

11     Duthie v R, above n 9, at [29].

12     Sentencing Act, s 10B.

proceedings.13 The purpose of that legislation is to establish a civil regime for the forfeiture of property that has been derived directly or indirectly from significant criminal activity, or that represents the value of a person’s unlawfully derived income.14 This civil recovery regime is conceptually different to forfeiture orders made under the Sentencing Act. This was a point made by Woodhouse J in Commissioner of Police v Skinner:15

(e) The point made for the respondent might be relevant to a forfeiture application dependent on conviction. But the forfeiture orders the Commissioner seeks are not dependent on conviction. The distinction is brought out clearly in s 4 of the 2009 Act. Fundamentally in this regard, what the Commissioner seeks to forfeit is alleged proceeds of crime, not property allegedly used as an instrument of crime. Conceptually there is a world of difference between the two when related to sentencing. There may be a direct correlation between sentence and what may be regarded as a penalty as a consequence of forfeiture of an instrument of crime — such as forfeiture of a house where methamphetamine may have been manufactured. However, what the Commissioner seeks is confiscation of money or proceeds obtained only through crime and which, if the allegations are borne out, Mr Skinner should not have got in the first place.

[19]This approach has been confirmed by the Court of Appeal in Henderson v R:16

[40]      ... As noted in Commissioner of Police v Skinner, the confiscation of instruments of crime may be regarded as a penalty, but the confiscation of the proceeds of crime involves the confiscation of something the defendant should not have obtained in the first place. The order forces the defendant to disgorge ill-gotten gains which logically renders it of little or no relevance to sentencing. It is not punitive and the giving of a discount would mean a windfall. Instrument forfeiture orders are, however, punitive because they relate to the forfeiture of legitimate assets that have been used for an illegitimate purpose.

[41]      This conceptual difference is further reflected in the fact that when it comes to the civil forfeiture orders, the court has no residual discretion once the grounds for making an order are established, whereas it does under the Sentencing Act in relation to instrument forfeiture orders.

[42]      Having regard to all those factors, we conclude that as a general rule civil forfeiture orders do not warrant a discount in sentencing. Significantly, the same approach was taken by this Court in R v Brough when considering the previous legislative scheme under the Proceeds of Crimes Act 1991.

13     Criminal Proceeds (Recovery) Act 2009, s 4.

14     Section 3.

15     Commissioner of Police v Skinner [2013] NZHC 2956 at [37].

16     Henderson v R [2017] NZCA 605 at [40]-[43].

[43]      We have used the phrase “as a general rule” advisedly. That is because in Brough, this Court acknowledged that credit might be given at sentencing on account of forfeiture in exceptional circumstances. Arguably, that exception should no longer apply in the case of civil forfeiture orders because of subsequent legislative changes, in particular the enactment of s 10B and the change that a criminal conviction is no longer required before the proceeds of crime are liable to forfeiture.

(footnotes omitted)

[20]   As Mr Brosnan submitted, on behalf of the Crown, in the present case the cash seized from Mr Karetu was the financial benefit he had illegitimately obtained as a direct result of significant criminal activity. The forfeiture order made by this Court was based on that premise. It follows that any credit afforded to Mr Karetu at sentencing for the loss of his illegal proceeds would amount to him receiving a benefit from his criminal offending. It is also to be noted, as observed by the Crown, that, if forfeiture had been sought at sentencing, Mr Karetu would still not have been afforded any credit. Any such order would have been pursuant to s 32(3) of the Misuse of Drugs Act 1975, which is required to be in addition to any other penalty imposed for the offending. Generally, forfeiture under that provision will not be a factor that mitigates the otherwise appropriate sentence.17

Sufficiency of credit for rehabilitative efforts

[21]   Mr Kilkelly submitted that a credit of at least 10 per cent should have been provided to Mr Karetu to reflect the efforts he had made to rehabilitate himself while on remand. Letters and certificates were received from a number of organisations, including the Ahikaa Trust, the Better Blokes Organisation, and from the Patua te Ngangara Ki Hoani Waititi Marae which provided information about the extent of his methamphetamine addiction, his health problems, and his dependence on the Mongrel Mob from whom he wishes to distance himself. It was argued this material gave credence to the view that Mr Karetu’s offending was strongly tied to his drug addiction. Mr Kilkelly submitted the work Mr Karetu has undertaken towards rehabilitation was significant and represented a credible effort over an extended period of time to address his difficulties, which should have been reflected in him being afforded greater credit.

17     McKechnie v R [2018] NZHC 1811 at [20], citing Henderson v R, above n 16, at [32].

[22]   The Crown accepted that Mr Karetu has undertaken rehabilitative steps but submitted the five per cent credit afforded to him by the sentencing Judge was appropriate. It was noted that Mr Karetu’s progress has been chequered. He was exited at a very early stage (described as “outpatient care”) while with the Bridge Programme and offended while subject to release conditions which included rehabilitation-based requirements. It was further observed that, whilst attending the Ahikaa Drug and Alcohol Treatment Programme, Mr Karetu was arrested for breach of his EM bail. He was located intoxicated outside the address and was alleged to have drunkenly assaulted a member of the public. As a result of that breach, consent was withdrawn for him to remain at the programme. It was also noted that in one of the two pre-sentence reports, Mr Karetu is recorded as disagreeing that his involvement in the gang had any influence on his offending and maintained the drugs in his possession were for his own use and not supply.

[23]   Mr Karetu’s rehabilitative efforts were compared with those described by the Supreme Court in Berkland v R,18 who was said to have taken every opportunity offered to him before sentencing and had become a positive role model for his peers in the prison drug treatment unit programme.19 The appellant’s progress in that case was described as being genuinely exceptional and warranting a significant sentencing response notwithstanding the gravity of the offending.20 A 10 per cent credit was considered to be appropriate. Mindful that Mr Karetu received a 15 per cent credit to reflect his difficult personal background and his methamphetamine addiction, I do not consider the further five per cent credit that was settled upon by the sentencing Judge in this case was inadequate or did not fairly and accurately reflect the steps Mr Karetu has taken, albeit with mixed results, to address his rehabilitative needs.

Credit afforded for time on EM bail

[24]   Mr Karetu was provided with a five-month credit for the 12 months he had spent on EM bail whilst on remand. It was argued that a six-month credit should have been applied.

18     Berkland v R, above n 7.

19 At [159].

20     At [160]-[161].

[25]   There is no fixed approach to how an allowance for time spent on EM bail is to be determined. An evaluative assessment is required to reflect the restrictiveness of the conditions imposed, the extent of any compliance and any other relevant matters. As stated by the Court of Appeal in Rangi v R, there is no rule as to how much of a discount should be provided as the level of credit is a matter for the Judge’s discretion and no arithmetical formula is to be applied.21 In Paora v R, the Court of Appeal observed that credits ranging from 30 per cent to 50 per cent of the time spent on EM bail are not uncommon and that the assessment of the appropriate credit is a matter for the sentencing Judge.22

[26]   I am advised that Mr Karetu did have one breach of his EM bail, and it was submitted his conditions were not overly onerous as he was permitted to attend a residential treatment facility and engage in activities with that organisation. However, leaving aside the nature of the restrictions of his EM bail, it is readily apparent that the five-month credit provided to Mr Karetu fell well within the range of discount available to the sentencing Judge in the exercise of his discretion when considering this aspect of the sentencing exercise.

Conclusion

[27]   Having assessed each of the grounds of appeal put forward by Mr Karetu, I do not consider any give rise to the identification of error, let alone suggest the ultimate sentence imposed was manifestly excessive. It follows that the appeal must be dismissed.

Result

[28]The appeal is dismissed.

Solicitors:
Crown Solicitor, Dunedin

21     Rangi v R [2014] NZCA 524 at [10].

22     Paora v R [2021] NZCA 559 at [53].