Leota v The King
[2024] NZHC 269
•22 February 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-418-12
[2024] NZHC 269
IN THE MATTER of an appeal against sentence BETWEEN
GORDON SYDNEY THOMAS LEOTA
Appellant
AND
THE KING
Respondent
Hearing: 7 February 2024 Appearances:
N R Wham for Appellant
W J S Mohammed for the Respondent
Judgment:
22 February 2024
JUDGMENT OF OSBORNE
Introduction
[1] Gordon Leota pleaded guilty to one charge (representative) of supplying or offering to supply methamphetamine;1 one charge of assault on a person in a family relationship;2 and one charge of threatening behaviour.3 In August 2023 he was sentenced by Judge Couch to three years’ imprisonment on the methamphetamine charge with short concurrent sentences of imprisonment on the other charges. I will refer to the methamphetamine sentence as “the sentence”.
1 Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty: life imprisonment.
2 Crimes Act 1961, s 194A. Maximum penalty: two years’ imprisonment.
3 Summary Offences Act 1981, s 21(1)(a). Maximum penalty: three months’ imprisonment.
LEOTA v R [2024] NZHC 269 [22 February 2024]
[2] Mr Leota now appeals the sentence on the basis that the starting point adopted was too high and insufficient credit was given to reflect personal mitigating factors, resulting in an end sentence that was manifestly excessive.
Facts
Drug offending
[3]Mr Leota undertook 15 completed or proposed drug transactions, being:
(a)12 instances of supplying or offering to supply methamphetamine between 4 and 29 June 2022; and
(b)three further instances of supply between 11 and 18 December 2022.
[4] The amount of methamphetamine supplied, or offered for supply, in those two periods was 35 grams. This had a street value of approximately $17,500.
[5] Mr Leota was a close associate of the Aotearoa Native Gang vice president at the time, Jason McKenzie. Text messages between Mr Leota and Mr McKenzie indicate that Mr McKenzie was regularly purchasing methamphetamine from Mr Leota.
[6] Mr McKenzie would also provide additional customers for Mr Leota in exchange for a small commission. Mr Leota and his girlfriend at the time would text referring methamphetamine customers to one another for smaller amounts depending on their ability to supply.
[7] Mr Leota travelled to Wellington on 20 June 2022 to purchase methamphetamine. On another occasion Mr Leota arranged for an associate to travel to Wellington for this purpose also. Mr Leota offered to supply an ounce (28.35 grams) following these trips.
[8] For the most part, customers in the November/December 2022 period would travel to Mr Leota’s home to purchase methamphetamine. On occasion he would meet them at other locations.
[9] Mr Leota was unemployed throughout both periods of offending — methamphetamine appears to have been his primary source of income.
[10] On 12 January 2022, police executed a search warrant at Mr Leota’s address and found common indicators of supply, including scales, tick-lists and 12 mobile phones. The police also located a police radio scanner and a taser weapon. In addition, police found indicators of use of methamphetamine including glass pipes, a syringe and needles, and a used point bag.
[11]The tick-lists indicated Mr Leota was owed debts of $4,700 by 22 people and
$2,390 by another 13 people.
Assault on person in family relationship
[12] On 30 June 2022, Mr Leota and his partner got into an argument. During the argument, Mr Leota punched his partner twice to the right side of her head, causing swelling. They then drove off together. Five minutes later, Mr Leota stopped the vehicle suddenly. Without warning, he elbowed his partner in her face, causing her nose to bleed.
Threatening behaviour
[13] On the same day, still in the car, Mr Leota told his partner that he ‘should knock her the fuck out and dump her off the bridge’.
Victim impact statement
[14] The victim says she was in a relationship with Mr Leota for about one year. The relationship was very emotionally draining on her with it being off and on and Mr Leota assaulting her. He also would take her phone off her and was controlling.
District Court decision
Facts
[15]Judge Couch set out the facts which I have summarised.
Starting point
[16] The Judge took the methamphetamine charge as the lead charge. By reference to the decision in Zhang v R, he identified the offence to fall within Band 2 (between 5 and 250 grams).4 That represents a commercial quantity.
[17] The Judge noted the quantity of methamphetamine is only one of the relevant factors. He found it clear from the other items located in Mr Leota’s house that he was involved in commercial supply. Mr Leota had admitted as much after his arrest, telling police that he sold methamphetamine to fund his own habit. An additional indication of commerciality, was that Mr Leota with a business partner was selling drugs as part of a joint enterprise.
[18]The Judge set the starting point at three years and six months’ imprisonment.
[19] The Judge then applied an uplift of three months’ imprisonment on the other two charges. He noted the aggravating features of those offences were the blow to the head and the breach of trust involved through the relationship between Mr Leota and the victim.5
[20] This led to an adjusted starting point of three years and nine months’ imprisonment.
[21] The Judge identified two aggravating features personal to Mr Leota. First, Mr Leota was on bail at the time of the December 2022 methamphetamine offending. An uplift of five per cent was applied. Secondly, an uplift of 10 per cent was applied for Mr Leota’s extensive criminal history — it includes 13 previous convictions under the Misuse of Drugs Act 1975, most recently for possession of methamphetamine in 2018.
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 [Zhang] at [19].
5 Ms Wham had submitted to Judge Couch that an uplift of four months’ imprisonment was appropriate to reflect the “family violence charges”.
Personal mitigating features
[22] The Judge applied a 20 per cent discount for Mr Leota’s early guilty plea (taking into account Mr Leota’s initial not guilty pleas).
[23] Referring to a thorough s 27 report, the Judge found that Mr Leota had an inadequate and, at times, abusive upbringing involving violence and exposure to controlled drugs from an early age. This, said the Judge, led to an adult life for which Mr Leota was not well-prepared. The Judge also noted that Mr Leota explained his reason for dealing methamphetamine as being the only way he could afford to fund his own methamphetamine addiction. Significantly, the report indicated that Mr Leota had made considerable efforts to address his drug addiction recently. Overall, the Judge considered a 15 per cent discount was appropriate to account for these two factors.
[24] The end sentence became one of three years’ imprisonment. This sentence was imposed on the methamphetamine charge.
Principles on appeal
[25] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
8 Ripia v R [2011] NZCA 101 at [15].
Submissions for the appellant
Overall submission
[26] Ms Wham, for Mr Leota, submits the sentence was manifestly excessive, resulting from two errors, being:
(a)the starting point in respect of the methamphetamine charge was too high; and
(b)insufficient credit was given for personal mitigating factors.
[27] The end sentence, submits Ms Wham, should have been two years’ imprisonment or less, with home detention being appropriate as the least restrictive outcome.
Starting point
[28] Ms Wham accepted the offending fell into band 2 of Zhang v R.9 However, Ms Wham submits that there was insufficient analysis of Mr Leota’s culpability in terms of his role, as well as too much reliance on the fact that Mr Leota was in a joint dealing enterprise.
[29] Ms Wham referred to the importance of establishing what Mr Leota’s role was in terms of the roles identified in Zhang as updated in Berkland v R.10 She submitted Mr Leota’s role was between “lesser” and “significant”. A lesser role was indicated because:
(a)Mr Leota was motivated solely by his own addiction;11
(b)he had no financial gain;12
9 Zhang, above n 4, at [125].
10 At [126]. See also Berkland v R [2022] NZSC 143 [2022] 1 NZLR 509 [Berkland] at [71].
11 Berkland, at [71], item 4.
12 Item 5.
(c)he had no influence on anyone above him in the chain;13 and
(d)The operation was solely for Mr Leota’s own or joint use on a non- commercial basis.14
[30] Implicitly, Ms Wham accepted there were aspects of a significant role — that would include Mr Leota’s operational function (operating with his business partner in a venture of their own).
[31] Ms Wham referred to Powhiro v R15 where a starting point of three years’ imprisonment was adopted. The quantum of methamphetamine there supplied was uncertain, but the offender had discussed the supply of 67 grams. The defendant accepted he had been dealing in methamphetamine but acknowledged it was both to support his personal use and for financial gain. As such, the defendant in Powhiro fell between the “lesser” and “significant” roles.
[32] Mr Wham also referred to Byrne v R.16 Woolford J, citing Powhiro, held that a starting point of three years’ imprisonment was the highest appropriate where the offender in question variously either conspired, offered, or supplied a total of 87.75 grams of methamphetamine. In that case, there were no indicia of either large scale offending or being part of an organised criminal enterprise.
[33] Ms Wham noted the quantity of methamphetamine supplied by Mr Leota was significantly less than in those two cases.
[34] Ms Wham submitted the starting point should have been no more than two years and six months’ imprisonment because Mr Leota’s role was between “lesser” and “significant”.
13 Berkland, above n 10, at [71], item 7.
14 Item 9.
15 Powhiro v R [2020] NZHC 1316.
16 Byrne v R [2022] NZHC 897.
Personal mitigating features
[35] Ms Wham submits Mr Leota’s upbringing was severely deprived. The s 27 report indicated he was physically abused at home. After being removed into state care, he was further physically and sexually abused. Mr Leota reports abusing drugs from a young age to cope with unresolved trauma, with his use of methamphetamine being a continuation of that. Ms Wham submits it is clear that this background was causative of Mr Leota’s offending.
[36] Ms Wham noted that Mr Leota has previously engaged with rehabilitation, though with no permanent beneficial outcome. Most recently, Mr Leota had intended to enter the Moana House residential therapeutic community following his time in prison. This was prevented by COVID-19 pandemic and by issues with an existing resident. Mr Leota also requested to attend the Bridge Programme in Wellington in 2021 but no beds were available.
[37] Mr Leota said to the s 27 report writer that he is ready to leave addiction behind. Ms Wham advised me he requested a referral to a residential rehabilitation facility before his sentencing, an indication of his motivation to engage with rehabilitation.
[38] Ms Wham observed that the defendant in Berkland received a 10 per cent discount for background factors including addiction, and an additional 10 per cent discount was applied for rehabilitative efforts.17
[39] Ms Wham did not identify what in her submission could be the resulting, appropriate sentence but the suggestion would appear to be 19 months, calculated thus:
Starting point
—methamphetamine 30
— other charges 3 33 months’ imprisonment Guilty plea 20%
Background 10% Rehabilitation potential 10%
40% 13.2 months’ imprisonment
End sentence 19 months’ imprisonment
17 Berkland, above n 10, at [162].
Submissions for the respondent
Overall submission
[40] Mr Mohammed, for the Crown, submitted the Judge did not err, and the end sentence was not manifestly excessive. That had regard to the starting point being within range, the Judge appropriately assessing Mr Leota’s culpability, and the credit for personal mitigating features being within range.
Starting point
[41] Mr Mohammed submitted the Judge was correct to identify the indications of commerciality in the first of two categories of items seized at Mr Leota’s home. Mr Mohammed noted particularly the scales, the 12 cell phones and the tick-lists (which had been analysed as showing total debts of $7,090). The Judge correctly identified that quantity was only one relevant factor. The Judge appropriately took into account both the appellant’s admission that he had been selling methamphetamine (to fund his own habit) and that he was involved in a shared enterprise with his associate (including sourcing methamphetamine from Wellington).
[42] Mr Mohammed submitted that the starting point adopted by the Judge was consistent with three cases of a similar nature:
(a)Govender v R18 — a case in which the appellant’s motel room held 29 grams of methamphetamine, 10 grams of cannabis, digital scales, zip- lock bags, a notebook containing records of drug transactions, and $816 in cash. The District Court’s starting point of three years and six months’ imprisonment recognised the appellant as a street dealer with moderate commerciality. The starting point was upheld on appeal.
(b)Tregoweth v R19 — a search of the appellant revealed 5.8 grams of methamphetamine and a later quantity of 37.73 grams was located on him. He had a methamphetamine addiction. The Court of Appeal
18 Govender v R [2019] NZHC 3212.
19 Tregoweth v R [2021] NZCA 311.
considered a starting point of two years and six months’ imprisonment appropriate taking into account the appellant’s dealing methamphetamine in part to fund his own addiction;
(c)Tapine v R20 — the appellant was found with 30 grams of methamphetamine, micro-scales, small unused zip-lock bags and $840 cash in his car, together with a flick-knife. At his address two cross- bows, six glass pipes and a stun gun were located. The Judge treated the defendant’s offending as a street-level operation with some of the methamphetamine subsidising his addiction but still involving some commercial element. A starting point of three years’ imprisonment was undisturbed on appeal.
[43] Mr Mohammed referred to the summary of facts as a starting point for consideration of Mr Leota’s role. The summary of facts recorded:
The defendant has been unemployed throughout both periods of offending and in receipt of a benefit from the Ministry of Social Development. Methamphetamine dealing has been a dual and principal source of his income.
[44] In other words, the proceeds of methamphetamine dealing were for Mr Leota a (significant) supplement to his benefit income. Mr Mohammed submits that this cuts across the notion that the appellant supplied methamphetamine purely to fuel his addiction.
[45] In terms of the sourcing of methamphetamine, Mr Mohammed submits that Mr Leota through his direct dealings with those who were his suppliers had influence on those above him in the supply chain. He notes also the commercial elements involved in having associates collect methamphetamine on his behalf and being engaged in a shared business enterprise.
[46] Mr Mohammed submits that the Judge was correct in not treating Mr Leota as engaged in an enterprise solely for his own use on a non-commercial basis.
20 Tapine v R [2020] NZHC 977.
Personal mitigating features
[47] Mr Mohammed submitted the Judge, with a discount of 15 per cent, had appropriately recognised the connection between Mr Leota’s background, including his earlier exposure to drugs and resulting drug addiction, and the significant efforts that Mr Leota had made to address his drug addiction in recent times.
Analysis
Starting point
[48] Mr Leota’s drug operation was, in keeping with the Judge’s assessment, one involving commerciality with a degree of sophistication. The drugs and paraphernalia seized by the police in conjunction with Mr Leota’s careful records of drug debts, strongly suggested the operation was being pursued to some extent on a commercial basis. That conclusion was appropriate. The Judge also correctly noted the defendant’s explanation that, as a drug addict, dealing methamphetamine was the only way Mr Leota could afford the drug himself.
[49] While it is clear that funding his personal drug requirements was a very significant factor in Mr Leota’s offending, there is also in the evidence of the value of methamphetamine supplied ($17,500 in two short periods totalling 32 days) and the information on the tick-lists (debts owed by customers of over $7,000) without taking into account the unknown value of cash payments. There is a clear inference that this was a profit-producing enterprise beyond meeting the needs of Mr Leota’s personal drug use.
[50] Upon the basis of the sentencing bands in Zhang, the Judge correctly recognised that Mr Leota’s 35 grams sat within band 2 (quantities between five and 250 grams). The quantity was distinctly towards the lower end of quantities covered by that band.
[51] While the imprisonment period indicated by the bands is not set in concrete, the indicative range for band 2 is two to nine years. (Band 1 on the other hand has an indicative range of a community-based sentence up to four years’ imprisonment).
[52] Turning then to the characteristics of Mr Leota’s role, the most realistic assessment against the background of the summary of facts and on the available information is that Mr Leota’s role straddled the “lesser” and “significant” categories.
[53] Having regard to the combined nature of that role and the relatively small amount of methamphetamine dealt by Mr Leota, I have concluded that a starting point of three years was distinctly more appropriate than the Judge’s starting point of three years and six months’ imprisonment. In that regard, I take into account the fact that the Court of Appeal in Zhang reduced the previous scope of band 2 (under R v Fatu21) from three to 11 years to the current two to nine years.22
[54] I also have regard to the cases referred to by both Ms Wham and Mr Mohammed. For the purposes of consistency (and recognising that the specific features of each case vary) I consider it appropriate that Mr Leota’s starting point sentence be aligned with that in Powhiro and Byrne (the cases relied on by Ms Wham) and Tapine (one of the cases cited by Mr Mohammed).
Personal aggravating features
[55] I find in relation to the three-month uplift assessed by the Judge for Mr Leota’s two other offences that that uplift was somewhat lenient. As much is indicated by the fact Ms Wham herself submitted in the District Court that those charges warranted an uplift of four months. In short within range but generous to the defendant.
Personal mitigating features
[56] That brings me to the second of Ms Wham’s particular grounds of appeal, namely that the Judge’s 15 per cent credit for personal mitigating features was insufficient. Ms Wham submits that a credit of 20 per cent was required.
[57] The two features of Mr Leota’s circumstances relied upon by Ms Wham were matters in Mr Leota’s background which exposed him to controlled drugs from an
21 R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410 (CA).
22 Zhang, above n 4, at [125].
early age and led to a methamphetamine addiction. The second feature was Mr Leota’s potential for rehabilitation.
[58] While it is appropriate that I consider whether the Judge’s overall 15 per cent discount for both those factors was appropriate, it is convenient having regard to the approach adopted by Ms Wham to consider whether each of the factors should have received a 10 per cent discount rather than a 7.5 per cent discount.
[59] The Judge, with the benefit of the information contained in the s 27 report, recognised the fact that the identified matters in Mr Leota’s background had “not well- prepared” Mr Leota for adult life. The Judge equally recognised that through Mr Leota’s exposure to controlled drugs from an early age, he had an established drug addiction and required income for that purpose. But the Judge was (as I have found at [48] above), entitled to conclude that Mr Leota’s was a profit-producing enterprise beyond meeting the needs of his personal drug use. To that extent, the matters in Mr Leota’s background were, while very significant, only one factor in what must have otherwise been a conscious business decision.
[60] While a higher discount of say 10 per cent would have been within range, the allowance made by the Judge was equally within range.
[61] Turning to the discount for rehabilitation potential, I am also unpersuaded the Judge erred. The Judge recognised the “significant” efforts Mr Leota had made in “recent times” to address his drug addiction. That led to a significant level of discount within the bundled 15 per cent.
[62] Ms Wham relies primarily upon the 10 per cent discount identified by the Supreme Court as appropriate for the appellant in Berkland.23 I do not consider Mr Leota’s situation closely approximates that of Mr Berkland whose steps towards rehabilitation were reflected in the Court’s observation that: “[h]e appears to have broken the cycle in his own life, and turned to help other inmates to do the same in
23 Berkland, above n 10.
theirs”.24 Significant benefits were seen for other offenders through the leadership role Mr Berkland was likely to perform.
[63] Mr Leota is far from the demonstrated “broken cycle” stage. His alcohol and other drug assessment report refers to programmes he has engaged in while in Whanganui Prison in 2010 to 2012 and in Waikeria Prison in 2019, as well as other programmes when apparently not in prison. His explanation for not having previously broken the cycle is that he “wasn’t ready to throw the addiction out” and that it is only now that he is ready to leave addiction behind.
[64] While Mr Leota’s profession in that regard is admirable, a seven and a half per cent (or even a five per cent) discount may be viewed as generous.
Conclusion
[65] It is for this Court on appeal to determine whether the end sentence of three years’ imprisonment was manifestly excessive.
[66] The step-by-step analysis of an amended starting point but applying the same uplifts and discounts would involve the following arithmetic:
Starting point:
·methamphetamine 36 months
·other offences 3 months 39 months
Uplift:
·bail offending 5%
·prior convictions 10%
Discounts:
·guilty plea 20%
·personal 15%
·net discount 20%
END SENTENCE: 31.2 months
[67] This is a purely arithmetical exercise, however, involving an appropriate adjustment of a starting point in favour of the appellant. It ignores what I found to be
24 At [160].
a generous treatment of Mr Leota in relation to the discount for personal factors. If the discount for those considerations had been a global 10 per cent the calculation would be an end sentence of two years and 10 months’ imprisonment (rather than the two years and seven months following from the arithmetic at [66] above).
[68] In these circumstances, and standing back, I am not persuaded that the end sentence of 3 years’ imprisonment on the methamphetamine charge was manifestly excessive.
Outcome
[69]The appeal is dismissed.
Osborne J
Solicitors:
Crown Solicitor, Christchurch
N R Wham, Barrister, Christchurch (for Appellant)
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