Malolo v The the Queen
[2022] NZCA 399
•25 August 2022 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA121/2022 [2022] NZCA 399 |
| BETWEEN | TUPOU ILA MALOLO |
| AND | THE QUEEN |
| Hearing: | 12 July 2022 |
Court: | Miller, Lang and Cull JJ |
Counsel: | M J Taylor-Cyphers for Appellant |
Judgment: | 25 August 2022 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cull J)
On 5 November 2021, Mr Malolo was sentenced to 10 years’ imprisonment[1] by Judge Moala in the Manukau District Court for 63 charges of supplying methamphetamine and offering to supply methamphetamine.[2]
[1]R v Malolo [2019] NZDC 25384 [Sentencing notes].
[2]Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(a); maximum penalty life imprisonment.
Mr Malolo appeals on two grounds. He contends that the starting point adopted by the Judge was too high and that inadequate discounts were given for his mitigating factors. He says that the sentence was manifestly excessive.
Leave to appeal out of time
Mr Malolo’s appeal was not filed until 17 March 2022 and is therefore out of time. The delay was caused by the handover of files from former counsel. The Crown is not prejudiced by the delay and does not oppose leave to appeal out of time being granted. We grant leave accordingly.
Background to the offending
Mr Malolo was involved in methamphetamine dealing, together with his cousin. He was arrested by the police following a six-month investigation between October 2018 and April 2019.
Mr Malolo originally faced 65 charges and elected trial by jury. On the morning his trial was to commence, he pleaded guilty to 36 charges of supplying methamphetamine and two charges of offering to supply methamphetamine. At the conclusion of the Crown case he pleaded guilty to another charge of supplying methamphetamine. The jury returned guilty verdicts on 24 charges and acquitted Mr Malolo on two charges of supplying methamphetamine. Mr Malolo was sentenced on a total of 63 charges.[3] Of the 38 charges to which he entered guilty pleas, the amount of supply of methamphetamine on nine of those charges was disputed. All quantum issues were resolved by the Judge at sentencing.[4]
[3]The total of charges was 63, not 62 as appellant’s counsel submits. It appears the late guilty to one further charge at the close of the Crown case was omitted in counsel’s calculation.
[4]Sentencing notes, above n 1, at [12]–[14].
Relying on intercepted communications by the police, the Judge found that seven of the offers to supply were “close to completion”.[5] The final quantity of methamphetamine offending was determined by the Judge as involving “at least 994 grams of methamphetamine”, as the Crown contended.[6] Mr Malolo was in possession of $150,000 in cash on arrest.
The sentencing decision
[5]At [11].
[6]At [10] and [13].
At sentencing, both counsel agreed that Mr Malolo’s offending came within band four of Zhang v R, which involves methamphetamine offending ranging in quantum from 500 grams to two kilograms.[7] The Judge found Mr Malolo’s role was a leading one.[8]
[7]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. This suggests a starting point of eight to 16 years’ imprisonment.
[8]Sentencing notes, above n 1, at [15]–[16].
As seven of the offers were “close to completion”, the Judge treated them in the same way as the supply charges, and took them into account when assessing the quantum of methamphetamine involved in the offending.[9]
[9]At [11].
The Judge noted that 12 of the supply charges involved the supply of unknown quantities of methamphetamine to the same person. However, an additional four charges of supply to that person involved a known quantity of 28 grams. Mr Malolo maintained that he had “consistently supplied [this person] with the same amount of methamphetamine”. Relying on the clear data that Mr Malolo had supplied 28 grams on each of the four occasions, the Judge held that the amount supplied each time was 28 grams, rather than the one gram he suggested. Her finding that the offending involved at least 994 grams of methamphetamine was further supported by the amount of cash in Mr Malolo’s possession, totalling over $150,000.[10]
[10]At [14]. The Judge considered that, making an assessment based on Smith v R [2020] NZCA 586, $150,000 amounts to the sale of about 700 grams of methamphetamine.
The Judge considered the authorities, the amount of 994 grams, the appellant’s leading role in the offending and his offer to supply a further 500 grams to conclude that the appropriate starting point for the offending was 11 years’ imprisonment.[11]
[11]At [19].
The Judge observed that the discounts to acknowledge mitigating features would be limited, particularly given the late nature of the appellant’s guilty pleas and expressions of remorse.[12] She did not accept that the appellant had addiction issues, finding instead that the offending was about making money for his family, but also about greed.[13]
[12]At [21].
[13]At [22] and [25].
While acknowledging that there was deprivation and poverty in Mr Malolo’s background, the Judge “struggl[ed]” to give the appellant credit for this, noting that he had taken “the lazy and easy way out” through his offending.[14] However, the Judge then went on to consider his two years on bail, during which time he had a job and earned honest money; his strong prospect of rehabilitation as he had “finally started to admit what [he] did and the seriousness of it”; and the strong family support behind him.[15]
[14]At [23].
[15]At [24].
Given these factors, the Judge said she was prepared to give some discount for why he initially began offending but noted “there was no excuse for this level of dealing. This is big money.”[16] The Judge gave a discount of 12 months, being approximately 10 per cent of the starting point.[17] Alongside the end sentence of 10 years’ imprisonment, the Judge ordered the forfeiture of $1,675 cash[18] and declined to impose a minimum period of imprisonment.[19]
Starting point
[16]At [24].
[17]At [25].
[18]At [28].
[19]At [27].
Although it was submitted that a lower starting point of 10 years and six months’ imprisonment was appropriate, Ms Taylor-Cyphers, counsel for the appellant, did not press this aspect of the appeal strongly. The essence of her submission was that the Judge erred in treating offers to supply that were near completion in the same way as the supply charges, by adding the quantum of the offers to the total. A modest reduction from the starting point was warranted, counsel submits, to reflect the fact that methamphetamine did not change hands.
No issue is taken with the placement of the offending within band four identified in Zhang, nor is the characterisation of Mr Malolo’s role as leading contested on appeal.
We reject the appellant’s submission that a modest reduction was appropriate to recognise that offering to supply is an inchoate offence and the methamphetamine involved did not change hands.
The Misuse of Drugs Act 1975 does not distinguish between the supply of, and offers to supply, Class A drugs. Both offences are contained within the same provision, s 6(1)(c) of the Act, and have the same maximum penalty of life imprisonment.[20] As this Court noted in Zhang, the Act deliberately draws no distinction between inflicted and attempted harm to reflect the severity of harm caused by methamphetamine offending.[21] To take the approach advanced by the appellant would be contrary to the purpose of the Act.
[20]Misuse of Drugs Act, s 6(2)(a).
[21]Zhang v R, above n 7, at [51].
Zhang is the guideline judgment for all methamphetamine-related offending. The bands remain relevant where the main offence is offering to supply, with the quantum offered used to assess where within the Zhang bands the offending falls.[22] The Court has also taken a summation approach across different methamphetamine convictions, such as supply, offer and possession for supply.[23]
[22]For a recent example, see Gray v R [2020] NZCA 548.
[23]See Cossey v R [2021] NZCA 677, where Mx Cossey “was sentenced to a total term of seven years’ imprisonment on similar charges involving between 110–320 grams of methamphetamine”. This consisted of supplying 12.25 grams, offering to supply 102.4 grams, and possessing 20.74 grams to supply: see [4]–[5].
We consider that the Judge’s approach, in taking into account the seven offers near completion, was not only open to her, but also lenient. The Judge could have also included the 500 gram offer in her assessment of quantum. As this Court noted in Dodd v R, it is open to the Court to assume that an offender had the ability to make good on their offers.[24]
[24]Dodd v R [2013] NZCA 138 at [14]; and Zhang v R, above n 7, at [198].
We are satisfied therefore that the starting point of 11 years’ imprisonment was available.
Ms Taylor-Cyphers also submitted that the Judge should have taken the most favourable inference of Mr Malolo’s offending available to her when assessing quantum. This submission relies on the Judge accepting Mr Malolo’s evidence as to quantum. The Judge clearly rejected this evidence, as was open to her to do. We do not take this submission further.
Discounts for mitigating factors
The principal issue on appeal is the discount. The Judge gave a discount of 12 months which approximated to 10 per cent of the starting point. This reflected the economic factors which led Mr Malolo into offending generally and his personal mitigating factors. It seems the Judge may have included a minimal discount for guilty pleas in the total discount awarded, but no discount was given for remorse or for his self-reported addiction.
Ms Taylor-Cyphers contends that 10 per cent was inadequate to reflect Mr Malolo’s hardship and deprivation, his guilty pleas, his remorse and time spent on electronically monitored (EM) bail. She submits that discounts of seven per cent for the s 27 report factors, three per cent for remorse and 15 per cent for EM bail were appropriate. Regarding his guilty pleas, Ms Taylor-Cyphers advanced a five per cent discount, to be applied to the portion of his sentence she said represented the 36 charges to which he pleaded guilty.
We do not accept that the Judge erred in declining to provide a discount for remorse. Remorse must be more than bare acceptance of responsibility. It is a question of fact and judgement.[25] The Judge considered Mr Malolo’s letter of remorse was “very late” and self-serving.[26] The Judge also rejected Mr Malolo’s self-reported addiction issues and struggled to see how his offending was not about greed.[27]
[25]Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
[26]Sentencing notes, above n 1, at [21].
[27]At [22].
Here, Mr Malolo’s expressions of remorse are incongruous with his actions.[28] Mr Malolo did not plead guilty or acknowledge his offending in part until the morning of the trial. As the Judge observed, in any event the trial had to proceed because of the number of charges to which Mr Malolo pleaded not guilty.[29] He contested factual aspects of his offending; namely, that he dealt in cannabis, not methamphetamine, and he challenged the amounts of methamphetamine involved. The jury rejected his evidence that he was dealing in cannabis.
[28]Williams v R [2012] NZCA 176 at [15]–[16]. See also Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [SA9.22].
[29]Sentencing notes, above n 1, at [21].
It is unclear whether any discount was given for Mr Malolo’s guilty pleas to 36 charges, because it was so late and still required a jury trial. We consider that it was open to the Judge not to give a guilty plea discount in those circumstances. The strength of the Crown case is relevant to such an assessment.[30]
[30]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60].
We consider the Judge was also correct to decline a distinct discount for time spent on EM bail. While Mr Malolo spent a lengthy time on bail without issue for two years, the majority of that time was on bail simpliciter. This gave him an opportunity to work normal hours with an evening curfew imposed. We accept the Crown submission that his bail conditions were not particularly restrictive.
Although the specific discounts in the 10 per cent figure are not explicit, we consider the Judge did not err in denying Mr Malolo any further credit for factors of deprivation or hardship. We consider the Judge appropriately acknowledged Mr Malolo’s economic circumstances which led to his criminal activity but that could not explain or excuse his scale of commercial offending. The Judge carefully evaluated his offending, which involved Mr Malolo directing, buying and selling methamphetamine on a commercial scale, receiving substantial monetary gain directly or on his behalf, his substantial links and influence on others in the chain of operation, and that he was discussing the expansion of his operation to the South Island.
The causal connection between Mr Malolo’s background and his extensive offending was insufficient to warrant a greater discount. The pre-sentence report and s 27 report noted that he had a strong connection to his Tongan culture and family and a large pro-social network. He and his wife were poor and struggled to make ends meet, but as he has acknowledged, he had the option of obtaining better-paid employment (as he has since done). It was open to the Judge to conclude that he had taken the easy way out. He may well have been frustrated that, when his offending began, he could not provide more than the bare necessities for his family on his wage, but it does not excuse his extensive operation in methamphetamine dealing. Such offending may well exploit others in similar financial circumstances, especially where drugs are sold on credit and the dealer is assiduous, as Mr Malolo was, in chasing up debts.
The Judge took into account Mr Malolo’s good prospects of rehabilitation, the impact his offending would have on his family, and Mr Malolo’s ability to work consistently, as he did while on bail.[31] We acknowledge another Judge may have applied a discount greater than 10 per cent for all the mitigating factors, and we accept that Mr Malolo has potential for rehabilitation. But this does not mean that the Judge’s approach was in error.
[31]Sentencing notes, above n 1, at [22]–[24].
In the circumstances of this offending, we consider the 10 per cent discount imposed was available and was not in error.
Result
The application for an extension of time is granted.
The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Manukau for Respondent
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