Manuka v The Queen
[2020] NZHC 1043
•19 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-404
[2020] NZHC 1043
BETWEEN KINGI BEAU MANUKA
Appellant
AND
THE QUEEN
Respondent
Hearing: 18 May 2020 Appearances:
G Duff for the Appellant
M Davie for the Respondent
Judgment:
19 May 2020
JUDGMENT OF GORDON J
This judgment was delivered by me on 19 May 2020 at 3.00 pm
Registrar/Deputy Registrar Date:
Solicitors: Crown Law, Wellington
Q Duff, Auckland
MANUKA v R [2020] NZHC 1043 [19 May 2020]
[1] The appellant, Kingi Manuka, appeals against a sentence of three years and three months’ imprisonment imposed following his guilty pleas to charges for dealing in methamphetamine, cannabis and cannabis oil. The charges were:
(a)offering to supply a class A drug (methamphetamine);1
(b)possession of a class A drug (methamphetamine);2
(c)possession of utensils for consumption of methamphetamine;3
(d)offering to supply a class B drug (cannabis oil);4
(e)offering to supply a class C drug (cannabis);5
(f)possession of a class C drug (cannabis);6 and
(g)possession of utensils for consumption of cannabis.7
Factual background
[2] Mr Manuka offered methamphetamine, cannabis and cannabis oil by way of text messages in the period from 1 January 2017 to 1 February 2017:
(a)He offered methamphetamine for sale on no less than 84 occasions. The methamphetamine was offered in various sizes ranging from
0.1 grams to 1.0 grams with a retail value of between $50 and $1000. In the course of the 84 offers, Mr Manuka offered no less than nine grams of methamphetamine;
1 Misuse of Drugs Acts 1975, ss 6(1)(c) and 7(2)(a) (maximum penalty: life imprisonment).
2 Misuse of Drugs Acts 1975, ss 7(1)(a) and (2) (maximum penalty: six months’ imprisonment, a
$1000 fine, or both).
3 Misuse of Drugs Act 1975, ss 13(1)(a) and (3) (maximum penalty: one year’s imprisonment, a
$500 fine or both).
4 Misuse of Drugs Act 1975, s 6(1)(c) (maximum penalty: 14 years’ imprisonment).
5 Misuse of Drugs Act 1975, s 6(1)(e) (maximum penalty: eight years’ imprisonment).
6 Misuse of Drugs Act 1975, ss 7(1)(a) and (2) (maximum penalty: three months’ imprisonment, a
$500 fine or both).
7 Misuse of Drugs Act 1975, ss 13(1)(a) and (3) (maximum penalty: one year’s imprisonment, a
$500 fine or both).
(b)Mr Manuka offered cannabis for sale on no less than 28 occasions. The cannabis was offered for sale in one gram amounts retailing for $20 each. The 28 offers involved no less than 57 grams (2.1 ounces) of cannabis; and
(c)Mr Manuka offered cannabis oil for sale on no less than four occasions. It was offered for sale in one capsule amounts which retailed for $40 each. The four offers involved cannabis oil valued at a total of $160.
[3] On 4 April 2017, the police executed a search warrant at Mr Manuka’s home address. In the kitchen they located a snaplock bag containing 0.98 grams of cannabis head, a small bag containing 0.04 grams of methamphetamine and a bong used for the consumption of cannabis. In Mr Manuka’s bedroom, the police located a glass pipe commonly used for the consumption of methamphetamine; two snaplock bags containing a useable quantity of methamphetamine crystals; a glass pipe commonly used to smoke methamphetamine containing a usable quantity of methamphetamine; a snaplock bag containing 1.99 grams of cannabis head material and $90 in cash. In explanation to the police, Mr Manuka said, “I only smoke cannabis, the white stuff is salt”.
The District Court
[4] Mr Manuka first appeared in court on the charges referred to above on 4 April 2017. He pleaded guilty in July 2018 at a case review hearing and was remanded on bail for sentence on 16 August 2018. He failed to appear on that day. He was later apprehended and sentenced on 19 August 2019 by Judge B A Gibson in the Auckland District Court. 8
[5] At sentencing the Judge applied the (then) guideline judgment of R v Fatu.9 The Judge found that the methamphetamine offending fell towards the bottom end of band 2 which applied to offending in excess of five grams (starting point of three to nine years’ imprisonment).10
8 R v Manuka [2019] NZDC 16314.
9 R v Fatu [2006] 2 NZLR 72 (CA).
10 R v Manuka, above n 8, at [8].
[6] The Judge noted the starting point suggested by the Crown for the lead offence of offering to supply methamphetamine as between three years and three months and three years and six months. The submission on behalf of Mr Manuka was that an appropriate starting point for the lead offence was two years and nine months to three years’ imprisonment.11
[7] The Judge considered there was no justification for falling below the starting point for band 2 and adopted a starting point of three years and four months’ imprisonment.12 The Judge uplifted the starting point by four months to recognise the additional charges, resulting in an end sentence of three years and eight months’ imprisonment before any discounts were applied.
[8] The Judge declined to give Mr Manuka a discount for personal mitigating factors. He acknowledged that while Mr Manuka had some medical issues, they were not so compelling as to require a discount and in any event they were self-reported. As to dependency, the Judge found that was not significant, if indeed Mr Manuka was in fact dependent on drugs. Although Mr Manuka had an unfortunate background, so did most people appearing before the Court.13
[9] As to the guilty plea discount, the Judge said that Mr Manuka would have been entitled to a 20 per cent discount. However,he accepted the Crown’s submission that, because Mr Manuka absconded on bail, any discount should be reduced to five months’ imprisonment (11.6 per cent discount) resulting in an overall end sentence of three years and three months’ imprisonment.14
Approach on appeal
[10] In order to succeed on an appeal against sentence, an appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.15
11 At [10].
12 At [11].
13 At [12].
14 At [12].
15 Criminal Procedure Act 2001, ss 250(2) and (3).
[11] The Court will not ordinarily intervene when a sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.16 The appeal Court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.17
Application to admit new evidence on appeal
[12] Mr Duff, appearing on behalf of Mr Manuka, applies to admit a psychological assessment dated 20 April 2020 provided by a registered clinical psychologist, Dr Maria Purcell.
[13] Section 335 of the Criminal Procedure Act 2011 (CPA) allows the Court to receive new evidence in an appeal if it considers it necessary or expedient in the interests of justice. Generally new evidence will need to be credible and fresh, but the overriding criterion is the interests of justice.18
[14] Mr Duff acknowledges that the report is not fresh in the sense that it was open to Mr Manuka and his previous counsel to seek a report prior to sentence. However, he submits that the evidence is cogent and relevant to a fundamental question of whether the sentence was manifestly excessive.
[15] I agree that the evidence could, with reasonable diligence, have been advanced in the District Court. However, I admit the evidence in the interests of justice. There was no opposition by the Crown to its admission.
Summary of grounds of appeal
[16]Mr Duff submits:
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
17 Ripia v R [2011] NZCA 101 at [15].
18 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA) at
[22].
(a)The starting point should be reduced, in light of Zhang v R,19 to two years’ imprisonment;
(b)A discount of two months’ imprisonment should be applied having regard to Mr Manuka’s role in the offending which falls into the “lesser” category (reducing the starting point to 22 months’ imprisonment);
(c)The uplift of four months for the balance of the offending is accepted as being within range, although higher than invited by the Crown or defence (bringing the starting point to 26 months’ imprisonment);
(d)A 30 per cent discount for personal mitigating features is appropriate as they contributed to the index offending (eight months discount reducing the sentence to 18 months’ imprisonment);
(e)The Judge erred in adjusting the discount for an early guilty plea. The full discount of 25 per cent should have been applied (4.5 months discount reducing the overall sentence to 13.5 months’ imprisonment); and
(f)The application of Zhang amounts to a more favourable sentence,20 and the District Court decision ought to be quashed as it is manifestly excessive.
Starting point
[17] Mr Duff submits that the following factors referred to in Zhang, based on those developed by the United Kingdom Sentencing Council, to distinguish between “lesser”, “significant” and “leading” roles21 apply: (1) performs a limited function under direction; (2) paid in drugs to feed own addiction; (3) no influence on those above in the chain; (4) little, if any, awareness or understanding of the scale of the
19 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
20 R v Manuka, above n 8, at [188].
21 Zhang v R, above n 19, at [126].
operation; (5) involvement through naivety or exploitation; and (6) little or no actual or expected financial gain. Mr Duff’s submission is based on what Mr Manuka said to Dr Purcell, that is, that an acquaintance asked him to be his driver. The man had no current driver’s licence and Mr Manuka relapsed into using methamphetamine to assist him to be alert for driving whenever asked by the man. For his driving role he was provided with as much as methamphetamine as he wanted. Once that associate was arrested and placed in custody, Mr Manuka then started funding his methamphetamine addiction by selling parts of his purchased methamphetamine to others.
[18] Mr Duff refers to the quantity of methamphetamine being only nine grams and notes the amount of cash was only $90. Mr Manuka explained the large number of offers to supply, saying this was often due to instances where he sent different messages offering the same methamphetamine while he awaited an affirmative response. Mr Duff submits the dealing can be categorised as low level street dealing.
[19] Mr Duff also points to the absence of firearms and other people involved which distinguishes the offending from a larger commercial operation. He refers to the decision of this Court in Tuuta v R22 where, on appeal, a starting point of two to two and half years was considered the appropriate range for the possession for supply charge. In that case Mr Tuuta had possession of 16.3 grams of methamphetamine, together with $4,230 and a sawn-off shotgun and ammunition. A global starting point of two years and 10 months’ imprisonment was considered appropriate. Mr Duff submits that the offending in this case is less serious than in Tuuta.
[20] The Crown acknowledges that Zhang arises for consideration because the appeal was filed before Zhang was delivered.23 But the Crown submits the application of Zhang would not produce a result which is more favourable to Mr Manuka.
[21] The Crown submits that the offending falls into band 2 of Zhang (starting point of two years to nine years’ imprisonment). In terms of role, the Crown submits that
22 Tuuta v R [2019] NZHC 2788.
23 The decision applies retrospectively to appeals filed before 21 October 2019 provided its application would result in a more favourable outcome to the appellant, Zhang v R, above n 19, at [10](p), [188]-[191]. The appeal was filed on 5 September 2019.
although the appellant’s operation was towards the lower end of the scale, there are indicia that he played a significant role. The Crown notes that Mr Manuka was an independent drug dealer with his own customer base. Further, the offending was at high frequency. Over the space of only a month he offered methamphetamine for sale on 84 occasions, cannabis for sale on 28 occasions and cannabis oil for sale on four occasions. Mr Davie for the Crown says this equates to an average of approximately
3.75 offers per day.
[22] As to Mr Manuka’s motivation, the Crown submits that Mr Manuka had a dual motivation. That is, both to raise money for drug consumption and to make money. The Crown submits that the Court should put little weight on the view expressed by the psychologist that Mr Manuka’s “primary motivation” for the offending was addiction to methamphetamine and cannabis.
[23] Several points are advanced in support of this submission. First, the Crown says there are inherent difficulties with the opinion, even from a psychologist, about a person’s motives for criminal offending, when the basis for the claim is the account of the person over three years after the events in issue.
[24] Second, that conclusion is inconsistent with what Mr Manuka told the writers of the two pre-sentence reports, namely that he did not use drugs and that he offended because of emotional instability arising from his relationship breakup and resulting fallout. Mr Davie makes it clear that the Crown is not suggesting that the appellant told the truth when he said he did not use drugs, but rather if he had been addicted in the way suggested, he might emphasise rather than downplay his drug use.
[25] Third, Mr Davie submits that Mr Manuka had a motive to mislead Dr Purcell. When he spoke to her in March and April 2020, several months after the delivery of the Court of Appeal decision in Zhang, he had had ample time to reflect on the offending.
[26] As to the starting point of 22 months’ imprisonment contended for by Mr Duff, the Crown submits that is manifestly inadequate. The offending in this case is more serious than in Tuuta v R.24 In this case Mr Manuka dealt drugs on his own account.
[27] The Crown also refers to Crighton v R,25 which was one of the Zhang appeals where the Court of Appeal approved a starting point of two years’ imprisonment for offending which involved 3.75 grams of methamphetamine and 14 supplies or offers to supply. Because of the offender’s addiction to methamphetamine and her abusive partner, the Court found she played a lesser role. The Crown submits that the appellant’s offending is more serious than in Crighton because of the greater quantities of drugs, because of the high number of offers and because the appellant’s role was more significant.
Discussion
[28] I approach a consideration of the starting point not as a search for error in the decision of the Court below, but rather by assessing the starting point against the new guidelines in Zhang.
[29] In determining an offender’s position within a particular band, both quantity and role are relevant.26
[30] The quantity, nine grams, was towards the lower end of band 2. There were no indicia of involvement in a large commercial operation. For that reason, Mr Manuka was not under direction from others. He was running his own operation with his own customers.
[31] I agree with the Crown submission that some caution is required when considering Mr Manuka’s statements to Dr Purcell and her conclusion based on those statements that Mr Manuka’s primary motivation was to feed his habit. I say that because of the differing accounts that Mr Manuka gave to the writers of the pre- sentence reports. Also the conclusion is based on self-reporting by Mr Manuka.
24 Tuuta v R, above n 22.
25 Zhang v R, above n 19, at [193].
26 Zhang v R, above n 19, at [103] and [104].
[32] The writer of the first PAC report recorded that Mr Manuka identified that the breakdown of his relationship and not being able to have contact with his children were the main factors in his offending. Mr Manuka reported that he used illicit substances to medicate himself after the breakup. He also said his landlord was responsible for the utensils. He said he did not believe he would benefit from counselling as he was not actively using drugs. He said he had been substance free for the preceding eight months.
[33] In the second PAC report dated 31 July 2019, the writer records that Mr Manuka told her that he did not reoffend during the period he had absconded.
[34]It appears that Dr Purcell was alive to the pitfalls of self-reporting. She said:
Although his self-report may be minimising his activities in specific situations; the overall picture indicates his primary motivation was to meet severe methamphetamine and cannabis addictions …
[35] The fact nevertheless remains that Mr Manuka was inconsistent in his statements to the writers of the PAC reports as compared to what he told Dr Purcell. Even based on what Mr Manuka said to Dr Purcell, I cannot find that it was addiction that drove Mr Manuka’s offending. It is clear he was able to stop using methamphetamine if he chose to. For example, he told Dr Purcell that he had started using methamphetamine when he was aged 20 years. But he said he stopped using it for 10 years when he married his wife. He told Dr Purcell he was able to abstain for the purpose of prioritising family and church values. He told her that when his marriage ended he relapsed to using it when an acquaintance asked him to be a driver. In exchange for providing this service he was given methamphetamine. After that person was taken into custody he sold parts of his purchased methamphetamine to fund his “addiction”. He said to Dr Purcell he had last used methamphetamine on the day of his arrest. (He then absconded for a lengthy period).
[36] I therefore conclude, on the evidence summarised above, that Mr Manuka has not demonstrated his offending was driven by “addiction”.
[37] That brings me back to his role. It was a small operation, which Mr Manuka ran himself. I accept he sold methamphetamine to fund his “use” (as opposed to
addiction). His motivation was twofold – to raise money for drug consumption and to make money.
[38] As to the decision in Tuuta v R, on the one hand there was a greater degree of commerciality in that case, having regard to the amount of methamphetamine (16.3 grams of methamphetamine) and a firearm was present. On the other hand, the offender played a lesser role in a larger enterprise. In this case, Mr Manuka was dealing drugs on his own account. Even accepting Mr Manuka’s statement that there was some duplication in his offers, there were a large number of offers in a relatively short period. But it was dealing at street level.
[39] Having regard to Zhang and taking into account Crichton v R and Tuuta, I consider that the starting point of three years and four months’ imprisonment on the lead charge is too high. I consider a starting point of two years and four months’ imprisonment is appropriate.
Deduction for lesser role
[40] Mr Duff submits that a further discount of two months should be given for Mr Manuka’s lesser role. I do not accept that submission. I have already taken into account Mr Manuka’s role as part of the assessment of the appropriate starting point.
Discount for personal mitigating factors
[41] Here Mr Duff refers to Dr Purcell’sreport and submits that it details an unfortunate cluster of adverse formative circumstances which go some way to explaining Mr Manuka’s offendingand the continuation of that offending. Mr Duff referred to the following themes: Mr Manuka was exposed to a catalogue of adverse childhood experiences which predisposed him to developing substance abuse and cognitive, social, learning and mental health problems. He gravitated to offending and substance use from an early age. Mr Duff also referred to Dr Purcell’sdiagnosis of post-traumatic stress disorder (PTSD).
[42] Addressing first the issue of addiction. In Zhang the Court of Appeal said, “We also accept that commercial dealing is likely to be inconsistent with the impairment of
the ability to exercise rational choice, which is what diminishes culpability and justifies discounting the sentence”.27 I have already discussed the issue of addiction in the context of the starting point. I do not consider that the psychologist’s report provides an evidential foundation for a submission that Mr Manuka’s rational faculties were impaired. It does not go so far as to suggest that Mr Manuka’s cognitive difficulties were so severe as to impair the exercise of rational choice. There is also no evidence that Mr Manuka was subject to pressure or influence from someone further up the drug supply chain. He was running his own operation. This is in contrast to other cases which have come before the Court where pressure and influence from others is often a feature of limited role offending. Further, Mr Manuka seems to have run his business apparently successfully until it was closed down by the police.
[43]As to PTSD, in Zhang the Court of Appeal said:28
The degree of discount is said to depend on the severity of the mental health condition and the strength of the causal link between that condition and the offending.
[44] While I accept that PTSD may have been responsible for some of Mr Manuka’s conduct referred to in Dr Purcell’s report, that report does not provide a basis to enable the Court to draw a causal link between Mr Manuka’s PTSD and the offending.
[45]Thirdly, as to social deprivation, in Zhang the Court of Appeal said:29
… social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender.
[46] I do not consider that the evidence available establishes a causal nexus between the social deprivation referred to by Dr Purcell and the offending. It is apparent that Mr Manuka lived a relatively law-abiding life through a lengthy period. At that time he was associated with a church and it is also apparent from the report that he was capable of making positive choices. On his own account, he offended because of the stress arising from his relationship breakup, his lack of access to his children and the
27 At [147].
28 At [153].
29 At [162].
general fallout from the relationship breakup. That does not mean Mr Manuka should not be held fully accountable for his actions.
[47] I am not persuaded that there should be a discount for personal mitigating features. Those referred to did not contribute to the index offending.
Discount for guilty pleas
[48] Mr Duff submits that, notwithstanding the fact that Mr Manuka absconded, the policy reasons referred to by the Supreme Court in Hessell v R30 were satisfied. There should have been no reduction in the guilty plea discount. Mr Duff accepts that the first opportunity to enter a guilty plea is at the first appearance. He says, however, typically in larger drugs cases, counsel does not have full disclosure until a case review hearing.
[49] The Crown submits the discount given by the Judge of 11.6 per cent was adequate.
[50] There are conflicting High Court authorities on the issue of whether the Court is entitled to reduce a guilty plea discount to take account of the fact that the offender absconded prior to sentencing.31
[51] I consider the Judge was correct to reduce the discount to take into account the fact that Mr Manuka absconded prior to sentencing. The Supreme Court in Hessell held that the appropriate discount for a guilty plea depends on all the circumstances. I agree with Mallon J, who said in Lopa that must include matters such as failure to appear.32 The failure to appear diminishes the value to the State of the guilty plea because it reduces the ability of the court system to efficiently allocate hearing time.33 Secondly, Mr Manuka’s decision to abscond and the fact that he did not surrender voluntarily but was arrested, somewhat undercuts the notion that by his pleas he
30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].
31 Lopa v Police HC Wellington CRI 2010-485-109, 16 November 2011 and Jensen v R [2020] NZHC 726 at [36] support the Judge’s approach. The decision of Nuku v Police [2015] NZHC 137 is contrary to the Judge’s approach.
32 At [11].
33 See Lopa v Police, above n 31, at [12] and Jensen v R, above n 31, at [36].
intended to take responsibility for his actions. Both of those factors cut across the rationale for guilty plea discount as expressed in Hessell.34
[52] I also consider that a guilty plea discount of 20 per cent, which the Judge indicated he was minded to make had Mr Manuka not absconded, was a generous discount for a guilty plea entered more than one year after the charges were laid. This was not a case involving multiple offenders requiring significant disclosure. The evidence was based on a search of Mr Manuka’s phone and evidence found at his address. That rather detracts from Mr Duff’s submission that in larger drugs cases disclosure is not available until a later stage in the court process.
[53] Finally, and in any event as Mr Davie points out, Mr Manuka’s conduct engaged s 9(1)(k) of the Sentencing Act 2002, which provides that any failure by an offender to comply with a procedural requirement, that in the Court’s opinion caused a delay in the disposition of the proceeding, is an aggravating factor which the Court must take into account.35 Mr Manuka’s failure to appear for sentence on 16 August 2018 delayed disposition of the proceedings for more than a year. The Judge could have uplifted Mr Manuka’s sentence on that basis.
[54]I therefore do not consider the Judge erred by reducing the guilty plea discount.
Conclusion
[55] Following Zhang, I consider that the starting point of three years and four months’ imprisonment on the lead charge of offering to supply methamphetamine was too high. An appropriate starting point is two years and four months’ imprisonment. No further reduction for “role” is required. Mr Manuka’s role is accounted for in the appropriate starting point.
[56] An uplift for the other offending of four months was not challenged on appeal. That brings the starting point to two years and eight months’ imprisonment.
[57]No discount for personal mitigating features is required.
34 Hessell v R, above n 30, at [65].
35 A failure to answer bail can trigger s 9(1)(k): MacEwan v Police [2019] NZHC 3320 at [42].
[58] The discount of 11.6 per cent for the guilty pleas was appropriate. That equates to four months (rounded up in favour of Mr Manuka). This results in a final sentence of two years and four months’ imprisonment.
[59] The adoption of a starting point that was too high resulted in a sentence which was manifestly excessive.
Result
[60] The appeal is allowed. The sentence of three years and three months’ imprisonment is quashed and a sentence of two years and four months’ imprisonment is substituted.
Gordon J
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