MAXWELL DE THIERY TASMAN CHEA TAKU TAI MO HUSSEY AND THE KING
[2024] NZCA 519
•15 October 2024 at 1.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA312/2024 |
| BETWEEN | MAXWELL DE THIERY TASMAN CHEA TAKU TAI MO HUSSEY |
| AND | THE KING |
| Court: | Mallon, Gwyn and Moore JJ |
Counsel: | M R Ridgley for Applicant |
Judgment: | 15 October 2024 at 1.30 pm |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Introduction
Mr Hussey was sentenced by Judge Orchard in the Whangārei District Court to two years and six months’ imprisonment after pleading guilty to charges for the manufacture, and possession of equipment to manufacture, methamphetamine.[1] On appeal to the High Court, Mr Hussey’s sentence was reduced by Whata J to two years and one month’s imprisonment.[2]
[1]R v Hussey [2024] NZDC 4895 [District Court judgment].
[2]Hussey v R [2024] NZHC 780 [High Court judgment].
Mr Hussey now seeks leave to bring a second appeal against sentence to this Court pursuant to s 253 of the Criminal Procedure Act 2011. For the reasons that follow, we decline to grant leave in this case.
The offending
We gratefully adopt the High Court Judge’s summary of Mr Hussey’s offending as follows:
[2] The key facts of the offending may be simply stated. In the early hours of 2 November 2022, Mr Martin, a co-defendant, uplifted items required to manufacture methamphetamine. He later met up with Mr Hussey, who had just purchased two glass two-litre measuring jugs. They then together purchased eight bags of ice. The Police obtained a search warrant of Mr Hussey’s property. While they were executing the search, Mr Martin arrived and drove away to avoid detection. He was later found with a gun and a warm keg distillation unit in his car.
[3] Meanwhile Mr Hussey was arrested at his property. Police located clandestine laboratory equipment there. Hypophosphorus acid, methamphetamine and biproducts of the methamphetamine manufacturing process were also found, indicating it has been used during the methamphetamine manufacture process. Liquid contained in a two-litre glass jug contained methamphetamine, pseudoephedrine and ephedrine. There was also evidence of methamphetamine residue on various surfaces, including on a baby rocker in the children’s bedroom. This could be attributable to use or manufacture.
District Court judgment
Judge Orchard sentenced Mr Hussey on the basis that there was “one cook” of methamphetamine and that his part in the operation was in assisting his co-defendant, Mr Martin, by obtaining equipment and providing his home as a premises for the cook.[3]
[3]District Court judgment, above n 1, at [13].
The Judge’s view was that Mr Hussey’s culpability was “no less” than Mr Martin’s and that, without his co-operation, the “cook” in question could not have taken place.[4] On the basis that there was no reason to distinguish between the two men, the Judge took the same starting point of three years’ imprisonment adopted for Mr Martin by Judge Tomlinson.[5]
[4]At [14].
[5]At [15]–[17].
Turning to Mr Hussey’s personal circumstances, the Judge considered an uplift of four months to be appropriate to reflect Mr Hussey’s criminal history — which included previous methamphetamine related offending — and a further four months to be warranted because the offending occurred while on parole.[6] The Judge acknowledged too, however, that Mr Hussey had engaged in a rehabilitative programme and that he was entitled to some reduction for matters raised in his s 27 report and his guilty pleas.[7] For that, the Judge adopted a 10 per cent discount for Mr Hussey’s rehabilitative efforts and s 27 factors, and a further discount of 20 per cent for his guilty pleas.[8] The Judge said:
[36] I am going to give you 20 per cent for your pleas of guilty which is more than the Crown suggest is appropriate, but you have a formal indication from Judge Tomlinson that that is what he would give, and I am going to stand by that.
[6]At [37].
[7]At [35]–[36].
[8]At [35]–[36].
The Judge reached his final sentence of 30 months’ imprisonment by first uplifting his starting point by eight months, and then reducing that uplifted starting point by 30 per cent, rounded down.[9]
High Court judgment
[9]At [38].
The High Court Judge considered the District Court to have erred in two key respects.
The first was in equating Mr Hussey’s involvement to Mr Martin’s.[10] The Judge considered that, while Mr Martin’s role in the offending properly fell into the “significant category” under this Court’s decision in Zhang v R, Mr Hussey’s role was less serious: he was unlikely to have known the extent of the commercial operation in which they were involved, and his addiction was a contributory factor to his offending.[11] The second was the Judge’s conclusion that the passage of time necessarily lessened Mr Hussey’s personal trauma.[12]
[10]High Court judgment, above n 2, at [15].
[11]At [16]–[17], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[12]At [18].
Having identified these errors, the Judge proceeded to turn to his assessment of the appropriate sentence.
The Judge considered a lower starting point to be warranted.[13] He said Mr Hussey’s offending sat within band two of Zhang and at the cusp of the lesser and significant roles. Given Mr Martin’s role, he considered a starting point of two years and six months to be called for.
[13]At [20].
The Judge then turned to Mr Hussey’s personal circumstances. He considered a six-month uplift to be warranted for Mr Hussey’s prior offending and to reflect that he had been on parole.[14] However he also considered a discount of 15 per cent to be appropriate to recognise Mr Hussey’s personal trauma (which included the tragic death of his infant son, and the death of his two sisters) and the role that trauma had played, at least in part, in developing his methamphetamine addiction.[15] The Judge considered a further 15 per cent discount to be warranted for Mr Hussey’s guilty pleas.[16]
[14]At [21].
[15]At [22].
[16]At [22]–[23].
The Judge then said:
[24] In the result, an indicative term of imprisonment of 25 months would be appropriate. This is based on a 36-month accumulative starting point, comprising 30 months for the offending and an uplift of six months for prior offending, including while on parole. From this I would deduct five months for background factors, and a further month for time spent on EM bail. I then arrive at a sentence of 30 months. Applying then a discount of 15 per cent or five months for the guilty plea, I arrive at an end sentence of 25 months.
Accordingly, the Judge considered the District Court’s sentence to be manifestly excessive and allowed the appeal.
Application for leave
Mr Hussey’s principal argument for leave to bring a second appeal against sentence is that the High Court Judge erred in failing to adopt — on appeal — a 20 per cent discount for his guilty plea, as given by the District Court. Mr Hussey’s position is that a miscarriage of justice occurred because the High Court Judge indicated that he would adopt the same guilty plea discount given in the District Court at the hearing of his appeal, but that he then proceeded to adopt a lesser discount on appeal. He says that because of this, his counsel did not make oral submissions on the point and thus that he was not given the opportunity to be heard.
Had his counsel had the opportunity to do so, Mr Hussey says that his counsel would have referred the High Court Judge to resolution letters sent to the Crown between December 2022 and October 2023 showing that any delay in pleading guilty was not squarely attributable to him. And he further says that the Judge was wrong to have proceeded this way when the 20 per cent discount was a “formal indication” from Judge Tomlinson.
Should leave to appeal be granted?
Section 253(3) of the Criminal Procedure Act provides that this Court may not grant leave unless satisfied that a second appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard. We do not consider the present application to satisfy either test. Our reasons follow.
First, we do not consider there to have been a miscarriage of justice because counsel was led to believe that the High Court Judge would retain the 20 per cent discount given for Mr Hussey’s guilty plea in the District Court. Mr Hussey’s sentence appeal in the High Court was advanced on the basis that the District Court Judge’s sentence was manifestly excessive on account of an excessive starting point and insufficient reductions for personal mitigating circumstances. In that context — and as this Court said in McCaslin-Whitehead v R — it would have been difficult for the Judge to make the necessary assessment without having some regard to the constituent parts of the District Court’s sentence.[17] Indeed, having concluded that there were errors in the District Court’s sentence, the Judge was required to then form his own view on the appropriate sentence.[18] While it may have been preferable to receive counsel submissions on the point, we are not satisfied that any breach of natural justice was of a kind amounting to a miscarriage of justice in these circumstances.
[17]McCaslin-Whitehead v R [2023] NZCA 259 at [42].
[18]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30], citing R v Shipton [2007] 2 NZLR 218 (CA) at [140].
Secondly, we do not consider the High Court Judge to have erred in applying only a 15 per cent discount for Mr Hussey’s guilty pleas on the basis that this was inconsistent with a “sentence indication” that Mr Hussey had been given. The “indication” that was given to Mr Hussey by Judge Tomlinson (and referred to by Judge Orchard) occurred in the context of a criminal callover, and without any request for an indication under s 61 of the Criminal Procedure Act. It was never referred to by either party as an indication before either Judge Orchard or Whata J. In those circumstances, it was not an error for the High Court Judge to have adopted a different discount. And, in any event, the discount that was given was hardly in error when Mr Hussey’s guilty pleas were entered 13 months after charges were laid and in the face of a strong Crown case.
Thirdly, this is not a case in which a sentence of home detention should necessarily have been imposed had a short-term sentence of imprisonment been reached. We agree with the Judge that a sentence of home detention was not mandated by the sentencing purposes and principles engaged in this case, and that Mr Hussey’s rehabilitation had already been adequately accommodated in the Judge’s substituted sentence of imprisonment.[19]
[19]High Court judgment, above n 2, at [26].
Finally, while the appeal is obviously of great importance to Mr Hussey, it raises no issue of general or public importance that warrants granting leave in this case.
Result
The application for leave to appeal is declined.
Solicitors:
Thomson Wilson Law, Whangārei for Applicant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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