Nauleo v The Queen

[2017] NZHC 2149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-248 [2017] NZHC 2149

BETWEEN

SIMI MAAMALOA NAULEO

Appellant

AND

THE QUEEN Respondent

Hearing:	5 September 2017
Appearances:	M Pecotic for Appellant H Max for Respondent
Judgment:	6 September 2017

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 6 September 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

NAULEO v THE QUEEN [2017] NZHC 2149 [6 September 2017]

[1]      Mr  Nauleo  pleaded  guilty  in  the  District  Court  to  charges  of  being  in possession of methamphetamine for supply and being in possession of Gamma- Butyrolactone (GBL).  On 26 June 2017 Judge Johns sentenced Mr Nauleo to two years five months imprisonment on the charge of being in possession of methamphetamine for supply.1    She imposed a concurrent sentence of one month’s imprisonment on the other charge.

[2]      Mr Nauleo appeals against sentence on the basis that the Judge adopted a starting point that was  too high  on  the methamphetamine charge,  and gave Mr Nauleo insufficient credit for the time he had spent on electronically monitored bail and the steps he had taken to address his methamphetamine addiction.  As a result, Mr Nauleo contends that the Judge imposed an end sentence that was manifestly excessive.

Background

[3]      The charges were laid after the police executed a search warrant at an address where Mr Nauleo was living on 26 June 2015.  That address had seven bedrooms occupied by different  people.   Mr  Nauleo  and  his  partner occupied one of the bedrooms at the address.   The police had not obtained the warrant specifically to search Mr Nauleo’s bedroom, but they searched the bedroom when they executed the warrant they had obtained in respect of the entire address.

[4]      The police found a total of 33.9 grams of methamphetamine inside clothing stored in Mr Nauleo’s wardrobe.  These comprised a snap lock bag containing 29.2 grams of methamphetamine that was found inside the pocket of Mr Nauleo’s jeans and another bag containing 4.7 grams of methamphetamine that the police found in the pocket of a jacket.

[5]      In addition, the police found a set of scales and 345 milligrams of GBL in a rubbish bin in the corner of the room.  They also found the sum of approximately

$48,400 in cash, and three cellphones.

1      R v Nauleo [2017] NZDC 13712.

[6]      Mr Nauleo acknowledged that he owned all of the items other than the cash. He said the methamphetamine and GBL were for his own use.

The sentence

[7]      The Judge considered that Mr Nauleo’s offending involved a moderate degree of commerciality.  Indicia of this included the quantity of methamphetamine found in Mr Nauleo’s possession together with the scales, cellphones and snaplock bags.  The Judge observed that the presence of those items was not consistent with Mr Nauleo being in possession of the methamphetamine solely for his own use.  She put to one side the cash found in the bedroom because Mr Nauleo disputed the ownership of that item.  That issue was to be determined in forfeiture proceedings brought by the Crown.

[8]      The Judge selected a starting point of four years imprisonment.  She applied an agreed discount of 20 per cent to reflect guilty pleas.  She then applied a further discount of nine months, or 25 per cent, to reflect the fact that Mr Nauleo had been on EM bail for more than 19 months and had undertaken considerable rehabilitative efforts  whilst  on  EM  bail.    These  include  alcohol  counselling  and  a  relapse prevention programme based on cognitive behaviour.   Mr Nauleo had told his counsellors that he has no desire to return to the lifestyle he formerly led.

Grounds of appeal

[9]      Ms  Pecotic  submits  that  although  the  police  found  some  indicia  of commercial dealing in methamphetamine, nevertheless these confirmed the level of any commerciality in the present case was very low.  Ms Pecotic points out that the presence of cellphones in the bedroom was equivocal because Mr Nauleo shared his bedroom with his partner.  She submits that possession of three cellphones by two people is not untoward.  Furthermore, Ms Pecotic points out that subsequent analysis of information held on the cellphones showed there were no text messages or other material suggesting that Mr Nauleo was involved in selling methamphetamine.   In addition, he has provided an explanation for the scales because he told the police that he used these to weigh coins.  Finally, the methamphetamine that was found in Mr Nauleo’s clothing was not packaged in amounts suggestive of being for resale.

[10]     Ms Pecotic therefore submits that a starting point of four years imprisonment was excessive in all the circumstances.  She maintains that an appropriate starting point to reflect the overall culpability of Mr Nauleo’s offending would have been one of no more than three years six months imprisonment.  In this context she relies on the starting points selected in cases such as Mills v R, R v McPherson and Yuen v R.2

[11]     Ms Pecotic also submits that the Judge ought to have allowed a discount of at least twelve months to reflect the time spent subject to a 24 hour curfew on EM bail, and a further discount of four to five months to reflect Mr Nauleo’s rehabilitative efforts whilst on bail.

Decision

Starting point

[12]     There is no dispute that Mr Nauleo’s offending fell within band 2 in R v Fatu.3    As such, it called for a starting point between three and nine years imprisonment.

[13]     The quantity of methamphetamine found in Mr Nauleo’s possession clearly suggests it is highly unlikely that a major part of it was for his own use.  I agree, however, that there is little other evidence to suggest commerciality.  Even adopting that approach, I still do not consider a starting point of four years imprisonment to have been outside the available range.  It is in fact toward the bottom of the range suggested in Fatu for offending in band 2.  Ms Max for the Crown also referred me to R v De Serville, in which this Court observed that cases involving possession of approximately 30 grams of methamphetamine for supply would invariably attract

starting points of four to four and a half years imprisonment.4

[14]     I acknowledge that there are cases where the courts have selected starting points of less than four years imprisonment for offending involving quantities of

methamphetamine similar to those in the present case.   This merely demonstrates

2      Mills v R [2016] NZCA 245 at [17]-[18], R v McPherson [2009] NZCA 487, Yuen v R [2010] NZCA 521.

3      R v Fatu [2006] 2 NZLR 72 (CA).

4      R v De Serville HC Auckland CRI 2006 004 18441 at [23].

that there is no single correct starting point for offending of this type.   Rather, appropriate starting points will fall within a particular range having regard to the overall  circumstances  of  the  offending.    Having  regard  to  the  factors  I  have identified, I do not consider the starting point in the present case to have been manifestly excessive.

Discount for time spent on EM bail

[15]     Ms   Pecotic   acknowledges   that   the   authorities   confirm   there   is   no mathematical formula to be applied when assessing the discount to be given for time spent on EM bail.5   The level of discount will vary from case to case depending on a variety of circumstances.  These include the duration of the time spent on EM bail, the restrictiveness of the bail conditions and the extent to which the offender has adhered to them.6    In cases where the defendant has been subject only to a nightly curfew, a sentencing Judge may elect not to apply any discount at all.  On the other hand, where the offender has complied with a 24-hour curfew over a very lengthy period, a meaningful discount is likely to be given.  For these reasons the authorities understandably reflect varying approaches to the level of discount given for this factor.

[16]     In the present case Mr Nauleo was on EM bail and subject to a 24 hour curfew between 10 September 2015 and 24 April 2017.  That is a period of more than 19 months, and is seven months longer than Mr Nauleo would have been permitted to serve by way of a sentence of home detention.  Much of the delay in disposing of the case appears to have been attributable to the contested issue relating to the ownership of the cash found in Mr Nauleo’s bedroom.

[17]     Ms Pecotic has provided me with a schedule setting out the occasions on which Mr Nauelo was permitted to leave his property whilst on EM bail.  This shows that he was only permitted to leave his address on 18 occasions during that period. Of these, seven related to court appearances and four related to appointments to see his lawyer.  Mr Nauleo left his property to attend counselling on five occasions, and

went to the dentist on two occasions.

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

6      Sentencing Act 2002, s 9(3A).

[18]     These figures demonstrate without question that Mr Nauelo was subject to a very lengthy remand on EM bail and that he was also subject to extremely restrictive conditions during this period.  The only breach during this period occurred when Mr Nauleo permitted the battery to his electronic bracelet to run flat on one occasion. Furthermore, Ms Pecotic advises me that the length of time Mr Nauleo had spent on restrictive EM bail prompted the Judge who accepted Mr Nauleo’s guilty pleas on 24

April 2017 to take the unusual step of remanding him on ordinary bail rather than

EM bail pending sentence.

[19]     In those circumstances I consider that a discount of no less than nine months ought to have been given to reflect the time spent on EM bail, and that any further discount to reflect rehabilitative efforts needed to be added to that.

Rehabilitative efforts

[20]     I acknowledge the fact that Mr Nauelo has undertaken several counselling courses in an effort to address his issues with drug addiction.  Like the Judge, I am satisfied  these  warrant  discrete  recognition.    The  Judge  did  not  apportion  the discount  she  gave  for  rehabilitation  and  time  spent  on  EM  bail.    I  consider  a minimum of three months was required to reflect the former.

[21]     It follows that I accept that a total discount of 12 months ought to have been given for these two factors rather than the nine months applied by the Judge.

Result

[22]     The appeal against sentence is allowed.   The sentence of two years five months imprisonment on the methamphetamine charge is quashed.   In its place I

impose a sentence of two years two months imprisonment.

Lang J

Solicitors:

Crown Law, Wellington