These two sentence appeals arise from a common fact situation but involve discrete issues. Mr Rewita is a dealer in methamphetamine who was convicted at trial of five charges of supply, one charge of possession for the purposes of supply and one charge of conspiracy to supply. One of the people he supplied was Mr Parata, who was found in possession of 28 grams of methamphetamine.
Mr Rewita’s appeal
The supply and possession charges, of 221.2 grams, were taken together and a starting point of eight years’ imprisonment was adopted.[1] There is no challenge to this. However, there was then an uplift of six months for a further charge of conspiracy to supply methamphetamine. It is submitted this was excessive.
The facts were that Mr Rewita had arranged to sell 28 grams of methamphetamine for $12,500. However, the intended purchaser was stopped by police on the way to the arranged meeting place. She was in possession of $12,800 cash.
In terms of assessing an appropriate uplift, it is helpful to identify the basis for the core starting point of eight years’ imprisonment. The main supply offences fell into band two of R v Fatu, which provides:[2]
Band two – supplying commercial quantities (5 g to 250 g) – three years’ to nine years’ imprisonment.
Mr Rewita supplied, and possessed with the intention of supplying, 221.2 grams, hence an eight-year starting point reflecting the proximity of the quantum to the top of the range. Had Mr Rewita succeeded with the further offence of conspiracy, the total amount supplied would have been 249.2 grams, which is at the top of the band. In those circumstances, an increase to the starting point of one year giving an end sentence of nine years’ imprisonment would have been appropriate. Allocating half of that potential increase (six months) for this incomplete offence was the correct approach.
The other challenge made on appeal is to the amount of credit given for personal factors. It is well-settled that deterrence is the dominant sentencing principle in this area of serious drug offending.[3] Accordingly there is much less scope for recognition of personal mitigating factors that might otherwise result in some deduction. Here Edwards J determined that, notwithstanding the emphasis on deterrence, some recognition of Mr Rewita’s situation was possible. The relevant matters were his apparent remorse (notwithstanding, we note, that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Parata v The Queen [2017] NZCA 48
Case
[2017] NZCA 48
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the appellants Lawrence Kylie Konehu Parata and Tai Anthony Rewita have brought forward separate appeals against their sentences, consolidated for hearing. Both appellants were convicted in the High Court and sentenced for drug-related offenses. The appeals focus on the appropriateness of the sentences given by the sentencing judges, particularly the credit for pre-sentence custody and the quantum of the sentences. The Court of Appeal, comprising Wild, Simon France, and Duffy JJ, heard the appeals on 13 February 2017, delivering its judgment on 7 March 2017.
The central legal issues in these appeals revolve around the calculation of the starting point for the sentences and the credit given for the appellants' time spent on restrictive electronically monitored bail (EM bail). In the case of Rewita, the Court examined whether the uplift for the conspiracy charge was excessive. The court assessed the quantum of methamphetamine supplied and the circumstances surrounding the conspiracy charge to determine if the six-month uplift was appropriate. Additionally, the court scrutinized the amount of credit given for personal factors, considering the principle of deterrence in drug-related offenses. For Parata, the issue was whether the four-month credit for ten months of restrictive EM bail was adequate, with the appellant arguing for a more substantial discount.
The Court of Appeal found that the uplift for Rewita's conspiracy charge was not excessive, as it correctly reflected the potential increase in the total amount of methamphetamine that would have been supplied had the conspiracy been successful. Regarding the credit for personal factors, the Court held that the six-month credit was not manifestly inadequate and did not contribute to a manifestly excessive sentence. In the case of Parata, the Court rejected the argument that the credit for EM bail should be revisited, holding that the current approach, which recognizes the restrictive nature of EM bail but does not equate it to pre-trial remand in custody, was appropriate. The Court found that the four-month credit for ten months of EM bail was not inadequate, although a higher figure might not be incorrect. Consequently, the appeals against sentence were dismissed.