Pona v R

[2020] NZHC 3503

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000453

[2020] NZHC 3503

BETWEEN

RAYMOND PONA

Appellant

AND

THE QUEEN

Respondent

Hearing:	15 December 2020
Appearances:	S J Lance for the Appellant M Djurich for the Respondent
Judgment:	22 December 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 22 December 2020 at 12:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Kayes Fletcher Walker Ltd, Manukau Counsel:  S Lance, Auckland

PONA v R [2020] NZHC 3503 [22 December 2020]

[1]    This is an appeal against sentence. Following a disputed facts hearing in relation to the quantity of methamphetamine involved, the appellant, Raymond Pona, was sentenced in the Manukau District Court by Judge C S Blackie to two years and seven months’ imprisonment. Mr Pona had pleaded guilty to one representative charge of offering to supply methamphetamine and one representative charge of supplying methamphetamine as well as four cannabis and Arms Act 1983 charges.

[2]    The appeal is 12 days out of time. It appears from the notice of appeal that the appeal was initially filed in the wrong court by mistake. Mr Pona accordingly has to seek leave to file the appeal. The Crown does not oppose the application, and an extension of time is granted.

[3]    The appeal is brought on the sole ground that the Judge erred in his assessment of the quantity of methamphetamine Mr Pona offered to supply, and did supply, and therefore the starting point adopted for the sentence was too high. The Crown opposes the appeal on the basis that the Judge did not err in evaluating the facts disputed by the appellant. It also says the starting point was within the range available and not manifestly excessive.

Factual background

[4]    On 13 May 2019, the Police executed a search warrant at Mr Pona’s home address. There, the Police located a modified Beretta A300 semi-automatic 12-gauge shotgun. The shotgun was reduced in length and the serial number had been ground off. The Police also located one kilogram of an ammonium-nitrate-based, high-power emulsion explosive. These formed the basis of the charges under the Arms Act 1983.

[5]    During the search, the Police further located digital scales and a large number of zip-lock bags as well as two mobile phones. In the two mobile phones, the Police identified text and Facebook messages based on which it was alleged that:

(a)Between 2 September 2017 and 12 May 2019, Mr Pona offered to supply 87.5 grams of methamphetamine on 29 occasions;

(b)Between 2 September 2017 and 7 May 2019, Mr Pona supplied

35.3 grams of methamphetamine on 14 occasions;

(c)Between 3 April 2019 and 11 May 2019, Mr Pona offered to sell cannabis on four occasions; and

(d)Between 14 March 2019 and 13 May 2019, Mr Pona sold cannabis on two occasions.

[6]    Accordingly, Mr Pona was initially charged with 51 charges, all but two of which were methamphetamine and cannabis-related (those two being the Arms Act charges). Mr Pona indicated that he would plead guilty to representative charges in respect of the drug-related offending but would dispute the exact quantum of methamphetamine and cannabis involved. The Crown therefore prepared a Charge Notice for plea (where some 43 individual charges of supply or offering to supply were withdrawn). On 5 and 16 March 2020, Mr Pona pleaded guilty to six charges. The matter was then set down for a disputed facts hearing.

District Court decisions

Disputed facts decision

[7]The Judge described the nature of the disputed facts as follows:1

[16]      The Crown submits the defendant offered to supply methamphetamine on at least 29 occasions — 87.5 grams. Further the defendant  allegedly  actually  supplied  methamphetamine   on   at   least   14 occasions — 35.3 grams. Further, the defendant is allegedly [sic] to have offered to supply cannabis on at least four occasions and actually supplied cannabis on at least two occasions — 7 grams. There is no actual indication of the amount of cannabis that was further offered.

[17]The defence submits that the defendant offered to supply only

7.95 grams over 15 occasions and actually supplied only 4.3 grams of methamphetamine on 10 occasions. Further, the defence submits that the defendant offered to supply cannabis on three occasions.

…

[26]  Of the 87.5 grams of methamphetamine the Crown say were offered  for supply, the defence accepts 7.95 grams. Of the 35.3 grams that were

1      R v Pona [2020] NZDC 8860 [Disputed facts decision].

supplied, the defence accept 4.3 grams. From the point of view of sentencing, the charges relating to cannabis are purely incidental. …

[8]    At that hearing, the Crown called two witnesses. The first was Detective Sergeant Matheson, a Police officer with significant experience in investigating drug offending, who provided a formal statement commenting on typical prices of various quantities of methamphetamine and cannabis as well as common drug-dealing terminology used by drug dealers to disguise their activities and avoid detection. The second was Detective Mitchell, the officer in charge of investigating Mr Pona’s offending, who provided a formal statement in respect of the execution of the search warrant, during which Mr Pona was arrested and the two phones were seized.

[9]    In the present appeal, Mr Pona contends that the Judge erred in his assessment of the evidence at the disputed facts hearing in relation to former charges 24, 25, 36, 45 and 48. I therefore focus on the Judge’s analysis of those particular charges:

[Offer to supply methamphetamine]

[39] Charge 24: The defendant is asked for a “whole pig raffle immediately” and the defendant confirms that he will be available to deliver it in 30 minutes. I accept that a “whole pig raffle” is drug user and drug dealer speak for an ounce of methamphetamine. In my view, the defence argument that the defendant is being asked for a raffle ticket for a whole pig sounds implausable [sic] to say the least. Usage of the term “whole” for an ounce is consistent with the other communications, where the amount actually supplied has been “down” when a full ounce was being sought. I find that there was an offer to supply 28 grams of methamphetamine.

…

[44] Charge 36: “Ants” asks the defendant if he can do “7” and the defendant replies “Yea”. Given the previous reference to “2” being 2 grams of methamphetamine, I find it established that in respect of this charge,       7 grams of methamphetamine is being offered.

…

[46]      Charge 45: The defendant is asked for a “big half” and responds that he can do that once the other party finalises a repayment for a debt. I am satisfied that “big half” is drug dealer/supplier speak for half an ounce of methamphetamine and the cost is consistent with that conclusion. Although a conditional offer, it is still an offer to supply – 14 grams of methamphetamine.

[47]      Charge 48: There is a long exchange between the defendant and one “Chevy”. The defendant asks the other party if they are “after me” at a later stage to have some “mean yellow rock”. The word “rock” is a common reference to methamphetamine. The defendant asks “Chevy” if he “still wants

the oz”. The symbol for an ounce is commonly “oz”. This is a clear offer by the defendant to provide 1 ounce (28 grams) of methamphetamine. …

…

[Supply of methamphetamine]

[52]      Charge 25: The defendant is contacted by “Pam Brown” requesting a “whole pig raffle” and then a “whole custard donut”. Later that day the unknown enquirer then comments that whatever was supplied was “down 3”. It is contended that this is a reference to an ounce of methamphetamine being supplied, having regard to the use of the word “whole” and “donut” – common parlance for an ounce. The complaint about being “down 3” suggests that a whole ounce was sold to the purchaser but found to be 3 grams short. I find it clearly demonstrated that there was an actual supply of 28 grams of methamphetamine or … 25 grams if the buyer had, in fact, been short changed.

Against this background, the Judge concluded that:

[53]      For the purposes of a disputed fact-finding [exercise], I am not prepared to be drawn into making a precise mathematical calculation of the amounts, either offered or supplied to the last gram. What I find to be clearly demonstrated from the evidence is that the defendant’s involvement in either offering to supply methamphetamine or actually supplying methamphetamine is at a far higher level than he seeks the Court to believe. …

[59] For the reasons set out above, I conclude that the defendant is responsible for  offering  to  supply  methamphetamine  in  the  vicinity  of 85 grams and supplying methamphetamine in the vicinity of 35 grams.

Sentencing decision

[10]   On 15 September 2020, the Judge proceeded to sentence Mr Pona based on the findings recorded in the disputed hearing decision. Mr Pona was sentenced to two years and seven months’ imprisonment.2 As to the starting point, the Judge adopted a position somewhere in the middle of the recommendations of the Crown and defence counsel. He adopted a starting point of three years’ imprisonment for the drug-related offending, saying, “I do not think, because of the lack of trappings, that I could regard you as a professional offender but nevertheless, the amounts involved are not insignificant, 35 grams supplied but offers to supply a further 85 grams”.3 The Judge then uplifted the starting point by nine months for the Arms Act offences and a further

2      R v Pona [2020] NZDC 19199 [Sentencing decision].

3 At [11].

three months for previous offending.4 Accordingly, he adopted an adjusted starting point of four years’ imprisonment.

[11]   The Judge turned to potential discounts for Mr Pona’s addiction which was brought about by aspects of his background. He observed, “Life has not been entirely kind to you, but on the other hand it has not been as bad as we encounter with so many cases that come before the Court … You used methamphetamine to support yourself”.5 In the end, the Judge allowed a discount of 10 per cent.

[12]   Further, the Judge took into account the matters raised in the s 27 cultural report and allowed a further 10 per cent discount.6

[13]   Turning finally to Mr Pona’s guilty pleas, the Judge considered that the full 25 per cent was not available to him as his guilty pleas were conditional, having put the Court through the disputed facts hearing. He, therefore, allowed a 15 per cent discount for guilty pleas.7 For the above reason, the Judge reached an end sentence of two years and seven months’ imprisonment.8

Approach to appeal

[14]   Disputed facts hearings are governed by s 24 of the Sentencing Act 2002. There is no right of appeal against a decision from a disputed facts hearing. Instead,  a challenge to the decision must be brought as an appeal against the sentence that is imposed in reliance on the outcome of the disputed facts decision.

[15]   This is the first appeal against the sentence imposed in reliance on the disputed facts decision. Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if it is satisfied there is an error in the sentence imposed and that a different sentence should be imposed.

4 At [12].

5 At [14].

6 At [15].

7 At [15].

8 At [16].

[16]   In determining whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.9 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.10 The focus is on the end sentence rather than the process by which it was reached.11

Analysis

[17]   The sole issue is whether the Judge erred in his assessment of the quantity of methamphetamine offered for supply and supplied such that the starting point adopted was too high. The Judge found that around 85 grams of methamphetamine was offered for supply, and around 35 grams was actually supplied. Mr Pona maintains that only

7.95 grams was offered for supply, and 4.3 grams was actually supplied.

General observations

[18]   First, in an affidavit sworn before sentencing, Mr Pona acknowledged that he was a low-level dealer in methamphetamine — mostly “dollar bags”, which were $100 deals, but no more than two grams on any one occasion. He said the dealing was partly to feed his own habit. He used drugs to cope with depression and anxiety as well as the grief of losing his mother in 2018. He said he made only modest profits from the dealing, which he used to buy drugs for himself or to contribute to household expenses.

[19]   Mr Pona further explains that the firearm found by the Police was given to him as collateral for a cannabis deal. He expected to return it to the buyer of the cannabis when he paid Mr Pona for it. He had no ammunition and never used it in any way. It remained under his bed.

[20]   Secondly, consistent with Mr Pona’s claim to be a low-level dealer, the Police found less than a gram of powder containing MDMA, methamphetamine and another substance in three separate zip-lock bags at his home. He was not charged with possession of these bags. The Police also did not find any large sums of cash. They

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

10     At [30]–[35]; and Te Aho v R [2013] NZCA 47 at [10].

11     Tutakangahau v R, above n 9, at [36].

have also not initiated any claim to Mr Pona’s meagre assets as tainted property under the Criminal Proceeds (Recovery) Act 2009.

[21]   Thirdly, the disputed amounts are clearly outliers in the accepted pattern of offending. For example, of the formerly charged 14 instances of supply, four are of an unknown amount, three are of 0.1 grams, two are of 0.5 grams, two are of one gram, two are of two grams and one is of 28 grams.   The only disputed amount is the      28 grams. It is at least 14 times larger than any of the other amounts.

Former charges 24, 36, 45 and 48

[22]   The Police submitted that Mr Pona had offered to supply at least 87.5 grams of methamphetamine on 29 separate occasions as follows:

Former charge #	Date	Amount
3	27 February 2019	Unknown
4	8 March 2019	0.25 g
5	8 March 2019	Unknown
9	15-16 March 2019	Unknown
12	25 March 2019	1 g
14	29 March 2019	Unknown
17	5 April 2019	0.25 – 0.5 g
18	7 April 2019	0.25 g
20	9 April 2019	1 g
21	8 April 2019	0.1 g
22	11 April 2019	Unknown
23	11 April 2019	0.5 g
24	12 April 2019	28 g
26	19 April 2019	0.25 g
28	20-22 April 2019	Unknown
30	10 May 2019	Unknown
31	11 May 2019	Unknown
33	12 May 2019	2 g
35	10-11 April 2019	2 g
36	11 April 2019	7 g

37	16 April 2019	1 g
39	16-18 April 2019	0.5 g
42	26 April 2019	0.25 g
44	22 April 2019	0.1 g
45	4 May 2019	14 g
46	9 January 2019	0.1 g
47	12 January-15 May 2019	Unknown
48	2 September 2017–1 March 2019	At least 28 g
50	8 March 2019	1 g

[23]   Four of the amounts found proven beyond reasonable doubt by the Judge are challenged on appeal — former charges 24, 36, 45 and 48.

[24]   As to the former charge 24, an associate named Pam Brown texted Mr Pona on 12 April 2019, “My friend if ur still in rewa I need a whole pig raffle now. Thanku.” To which Mr Pona replied, “I’ll b back n rewa in about 30mins if days ok”. The Judge found this to be a reference to an ounce or 28 grams of methamphetamine.

[25]   To assist in his interpretation, the Judge had reference to a transaction between the same parties three to four days later when Ms Brown texted Mr Pona, “Call in pls. Need a whole pig raffle”. Mr Pona did not reply so Ms Brown repeated her request in different terminology — “Bro Call in with a whole custard donut pls”. After further text messages, which indicated that a transaction had taken place, Ms Brown texted Mr Pona, “Well that was down 3 my friend”.

[26]   In finding that a “whole pig raffle” was an ounce or 28 grams of methamphetamine, the Judge also relied on the evidence of Detective Sergeant Matheson, who explained that:

A… So the “whole pig raffle”, obviously a pig is a large animal, so   you’re looking at something that’s a bit larger than normal there’s obviously “donut” side of things, so that’s commonly referred to as a donut, given it’s the shape of a donut, generally round, and refers to the O in ounce, just as the G in G-Shock refers to a gram, but also at the end there talks about “It was down three, my friend.”

Q        Yep

ASo I interpret that as being down three grams, if it was just a — if it   was a gram and it was down three points, it will be relatively obvious just by looking at it.

Q        Okay, but —

A Because that would be 30% of the total amount, whereas three grams wouldn’t necessarily be obviously when you’re just handed the bag. It is only about 10% of the whole weight of 28 grams.

[27]   In the circumstances, I acknowledge that the officer’s evidence and the Judge’s findings are not without reason, but it is my clear view that there is a reasonable doubt whether the “whole pig raffle” is a reference to an ounce or 28 grams of methamphetamine. First, the amount of 28 grams is an outlier in Mr Pona’s overall pattern of offending. It is also not consistent with the pattern of supply to Ms Brown. There appear to have been about nine drug-related transactions with Ms Brown over a two-week period. It is unlikely that the transactions would have been so frequent if such a large amount as 28 grams was supplied on this occasion. The first transaction in the pattern of supply to Ms Brown is clearly identified as a supply of 0.5 grams (“Uncle Harvey”).

[28]   Secondly, the officer conceded that he had never heard the term “pig raffle” used as a code before. The best explanation he could offer is that a pig is a large animal, and therefore connotes a larger amount (being an ounce). Further, the officer conceded that “whole” can be a reference to either a whole ounce or a whole gram. He also accepted that the term “down three” (which Ms Brown used in a text message four days later in another transaction) could be a reference to the amount supplied being down three grams or 0.3 grams.

[29]   Thirdly, although the term “donut” (which Ms Brown used in a text message four days later) may be a reference to an ounce because of its O shape, this fact alone is not sufficient to amount to proof beyond reasonable doubt that the amount offered four days earlier was an ounce or 28 grams of methamphetamine.

[30]   Indeed, the officer himself said it was only a possibility, which he promptly corrected to a probability:

A But I think that taking those three things together [the terms “whole”, “donut” and “down three”] it points directly at the fact — at the distinct possibility it’s an ounce, as opposed to a gram.

Q        A possibility, okay.

A        Probability.

Q        A probability now, okay.

[31]   Even a probability is not proof beyond reasonable doubt that the amount of methamphetamine offered was 28 grams. An offer to supply one gram is all that can be proved beyond reasonable doubt.

[32]   As to the former charge 36, an associate named Ants texted Mr Pona on     13 April 2019, “Bro can u do 7”, to which Mr Pona replied, “Yeah uso”. The Judge found this to be a reference to seven grams of methamphetamine.

[33]   To assist in his interpretation the Judge had reference to a transaction between the same parties three days before when Ants texted Mr Pona, “U on g”, to which  Mr Pona replied, “Wat u after”. Ants then texted Mr Pona, “How much for 2”, to which Mr Pona replied “550”.

[34]   In finding that the figure “7” was a reference to seven grams of methamphetamine, the Judge also relied on the evidence of Detective Sergeant Matheson, who explained that:

QSo over the page charge 36, “Bro can u do seven?” that could be seven points?

A        Not — generally and commonly sold them out seven points. Q     But could it be seven — could it be referring to seven points?

AYou’d generally have to say seven dots or seven points for them to understand what that meant.

Q        Yeah.

A        Usually that would mean seven grams.

QBut again there’s no prices that help us, do that — do they? There’s [sic] no figures mentioned, so you’re just guessing.

A No I’m not, I’m not guessing. So obviously it relate – yeah. So seven

— you’d — you just have to qualify that with seven — .7 or whatever ‘cos seven points is not a commonly dealt amount, so that in itself confuse the recipient as to what he was supposed to be supplying.

[35]   In my view, the Judge was correct to find beyond reasonable doubt that the figure “7” in the text message on 13 April 2019 did refer to seven grams of methamphetamine, and not 0.7 grams. First, the text message three days earlier on  10 April 2019 was clearly a reference to two grams of methamphetamine. The price mentioned of “550” was consistent with the low prices charged by Mr Pona. Although Detective Sergeant Matheson said that the range of prices charged for a gram of methamphetamine was between $500 and $1,000, Mr Pona was clearly selling for less than this range. He had sold what was clearly a gram of methamphetamine (a watch or G-Shock) for $250. The figure 550 cannot refer to the price of two point bags or

0.2 grams of methamphetamine, which are sold for $100 or less.

[36]   Secondly, it is also apparent from subsequent texts that Ants may have been a middleman.  In  a  text  to Mr  Pona on  23 April 2019, he  asked,  “Uso can  u bring 8 money on way”. This text seems to suggest that at least some of the money to pay for the drugs was coming from other persons. Then, on 23 April 2019, in response to a text from Mr Pona, “Want 8”, Ants texted Mr Pona, “No 9 one of 7 and other 2”, which is a reference to two separate amounts of methamphetamine. Later that same day, Ants texted Mr Pona, “Was lucky to be 3 points the gram was under to. Did I moan all goods razor”. In this text, Ants seems to have been concerned that he was short-changed in that one of the grams purchased was light by three points or 0.3 of a gram.

[37]   Counsel for Mr Pona submitted that in the absence of any mention of the drug sought or figures to provide context, together with the fact that seven grams stands out among Mr Pona’s other drug dealing of less than two grams, it was not open to the Judge to find beyond reasonable doubt that the figure “7” referred to seven grams of methamphetamine. The text messages before and after do, however, provide valuable context with clear references to grams. Seven grams is also a common quantity of methamphetamine to be bought and sold. It is one quarter of an ounce. It was,

therefore, open to the Judge to find beyond reasonable doubt that the figure “7” referred to seven grams of methamphetamine.

[38]   As to the former charge 45, an associate named Kataraina texted Mr Pona on 4 May 2019, “Hey uso are u on? One of my mates wants a big half”, to which Mr Pona replied, “Yea but I’m still wait for use to sort me out for da2 I give in good faith”. Kataraina replied, “Yes that’s right. Ferg keeps saying about that. What do u charge for half? Cause I’ll see if I can add on top of that some or all of what’s already owing and just pay it like that? Yeah? Nah?” Mr Pona replied, “Yea 35”. Kataraina replied, “35 what u charge without me adding anything? I’ll see what she says k cause shes eastsider that forgot she’s really a southsider. And I know she gets it quite cheap but I’ll see how desperate times are for her at the moment lol”.

[39]   The Judge found the reference to a “big half” to be a reference to half an ounce or 14 grams of methamphetamine. In finding that a “big half” was half an ounce or 14 grams of methamphetamine, the Judge relied on the evidence of Detective Sergeant Matheson who explained that:

A It’s all consistent with — you know, a big half which is the common terminology of half an ounce. I mean you have got 35 which is — be right in the middle for half an ounce.

Q        Well your evidence is that the average price of an ounce is $6,000.

…

Q So this — if your figures or your opinion of figures is correct this is a situation where he’s charging more than the usual for half [an ounce]?

…

If you look at your price for a gram, $500 to $1,000, that’s your range?

A        Yep.

Q        About in the middle there would be $700? A       Yep.

Q        Half of that would be $350? A     Yes.

Q        35 could easily be $350 therefore?

AIt could be, if you’d looked at that by itself. However, a big half, I’ve never heard half a gram being called a big half.

QWell you haven’t heard everything, have you? Probably hear new things every day?

AI do hear new things every day but, yeah, being [sic] doing it for a little while.

[40]   In my view, there is reasonable doubt that a “big half” is a reference to half an ounce or 14 grams of methamphetamine. First, the amount of 14 grams is an outlier in Mr Pona’s pattern of offending. Secondly, there is no context available for this one transaction. Without this context, I am of the view that a “big half” could equally refer to half a gram. The officer on cross-examination acknowledged this was a possibility, but maintained he had never heard of a “big half” referring to half a gram.

[41]   Thirdly, I am also of the view that $3,500 for half an ounce or 14 grams is more than the average price, which is contrary to Mr Pona’s pattern of drug dealing at lower than usual price. By contrast, $350 is the average price of a half a gram. Therefore, the reference to a “big half” could equally refer to a half gram of methamphetamine and “35” as referring to $350.

[42]   In those circumstances, the Crown’s onus of proof is not satisfied. An offer to supply half a gram is all that can be proved beyond reasonable doubt.

[43]   As to the former charge 48, there is a lengthy text message transaction between Mr Pona and an associate named Chevy with reference to some “mean yellow rock” and an “oz”. The Judge found that “rock” is a common reference to methamphetamine and “oz” is the symbol for an ounce. Therefore, Mr Pona was offering to supply an ounce or 28 grams of methamphetamine.

[44]   In finding that “oz” referred to an ounce of methamphetamine, the Judge relied on the evidence of Detective Sergeant Matheson, who was questioned as follows:

QI want to take you to page 52, photograph 41, if you just read that very brief exchange?

A“Uso still want the ounce?” And then she misses a call and then reply text “Hey, my uso”.

QSo, again, can I just ask you to be objective about this and have look at those entries?

A Mhm.

QAnd tell me just looking at that whether the reference to an ounce you can determine whether that refers to a particular type of drug?

A      No, there’s no mention of what sort of drug he’s after. Q And cannabis is commonly dealt in ounces, isn’t it?

AYes that’s correct, I think, in this case, you’ve got to go back and look at all the text messages between the two of them.

Q      Purchasers can buy both cannabis and methamphetamine, can’t they? A Absolutely.

[45]   In my view, there is reasonable doubt that “oz” is a reference to an ounce or 28 grams of methamphetamine.   It could equally be a reference to an ounce or      28 grams of cannabis.

[46]   First, as suggested by Detective Sergeant Matheson one has to go back and look at all the text messages between the two.  The offer of methamphetamine by  Mr Pona is on 6 October 2017, when he states “uso  i gt sum mean yellow rok”.     Mr Pona offered Chevy an ounce about eight and a half months later when, in a text message dated 21 June 2018, Mr Pona stated, “Uso u still want da oz”. The reference to an ounce is therefore quite disconnected in time with the earlier offer of methamphetamine.

[47]   Secondly, there are numerous references in text messages prior and subsequent to the offer of an ounce which relate to the supply of methamphetamine, but these are all for much smaller amounts. These text messages use the terms “Dolly” or “Dolla” to refer to 0.1 gram or “a point” or “50s”, which is a reference to 0.05 grams or half a point. The largest amount otherwise specified is a half a gram of methamphetamine in the text message, “Can u hook me up a half 250 plz use”.

[48]   The sequence of text messages immediately prior to the offer of an ounce is as follows:

Chevy:You got any 50s on you for now uce just waitn on the bank to open so I can cash out. get a half or something uce was hunting all Saturday for a half and ounce

I know aye should just wait

Mr Pona:        hav u got 50 Chevy:  Yup

Mr Pona:        ill cme shortly uso Chevy: No rush use

Mr Pona:        c u n 2 uso

Chevy:           Swt

[49]   A telephone call followed some time later. Chevy then texted Mr Pona as follows: “Sold uce if you can get for 250, I’ll throw you 50 too”. Then after three missed calls from Mr Pona to Chevy, Mr Pona texted Chevy “uso u still want da oz”.

[50]   This conversation is consistent with Chevy wanting both methamphetamine and cannabis. In the first text message at 2.34 am on 19 June 2018, he refers to three separate needs. First, a “50” or 0.05 grams of methamphetamine priced at $50, which Mr Pona supplied immediately. Secondly, Chevy also refers to a half or half a gram, which he later confirms he would purchase from Mr Pona for $250 plus an extra $50. The third need mentioned by Chevy in the original text message is an ounce — “Was hunting all Saturday for a half and ounce”. The message is consistent with the quantities being a half gram of methamphetamine and an ounce of cannabis. If Chevy had wanted an ounce of methamphetamine there was no need for him to be seeking a half gram of methamphetamine in addition to the ounce or 28 grams of methamphetamine.

[51]   In those circumstances, the Crown’s onus of proof is not satisfied. The ‘oz” mentioned by Mr Pona could equally be a reference to an ounce of cannabis.

Former charge 25

[52]   The Police submitted that Mr Pona had supplied at least 35.3 grams of methamphetamine on 14 separate occasions as follows:

Former charge #	Date	Amount
6	13 March 2019	2 g
8	15 March 2019	1 g
10	23 March 2019	2 g
11	22 March 2019	Unknown
13	29 March 2019	0.1 g
16	4 April 2019	0.5 g
19	7 April 2019	Unknown
25	13 - 16 April 2019	28 g
27	19 – 26 April 2019	Unknown
29	7 May 2019	0.1 g
38	23 April 2019	Unknown
40	18 April 2019	1 g
41	23 April 2019	0.5 g
49	2 Sept – 29 Dec 2017	0.1 g

[53]   Only one of the amounts found proven beyond reasonable doubt is challenged on appeal — former charge 25.

[54]   As to the former charge 25, Mr Pona was asked by Ms Brown to call in as she needed “a whole pig raffle”. This charge is a follow-on to the former charge 24 in which Ms Brown had also texted Mr Pona asking for “a whole pig raffle”. Counsel for Mr Pona makes the same points as in relation to the former charge 24 — the supply of an ounce of methamphetamine is inconsistent with Mr Pona’s established low-level drug dealing; Detective Sergeant Matheson has never heard of “pig raffle” being used as a code; reference to a “whole” could mean an ounce or a gram and no monetary figures are discussed to give context to the request. For the same reasons as articulated in relation to the former charge 24, I am of the view that it was not open to the Judge to find beyond reasonable doubt that  “a  whole  pig raffle”  refers to an  ounce  or  28 grams of methamphetamine in relation to the former charge 25.

Adjusting the starting point

[55]   To summarise the sentence, the Judge adopted a starting point of three years’ imprisonment in respect of the drug-related offending, applied an uplift of nine months

for the Arms Act offending and three months for the appellant’s previous convictions, leading to an adjusted starting point of four years’ imprisonment. The Judge allowed an overall discount of 35 per cent, including for Mr Pona’s guilty pleas, the matters set out in the s 27 cultural report and his addiction to methamphetamine — leading to an end sentence of two years and seven months’ imprisonment.

[56]   Counsel for Mr Pona now submits that, should the actual supply be reduced from around 35 grams to seven grams of methamphetamine, as I have now found (together with a reduction of 70 grams in the amount of methamphetamine Mr Pona offered to supply), the offending would be located at the lowest end of band two of Zhang v R (being no more than two years’ imprisonment). From there, the relevant uplifts (nine months for the Arms Act offending and three months for previous convictions) and discounts (35 per cent) would be applied. That would lead to an end sentence of two years’ imprisonment (rounded up). On that analysis, there would be a difference of seven months’ imprisonment — the question is whether that is, in all the circumstances, manifestly excessive.

[57]   The Crown submits the end sentence is not manifestly excessive. It notes that the Judge’s nine-month uplift for the Arms Act offending was lenient, having regard to the recent comments of the Court of Appeal in Joyce v R in relation to the presence of firearms in the context of drug offending:12

[24] We do not accept Ms Kincade’s submission that a lesser uplift should have been applied for the firearms charges. Mr Joyce was found in possession of three weapons, one of which was a loaded sawn-off shotgun. As Ms Hoskin points out, this Court has consistently upheld  uplifts of between 12 and     18 months’ imprisonment where those involved in drug dealing are found with firearms in their possession. We agree with the Judge’s observation that the charge of being in possession of the sawn-off shotgun was a serious charge in its own right. Zhang has not altered the approach to be taken in relation to firearms associated with drug offending. We therefore consider the uplift of 18 months’ imprisonment was within the available range.

[58]   Having regard to the range of uplifts considered appropriate by the Court of Appeal, the Crown submits that the Judge’s uplift is some three to nine months short of the range. The Crown says the seven-month disparity between the sentence submitted by the appellant as appropriate and the sentence imposed by the Judge is

12     Joyce v R [2020] NZCA 124.

adequately covered by the shortfall of the uplift for the Arms Act offending as compared to the Court of Appeal’s accepted range, particularly having regard to the fact that the present case involved both a modified firearm and a significant amount of explosives. Therefore, even if the Judge erred in setting the starting point for the drug-related offending, this error would have been off-set by the significantly reduced uplift imposed by the Judge for the Arms Act offending. Accordingly, the Crown says, the end sentence is not manifestly excessive. I disagree.

Result

[59]   Mr Pona has been largely successful in his appeal, which should be reflected in an adjustment of his sentence. Detective Sergeant Matheson said, “I don’t think he’s [Mr Pona] making a lot of money out of this, he is a low level dealer.” His previous methamphetamine offending is as follows:

16 April 2005	Possessing methamphetamine	1    month    and    11 days’ imprisonment
16 Feb 2008	Supplying methamphetamine	9 months’ home detention
6 May 2008	Possessing equipment, materials
16 Oct 2015	Possessing utensils	Convicted and discharged
16 Oct 2015	Possessing methamphetamine	$500 file
23 March 2017	Possessing utensils	40 hours’ community work

[60]   The sentences of two years and seven months’ imprisonment on the charges of offering to supply methamphetamine, supplying methamphetamine, unlawful possession of a firearm and unlawful possession of explosives are quashed and replaced by sentences of 23 and a half months’ imprisonment. This is arrived at by adopting an initial starting point of two years’ imprisonment (rather than three years as adopted by the Judge) for the drug offending, which is uplifted by nine months for the firearms and explosive charges and three months for previous convictions (the same uplifts as utilised by the Judge) to reach an end starting point of three years’ imprisonment. Adopting the same 35 per cent discount as utilised by the Judge results in an end sentence of 23 and a half months’ imprisonment.

[61]   The concurrent sentences of 12 months’ imprisonment on the two cannabis charges remain.

Woolford J