R v Ta'Avale
[2014] NZHC 2984
•27 November 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2013-090-003842 [2014] NZHC 2984
THE QUEEN
v
KAISA TA'AVALE
Hearing: 27 November 2014 Appearances:
B M Finn for Crown
M N Pecotic for PrisonerJudgment:
27 November 2014
SENTENCING NOTES OF ANDREWS J
R v TA'AVALE [2014] NZHC 2984 [27 November 2014]
Charges
[1] Mr Ta’avale, you appear for sentence having pleaded guilty to one charge of conspiring to supply the class A controlled drug methamphetamine, and one charge of conspiring to pervert the course of justice. The maximum penalty for the methamphetamine charge is 14 years’ imprisonment; the maximum penalty for the charge of perverting the course of justice is seven years’ imprisonment.
Facts
[2] On 1 April 2013, you were arrested and charged with recklessly discharging a firearm and remanded in custody. That day, Ms Brown, your partner, sent text messages to Mr Pakau, a Police Officer. Mr Pakau was not involved in investigating or prosecuting the matter. Ms Brown and Mr Pakau discussed your offending and bail application.
[3] Prior to your being remanded in custody you had lived at number 84 (of a street, which I need not name). Ms Brown and Mr Pakau discussed providing the false address of 84A (of the street) for your bail application with the intention that you would continue to live with Ms Brown at 84. 84A is occupied by people who are not related to you or Ms Brown. Ms Brown put 84A as the proposed address on your bail application. Ms Brown advised you of this plan on 17 April 2013. On 30
April, you swore an affidavit in support of your bail application and nominated 84A as your proposed bail address. You said your mother-in-law lived there and you had lived there before being arrested. Ms Brown spoke to the Police EM bail assessor confirming that her mother lived at 84A. She later pretended to be her mother on the phone to the bail assessor.
[4] The charge of conspiracy to supply methamphetamine also arose while you were in custody. On 20 April 2013 Ms Brown spoke to you about finding a source of methamphetamine. Ms Brown and Mr Pakau were trying to find a source to on- supply regularly to another offender. You advised Ms Brown to go and see an associate of yours and say she was asking on your behalf. You agreed with Ms Brown that she should write a note to the associate purporting to be from you. She discussed with Mr Pakau asking the associate for an ounce of methamphetamine.
The next day, Ms Brown told you about her attempts to get methamphetamine. You told her to go to an associate of yours at the Head Hunter club to obtain methamphetamine. Over the following days you and Ms Brown repeatedly spoke about her attempts to source methamphetamine.
Personal circumstances
[5] I now turn to consider your personal circumstances. You have 42 previous convictions dating back to 1994. Relevantly for the present offending, 21 of these are for breaches of bail, breach of Court conditions, and breach of sentences. Only one is related to drug offending but it occurred nine years ago and was for possession of cannabis. That is not relevant to your present offending.
[6] I have received a pre-sentence report. You are 37 years old and have four children. You explained that your offending was motivated by financial need. You expressed regret about your involvement. You have outstanding fines of a little over
$3,000. While on remand, you have completed a number of counselling programmes. You are reported to be motivated to comply with your current custody requirements. You are assessed as being motivated to address your offending behaviour but your risk of reoffending is assessed as high, given the nature of the current matters. Your risk of harm to others is assessed as moderate to high. The report notes that you have no rehabilitative needs apart from poor problem solving skills.
[7] I have received and read this morning, a letter from you and together with it are included certificates proving your completion of courses while you have been in custody, and two analysis certificates showing that you have (in June and August this year) had negative results from drug tests. In your letter you apologise for your offending; you set out what you see as being the reasons for it and you express your disappointment and disgust at yourself for putting yourself and your family through the effects of your offending.
Sentencing process
[8] In sentencing you today, I must first establish a starting point. The starting point is the sentence that would be imposed if you had been convicted after a trial in Court. Cumulative sentences are appropriate if the offences on which an offender is being sentenced are different in kind, whether or not they are a connected series of offences. A concurrent sentence will be appropriate if the offences are of a similar kind, and are a connected series of offences. In deciding whether offences are connected I consider the time when they occurred, the overall nature of the offending, and any other relationship between the offences. If I determine that you should be sentenced cumulatively, I set a starting point for each sentence separately.
[9] The second step then is to take the starting point and decide what adjustments have to be made, including for any matters that make your offending more or less serious. I also consider matters that relate to you personally as they may lead me to adjust the sentence. I also consider the totality of the sentence reached.
[10] I have to take into account the purposes and principles of sentencing. Given the harm that methamphetamine causes to the community, denunciation and deterrence are important purposes, as is promoting in you a sense of responsibility for the offending and an acknowledgement of the serious harm that is caused by the manufacture and supply of methamphetamine. At the same time, the purpose of sentencing any offender is to help that offender to get back into the community and to be a useful member of it. Denunciation is also an important purpose with regard to the offence of conspiring to pervert the course of justice.
[11] In your case, the relevant principles of sentencing are the gravity of your offending, including your own culpability, the seriousness of your offending in comparison with other similar offending, and the general desirability of keeping consistency in appropriate sentencing levels. I am directed to impose the least restrictive outcome that is appropriate in the circumstances.
Sentences
[12] Mr Finn submits that cumulative sentences are appropriate as your two offences are different in kind. He submits that the aggravating features of your offending are that you were remanded in custody at the time you committed both offences, that the offending spanned several weeks, it involved premeditation, and it had some commercial motive in respect of, in particular, the methamphetamine charge. He submitted that the conspiracy to pervert the course of justice offending is analogous to your committing perjury, because you swore a false affidavit. Further, he submits there are no mitigating factors relevant to the offending as the fact that the conspiracies did not reach completion is reflected in the choice of charge and the maximum available penalty.
[13] Mr Finn submitted that an appropriate starting point for the methamphetamine charge is three years’ imprisonment, and an appropriate starting point for the second charge is 12 to 18 months’ imprisonment. He submitted there should be an uplift of 3 to 6 months for your previous convictions which show your attitude toward the administration of justice, the courts and court orders. Mr Finn accepted that a discount of 15 per cent could be given for your guilty pleas.
[14] Ms Pecotic submitted that I should take the methamphetamine charge as the lead offence and impose an uplift for the additional offending. She submitted that the starting point should be two years and three months’ imprisonment on the charge of conspiracy to manufacture methamphetamine. She accepted that an uplift of 12 months is appropriate to reflect the totality of your offending. She then submitted that I should allow you credit for your remorse, the time spent on bail, personal circumstances, and your guilty plea. Ms Pecotic submitted that you had only a limited involvement in the methamphetamine conspiracy, your involvement was limited to telephone discussions with Ms Brown, and you did not have any contact with anyone who could actually supply methamphetamine.
[15] Ms Pecotic also, as I have said earlier, referred me to the certificates showing your completion of courses since you have been custody, the negative drug analysis results, and the letter that you wrote to the court.
[16] I have determined that I should sentence you cumulatively. While the offences were committed at a similar time and both involved your ex-partner Ms Brown, I consider they are different in kind, one involving deliberate manipulation of court processes, and the other involving a wider circle of people as you attempted to enable Ms Brown to source methamphetamine. However, as both of the lawyers who have addressed me today have noted, in the end result whether a sentence is imposed as cumulative or concurrent sentences, I do not see that as affecting the eventual outcome.
Conspiracy to supply methamphetamine
[17] There is no judgment of a higher Court setting a tariff for sentencing on this charge. However, in R v Fatu, the Court of Appeal set out bands for sentencing which apply to supply, importation and manufacture of methamphetamine.1 The Court of Appeal has held that the Fatu bands are applicable to sentencing for conspiracy involving methamphetamine, as long as an appropriate reduction is made to those levels to reflect the different maximum penalties and the fact that planning something illegal is logically less serious than actually doing it.2 However, the closer a conspiracy comes to execution, the more serious it becomes.3 The degree of reduction to the Fatu bands depends on the degree of culpability that is found.4
[18] The Court of Appeal in R v Henry sets out the general approach to sentencing for conspiracy.5 The Court there emphasised that in assessing culpability or blameworthiness, the nature and scope of the conspiracy and the extent to which the offender participated and assisted in it, must be relevant considerations. That approach was confirmed by the Supreme Court in Jarden.
[19] I will refer to just to cases confirming a conspiracy to supply methamphetamine. In R v Whitehead, Kós J adopted a starting point of two years
1 R v Fatu [2006] 2 NZLR 72 (CA),
2 R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [25].
3 Wire v Police [2013] NZHC 2202 at [10]; R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at
[25] – [27]; Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [11].
4 R v James [2013] NZHC 2006 at [13].
5 R v Henry [1997] 1 NZLR 150 (CA).
and three months’ imprisonment, for a conspiracy which, he said, “went no further than a theoretical plan.”6
[20] In Taylor v R, the Court of Appeal considered Mr Taylor’s sentence for conspiracy to supply methamphetamine.7 While in prison, Mr Taylor and co- offenders had tried to arrange supply of the drug. Mr Taylor was the facilitator and negotiator of sales but the conspiracy did not proceed past the communications stage. In that case the Court of Appeal held that the four year starting point was at the high end.
[21] In essence, I accept Ms Pecotic’s submission that the appropriate starting point for the charge of conspiracy to supply methamphetamine is two years and three months’ imprisonment.
[22] I must, however, make adjustments to that. I impose an uplift of six months to reflect the fact that you offended while you were in custody.8 That leads to an adjusted starting point of two years and nine months’ imprisonment. I do not consider that any discount should be applied in respect of the time you spent on bail. As Mr Finn submitted the terms were not unduly restrictive and you were before the Court for breaches of bail.
[23] In light of the letter which I have read this morning, and in particular the rehabilitative efforts that you have made since you have been in custody, I will allow some discount for personal factors. You pleaded guilty and I accept the Crown’s submission that a discount of around 15 per cent discount is appropriate. I do not consider that any greater discount should be applied for the guilty plea. While I acknowledge Ms Pecotic’s submission as to the timing of the pleas, it has to be said that in this case the Police case against you was indeed strong.
[24] Applying those two discounts, the end sentence on the methamphetamine
charge comes to two years and two months’ imprisonment.
6 R v Whitehead [2013] NZHC 2017
7 Taylor v R [2012] NZCA 332.
8 See Pulete v R [2013] NZCA 216, and Taylor v R [2012] NZCA 332.
Conspiracy to pervert the course of justice
[25] There is also no tariff case for this offence as such offending can occur in many different ways. However it has been noted by the courts that “perverting the course of justice strikes at the heart of the administration of the justice system.”9
The comments that I referred to from Henry about conspiracy are relevant here too.
[26] I refer to two cases that my research has found. In R v Hauraki, Ms Hauraki was sentenced on one charge of conspiring to defeat the course of justice.10 She was the partner of a gang leader who was on the run from the Police. She was in regular contact with him by text and telephone, and arranged meetings with him. In her case the Court took a starting point of eight months’ imprisonment. Another offender in the same series of events also assisted the same person who was on the run.11 She deliberately omitted to inform Police of his whereabouts, and arranged visits with him, and arranged for him to be supplied with drugs. The Court there took a starting point of six months’ imprisonment for the conspiracy charge.
[27] In Gunn v Police, Mr Gunn appealed his sentence for conspiring to pervert the course of justice.12 He had supplied a fictitious letter for his co-offender, stating that his co-offender was employed. He had then pretended to be his co-offender’s employer on the phone. As a result, the co-offender was sentenced to community work instead of the prison sentence which had previously been indicated. The appeal Court held that the appropriate starting point was 12 months’ imprisonment.
[28] I take a starting point of nine months’ imprisonment for this charge. This starting point reflects the fact that you did not initiate the conspiracy. However, you did all that you could to carry the conspiracy to fruition, notwithstanding that what you could do was limited by the fact that you were in custody. It is particularly serious that you swore a false affidavit. I impose an uplift of three months’
imprisonment in relation to this charge to reflect your previous convictions relating
9 R v Hauraki HC Hamilton CRI-2006-419-167, 6 November 2007 at [10].
10 R v Hauraki HC Hamilton CRI-2006-419-167, 6 November 2007.
11 R v Lyndon HC Hamilton CRI-2006-419-167, 30 March 2007.
12 Gunn v Police [2014] NZHC 356.
to the administration of justice. Following a guilty plea discount of, again, around
15 per cent, I reach an end sentence of seven months’ imprisonment on this charge. [29] Would you please stand.
Result
[30] Mr Taa’vale, you are sentenced to two years and two months’ imprisonment on the charge of conspiring to manufacture methamphetamine. You are sentenced to seven months’ imprisonment on the charge of conspiring to pervert the course of justice. Those two sentences are to be served cumulatively. Your end sentence in total is two years and 11 months’ imprisonment. Standing back and looking at that sentence as a whole, I am satisfied that that sentence reflects the totality of your offending.
[31] Please stand down.
Andrews J
0
8
0