R v Ta'Avale - [2014] NZHC 2984

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 Prisoner

Judgment:

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,…

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.

Continue reading R v Ta'Avale

Details

AGLC: R v Ta'Avale [2014] NZHC 2984
Case: [2014] NZHC 2984
Decision Date: 27 November 2014

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard the case of The Queen v Kaisa Ta’avale, a defendant who pleaded guilty to charges of conspiring to supply methamphetamine and conspiring to pervert the course of justice. The methamphetamine charge carried a maximum penalty of 14 years' imprisonment, and the charge of perverting the course of justice had a maximum penalty of seven years' imprisonment. The court was tasked with determining an appropriate sentence for the defendant, considering the nature of the offences, the defendant's personal circumstances, and the purposes and principles of sentencing.

The court had to decide on the starting point for each offence, taking into account the principles of sentencing and the relevant case law. The defendant's previous convictions, the seriousness of the current offences, and the need for denunciation and deterrence were also considered. The court needed to determine whether the sentences should be cumulative or concurrent, and if so, what adjustments should be made to the starting point for each offence.

The court ultimately decided that the appropriate starting point for the methamphetamine charge was two years and three months' imprisonment, with an uplift of six months due to the defendant's status as a remand prisoner. The court also imposed a discount of around 15% for the defendant's guilty plea, resulting in a final sentence of two years and two months' imprisonment for the methamphetamine charge. For the charge of conspiring to pervert the course of justice, the court took a starting point of nine months' imprisonment, with an uplift of three months to reflect the defendant's previous convictions, and a 15% discount for the guilty plea, resulting in a final sentence of seven months' imprisonment. The court ordered that the sentences be served cumulatively, totaling two years and 11 months' imprisonment.

The court made its final orders, sentencing Kaisa Ta’avale to two years and two months’ imprisonment on the charge of conspiring to supply methamphetamine and seven months’ imprisonment on the charge of conspiring to pervert the course of justice, to be served cumulatively. The total sentence was two years and 11 months’ imprisonment.

Orders