R v Taihia

[2014] NZHC 2811

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-225 [2014] NZHC 2811

THE QUEEN

v

ADRIAN TOA TAIHIA

Hearing:	30 October 2014
Appearances:	E J McCaughan for the Crown P J B Winter for the Defendant
Sentencing:	30 October 2014

SENTENCING NOTES OF THOMAS J

Solicitors:

Meredith Connell, Auckland.

Counsel:

P Winters, Auckland.

R v TAIHIA [2014] NZHC 2811 [30 October 2014]

Introduction

[1]      Mr   Taihia,   you   appear   for   sentence   having   pleaded   guilty   to   one representative charge of manufacturing the Class A drug, methamphetamine.

[2]      The maximum penalty is life imprisonment.1

Facts

[3]      The facts are that between 10 December 2011 and 23 February 2012, you assisted Mr Davoren and other associates to manufacture an unidentified amount of methamphetamine  on  three  different  occasions.    On  the  first  occasion  of  10

December 2011, you encouraged Mr Davoren to manufacture an undetermined amount of methamphetamine.   On 19 January 2012, you assisted Mr Davoren by receiving an undetermined amount of pseudoephedrine from him and acting as its custodian.  You also agreed to bring oil to Mr Davoren to assist the manufacturing process.  On 23 February 2012, you allowed Mr Davoren and associates to use your premises for the purpose of converting pseudoephedrine into methamphetamine.

Personal circumstances

[4]      You  have  10  previous  convictions.     None  are  relevant  to  the  present offending.  You are 32 years old and live with your wife and three children, aged eight, six and four.  You have a son from a previous relationship.  You did work part time as a shrink wrapper and  you are a part time professional boxer.   You are currently a multiple division champion and the holder of four New Zealand as well as World boxing titles.

[5]      You told the writer of the pre-sentence report that around the time of your offending, your mother in law, who played a big part in your life, passed away.  You needed money to pay for her funeral.   You approached Mr Davoren because you knew he had money and was involved in drugs to some extent.  You admit that you

encouraged  Mr  Davoren  to  manufacture  methamphetamine  because  you  needed

1      Misuse of Drugs Act 1975, s 6(2)(a).

money quickly, as your mother-in-law’s funeral was three days away.  You said that you  held  a bag of pseudoephedrine  and  dropped  it  off somewhere else for Mr Davoren, because you had to pay back money you had borrowed from him.  You let Mr Davoren use your house to manufacture methamphetamine in February because you still owed money to him. You admit you knew what you were doing was wrong, but were under the pressure of debt.

[6]      You  expressed  remorse  and  regret  for  your  actions.    The  report  writer identifies that  you have no rehabilitative needs.   The underlying factor in  your offending was your susceptibility to financial pressures and lack of ability to make sound judgements in such situations.  You are assessed as being at a low to medium likelihood of reoffending and a medium risk of harm.  The report writer recommends a sentence of home detention and community work.

Sentencing indication

[7]      On 18 September 2014  I gave a sentencing indication in respect of this offending.  Pursuant to s 116(2) of the Criminal Procedure Act 2011, that indication is binding unless information has since become available to the court and I am satisfied that the information materially affects the basis on which the indication was given.

[8]      Based on parity between you and a co-offender, I adopted a starting point of three years’ imprisonment.  With regards to a guilty plea discount, I accepted you would be entitled to a 10 per cent discount.  That brought the end sentence to two years and eight months’ imprisonment.

Defence submissions

[9]      Defence counsel, Mr Winter, today seeks a further discount on the basis that there were no aggravating features of your offending; your had limited involvement in the offending; you are remorseful; you have attended four sessions at an alcohol and  drug  service;  you  have  previous  good  character;  and  you  spent  time  on restrictive bail conditions.

[10]     He  submits  that  the  factors  personal  to  you  are  sufficient  to  reduce  the sentence to one of two years’ imprisonment or less and to impose a sentence of home detention and community work.

Crown submissions

[11]      The  Crown  submits  that  you  are  not  entitled  to  any  greater  guilty  plea discount  than 10  per cent.   The Crown  acknowledges  the positive pre-sentence report, but submits that regardless of the motivation, it is important not to lose sight of the damage done to the community by your role in the manufacture of methamphetamine.   The Crown submits that if I am to take your personal circumstances into account, it is necessary for you to demonstrate that they are

outside of the usual range, with reference to Jarden v R, Whare v R and R v Wang.2

Discussion

[12]     In line with my sentencing indication, I adopt a starting point of three years’ imprisonment.  The facts that there were no aggravating features of your offending and you had limited involvement are recognised in that starting point, so do not justify a further discount.

[13]     The 10 per cent discount for your guilty plea is an appropriate balance in light of the following factors; you pleaded guilty to a charge which reflected the Crown’s  case  from  the  outset  regarding  your  involvement  with  the methamphetamine manufacturing operation.  The Crown agreed to offer no evidence on related charges of conspiring to manufacture methamphetamine and supplying. The pleas were entered close to the end of the Crown case.

[14]     It is not possible, I have to say at this point Mr Taihia, to give you the level of discount sought to bring your sentence within range of possible home detention. That would be a significant discount requiring, nearly a quarter of the three year starting point.  The facts of this case simply do not justify such a reduction.  First of

all, your bail conditions were not sufficiently restrictive to justify a discount, in my

2      Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612; Whare v R [2014] NZCA 354; and R v Wang

[2014] NZCA 409.

assessment.3   I spent quite some time at the outset of the hearing today to seek clarity as to what exactly your bail conditions were.  It seems you may have been on a 24 hour curfew but that was for a period of a couple of weeks only.  Since then you were on a curfew originally starting at 9 pm at night and then extended to 10 pm at night. There were also changes to that curfew to enable you to attend various boxing events.  So in my assessment, to send a message that bail conditions such as those entitle you to a discount would be the wrong message entirely.  In saying that, I take into account the guidance of the cases of R v Aram and the Court of Appeal’s comments in R v Nichols.4

[15]     In terms of your personal circumstances, many people who have committed drug offending have been like you, driven to it by financial pressures.  That does not diminish your culpability for the purposes of sentencing.   Due to your 10 prior convictions, you are not entitled to a discount on the basis of prior good character. You are clearly a role model to young people in your community through your involvement in boxing and rugby.  The difficulty with that, of course Mr Taihia, is the fact that there are impressionable young people looking up to you compounds the harm to the community that your offending has caused.

[16]     I accept, however, that your remorse is genuine.   I take into account the guidance of the Supreme Court decision in Hessell, in that regard.5     I also acknowledge that a sentence of imprisonment will carry with it the additional punishment for you of not being able to defend the professional boxing titles you currently hold in New Zealand and overseas.6    On the basis of these factors, I am

prepared to allow a discount of two months’ imprisonment.

3      See R v Nichols CA406/02, 16 June 2003 at [36].

4      R v Nichols, above n 3 and R v Aram HC Auckland CRI-2004-004-7049, 12 October 2006; aff ’d

[2007] NZCA 328.

5      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64] and Sentencing Act 2002, s 9(2)(f).

6      Sentencing Act 2002, s 8(h).

Outcome

[17]     Mr Taihia,  please stand.    On the representative  charge  of  manufacturing

methamphetamine, you are sentenced to two years and six months’ imprisonment.

[18]     You may stand down.

Thomas J