R v Taito

[2004] NZCA 12

IN THE COURT OF APPEAL OF NEW ZEALAND

CA342/03

THE QUEEN

v

FA'AFETE TAITO

Hearing:17 February 2004

Coram:O'Regan J
Goddard J
Paterson J

Appearances:  G J Foley for Appellant

E M Thomas for Crown

Judgment:2 March 2004 

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

Introduction and background

[1]       Mr Taito was convicted on two counts under the Misuse of Drugs Act 1975.  The first count was that Mr Taito did, with other named persons, conspire to manufacture the then Class B controlled drug, methamphetamine, and the second count was that he conspired with others to supply the same drug.  He was sentenced to a total term of eight years’ imprisonment and now appeals against that sentence. 

[2]       Mr Taito was charged with several others after a police operation known as Operation Flower.  The trial ran for approximately 14 weeks.  The conspiracy to manufacture charge was jointly brought against Mr Taito and Messrs Allison, Saifiti, Hines, Dunn and Marsh.  All five co-offenders were also charged with conspiracy to supply, as was Mr Afamasaga.  Messrs Allison and Saifiti were convicted of manufacturing methamphetamine, while Mr Taito was convicted of conspiring with them to manufacture that methamphetamine. 

[3]       On the conspiracy to manufacture conviction, Mr Taito was sentenced to eight years’ imprisonment.  Williams J, the sentencing Judge, set the appropriate starting point in “the order of six years.”  He determined that there were no mitigating features but a number of aggravating features which led him to increase the sentence to eight years’ imprisonment.  On the conspiracy to supply conviction, Mr Taito was sentenced to a concurrent term of seven and a half years’ imprisonment.

[4]       Messrs Allison, Saifiti, Hines and Dunn were also sentenced at the same time.  The jury had failed to reach a verdict on the manufacturing charge against Messrs Hines and Dunn, and at the time of the sentencing, they were awaiting a new trial on that charge.  All five men were sentenced at that time on their conviction for conspiring to supply methamphetamine, all having been found guilty at the same trial.  Mr Allison received concurrent terms of ten years and seven and a half years imprisonment on the manufacturing of methamphetamine and conspiring to supply charges.  Mr Saifiti received a term of nine and a half years imprisonment on the manufacturing charge and a concurrent term of seven and a half years imprisonment on the conspiring to supply charge.  Messrs Hines and Dunn received respective terms of seven and six years imprisonment on the conspiring to supply charge.

[5]       Messrs Hines and Dunn subsequently pleaded guilty to the manufacturing charge.  They were sentenced to terms of imprisonment of six and a half years and five and a half years respectively on that charge.  Such sentences were concurrent to the sentences earlier given on the conspiracy to supply convictions. 

[6]       A further offender, Mr Wright, had before the Operation Flower trial pleaded guilty to the conspiracy to manufacture methamphetamine charge and received a sentence of three and a half years’ imprisonment from another Judge.  The basis of the charge against Mr Wright was that he assisted Mr Allison at the East Tamaki manufacturing premises, and was the link to the property used.  Equipment and computer recipes were found at his address.  Williams J, when sentencing Taito and the others, noted Mr Wright’s role was perhaps best summed up by speakers on the audiotapes of the phone interceptions “saying that he was Mr Allison’s ‘bumboy’”.  The Judge who sentenced Mr Wright fixed a starting point of five years and reduced it to three and a half years for the guilty plea.  This sentence was upheld by this Court (R v Wright, CA440/02) which noted that the starting point of five years was appropriate for Mr Wright’s involvement and that the conspiracy “involved a profitable, commercial, and high scale manufacture of methamphetamine. The conspiracy was implemented - extensive manufacturing did take place.” 

Grounds of appeal

[7]       There are two discrete grounds of appeal:

a)The sentence was manifestly excessive;  and

b)There was a marked disparity in the sentences imposed on some of the co-offenders.

[8]       In support of the submission that the sentence was manifestly excessive, Mr Foley submitted that this was so having regard to the maximum penalty of ten years imprisonment on the conspiring to manufacture conviction, Mr Taito’s relatively limited role in the manufacturing conspiracy, and his low level involvement in the supply conspiracy, his lack of previous drug convictions, the fact that he had been a drug addict but at the time of the sentencing, was “clean”, and his genuine hopes and aspirations for the future as set out in the pre-sentence report.  In support of his submissions as to Mr Taito’s role, Mr Foley relied upon a schedule used by Crown counsel during the trial.  It showed Mr Allison as the manufacturer or “cook”, and also showed Mr Wright as a manufacturer.  It showed as distributors Messrs Saifiti,  Hines, Dunn and another person.  It was alleged that the main conspirators were Messrs Allison, Saifiti and Hines.  Mr Taito appeared at a lower level under a heading “Major Dealers.” 

[9]       The disparity submission is linked to Mr Taito’s role in both conspiracies.  On the basis of the chart referred to in the previous paragraph, it was submitted he had a lesser role than Messrs Saifiti, Hines and Dunn.  In the circumstances there is a disparity in that he received a greater sentence than either Mr Hines or Mr Dunn.  Further, there should have been a greater disparity between his sentence and those of Messrs Allison and Saifiti, as the maximum sentence for manufacturing a Class B controlled drug was 14 years, whereas conspiracy to manufacture was subject to a maximum term of ten years’ imprisonment.  Mr Wright was shown  at the top level of the diagrams, and accordingly, his sentence is also disparate.

[10]     Mr Foley also submitted that the Judge erred in fixing the lead sentence to the conspiring to manufacture charge rather than to the conspiring to supply charge. 

Crown’s position

[11]     Mr Thomas, for the Crown, supported the Judge’s factual findings as to Mr Taito’s role in the operation.  While accepting that he was not personally involved in the manufacturing process, he was a party to the agreement to undertake the process and he intended to assist.  Both the conspiracy to manufacture and the conspiracy to supply had been successfully implemented and Mr Taito was a major dealer in substantial amounts of methamphetamine.  The Judge was therefore correct in assessing the starting point on the boundary between the first and second categories of offending set out in R v Wallace [1999] 3 NZLR 159.

[12]     It was the Crown’s submission that in the circumstances the starting point of eight years adopted by the Williams J for the major offenders was correct, and the starting point of six years adopted for Mr Taito was appropriate, recognising his lesser role in the operation.  The aggravating features were such that a final sentence of eight years was within the permissible range. 

[13]     In response to the disparity submission, Mr Thomas accepted that Mr Taito appeared to have been more severely treated than Mr Dunn.  However, there were mitigating factors in the case of Mr Dunn which were not present in Mr Taito’s case and, as such, the final result did not lead to a disparity in sentences which justified this Court interfering and reducing the sentence imposed on Mr Taito.  The mitigating factors may have caused the Judge to treat Mr Dunn more leniently than might be expected, but this was not a reason for reducing Mr Taito’s sentence.

[14]     Finally, it was submitted on behalf of the Crown that while the lead sentence could have been given on the conspiracy to supply charge, the real issue was one of the appropriate sentence against the totality of the offending and it mattered not which offence the lead sentence was given for. 

Discussion

[15]     We agree with Mr Thomas in that the issue in respect of the manifestly excessive submission is the totality of the sentence rather than the individual components of it. 

[16]     We also agree that the adoption of a starting point of eight years for the major offenders in this drug conspiracy was appropriate.  The operation itself fell either at the bottom of category 1 or at the top of category 2 of Wallace.  In the circumstances, a starting point of six years for Mr Taito’s involvement was not manifestly excessive.  The sentencing Judge presided over a trial that ran for approximately 14 weeks.  He also conducted a disputed facts hearing for the purposes of the sentencings.  We see no reason for departing from his view.  Mr Taito was a party to the conspiracy which set up the operation.  While he may not have been a manufacturer, he entered into the conspiracy to manufacture and also the conspiracy to supply.  Indeed, the evidence would suggest that he was a supplier.  The chart used by the Crown has four levels, namely, manufacturer, distributors, major dealers, and associates/other dealers.  This does not mean that a person who falls into the category of a major dealer should receive a lesser sentence than some of those appearing at the distributors’ level, or even a small part player at the manufacturers’ level.  Mr Taito played a major part in this operation and the starting point of six years was not excessive. 

[17]     The Judge determined that there were no mitigating features.  Mr Taito’s personal circumstances, including his drug addiction, his lack of previous convictions and his hopes for the future can play little part in a sentencing such as this.  There were aggravating features, not the least being that this offending took place while Mr Taito was on parole for a lengthy sentence for aggravated robbery.  He had a lengthy list of previous convictions but none was for drug dealing.  In the circumstances, this is not a major aggravating feature as it can only be taken into account in respect of character.  In our opinion, a final sentence of eight years on a totality basis was not in itself manifestly excessive.  The only issue is whether the disparity principle entitles Mr Taito to a reduction in sentence.

[18]     On the manufacturing charges, both Messrs Allison and Saifiti were sentenced on the basis of a starting point of at least eight years.  The Judge saw little to distinguish their respective positions.  In our view, it cannot be said that Mr Taito’s starting point of six years was disparate having regard to a lesser role, because he did have a substantial involvement.  The differences between the final sentences of ten years and nine and a half years respectively for Messrs Allison and Saifiti relate to the aggravating features.  Two years were added in the cases of Messrs Allison and Taito and one and a half years in the case of Mr Saifiti.  We see no error in principle in the way the starting points were increased because of the aggravating features.  Mr Taito’s final sentence was closer to that of Mr Saifiti’s than Mr Allison’s, because Mr Saifiti did not receive the same increase for aggravating features as did Messrs Allison and Taito.

[19]     In respect of Messrs Hines and Dunn, the history of the matter had a bearing on their sentences.  When the five men were initially sentenced, Messrs Hines and Dunn each only had one conviction on which they were sentenced.  It was therefore not surprising that when they were sentenced on the conspiracy to supply offence, they received a lesser sentence than Mr Taito did on his two offences.  If Mr Taito had only been sentenced on the conspiracy to supply offence at the same time, it is likely, in our view, that he would have received less than seven and a half years.

[20]     When Messrs Hines and Dunn pleaded guilty to the manufacturing charge, they received a credit for their guilty pleas.  The starting point adopted by the Judge for Mr Hines was “probably in the 7-8 year range” while the starting point adopted for Mr Dunn was in the 6-6½ year range.  Thus, although both Messrs Hines and Dunn received what may be seen as a significantly less severe sentence on the manufacturing charge than did Mr Taito, the starting point in Mr Hines’ case was higher than Mr Taito’s and Mr Dunn’s starting point was 6-6½ years compared with Mr Taito’s six years.  Both Mr Hines and Mr Dunn received credits for mitigating features, including the plea of guilty, and what Williams J described as the “overhang” problem.  The Judge described the “overhang” problem as the real chance that an appropriate sentence for manufacturing methamphetamine would extend beyond their earlier sentences as it was now six or seven months since the jury’s verdict.  While the credits received may have been at the limit of the Judge’s discretion, they were not outside that limit.  The result of the sequence of sentencings was that Mr Hines received a total sentence of one year less than Mr Taito, but his starting point was two years higher.  Mr Dunn received a total sentence of two years less than Mr Taito, but his starting point was at least as high, if not higher.

[21]     The Judge did not refer in his subsequent sentencing of Messrs Hines and Dunn to the totality principle.  It would have been appropriate, in our view, to have done this, and then made an appropriate adjustment for the mitigating features, particularly the plea of guilty in respect of the one offence.  The sequence of the sentencing has led to what, on the face of it, is a small disparity in favour of Mr Hines, and a more substantial disparity in favour of Mr Dunn.  In one sense, they have received a benefit because the jury was unable to agree at the first trial.  Nevertheless, Messrs Hines and Dunn did eventually plead guilty, and the Judge was entitled to give them a discount for that plea.

[22]     While we are of the view that Mr Dunn, in particular, could have received a greater sentence, we do not think that Mr Taito was unfairly treated, but rather the other two offenders benefited from the circumstances.  This is not a reason to adjust the sentence for disparity under the principles in R v Lawson [1982] 2 NZLR 219.

Result

[23]     The appeal against sentence is dismissed.

Solicitors
Crown Law Office, Wellington