R v Taui
[2021] NZHC 2123
•13 August 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-085-001094
[2021] NZHC 2123
THE QUEEN v
ROBERT JASON TAUI
Hearing: 13 August 2021 Counsel:
G J Burston for the Crown E Huda for Mr Taui
Sentencing:
13 August 2021
SENTENCING NOTES OF GWYN J
Introduction
[1] Robert Jason Taui, you appear for sentence having pleaded guilty to seven charges in total: four charges of possession of methamphetamine for supply;1 one charge of possession of cannabis for supply;2 unlawful possession of a pistol;3 and unlawful possession of ammunition.4
[2] In sentencing you today, I apply a law called the Sentencing Act, which sets out the purposes and principles of sentencing. The purpose of sentencing in your case is to hold you accountable for the harm you have done to the community through your
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); maximum penalty life imprisonment.
2 Section 6(1)(f) and (2)(c); maximum penalty eight years’ imprisonment.
3 Arms Act 1983, s 50(1)(a); maximum penalty three years’ imprisonment or $4,000 fine.
4 Section 45(1); maximum penalty four years’ imprisonment or $5,000 fine.
R v TAUI [2021] NZHC 2123 [13 August 2021]
offending; to promote a sense of responsibility for, and acknowledgment of, that harm; to denounce and deter the criminal conduct; to protect the community; and to assist in your rehabilitation and reintegration into society.5 What that means in practice is that I have to look at the whole situation and do what I can to mark what you have done, but also to acknowledge who you are and your particular circumstances and background.
[3] I will first set out your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I set a starting point based on the offending. At that stage I will talk about a case called Zhang v R, which is what we call a “guideline” judgment for offences involving methamphetamine,6 and other cases which are similar. Second, I will apply uplifts and discounts to reflect your personal aggravating and mitigating circumstances. Finally, I will consider whether to impose a minimum period of imprisonment.
The offending
[4] All seven charges result from two police investigations into an operation that supplied methamphetamine in the Auckland and Wellington regions – Operation Superdry in relation to Wellington-based offending, and Operation Maddale in relation to Auckland-based offending. Your co-offender, Mr McMillan, was the main individual targeted in the Wellington-based offending. You purchased methamphetamine from Mr McMillan. Your charges all result from Operation Superdry.
[5] All four methamphetamine charges arise from offending that occurred between March and May 2019, when you and Mr McMillan exchanged methamphetamine for cash, primarily by way of “dead drops” in a carpark in Wellington. Following a disputed facts hearing, I found you purchased a total of 1.524 kilograms of methamphetamine from Mr McMillan.7 The Crown says this amount of
5 Sentencing Act 2002, s 7.
6 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
7 R v Taui [2021] NZHC 594.
methamphetamine would have cost you approximately $325,000, at least, and you would have received considerable profit by on-selling it.
[6] The cannabis charge arises from a search warrant executed on 2 May 2019 at your storage garage, where Police located a glass pipe commonly used to consume methamphetamine, cell phone sim cards, and 350 grams of cannabis head material.
[7] The possession of ammunition charge arises from that same search warrant, where Police located four .45 calibre rounds of pistol ammunition.
[8] Police also executed a search warrant at your home on 2 May 2019 and located electronic scales, another glass pipe, and a heat sealer.
[9] The possession of a pistol charge also arises from the execution of the search warrants on 2 May 2019. Police were not able to locate you, so intercepted phone calls on your cell phone. On one of these calls, you told an associate the Police had failed to locate a pistol when executing the search warrant at your home address, and directed the associate to deliver it to you at a residential address. Police monitored that address and arrested you after the pistol had been delivered; you attempted to evade arrest by jumping over a fence, but were eventually located. A .45 colt pistol wrapped in a towel and a pillowcase was located nearby.
Personal circumstances
[10] I turn now to consider your personal circumstances, based primarily on a Department of Corrections provision of advice to courts report (PAC report) dated 7 May 2021 and a s 27 cultural report dated 12 May 2021.
[11] You are of Māori descent, and are the youngest of seven children. You were raised by your parents, in what you describe as an upbringing where anti-social behaviour was normalised. Both of your parents had issues with alcohol, and were verbally abusive. The s 27 report explains that trauma associated with your parental relationships appears to have left you vulnerable to destructive behaviour.
[12] You told the s 27 report writer that you followed your brother into selling drugs when you were approximately 12 years old. You explained you were brought up around gangs, in an environment that was “quite violent”. The PAC report writer notes the instability in your childhood likely had an impact on your finding a sense of belonging as a teenager, and you were expelled from school at the age of 15 for being in possession of a knife. The s 27 report records that you struggled at school, possibly due to a learning impediment, and did not learn to read until a later stint in prison.
[13] You are now 48 years old, and have been using drugs since you were a teenager. The PAC report writer notes you have been “entrenched” in this lifestyle since you began using methamphetamine in your 30s, lured by both addiction and the money you were able to make (which enabled you to, for example, purchase multiple high-end cars). It appears your current offending was driven largely by your own addiction to methamphetamine, and the need to make money to pay off a debt. You have spent a lot of time in prison, and your sister describes you as “institutionalised”.
[14] Your sister also spoke to both report writers, and she advised that growing up in the environment that you did, there was very little chance to stay out of the way of gangs and criminal activity, and that it was almost inevitable that you were led to a life of drugs and crime. The s 27 report describes your “significant loss of whakapapa”. Your sister also discussed your cultural disconnection, explaining you were disconnected from your iwi, hapu, marae, and whānau. The s 27 report explains that your methamphetamine-related offending appears linked to early pro-criminal and anti-social role-modelling and disordered parent-child relations; cultural disconnection and a breakdown in whānau support; methamphetamine addiction and unresolved trauma; and antisocial peers through which you maintained a sense of belonging.
[15] The PAC report writer also records that it is reasonable to suggest your mental health will have been affected by long term methamphetamine use. Grief has likely contributed to your ongoing drug use – you told the PAC report writer that methamphetamine provides suppression of emotional suffering you have experienced following loss, most notably your brother’s traumatic suicide.
[16] Between 11 March 2021 and early May 2021, you were on electronically monitored bail (EM bail) at the Ahikaa Trust facility (Ahikaa), a bail residence and rehabilitation facility in Auckland. You presented as highly motivated to address your drug issues, and Ahikaa confirmed that you had been tested as drug-free multiple times during your stay. Your sister also confirmed she has been in contact with you recently, and she believes you have made a change and are ready to continue changing your life. The s 27 report writer also believes you show promise in terms of rehabilitation. You have expressed remorse for your offending.
[17] Despite these positive steps, the PAC report writer notes you still require more intensive rehabilitation, and believes you pose a high risk of reoffending, and a high risk of harm to the community (both through the effects of drug supply on the community, and also due to the firearms charges).
Submissions
[18] I will now summarise what each of Mr Burston for the Crown, and Mr Huda on your behalf have said to me about how I should sentence you.
[19]Mr Burston, counsel for the Crown, submitted:
(a)a starting point for the four methamphetamine charges of 14 years’ imprisonment is appropriate;
(b)that starting point should be uplifted by one year to reflect the firearms charges, and a further three months to reflect the cannabis charges;
(c)an uplift of 20 per cent is warranted for your previous convictions and the fact the offending occurred while you were on parole;
(d)a 10 per cent discount for your guilty plea is available;
(e)a modest discount in the region of five to 10 per cent is available for personal mitigating factors, depending on whether I impose a minimum period of imprisonment (MPI); and
(f)an MPI should be imposed.
Your counsel, Mr Huda, submitted:
(a)a starting point for the four methamphetamine charges of 11 years’ imprisonment is appropriate;
(b)that starting point should be uplifted by one year to reflect the firearms charges, but no uplift is necessary to reflect the cannabis charges;
(c)an uplift of 14 months is warranted for your previous convictions;
(d)a 15 per cent discount for your guilty plea is available;
(e)a discount for your personal mitigating factors, including to reflect the s 27 cultural report and your commitment to rehabilitation, of up to 20 per cent is available; and
(f)an MPI is not necessary.
Starting point
The methamphetamine charges
[21] The Court of Appeal decision in Zhang provides guidance on sentencing in methamphetamine-related cases, by establishing five sentencing bands by reference to the quantity of drugs involved.8 Based on quantity alone, your offending falls in band four, where 500 grams–two kilograms attracts a sentence of between 8–16 years’ imprisonment.9 However, quantity alone does not determine the appropriate sentence
– the Court explained that a lesser role deserves a less severe sentence than a significant or leading role, and a lesser role may result in an offender moving not only within a band but also between bands.10
8 Zhang v R, above n 6.
9 At [125].
10 At [10(e)].
[22] The Court provided guidance on what constitutes a “lesser”, “significant”, or “leading” role.11 Factors that indicate a “lesser” role are:
(a)performed a limited function under direction;
(b)engaged by pressure, coercion, intimidation;
(c)involvement through naivety or exploitation;
(d)motivated solely or primarily by own addiction;
(e)little or no actual or expected financial gain;
(f)paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved;
(g)no influence on those above in a chain;
(h)little, if any, awareness or understanding of the scale of operation; and/or
(i)if own operation, solely or primarily for own or joint use on non-commercial basis.
[23]Factors that indicate a “significant” role are:
(a)operational or management function in own operation or within a chain;
(b)involves and/or directs others in the operation whether by pressure, influence, intimidation or reward;
(c)motivated solely or primarily by financial or other advantage, whether or not operating alone;
11 At [126].
(d)actual or expected commercial profit; and/or
(e)some awareness and understanding of scale of operation.
[24]Factors that indicate a “leading” role are:
(a)directed or organised buying and selling on a commercial scale;
(b)substantial links to, and influence on, others in a chain;
(c)close links to original source;
(d)expectation of substantial financial gain;
(e)used business as a cover; and/or
(f)abuses a position of trust or responsibility.
[25] A key issue in setting an appropriate starting point for you is determining whether you played a significant or leading role in the drug business. Mr Burston submitted you played a leading role, because: you were an independent supplier who purchased commercial quantities of methamphetamine from Mr McMillan; you had close links to the original source,12 as a close associate of Mr McMillan; and you expected and received substantial financial gain from the operation.
[26] Mr Huda, on the other hand, submitted you played a significant, rather than a leading, role.
[27] In terms of the factors in Zhang, I find you display many of the factors of a significant role: you had an operation and management function in your own operation; you were motivated by financial gain, although not “solely” or even “primarily”, given your addiction issues; you received commercial profit; and you must have had some awareness and understanding of the scale of Mr McMillan’s
12 The original source is an Auckland-based associate of Mr McMillan’s, Mr James, who has since fled the country.
operation, given the quantities of methamphetamine you were purchasing from him. You display some of the features of someone in a leading role, in particular: buying on a commercial scale; and expectation of substantial financial gain. However, given you do not appear to have had any role in relation to any other aspect of Mr McMillan’s business or contact with any of the other co-offenders, I find overall you played a significant role.
[28] Having found the quantity of methamphetamine places you in the upper half of band four, and your role to be at the upper end of the significant category, I now turn to adopting an appropriate starting point.
[29] I have to be careful to treat you fairly in comparison to the other defendants in this case. None of them had a role that was directly comparably to your role, but I will mention the starting points adopted for them so you can see how all of the defendants in this case have been treated by the court:
(a)Mr Paulo was sentenced in July 2020 on a single charge of supplying methamphetamine as a party, and Cooke J adopted a starting point of three years’ imprisonment.13
(b)Mr Stone was sentenced in March 2021 for a single charge of supplying methamphetamine, and I adopted a starting point of three years, six months’ imprisonment.14
(c)Mr Minns was sentenced in March 2021 for his role in transporting two kilograms of methamphetamine from Auckland to Wellington, and I adopted a starting point of four years, six months’ imprisonment.15
(d)Ms Hayman was sentenced in March 2021 for her role in transporting six kilograms of methamphetamine from Auckland to Wellington, and I adopted a starting point of six years’ imprisonment.16
13 R v Paulo [2020] NZHC 1797.
14 R v Stone [2021] NZHC 636.
15 R v Minns [2021] NZHC 638.
16 R v Hayman [2021] NZHC 642.
(e)Mr McMillan was sentenced this morning for his role as the leader of the Wellington operation, and I adopted a starting point of 17 years.17
[30] Mr Burston also pointed to a number of cases, with starting points ranging from 11–12 years.18 I consider your case most similar to that of Wellington v R, where Mr Wellington was found guilty of four charges of possession of methamphetamine for supply and two charges of supplying methamphetamine, and the Court adopted a starting point of 12 years’ imprisonment.19 Mr Wellington was involved in a significant supply and distribution network that operated in Auckland and Christchurch. The network involved similar roles as in your offending: Mr Hughes was the principal organiser, working directly for an unnamed ringleader. Mr Wellington ran the distribution network in Christchurch, receiving large quantities of methamphetamine for on-supply. This is very similar to the operation in your case, where Mr McMillan was the principal organiser in Wellington, purchasing methamphetamine from Mr James in Auckland. You received large quantities of methamphetamine from Mr McMillan for on-supply. A total of 1.54 kilograms of methamphetamine was involved in Mr Wellington’s case, similar to the 1.524 kilograms in your case. Although accepting Mr Wellington was addicted to methamphetamine, the Court found this was not causative of the offending,20 and he was financially motivated by significant profits.21
[31] Mr Burston advocated for a starting point higher than in Wellington, on the basis that you were operating on your own account, rather than as a link in Mr McMillan’s chain. However, I do not accept there is enough of a difference between the two cases to warrant a higher starting point, and I adopt a starting point of 12 years’ imprisonment.
17 R v McMillan [2021] NZHC 2118.
18 Moheebi v R [2020] NZCA 343; Moses v R [2020] NZCA 296; Miller v R [2020] NZCA 131;
Wellington v R [2020] NZCA 277; Martin v R [2020] NZCA 318.
19 Wellington v R, above n 18.
20 At [23].
21 At [17].
The firearms charges
[32] For the firearms charges alone, I would adopt a starting point of one year, six months’ imprisonment.22 I consider this offending is related to the lead offending, but different enough in nature to warrant an uplift to the starting point, in order to properly deter and denounce this type of offending. To reflect the totality of the offending, I uplift the starting point by six months to reflect the firearms offending.
The cannabis charge
[33] For the cannabis charge alone, I would adopt a starting point of one year, six months’ imprisonment.23 However, given the overlap between this offending and the lead offending, I do not consider an uplift to the starting point necessary.
Starting point
[34]That results in a starting point of 12 years, six months’ imprisonment.
Personal aggravating and mitigating factors
[35]I turn now to your personal aggravating and mitigating factors.
Previous convictions
[36] I am able to impose an uplift for your previous convictions,24 because they “are relevant as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending.”25
[37] You have an extensive criminal history, with 76 previous convictions since 1990. Mr Burston highlighted that the current offending occurred while you were on parole, and you have previously been sentenced to:
22 Tuuta v R [2019] NZHC 2788 at [30].
23 R v Te Poono [2020] NZHC 308 at [10]-[13].
24 Sentencing Act, s 9(1)(j).
25 Orchard v R [2019] NZCA 529 at [39].
(a)three years, six months’ imprisonment in 2005 for supplying methamphetamine in 2004;
(b)eight months’ imprisonment for possession of cannabis for supply in 2006, which occurred while you were on bail awaiting sentence in 2005;
(c)six months’ imprisonment in 2007 for offering to supply methamphetamine in 2004 and 2005;
(d)three years, nine months’ imprisonment in 2010 for supplying methamphetamine in 2009; and
(e)six years’ imprisonment in 2012 for supplying methamphetamine.
[38] Although I acknowledge Mr Burston has pointed to various cases where uplifts of around 20 per cent have been imposed to reflect previous offending,26 that would amount to two years, six months in your case, which I do not think is necessary.
[39] The Courts in other cases have recognised that addiction, poverty and other vulnerabilities can diminish the ability of individuals to make rational choices about offending, which consequently diminishes the deterrence aspect of sentencing.27 I acknowledged that to be the case when I sentenced Mr Minns for his part in Mr McMillan’s methamphetamine dealing operation.28 However, balanced against that, I note the Court of Appeal has held commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice.29 Given your offending appeared to be very much driven by financial gains, as well as your addiction issues, and the repetitive nature of this type of offending throughout your history, I consider some uplift is warranted. I impose an uplift of one year (approximately eight per cent) to reflect your previous convictions.
26 Lavea v R [2014] NZCA 192 at [24].
27 Zhang v R, above n 6, at [86]-[90].
28 R v Minns, above n 15, at [39]-[42].
29 Zhang v R, above n 6, at [147].
Guilty plea
[40] I turn now to your guilty plea.30 Your trial was set to commence on 9 February 2021. You pleaded guilty to six of the charges on 26 January 2021. Following withdrawal of one of the outstanding charges, you indicated you would plead guilty to the one remaining charge shortly before your trial was scheduled to begin and were arraigned on 9 February 2021.
[41] I indicated a 20 per cent discount for your co-offender, Mr Philip, who accepted a sentence indication and entered his guilty plea in February 2021. This discount was relatively high given how late the plea was, but that was because of the complexity of the material involved and the fact Mr Philip also faced charges related to Operation Maddale, which are not scheduled for trial until March 2022. I note your charges all result from Operation Superdry. Mr Minns received a 15 per cent discount for guilty plea after accepting a sentence indication in 4 February 2021.
[42] Mr Burston submitted that the fact you disputed the quantity of methamphetamine involved, thereby necessitating a disputed facts hearing, should “erode” any credit you get for your guilty plea. His submission was that this prolonged the proceeding and demonstrated a lack of acceptance of responsibility for your offending. The Crown says a discount of no more than 10 per cent is available for your guilty plea.
[43] I do not accept that the need to hold a disputed facts hearing requires a lesser discount in the particular circumstances of your case. This is especially so, give that on one of the charges the Crown alleged you purchased “one to two kilograms” of methamphetamine, but I only found it proven beyond reasonable doubt that you had purchased one kilogram.31 The exact quantity alleged by the Crown was not clarified until the filing of written submissions for the disputed facts hearing. I do not consider it appropriate to reduce your guilty plea discount because you chose to test that evidence.
30 Sentencing Act, s 9(2)(b); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
31 R v Taui, above n 7, at [46].
[44] In keeping with the discounts given to your co-offenders, and to reflect the complexity of the case, I consider a discount of one year, 11 months (approximately 15 per cent) appropriate.
Personal mitigating factors
[45] In sentencing you today, I must take into account your personal, family, community, and cultural background.32 As I have already noted,33 you have been dependent on drugs for most of your adult life, following a difficult upbringing. The intergenerational history of both social and economic deprivation diminished your opportunities and shaped the choices you made. That does not relieve you of personal responsibility for your actions, but it does help me to understand how you got to the point where you became involved in this offending and to that extent it modifies your culpability.
[46]In Carr v R the Court of Appeal said:34
… where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whānau members, unemployment, educational underachievement and violence as features of the offender’s upbringing such matters ought to be taken into account in sentencing.
[47] I consider there is a clear link between your background and addiction issues and your current offending. I received your letter shortly before this sentencing and I acknowledge your commitment to your rehabilitation, which shows you accept responsibility for your offending. I acept that you are genuine when you say that you are at a point in your life when you want a different future. I also acknowledge the letter I received today from your sister, Ms Karen Taui. She indicates her own and whānau support for you. I hope that, with that support, you are able to take a different path.
[48] In her letter Ms Taui talks about the need for you to have a rehabilitation programme with a strong Te Ao Māori focus. I would hope and expect that you would
32 Sentencing Act, s 8(i).
33 See above at [10]-[17].
34 Carr v R [2020] NZCA 357 at [60], citing Zhang, above n 6 , at [159].
have access to the Drug Rehabilitation Programme in prison, to build on the progress you made at Ahikaa. I would hope too that the Hōkai Rangi programme, which is being introduced by the Department of Corrections, will benefit you.
[49] These personal mitigating features lead me to conclude that a global discount of two years, six months (20 per cent) is appropriate to reflect your background, addiction issues, and prospects for rehabilitation.
Time spent on EM bail
[50] Finally, I note the Sentencing Act requires me to consider time spent on EM bail as a mitigating factor.35 You were on EM bail at Ahikaa for approximately two months. Given the brevity of this period, I do not consider any further discount necessary.
Minimum period of imprisonment
[51] Finally, I come to the issue of whether or not to impose a minimum period of imprisonment or “MPI”. Ordinarily a defendant who is sentenced to prison for more than two years can apply for parole after they have served one third of that sentence. But s 86 of the Sentencing Act gives the Court power to order a defendant to serve a longer minimum period of imprisonment where the possibility of parole after the normal period would mean that the sentencing principles of deterrence, denunciation and accountability, or protection of the community from the offender would not be adequately met.
[52] The Court of Appeal has confirmed an MPI may be expected in cases or recidivist or commercial methamphetamine dealing,36 and an MPI of approximately 38 per cent was imposed in the similar case of Wellington.37 In Zhang the Court of Appeal said:38
… as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing.
35 Sentencing Act, s 9(2)(h).
36 Chai v R [2020] NZCA 202 at [39].
37 Wellington v R, above n 18, at [25].
38 Zhang v R, above n 6, at [171].
[53] In your case, the Crown seeks an MPI on the basis that being eligible for parole after serving one-third of the sentence would not be adequate to hold you accountable for the harm you have done to the community, denounce your conduct, deter you or others from committing similar offences, and protect the community.39
[54] Mr Huda says that an MPI is not necessary, and points to what the Court of Appeal said in a recent case, when declining to impose an MPI:40
Faced with a person as plainly institutionalised as [the defendant], and presented with some prospects of change, we consider it correct to foster that opportunity, albeit against the background of what remains a necessarily lengthy sentence.
[55] Given that you have accepted responsibility for your offending (which is highlighted by your guilty plea), your commitment to rehabilitation, and the uplift to the starting point I have imposed, I do not consider an MPI necessary. That means you will be eligible to apply for parole after you have completed one third of your sentence.
Result
[56] On four charges of possession of methamphetamine for supply, I sentence you to nine years, one month imprisonment.
[57] On one charge of unlawful possession of a pistol and one charge of unlawful possession of ammunition, I sentence you to one year, six months’ imprisonment, to be served concurrently.
[58] On one charge of possession of cannabis for supply, I sentence you to one year, six months’ imprisonment, to be served concurrently.
[59]On the application of the Crown, I order the destruction of:
39 Sentencing Act, s 86.
40 Lisipa v R [2021] NZCA 341.
(a)all drug related utensils and paraphernalia and items including cell phones used to facilitate the drug offending; and
(b)all controlled drugs seized.
Gwyn J
Solicitors:
Crown Solicitor, Wellington
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