R v Tawa
[2021] NZHC 2091
•12 August 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-003188
[2021] NZHC 2091
THE QUEEN v
TE AWATEA O POUTUTERANGI AHUMAI TAWA
Hearing: 12 August 2021 Counsel:
S J Bird for Crown
N Tahana for defendant
Judgment:
12 August 2021
SENTENCING NOTES OF KATZ J
Solicitors:Gordon Pilditch, Office of the Crown Solicitor, Rotorua Kahui Legal, Rotorua
R v TAWA [2021] NZHC 2091 [12 August 2021]
[1] Te Awatea Tawa, you have pleaded guilty to one charge of possession of methamphetamine for the purpose of supply. 1 You appear today for sentence. The maximum penalty for possessing methamphetamine for the purposes of supply is life imprisonment.
The offending
[2] On 29 September 2020, police executed a search warrant at the home of your cousin. You were staying there at the time. Police located you in a bedroom of the house. They searched your bag and found 6.5 grams of methamphetamine, as well as
$3,300 in cash.
What is the appropriate starting point?
[3]The first stage in the sentencing process is to set a starting point.
[4] The guideline judgment for cases of methamphetamine offending is the Court of Appeal decision in Zhang v R.2 Band 2 of Zhang covers methamphetamine dealing where the amount of methamphetamine involved is between five and 250 grams. The Court of Appeal has suggested a starting point of between two and nine years’ imprisonment for offending in Band 2.
[5] Where someone falls within the Band 2 range depends on their role in the offending and also the amount of drugs involved. In this case it is not possible to say with any certainty what your role in the drug operation was. I therefore proceed on the basis that your role was a low level one. Furthermore, the amount of methamphetamine involved was very much at the lower end of the Band 2 range. I therefore set your starting point at the lowest end of the Band 2 range, which is two years’ imprisonment.
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a).
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Adjustments to the starting point for personal circumstances
[6] I now turn to consider what adjustments need to be made to that starting point to reflect your personal circumstances.
Guilty plea
[7] You are entitled to a discount for your guilty plea. You were arrested on 29 September 2020. You sought a sentence indication on 23 March 2021, the day prior to a case review hearing in the District Court. At the case review hearing on 24 March, Judge M A MacKenzie noted that the matter may be transferred to the High Court, and deferred a decision on your request for a sentence indication until your next court appearance on 24 May 2021. On 31 May 2021, you intimated a guilty plea and were subsequently arraigned and pleaded guilty on 8 June 2021.
[8] You therefore pleaded guilty about eight months after you were first arrested. Seeking a sentence indication is not equivalent to a guilty plea. Nor is it a commitment to plead guilty. I therefore do not consider that you pleaded guilty at the earliest opportunity available to you. Your guilty plea was, however, fairly early in the criminal process and in my view a discount of 20 per cent is appropriate.
Section 27 cultural report
[9] When sentencing an offender, the Court is required to take into account their personal circumstances, including their personal, family, whānau, community, and cultural background.3 One of the key ways in which a person’s background may be relevant to sentencing is that it may reduce their moral culpability for the offending.
In Zhang v R, the Court of Appeal observed that:4
[159] First, ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to offending (whether associated with addiction or not), they will require consideration in sentencing.
(footnote omitted)
3 Sentencing Act 2002, s 8(i).
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[10] Similarly, in the leading High Court of Australia decision of Bugmy v R, the Court observed that the fact that an offender had been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.5
[11] Your lawyer submitted that you should receive a discount of 15 per cent to recognise your personal circumstances, as set out in a s 27 cultural report.6 She submitted that there is a nexus between those circumstances and your offending.
[12] The s 27 report provided, which is authored by Dr Jarrod Gilbert, is both helpful and comprehensive. I have reviewed it carefully, but do not propose to go into detail about the contents of that report, much of which is very personal. I accept, however, based on the contents of that report, that you grew up in an environment of social and economic deprivation. In your world, parties, gangs, drug use, violence and criminal offending were normalised. You suffered violence and abuse. You turned to drugs as a response to the trauma you were experiencing. You left home at a young age and lived on the streets for a period.
[13] When you were 21 years old, you moved to Australia with your then partner. The next years were very positive. You remained drug free, acquired a qualification, worked in the banking industry, and saved for your future.
[14] Following some personal setbacks, however, you returned to New Zealand. Sadly, about that time you became a victim of intimate partner violence and this seems to have been a factor in your life spiralling downwards. After a chance encounter with your cousin, who was involved with drugs, you relapsed into methamphetamine use. The index offending occurred shortly afterwards.
5 Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [40]. See also R v Millwood [2012] NSWCCA 2 at [69]: “I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a “normal” or “advantaged” upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”
6 Sentencing Act 2002, s 27.
[15] I note that for many years you were able to put the deprivation of your childhood behind you and play a valuable role as a contributing member of society. I accept, however, that your background remains relevant for sentencing purposes. I endorse the observations of the High Court of Australia in Bugmy that a background of deprivation and disadvantage “may leave its mark on a person throughout life”,7 and that:
[43] … Among other things a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s makeup and remains relevant to the determination of the appropriate sentence.
[16] Taking all of the factors I have identified into account, I accept your counsel’s submission that a discount of 15 per cent is appropriate to recognise your personal circumstances, and the nexus between those and your offending.
Methamphetamine addiction and rehabilitative prospects
[17] You appear to have only relapsed into methamphetamine use a matter of weeks before your arrest and it is therefore difficult to assess the extent of your addiction at that time. Your relapse must be seen against your background of previous methamphetamine addiction, however, and the fact that you had a pattern of using methamphetamine as a coping mechanism in times of personal difficulty. You have been diagnosed with mild substance-related and addictive disorders.
[18] To your considerable credit, since your arrest you have taken voluntary steps to address your drug use. You are currently receiving counselling from the senior alcohol and drug treatment clinician at ARC Counselling services. You have joined a weekly support group and also joined a weekly anger related support group. Your clinician reports that you have been alcohol and drug free since February and you are currently in the maintenance phase of the programme. You are said to have demonstrated commitment to your current treatment plan and your goal of sobriety. You have expressed a desire to enter into a long-term residential rehabilitation programme, either through Odyssey House or a tikanga-based rehabilitation facility.
7 At [43].
[19] Your pre-sentence report assesses you as having a low risk of reoffending. You served a sentence of community work almost ten years ago, in 2012. From that point on, however, you have not offended. You obtained a financial planning qualification and worked in Australia in the banking industry. Your pre-sentence report writer notes that you resorted to using methamphetamine after years of abstinence, to cope with intimate partner violence.
[20] Taking all of these matters into account, I accept your counsel’s submission that a further discount of five per cent is appropriate to reflect the connection between your offending and your drug issues, but also to acknowledge the very considerable rehabilitative efforts you have made voluntarily in the lead up to sentencing.
Remorse
[21] Your counsel also submitted that you should receive a further discount for remorse.8 She notes that the pre-sentence report writer expressed the view that you have expressed genuine remorse. Further, you have maintained your guilty plea despite a letter from Mr MacFarlane providing a potential defence.
[22] The clinician who has provided you counselling also considers that you are genuinely remorseful for your offending. She states that you have shown remorse for your past lifestyle, and now understand the effect that it has had on your own health and wellbeing, but also the harm that drugs cause to our communities, children and whānau.
[23] I find this to be a difficult and finely balanced issue. It appears from the material before the Court that, despite your guilty plea, you may not yet fully accept responsibility for your offending. For example, you told the s 27 report writer the following:
I was hanging out with him [Mr McFarlane] for maybe a month before the police raided. And it was just me and him there. He rang me a couple days before it happened, his girlfriend, him and his girlfriend, they had a fallout, and he was at home alone and needed some help. And blah, blah, blah. So I went over there. And I wasn’t even supposed to be there, I was just getting ready to leave that morning, and the police raided.
8 Sentencing Act 2002, s 9(2)(f).
They found a container of meth in my handbag, and no word of a lie, it literally was not mine, my cousin had put it in my bag before he went to sleep so that I could have some. And when they raided, like I had no utensils, I had no, I had nothing else on me other than that container.
[24] You have also provided me with a copy of a letter from Mr MacFarlane where he states that he “accidentally put a container of meth into your bag”.
[25] The pre-sentence report provides a slightly different account of these events. You told the report writer that you had previously undertaken a drug run to help Mr MacFarlane, who appeared to be in a poor state of health after being awake for days. You accepted responsibility for that drug dealing. The report further records, however, that you claimed that Mr MacFarlane had thrown the container of methamphetamine after using it, and that it had simply landed in your bag.
[26] Your counsel has confirmed this morning, however, that you do take responsibility for the drugs that were found in your handbag, as knowing possession of those drugs is of course an element of the offence that you have pleaded guilty to.
[27] Given, however, that until fairly recently you have, in effect, endeavoured to raise doubts about whether you had knowing possession of those drugs, I am not persuaded that a discount for remorse is appropriate. Your continued assertions that the methamphetamine somehow ended up in your bag without your knowledge (and it is not clear if the $3,300 cash ended up there the same way) is somewhat inconsistent with a full acknowledgement of guilt and genuine remorse.
Time spent on EM bail
[28] Your counsel submitted that you should receive a discount for the seven months’ time you spent on EM bail.9 I accept that a discount is appropriate for that, which I set at three months.
9 Section 9(2)(h).
Conclusion
[29] The various discounts I have allowed for add up to 40 per cent, plus an additional three-month discount for the time spent on EM bail. This brings your end sentence, on my calculation, down to just over 11 months’ imprisonment.
Imposition of a community-based sentence
[30] Your sentence is therefore well within the range where a sentence of home detention,10 or a less restrictive community-based sentence may be imposed.11
[31] I am required to impose the least restrictive sentence that is appropriate in the circumstances.12 That sentence must, however, meet the sentencing purposes of accountability, denunciation, deterrence and community protection.13
[32] The s 27 report records that you have pro-social support from your mother and godmother. I note that your mother and a cousin are both in court today. The level of pro-social support you have is encouraging. You say that while you have been on EM bail your mother has given you practical support by, for example, dropping groceries to you and helping transport you to and from appointments when needed. Your godmother has offered financial assistance towards housing, transport and study, provided that you stay away from drugs and gangs.
[33] Your pre-sentence report recommends a sentence of intensive supervision. The report writer notes that you have already spent three months remanded in custody, and seven months on restrictive EM bail conditions. The writer’s view is that a sentence of intensive supervision will enable you to complete programmes that will help address the causes of your offending. You are also assessed as being at a low risk of reoffending.
[34] In all the circumstances, I accept the recommendation of the pre-sentence report writer. I am satisfied that a sentence of intensive supervision is appropriate in
10 Section 15A.
11 Section 15.
12 Section 8(g).
13 Section 16(2).
your case. A rehabilitative focus is appropriate, and a sentence of intensive supervision will best assist your rehabilitation and reintegration into the community.
[35] Ms Tawa, you are at a crossroads in your life. A sentence of intensive supervision, in my view, will help you get back on track and once again become the fully contributing and valuable member of society you have been in the past. All of the professionals who have been in contact with you appear to have confidence in your ability to do that. The rest is up to you.
Sentence
[36] Ms Tawa, please stand. For possession of methamphetamine for the purpose of supply, you are sentenced to eighteen months’ intensive supervision. I impose the recommended special conditions that are set out in the pre-sentence report.
[37]You may stand down.
Katz J
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