R v To'a
[2019] NZHC 3232
•5 December 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-092-4045
[2019] NZHC 3232
THE QUEEN v
RICHIE TO’A
Hearing: 5 December 2019 Counsel:
F M T Culliney for Crown
P E Dacre QC for Defendant
Sentenced:
5 December 2019
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Auckland
R v TO’A [2019] NZHC 3232 [5 December 2019]
Introduction
[1] Mr To’a, you appear for sentencing today on four charges relating to methamphetamine offending, one charge relating to cannabis offending and two charges relating to unlawful possession of a firearm and ammunition. Those charges are:
(a)One representative charge of supplying methamphetamine.1
(b)One charge of offering to supply methamphetamine.2
(c)One charge of possessing methamphetamine for supply.3
(d)One charge of conspiring to supply methamphetamine.4
(e)One charge of possession of cannabis.5
(f)One charge of unlawful possession of ammunition.6
(g)One charge of unlawful possession of a firearm.7
[2] On the morning of your trial you entered pleas of guilty to the charges under the Arms Act 1983 and to the single charge relating to possession of cannabis. On the second day of your trial, after the jury had been empanelled and the Crown had given its opening address, you entered guilty pleas to the methamphetamine related charges.
[3] You were originally to be sentenced on 29 October 2019. However, your sentencing was adjourned so that counsel and the Court could take account of the guidance provided by the Court of Appeal regarding the sentencing of offenders for
1 Misuse of Drugs Act 1975, s 6(1)(c) & (2) (maximum penalty of life imprisonment).
2 Misuse of Drugs Act 1975, s 6(1)(c) & (2) (maximum penalty of life imprisonment).
3 Misuse of Drugs Act 1975, s 6(1)(f) (maximum penalty of life imprisonment).
4 Misuse of Drugs Act 1975, s 6(2A)(a) (maximum penalty of 14 years’ imprisonment).
5 Misuse of Drugs Act 1975, s 7(1)(a) (maximum penalty of three months’ imprisonment).
6 Arms Act 1983, s 45(1) (maximum penalty of four years’ imprisonment).
7 Arms Act 1983, s 45(1) (maximum penalty of four years’ imprisonment).
methamphetamine related offending, in the case of Zhang v R.8 That decision has recast the previous sentencing guidelines contained in R v Fatu.9
Background to the offending
[4] In January 2018, the Police began an investigation into a methamphetamine supply chain. Telecommunications data was intercepted by Police, and the offences that you and your co-offenders were charged with were essentially based on that intercepted data.
[5] Mr To’a, your role in this offending was that of supplying the methamphetamine to your associates. Mr Pomale acted as a go-between or “middle man”, and Mr Puhara was involved in the sale and supply of methamphetamine at street level.
[6] On 1 September 2017, you conspired with Mr Pomale and Mr Puhara to supply unknown persons with 504 grams of methamphetamine. At 6.04 pm that day, the unknown person contacted Mr Puhara, asking to purchase 18 ounces or 504 grams of methamphetamine. Mr Puhara then made a voice call to Mr Pomale, who in turn made a voice call to you. Following those conversations, Mr Pomale contacted Mr Puhara to inform him that the price per ounce of methamphetamine was six and a half thousand dollars. This was relayed on to the unknown person, who responded that they would confirm the deal with him in five minutes. Following that, more discussion took place between Mr Pomale and Mr Puhara, whereby the two of them discussed the lowest price they would drop to, and their respective cuts from the deal.
[7] Later that evening, at 8.05 pm, you made a phone call to Mr Pomale to check on the progress of the deal. Immediately following that call, Mr Pomale sent a message to Mr Puhara advising him that you would only be able to supply the methamphetamine up until 9pm that night, though he would try to have that time extended. Ultimately, that proposed deal did not proceed.
8 Zhang v R [2019] NZCA 507.
9 R v Fatu [2006] 2 NZLR 72 (CA).
[8] Between 21 August 2017 and 6 September 2017 you supplied Mr Pomale with at least 504 grams of methamphetamine. In return, and during the same period, you received at least $65,800 from him.
[9] On 21 December 2017 you offered to supply seven ounces or 196 grams of methamphetamine to an unknown person.
[10] On 11 April 2018 a search warrant was executed at a property in Onehunga which you rented. In the course of the Police search, the Police located 10 rounds of shotgun ammunition, 17 rounds of 8mm blank ammunition and 15 rounds of 9mm blank ammunition. The Police also located during the search over 500 grams of dimethyl sulphone, which is a substance commonly used as a “cutting agent” to dilute methamphetamine for the purposes of supply.
[11] A search warrant was also executed on your white Jeep Wrangler. Inside it the Police located a .22 calibre revolver, loaded with seven rounds of live ammunition placed behind the steering wheel and within reach of the driver’s seat. A further 95 rounds of the .22 ammunition was also located within the vehicle, together with 10 rounds of shotgun ammunition and one round of 9mm ammunition.
[12] Also inside the vehicle Police located approximately nine grams of cannabis, and just under one kilogram of methamphetamine.
[13] I will not detail the facts concerning the charges against your co-defendants. However, suffice it to say that those details concern the supply of quantities of methamphetamine.
[14] There is, however, one other offender involved in the methamphetamine supply chain whose role warrants mention. Ms Cassidy, who was residing with Mr Puhara, was at the lowest end of the supply chain. She would occasionally deal methamphetamine on Mr Puhara’s behalf, when he was not able to do so himself. When questioned, she admitted to Police that she knew of Mr Puhara’s drug dealing activities, and would drop off and deliver drugs for him, and collect payments on his
behalf when he had no means of transport. She faced only a single charge of supplying methamphetamine.
Approach to Sentencing
[15] The sentencing this morning will proceed in the following way. Firstly, I will identify the relevant purposes and principles of sentencing.10 In serious drug offending such as this, as noted by the Court of Appeal in Zhang, those purposes include the need to hold you accountable for the harm done to the community, to promote in you a sense of responsibility for that harm, to denounce your conduct, to deter you and others from committing the same or similar offences, the protection of the community, and finally to assist your rehabilitation and reintegration back into the community.11 As to the principles of sentencing the Court of Appeal in Zhang noted the gravity of the offending, the culpability of the offender and the seriousness of the type of offences, but also drew particular attention to the requirement to impose a penalty near to the maximum if the offending is near to the most serious of cases for which that penalty is prescribed.12
[16] Secondly, I shall identify the aggravating and mitigating features of your offending, and based on those characteristics, and applying the guideline decision in Zhang, I will set a starting point that reflects the seriousness of your offending. Having determined that sentencing starting point, I will then take into consideration any aggravating or mitigating factors personal to you in deciding the final sentence to be imposed on you. This will include, finally, a discount recognising your guilty pleas.
Starting point
[17] The Court of Appeal in Zhang has identified five bands of culpability for supplying methamphetamine, which are defined by reference to the quantity of methamphetamine the defendant has dealt in.13 The Court held it is no longer
10 Sentencing Act 2002, ss 7 & 8.
11 At [57].
12 At [59]–[60].
13 Zhang v R [2019] NZCA 507 at [125]. This is in contrast to the four bands in Fatu [2006] 2 NZLR 72 (CA) at [43].
necessary to distinguish between supply, importation and manufacturing.14 The bands are as follows:
Band one: < 5g Community to 4 years’ imprisonment Band two: < 250g
2–9 years’ imprisonment
Band three: < 500g
6–12 years’ imprisonment
Band four: < 2kg
8–16 years’ imprisonment
Band five: >2kg
10 years’ imprisonment to life imprisonment
[18] Quantity is relevant to culpability because it is an indicator of the harm or potential harm to the community, and because quantities may also indicate commerciality which attracts greater denunciation.15 As the Court said in Zhang,16 the Ministry of Health has attempted to quantify the social harm associated with methamphetamine using a tool called the “Drug Harm Index”. The Ministry calculated the total social costs associated with methamphetamine in 2016 as
$1,239,000 per kilogram.17 This case involves approximately two kilograms of methamphetamine, so the social harm caused as a result of dealing in this case would be in the order of two and a half million dollars.
[19] However quantity on its own does not determine culpability.18 In relation to band four, I note that the range for sentence in Zhang is between eight and 16 years. The Court of Appeal in Zhang explained that the role played by the offender in the criminal enterprise is also an important consideration in fixing culpability. The defendant’s role will inform their level of culpability and can be recognised not just by placement of the offending within the bands but, where appropriate, by placing the offending below the starting point for a band where culpability by virtue of the role played by the defendant is assessed as low notwithstanding the quantity of methamphetamine involved.19 The Court emphasised, however, that access to lower
14 Zhang v R [2019] NZCA 507 at [122].
15 Zhang v R [2019] NZCA 507 at [104].
16 At [80].
17 At [80].
18 At [104].
19 At [118] and [123].
starting points may only be expected when a defendant’s role is lesser in degree, and where the quantities involved are at the lower end of the relevant band.20
[20] The Court of Appeal also said that when assessing a defendant’s role, Judges may be assisted by reference to the following descriptions of roles, based on those developed by the United Kingdom Sentencing Council to distinguish between lesser, significant and leading roles:21
Role Lesser Significant Leading 1. Performs a limited function under direction;
2. engaged by pressure,
coercion, intimidation;
3. involvement through naivety or exploitation;
4. motivated solely or primarily by own addiction;
5. little or no actual or
expected financial gain;
6. paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved;
7. no influence on those above in a chain;
8. little, if any, awareness or understanding of the scale of operation;
and/or
9. if own operation, solely or primarily for own or joint use on
non-commercial basis.
1. Operational or
management function in own operation or within a chain;
2. involves and/or directs others in the operation whether by pressure, influence, intimidation or reward;
3. motivated solely or primarily by financial or other advantage, whether or not operating alone;
4. actual or expected commercial profit; and/or
5. some awareness and understanding of scale of operation.
1. Directing or organising buying and selling on a commercial scale;
2. substantial links to, and influence on, others in a chain;
3. close links to original source;
4. expectation of
substantial financial gain;
5. uses business as cover; and/or
6. abuses a position of trust or responsibility.
[21] The Crown submits, that in determining the appropriate starting points, your offending displayed the following aggravating features. First, the Crown submits that there was a high level of commerciality, profit and sophistication in your drug dealing arrangements. The Crown submits that the offending involved an established supply
20 At [123].
21 At [126].
chain, consisting of multiple actors at various levels, and significant profits. In particular, the Crown submits that:
(a)You received at least $65,000 from Mr Pomale in return for supplying him at least 18 ounces (504 grams) of methamphetamine.
(b)You conspired with Mr Pomale and Mr Puhara to supply 18 ounces (504 grams) of methamphetamine to an unknown buyer at prices between six and six and half thousand dollars an ounce, totalling between $108,000 and $117,000.
(c)You offered to supply 196 grams of methamphetamine to an unknown person, having an estimated street value of between $31,500 and
$84,000.
(d)You also had a kilogram of methamphetamine for supply in your possession, it having a street value of at least $100,000.
[22] The Crown notes that your offending occurred over a 17 day period, during which you supplied, planned to supply, or were prepared to further supply, significant quantities of methamphetamine in a relatively short time frame.
[23] The Crown says that you and your co-defendants used coded language to describe the volume and price of the methamphetamine involved in the transactions, albeit that the codes you used were not particularly sophisticated and were readily deciphered by the Police. The Crown says that you in particular, appeared to be more cautious than your co-defendants and only communicated to your associates via telephone calls, rather than using text messages, in an apparent attempt to avoid detection.
[24] Finally, the Crown submits that although there is no evidence that you yourself were producing the methamphetamine, you played a leading role at the higher level of an established commercial supply chain. The Crown says that you were the primary supplier of methamphetamine to Mr Pomale, who in turn supplied Mr Puhara for
distribution at street level. The Crown says that you were not involved in the direct sale of methamphetamine to users at street level and that you distanced yourself from those persons who were, and you did not communicate directly with Mr Puhara, or Ms Cassidy. The Crown says that the communications between you and Mr Pomale suggest that it was you who controlled when the methamphetamine would be available and the price at which it was to be sold. The Crown says that by contrast to Mr Puhara and Ms Cassidy, you had a good understanding of the scale of the operation, and that you made or could expect to make, a significant profit from your offending.
[25]The Crown submits that there are no mitigating features of your offending.
[26] Mr Dacre QC in his submissions on your behalf, accepts the aggravating features of your offending as identified by the Crown, and he also accepts that there are no mitigating features of your offending.
[27] I too accept the aggravating features identified by the Crown, and that there are no mitigating features of your offending.
[28] Your co-defendants, Mr Pomale, Mr Puhara and Ms Cassidy have already been sentenced. Consistency of sentences as between yourself and your co-defendants is an important consideration that I bear in mind when sentencing you today. As noted by the Crown, however, and accepted by your counsel, given the distinct roles played by yourself and your co-defendants, and the different charges you face, different starting points are inevitable. I shall say no more about Ms Cassidy in this context as her role and culpability was well below yours and the other two defendants. Ms Cassidy was sentenced to home detention which is a sentencing option not applicable in your case.
[29] Mr Puhara was sentenced by Jagose J on 12 December 2018.22 He had pleaded guilty to: conspiring with you and Mr Pomale to supply methamphetamine, two charges of conspiring with Mr Pomale to supply 112 grams and 280 grams of methamphetamine, and one representative charge of supplying unknown persons with at least 79 grams of methamphetamine.
22 R v Puhara [2018] NZHC 2797.
[30] Jagose J noted that the total quantity of methamphetamine the subject of the charges was 903 grams,23 and applying the guideline judgment of Fatu adopted a starting point of 11 years.24 In reaching that starting point, the Judge observed that two of the conspiracies involved a low level of planning, but were organised in the context of an ongoing operation and an established supply chain, while the third was very advanced.25 The Judge said that Mr Pomale, and especially you Mr To’a, were higher up what he termed the chain of command than Mr Puhara while noting that Mr Puhara’s role was nevertheless of some significance as he had direct lines of communication through to you.26 The Judge applied a 10 per cent discount to the starting point to reflect the lower statutory maximum sentence for the offence of conspiracy.27
[31] Mr Pomale was sentenced by Venning J on 31 October 2019.28 The charges Mr Pomale faced and pleaded guilty to were: conspiring with you and Mr Puhara to supply 18 ounces (504 grams) of methamphetamine; two charges of conspiring with Mr Puhara to supply 112 grams and 280 grams of methamphetamine; one charge of offering to supply at least 499 grams of methamphetamine; and one representative charge of supplying at least 721 grams of methamphetamine and in return receiving
$117,370.
[32] Venning J noted that the total quantity of methamphetamine involved in Mr Pomale’s offending of conspiring to supply, supplying or offering to supply, exceeded two kilograms, and referring to the guidelines in Zhang he considered Mr Pomale as being on the cusp of bands four and five.29 Having regard to the factors he had identified and to the fact that the quantity of methamphetamine involved in Mr Pomale’s supply charges exceeded 1200 grams, the Judge adopted a starting point of 13 and a half years.30 The Judge also noted that Mr Pomale had engaged in the offending with full knowledge of what he was getting himself involved in, and did so
23 At [11].
24 At [14].
25 At [12].
26 At [13].
27 At [11] and [14].
28 Pomale v R [2019] NZHC 2798.
29 At [19]
30 At [23].
for the benefit of the financial returns available to him through such offending.31 The Judge accepted that Mr Pomale was the middleman, between you Mr To’a, and Mr Puhara who was the street level dealer, and said that Mr Pomale had an active role in a sophisticated and organised supply chain that dealt in substantial quantities of methamphetamine, involving substantial sums of money.32 The Judge regarded Mr Pomale’s offending as more serious than that of Mr Puhara.33
[33] In addition to the combination of aggravating features of your offending I have already noted, the Crown points to the more significant role you had in the methamphetamine supply chain by comparison to your co-defendants, and therefore your higher level of culpability. The Crown accepts that in sentencing an offender for a conspiracy charge in line with sentencing authority, some discount should be allowed to recognise the lower maximum penalty for that offence, in comparison to actual supply. However, the Crown notes that the closer a conspiracy was to being carried out, the more seriously it will be treated. In that respect, the Crown refers to the remarks of Jagose J, and submits that the conspiracy with which you were charged was close to actual execution, and that the would-be customer appears to have pulled out at the last minute.34 Taking the sentences of your co-offenders into account, and having regard to the sentencing guidelines in Zhang, the Crown therefore submits your offending places you firmly at the top end of band four and attracting a starting point of 16 years’ imprisonment.
[34] Your counsel accepts that you are in a different category to Mr Pomale and Mr Puhara. Mr Dacre accepts that the total amount of methamphetamine involved in your offending was just over two kilograms. He also accepts that your offending sits within the upper region of band four, as set out in Zhang, although he says your offending does not place you at the very top of that band. He submits that if this Court is minded to consider your offending as more serious than that of Mr Pomale, then an increased starting point of no more than 12 months to yield 14 and a half years’ imprisonment should be adopted.
31 At [13].
32 At [15] – [16].
33 At [23].
34 At [6].
[35] Mr To’a, you were found with approximately one kilogram of methamphetamine in your possession. You supplied Mr Pomale with a further 500 grams of methamphetamine. You also conspired to supply an unknown person with 500 grams of methamphetamine and offered to supply an unknown person with 200 grams. Adding all those amounts together, a total quantity of over two kilograms is reached, and your counsel accepts that the total quantity of methamphetamine involved in your offending was just over two kilograms, while the amount of methamphetamine involved in the possession for supply and supply charges was approximately one and a half kilograms.
[36] I agree with both your counsel and the Crown that your offending sits within the upper region of band four as set out in Zhang. Referring to those factors noted in Zhang that are relevant to assessing the role of the offender,35 I first note that you were involved in organising the sale of methamphetamine on a commercial scale. However, while you were involved with others in the operation, the summary of facts as presented by the Crown does not suggest that you were directing or controlling the others, by applying pressure or otherwise upon them, to engage in the supply or sale of methamphetamine. Nor does it suggest that you had substantial influence over the others in the supply chain. You only spoke to Mr Pomale, never to Mr Puhara, or indeed Ms Cassidy. Additionally, it was Mr Pomale who, on the summary of facts, approached you to organise the supply of 500 grams of methamphetamine to the unknown person, and which never eventually transpired.
[37] There is nothing in the summary of facts that describes your connection to your source of the methamphetamine, nevertheless you were clearly at the top of the supply chain in relation to Mr Pomale and Mr Puhara, and therefore would have had closer links to that source than either of them.
[38] I also accept that you did have an expectation of substantial financial gain. Again, that is made out on the basis that significant amounts of methamphetamine were involved and that considering your position at the top of the supply chain so far
35 At [118].
as you and your co-offenders were concerned, you would have expected to reap the most significant financial rewards from your offending.
[39] Accordingly, while I agree with the Crown that your offending is more serious than that of Mr Pomale, I do not accept that it is such as places you at the very top of band four.
[40] Moreover, I agree with your counsel that an increase of 12 months’ imprisonment on the starting point adopted for Mr Pomale is appropriate in the circumstances, which yields a starting point which I adopt for you of 14 and a half years’ imprisonment.
Uplift for firearms offending
[41] Turning next to considering what uplift should be imposed for the firearms that were found in your possession, the Crown submits that 12 months is appropriate, while Mr Dacre suggests an uplift in the range of three to six months.
[42] The Crown has referred me to Court of Appeal authority, where it is emphasised that the presence of firearms in drug cases is a serious aggravating feature.36 The Crown pointed out that the firearm was loaded, and that it was located in your vehicle within reach of the driver’s seat, and that there was a significant amount of ammunition both in your vehicle and also found at your home. The Crown submits that those are matters of particular concern.
[43] Your counsel refers to the report prepared by Dr Karl Jansen, a Consultant Psychiatrist, to whom you explained the presence of the firearm, saying that you were paranoid as a result of consuming methamphetamine, and thought that unknown persons were plotting to kill you. You told Dr Jansen that you had never fired a gun. However, I note that you have a prior conviction for unlawful possession of a firearm going back to 2014, which conflicts with your statement to Dr Jansen somewhat. I consider however that the presence of the firearm illustrates the manner in which you
36 R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [40]; and R v Turner [2009] NZCA 389 at [15].
were conducting your drug dealing operation and that your claim of carrying the firearm principally by reasons of paranoia is implausible.
[44] As I have said, the firearm found in your possession was a pistol, and it was loaded, and a significant quantity of ammunition for that weapon, along with ammunition for other firearms, was found in that vehicle too. I note that it was in a position in the vehicle where it could be easily accessed from the driver’s seat.
[45] I accept the Crown’s submission that the presence of a firearm in relation to drug dealing is a seriously aggravating feature. The potential for danger when those engaged in criminal activities have firearms in their possession is significant. The Court has a clear obligation to impose a sentence which expresses society’s condemnation of the unlawful possession of firearms because of the potential danger involved.
[46] Therefore, I accept the Crown’s submission that an uplift of 12 months’ imprisonment is warranted. That brings the total starting point to 15 years six months’ imprisonment.
Personal aggravating features
[47] The Crown drew to my attention your two previous convictions for drug dealing and one previous conviction for unlawful possession of a firearm in 2014, which I have noted. The Crown notes, as does your counsel, that this prior offending only attracted a sentence of community work and intensive supervision. Your counsel says that this indicates the offending was relatively minor. I accept that was likely the case. However, I agree with the Crown that it is relevant offending, and also shows your present offending represents a significant escalation in terms of the nature and gravity of your offending. It also shows that your prior conviction and the sentence imposed upon you did not operate as an effective deterrent to you offending, and accordingly, in my view, an uplift of the sentence to be imposed on you is required to recognise that you have failed to learn a lesson from your earlier conviction and penalty for possession of a firearm. As I say, I will therefore impose an uplift consistent with the Crown’s submission, of three months’ imprisonment to your
starting point which takes the sentencing starting point to a total of 15 years and nine months’ imprisonment.
Personal mitigating factors
[48] I now turn to consider any personal mitigating factors relevant to sentencing. Your counsel says there are a number of personal mitigating factors in your favour that warrant the Court allowing a reduction or discount of your sentence.
[49]Mr Dacre has referred to Dr Jansen’s report in which Dr Jansen concluded that:
(a)You are in recovery from methamphetamine and alcohol dependence;
(b)You have a relatively recent history of methamphetamine induced psychosis. That psychosis resulted in paranoia;
(c)You are described as having multiple severe substance use disorders, presumably in relation to alcohol and methamphetamine;
(d)You suffer from psychiatric disorders which have loss of control as a central diagnostic tenet; and
(e)You are likely to have Attention Deficit Hyperactivity Disorder (ADHD), and appear to have been self-medicating through your consumption of methamphetamine.
[50] Mr Dacre says these matters are all relevant to an assessment of reduced or diminished culpability.
[51] Your counsel also referred to a Cultural Background Report, prepared by Ms Louise Henare of Report Writers. It records that you are a husband and father to two children. You are of Tongan ethnicity and were raised predominantly in New Zealand by your mother. You only recently met your father for the first time, as he had left your mother and moved to Australia when you were just an infant or young child. As a result of meeting your father, you have discovered that you in fact have
six other siblings, being children of your father’s relationships with six different women.
[52] You were taken to Tonga when you were young, and there immersed yourself in Tongan culture. At the age of six, you reported incidents of having been sexually abused by a female family member. You described being highly embarrassed by this, and not coming to terms with it until you were much older. You returned to New Zealand from Tonga aged eight. However, on your return you struggled at school with the English language as you were used to speaking and communicating in the Tongan language.
[53] You and your sister spent significant periods of time alone at home while growing up, as your mother had to work long hours to provide for you both. You advised the report writer that you found it hard living in those circumstances with no father as it meant your mother was often away at work leaving you responsible for looking after your sister.
[54] At age 11 you were invited by a male to accompany him to a centre, which turned out to be something of a ruse, where you were taken to a park instead and sexually propositioned. You managed to get away but felt you were unable to report that to anyone.
[55] You started hanging out with your cousins from about age 12. They, too, did not have a father figure in their lives and, in association with them, you began to experiment with smoking and drinking and using cannabis initially.
[56] You continued to struggle at school and often skipped classes to hang out with friends and get “up to mischief”, in your terms. Nevertheless, you did not leave school until halfway through 7th form. You found work after leaving school but failed to secure permanent employment and soon left. At around that time you first started using methamphetamine.
[57] You attended the Manukau Institute of Technology where you completed a plumbing and gas fitting course. However, you were unable to obtain employment
with that qualification and took up work with a labour hire business. Around this time, as the report writer put it, you embarked on “other ways to make money, resulting in a prison sentence.” Those “other ways” were an aggravated robbery with a weapon.
[58] You say that you were hopeful of turning your life around after prison. However, you told the report writer that you found that all of your friends were using methamphetamine and, despite your initial reluctance, you too began to use it. At some point you incurred debts as a result of your drug use and you started living a second life between your wife and your children and your drug use.
[59] You have worked in the construction industry, essentially as a labourer, for the two years prior to your custodial remand.
[60] The report writer, Ms Henare, was of the opinion that based on your familial connection or Kainga, in particular in relation to the elder members of your Kainga, you are ashamed of your actions.
[61] Ms Henare also concluded that your upbringing, in particular the lack of a father to assist your mother financially and with your upbringing; the opportunities that other children experience that you missed out on, such as sports, etc, because there were no adults around to facilitate those experiences; the lack of oversight over your actions resulting from limited parental presence; your loss of cultural identity; and the interactions with your cousins and other antisocial influences, who encouraged drug and alcohol use, from an early age all had a contributing effect on your offending.
The discounts for personal factors
[62] The Crown submits your offending, and in particular the magnitude on which you were involved in dealing drugs, is such as to preclude, or at least significantly diminish a discount for your drug addiction. As noted in Zhang, evidence of addiction can give rise to a discount for offending, but commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice, which is what diminishes culpability and is what justifies discounting a sentence.37
37 At [147].
[63] The Crown says that you were not dealing at the street level in order to support your habit. Rather, you headed a sophisticated commercial supply operation, from which you either received, or expected to receive, significant financial gains. The Crown submits that there is little evidence to suggest your addiction played a causative role in your offending, and instead it was primarily motivated by your desire for commercial gain.
[64] I agree with the Crown. The amount of methamphetamine with which you were dealing is indicative that you were not simply operating in order to satisfy an addiction, but rather, you were motivated by financial gain. You report having developed an addiction to methamphetamine from around age 18. You are now 30 years old. You have a previous conviction for possessing methamphetamine for supply that could have possibly been explained as causatively connected, but given the length of time which has passed since then, and the extent of your drug dealing operations, I do not accept that your offending can be explained by an addiction to methamphetamine.
[65] It is, nevertheless, clear from the psychiatric and cultural reports provided on your behalf that you have had a troubled childhood and youth characterised by the total abandonment of your family by your father, limited maternal supervision and support, financial deprivation, and a significant measure of social isolation. This led you to associating with antisocial peers, and to alcohol and drug use and abuse from an early age. Although you applied yourself to complete a plumbing and gas fitting course, you were unable to find work in that field and instead had to settle for working at labouring jobs. Those circumstances and these associations contributed to you developing a methamphetamine addiction, and I accept that you have had a methamphetamine addiction. However, as I have said, your involvement in the present offending was clearly commercial in scale. It was primarily motivated by financial reward for yourself and as the means of supporting your family. The fact that your dealing provided you with access to methamphetamine does not diminish the essentially commercial nature of your criminal activity.
[66] You told Dr Jansen that you knew what you were doing was wrong, and that you now feel disgusted with yourself. Dr Jansen’s report describes the effects of your
drug abuse on you and psychiatric disorders that affect you and diminish your self- control and which Dr Jansen says in his opinion somewhat reduce your responsibility for your decision-making and conduct.
[67] I accept that matters relating to and arising from your family background and circumstances warrant a discount, but yours is not a case where the nature and degree of the nexus between your background and your offending is such as to warrant or justify a significant discount on the basis of your methamphetamine addiction.
[68] Your wife has written a letter to the Court in which she details her relationship with you, and how you are growing as a person, and how you intend to stay drug free. She says that you were motivated to stay away from drugs while in custody at Mt Eden Correctional Facility and while on bail. She describes how you attended counselling sessions while on bail, and how you found employment, and how you kept away from negative influences that might have drawn you back towards drugs and drug dealing. She believes that you have the potential to be so much more, and she is committed to being with you.
[69] There is also the letter from your former employer, Mr Wichman, the managing director of Frontline Performance, which is also supportive of you. He says that from March 2017 you were employed as a labourer and concrete pourer, that you demonstrated a good work ethic and were reliable.
[70] Both Dr Jansen and Ms Henare say that you are making an effort at self- improvement and that you are genuinely remorseful. Ms Henare comments that you have demonstrated a good understanding of the impact of your offending on yourself and others.
[71] Finally it also appears from the reports provided to me, and from the contents of the letter written to the Court by your wife, and the letter which you yourself have provided to the Court this morning, together with the rehabilitative plan that you have annexed to your letter, that you are open to rehabilitative treatment and you are committed to doing better for yourself and for your family by staying away from drugs and drug dealing in the future.
[72] In recognition of all those personal factors and circumstances, including your methamphetamine addiction, including your positive approach to rehabilitation and your commitment to quitting drugs and building a better future for your wife and family and yourself, and including what I accept to be your genuine remorse, and taking into account also you time you spent in EM bail, I shall make an allowance of 15 per cent, or 28 months, to acknowledge those factors and recognise them. Applying that discount will reduce the starting point to 13 years, four months’ imprisonment.
Guilty plea
[73] Finally, I must determine what discount is appropriate to reflect you having entered guilty pleas. Mr Dacre says that a discount of no less than 15 per cent is appropriate in the circumstances. The Crown submits that a discount of no more than 15 per cent is appropriate.
[74] In the case of Hessell v R, the Supreme Court discussed discounts to be given in recognition of guilty pleas. The Court said that the appropriate level of guilty plea discount in any case is to be determined by reference to:38
(a)the degree to which the plea of guilty facilitates the administration of the […] criminal justice system; and
(b)the objective circumstances in which the plea of guilty was made, including whether the offender pled guilty at the first reasonable opportunity to do so […]
[75] Mr To’a, you however entered your guilty pleas at a very late stage. It wasn’t until the second day of trial and after the jury had been empanelled and the Crown had made their opening address, as I have said, summarising the prosecution case that you entered your pleas. The prosecution case is also, as I have said, based on electronic intercepted information and it would appear to have been a strong one. The Crown say significant Crown and Police resources had already been expended in preparation for your trial, and members of the jury had already put aside their personal commitments for that week when you entered your pleas of guilty.
38 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[76] In those circumstances, the maximum discount of 25 per cent is clearly not available to you. Furthermore, although both the Crown and your counsel submit that a discount of up 15 per cent may be appropriate, I consider that coming as late as they did, your guilty pleas did not facilitate the administration of the criminal justice system to such an extent as would warrant a 15 per cent discount being given to you.
[77] In my view a discount of 10 per cent will sufficiently recognise the degree of facilitation of the administration of justice derived from your late guilty pleas, and will also differentiate the circumstances of your late entry of guilty pleas from those cases where defendants enter guilty pleas at the first reasonable opportunity and those cases where, although the pleas are entered at a late stage, they nevertheless are entered at a time that results in significant savings of Crown, Police and Court resources being applied to preparation for and the administration of a trial. I note in this regard that Venning J granted your co-defendant Mr Pomale a guilty plea discount of 15 per cent, his guilty plea having been entered a week before the trial was due to commence.
[78] Accordingly, applying a further 10 per cent discount will yield a final sentence of 12 years’ imprisonment.
Minimum Period of Imprisonment
[79] Section 86 of the Sentencing Act 2002 provides that where the Court sentences an offender to a determinate sentence of imprisonment of two years or more it may at the same time that it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular offence. I do not consider that the pre-requisite criteria for the making of such an order are present here, and I note that the Crown have not sought a minimum period of imprisonment order and that minimum periods of imprisonment were not imposed on your co-offenders.
Sentence
[80]Mr Toa please stand.
[81] On the charges of supplying methamphetamine, offering to supply methamphetamine, and possessing methamphetamine you are sentenced to 12 years’ imprisonment on each.
[82] On the charge of conspiring to supply methamphetamine you are sentenced to four years’ imprisonment.
[83] On the charges of unlawful possession of a firearm, and the two charges of unlawful possession of ammunition you are sentenced on each to one year’s imprisonment.
[84]On the charge of possession of cannabis, you are convicted and discharged.
[85] I direct that all the sentences of imprisonment I have imposed on you are to be served concurrently, meaning that the total sentence I have imposed on you is one of 12 years’ imprisonment.
Paul Davison J
3
5
0