Robert Jason Taui v The King - [2023] NZSC 56

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 15/2023
[2023] NZSC 56

BETWEEN	ROBERT JASON TAUI Applicant
AND	THE KING Respondent

Court:	O’Regan, Ellen France and Kós JJ
Counsel:	C B Hirschfeld, B Tūpara and T D Thompson for Applicant J A Eng for Respondent
Judgment:	16 May 2023

JUDGMENT OF THE COURT

The application for an extension of time to apply for leave to
appeal is dismissed.

____________________________________________________________________

REASONS

Mr Taui dealt methamphetamine around Wellington, purchasing 1.524 kilograms from one of his co-defendants, a Mr McMillan, a wholesaler who had obtained the product from Auckland.[1] The High Court Judge, utilising the guideline judgment Zhang v R,[2] found Mr Taui had played a “significant” role in the operation, albeit displaying some features of a person in a “leading” role (the scale was commercial in nature and he expected significant financial gain in his own right).[3] The Judge adopted a starting point of 12 years’ imprisonment for the methamphetamine offending.[4] He received a final sentence of nine years, one month’s imprisonment for that offending.[5]
[1]This was the High Court Judge’s finding after a disputed fact hearing: R v Taui [2021] NZHC 594.
[2]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[3]R v Taui [2021] NZHC 2123 (Gwyn J) [HC sentencing notes] at [27].
[4]At [31]. She added an uplift of six months for firearms offending: at [32]. The offending and the starting point adopted were broadly consistent with those in Wellington v R [2020] NZCA 277 and Chai v R [2020] NZCA 202 – both post-Zhang decisions of the Court of Appeal.
[5]At [56].
Mr Taui’s sentence appeal to the Court of Appeal focused on parity, but failed.[6] In the course of its judgment the Court of Appeal noted:[7]
[82]     In addition, Ms Cooper submitted that there was a lack of parity with co-offenders, five of whom were attributed starting points between three and six years’ imprisonment for their parts in dealing in larger quantities (between two and six kilograms of methamphetamine). It was submitted that Mr Taui’s role was in many ways indistinguishable from those co-defendants.
[83]     There were material differences between the roles played by Mr Taui and Mr McMillan’s other co-defendants. The evidence at the latter’s trial suggested that he had varying levels of trust in some of those co-defendants, leading to their doing his bidding more loosely supervised. In particular Mr Philip and Ms Hayman made numerous trips to Auckland in vehicles supplied by Mr McMillan with secret compartments, to swap large sums of money for large quantities of methamphetamine. Messrs Stone and Paulo were drivers and ran errands for Mr McMillan. None of them had an independent role in taking ounce quantities of methamphetamine out of Mr McMillan’s control and turning it into cash.
[84]     We acknowledge a potentially concerning gap between the 12-year starting point for Mr Taui and six years for Mr Philip. The Crown’s appeal against Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZSC 56
Decision Date: 16 May 2023

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Robert Jason Taui applied for an extension of time to appeal against his nine-year-one-month imprisonment sentence for methamphetamine distribution. The appeal was dismissed by the Court, which found that the application did not meet the criteria for leave to appeal. The case concerns Mr Taui's role in a methamphetamine distribution operation in Wellington, where he purchased 1.524 kilograms of the drug from a co-defendant, Mr McMillan, who sourced the drugs from Auckland. The High Court Judge found that Mr Taui played a significant role in the operation, leading to a starting point of 12 years imprisonment for the methamphetamine offending. After considering other factors, the final sentence was set at nine years and one month imprisonment. Mr Taui's previous appeal to the Court of Appeal failed, as the Court found that there were material differences between his role and those of his co-defendants. Mr Taui now seeks an extension of time to appeal his sentence to the Supreme Court, citing Berkland v R as a reason for the delay. He argues that the Court of Appeal erred in its assessment of parity and proportionality in sentencing, and that tikanga principles should be considered in his case. The Supreme Court found that the criteria for leave to appeal were not met, as Mr Taui still fits within the significant role profile, and the Court of Appeal's assessment of the differing roles of the co-defendants was correct. The Court also found that tikanga principles do not assist Mr Taui's argument. As a result, the application for an extension of time to apply for leave to appeal is dismissed.

Orders