ROBERT TUIMAUGA AND THE KING

[2024] NZHC 3121

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-486

[2024] NZHC 3121

BETWEEN

ROBERT TUIMAUGA

Appellant

AND

THE KING

Respondent

Hearing:	15 October 2024
Appearances:	P D Wilks for Appellant A A Kefu for Respondent
Judgment:	25 October 2024

JUDGMENT OF O’GORMAN J

[Appeal against sentence]

This judgment was delivered by me on 25 October 2024 at 11 am

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

Emma Priest, Barrister, Auckland Kayes Fletcher Walker, Auckland

TUIMAUGA v R [2024] NZHC 3121 [25 October 2024]

[1]    This is an appeal against  the  sentence  of  Judge  G A Andrée  Wiltens  on 15 August 2024.1 Mr Tuimauga pleaded guilty to supplying methamphetamine (representative), offering to supply methamphetamine (representative), and possession of methamphetamine for supply. On 15 August 2024, Mr Tuimauga was sentenced to two years and three months’ imprisonment in the Manukau District Court.

[2]    The appellant contends that the end sentence was manifestly excessive because a discrete discount should have been given for the impact of imprisonment on his dependent children. If a discount of five per cent is given to reflect that factor, then the end sentence would be within range for home detention. The appellant contends that an end sentence of home detention is the least restrictive outcome appropriate in the circumstances.

Legal principles

[3]    The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.3 The focus is on the end sentence imposed, rather than the process by which it is reached.4

[4]    The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.5

[5]    Appellate courts do not indulge in mere tinkering with a sentence.6 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

1      R v Tuimauga [2024] NZDC 19310.

2      Criminal Procedure Act 2011, s 250.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

4 At [36].

5 At [32].

6      R v Boyd (2004) 21 CRNZ 169 at [38].

Offending

[6]The quantity of methamphetamine involved in this case is 195.2 grams:

(a)Between 1 April and 19 September 2022 Mr Tuimauga supplied in total 113 grams of methamphetamine over at least 87 occasions.

(b)Over that same period, Mr Tuimauga offered to supply a total amount of 48.5 grams of methamphetamine over 83 occasions.

(c)During a search warrant in December 2022, police located a total amount of 33.7 grams of methamphetamine at his home.

District Court sentencing

[7]    The District Court followed the two step methodology for sentencing as set out in Moses v R.7

[8]    The District Court adopted a starting point of five years and six months’ imprisonment for the offending. There is no challenge to this aspect of the sentence.

[9]    The Judge then gave a total of 59 per cent of discounts for personal mitigating factors, based on the following:

(a)25 per cent for Mr Tuimauga’s early guilty plea;

(b)15 per cent for personal background factors as outlined in the s 27 cultural report;

(c)10 per cent for rehabilitative efforts and potential; and

(d)Six months (nine per cent) for time spent on electronically monitored (EM) bail.

7      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

[10]The end sentence was two years and three months’ imprisonment.

[11]   Counsel for the appellant confirmed that submissions were made in the sentencing hearing seeking a discount for the separate factor of the impact of imprisonment on the offender’s children. However, there is no discussion of this factor in the sentencing notes.

Submissions of the parties

[12]   Counsel for the appellant sets out extensive case law authorities and literature discussing the obligation on sentencing to take into account as a discrete factor the impact of imprisonment on young children. The key authorities are referred to below at [23]–[30].

[13]   In this case, Mr Tuimauga has a young daughter born in 2022, and a nine-year-old son. Following his imprisonment, those children remain with their mother who is a loving, primary caregiver. The appellant nevertheless submits that a five per cent discount is warranted  in  the  circumstances,  to  reflect  hardship  to Mr Tuimauga’s children. This is at the low end of the range of discounts given for this factor. Higher discounts may be available when the defendant being imprisoned is the sole primary caregiver, or where other special factors (such as particular vulnerability of the child) increase the hardship.

[14]   On the basis that a five per cent discount for that factor is warranted, the appellant contends that an end sentence of home detention is suitable, despite the presumption of imprisonment in s 6(4) of the Misuse of Drugs Act 1975 (for certain offences relating to class A controlled drugs). Even when principles of denunciation and deterrence must be given due weight, they do not necessarily displace non-custodial sentences in order to achieve other purposes, such as rehabilitation.8

8      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [150] and [175].

[15]   In this case, the appellant submits that the following factors favour a community-based outcome:

(a)Mr Tuimauga is a first time offender. His offending was driven by addiction. He has made significant rehabilitative efforts and took responsibility for offending through the entry of guilty pleas.

(b)The appellant submits that deterrence is not achieved by a sentence of imprisonment, assessing the marginal difference compared with home detention for a first time offender:9

General deterrence is one of the primary purposes (and justifications) of sentencing. The general deterrent effect of the criminal law puts a great deal of downwards pressure on levels of offending. I also accept that legal sanctions imposed on an offender and the probability of more severe sentences in the event of further offending have the tendency (obviously not always realised) of deterring that offender from further offending. What I am more sceptical about is marginal deterrence, that is, the idea that moderate variations in sentencing severity (such as between a sentence of imprisonment and home detention) have an appreciable impact on rates of offending.

[16]   Further, the Court in Zhang stated that addiction calls in question the effectiveness of deterrence.10

[17]   Mr Tuimauga has not been accepted into Odyssey House, but it is proposed that he reside at his EM bail address and continue to engage with services such as counselling, Alcoholics Anonymous/Narcotics Anonymous and Community Alcohol and Drug Services. Special home detention conditions and post-detention conditions are proposed to support Mr Tuimauga on a sobriety pathway, with probation able to identify any suitable rehabilitation programmes. Mr Tuimauga also intends to undertake a living without violence programme through Friendship House. In contrast, if he were to serve a short-term sentence in prison, he would have only limited access to substantive rehabilitation due to his lengthy abstinence.

9      R v Vhavha [2009] NZCA 588 at [40].

10     See Zhang v R, above n 8, at [146].

[18]   The appellant concludes by submitting that a term of 12 months’ home detention is the least restrictive outcome that ought to have been imposed, subject to providing appropriate deductions to reflect the time he has spent in custody since sentencing.

[19]   The respondent acknowledges that there is scope for a separate discount to account for the adverse impact of imprisonment on an offender’s child or children, depending on the Court’s assessment of all relevant factors. However, in this case the respondent says a decision not to give any discount was available on the facts, given that the children remain in the care of the appellant’s partner who is a primary caregiver. There is no evidence that the separation will have any greater impact than usual, or that the appellant’s rehabilitation will be affected by the separation.

[20]   Even if a discount were given and the end sentence is within range to consider a non-custodial sentence, the respondent’s position is that the least restrictive sentence appropriate in the circumstances is imprisonment. The respondent refers to the Court of Appeal’s comments on the decision to impose imprisonment or home detention in Doolan v R:11

… In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.

[21]   The respondent says that the principles of deterrence and denunciation are particularly important because the offending was reasonably prolonged (over eight months), and there are strong public interest considerations for deterring others from introducing methamphetamine into the community. This is reflected in the Judge saying:12

11     Doolan v R [2011] NZCA 542 at [38] (footnotes omitted), cited more recently with approval in

Birch v R [2022] NZHC 2448 at [16]. See also Fairbrother v R [2013] NZCA 340 at [30].

12     R v Tuimauga, above n 1, at [14].

I appreciate that you have a large family supporting you here but the point I want to make is that there is an even larger group outside this courtroom who have been affected by your offending and the message that needs to be clearly given to our community is that those involved with methamphetamine will be dealt with appropriately. Unfortunately, that is a significant factor that I cannot overcome. I have to not only consider holding you accountable for your offending but I have to make sure that you do not want to do it again and make sure that others get the same message so there has to be a real deterrent element to the sentence.

[22]   The respondent submits that the Judge correctly found that imprisonment would be the least restrictive outcome available, given the seriousness of the offending and the impact that this offending has on the community.

Legal principles — dependent children

[23]   In Philip v R, the Supreme Court recognised the effect of sentencing on the appellant’s young child as a separate mitigating factor reflecting subss 8(h)–(i) of the Sentencing Act,13 referring to this being consistent with the United Nations Convention on the Rights of the Child:14

[52]  … A sentencing approach which recognises the importance to a child of the familial relationship is also supported by the United Nations Convention on the Rights of the Child (Children’s Convention). The Children’s Convention emphasises the importance for children of growing up in a family environment and imposes an obligation on courts to treat the best interests of the child as a “primary consideration”.

…

[56] …What is required is a consideration of all of the relevant circumstances which must include the child’s interests. Those interests include, as our reference to the Children’s Convention indicates, the importance for children of growing up in a familial environment.

[24]   In that case, a 10 per cent discount was considered appropriate for the impact the sentence of imprisonment would have on the appellant’s young child.15

13     Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [52].

14     Footnotes omitted.

15     At [15] and [48].

[25]   In C (CA 153/2023) v New Zealand Police, the Court of Appeal stated that “[a]ttention to the impact of a custodial sentence on the family life of an innocent child is required in all cases”.16

[26]   In Whaanga v R, the Court of Appeal accepted that allowance should have been made to reflect the fact that incarceration of Mr Whaanga (who had become the primary caregiver to allow his partner to study) had a significant impact on his four children.17 The sentence of 26 months was quashed and substituted with a sentence of 22 months (substituted to home detention).

[27]   In Sweeney v R, the Court of Appeal considered a 10 per cent discount should have been applied for the interests of the appellant’s children, whose mother had passed.18 The Court summarised the basis for the discount:

[27]      The law as stated in Philip is that the court must take the welfare of the children into account as part of the personal circumstances which are relevant to sentencing Mr Sweeney. That is required by s 8(h) and (i) of the Sentencing Act and is consistent with the United Nations Convention on the Rights of the Child. It is only one of a number of relevant factors. But, like Mr Philip, Mr Sweeney is clearly an important presence in his young children’s lives …

[28]     In Clover v R, Becroft J reduced a sentence for violent offending by three months (from five years and three months’ imprisonment to five years’ imprisonment). That allowance was given for the impact of the prison sentence on Mr Clover’s five-year-old daughter. The Judge stressed “the focus here is on the child”.19

[29]In Nguyen v R, Johnstone J upheld a discount of three months (approximately

5.5 per cent) to take into account the impacts of the sentence on the defendant’s newborn child.20 The Judge summarised the relevant law:

[42] … In Philip v R, the Court confirmed that the impact of imprisonment on the offender’s children is a relevant factor, reflecting s 8(h) and (i) of the Sentencing Act, and the courts’ obligation under the United Nations Convention on the Rights of the Child to treat the best interests of the child as a primary consideration …

16     C (CA 153/2023) v New Zealand Police [2024] NZCA 136 at [60(b)].

17     Whaanga v R [2024] NZCA 29.

18     Sweeney v R [2023] NZCA 417.

19     Clover v R [2024] NZHC 919 at [69].

20     Nguyen v R [2024] NZHC 2974.

[30]     In Ah Tong v R,21 the appellant was imprisoned for serious drug offending, including importing methamphetamine. The Court of Appeal accepted that the lower court erred by failing to address the implications of imprisonment for Mr Ah Tong’s dependent 11-year-old daughter. A discount of 10 per cent was warranted, given that the appellant was the sole caregiver for his daughter, and at the age of 11, parental support and guidance was of particular significance.

Analysis — impact of imprisonment on the appellant’s children

[31]     I consider the sentencing Judge was in error in not expressly addressing the factor referred to at sentencing of the impact of imprisonment on Mr Tuimauga’s dependent children.

[32]In the absence of any reasoned analysis, I consider that issue afresh:

(a)Approaching matters from the interests of the children, I accept that the appellant’s imprisonment will inevitably have a significant adverse impact, even though both children remain with their mother. Imprisonment negatively impacts the bond which he should be developing with his young daughter and, at nine years old, his son is old enough to understand that his father is in prison and he is more vulnerable to bullying at school. An impact on his mental wellbeing is predictable.

(b)As held in Sweeney, expert evidence is not required to establish obvious determinantal effects on a child.22

(c)The s 27 cultural report records that Mr Tuimauga missing his son’s birthday while in custody has served as a wake-up call and shifted his focus to prioritising his family. In this way, the impact on his family is linked with his remorse and prospects of successful rehabilitation.

21     Ah Tong v R [2024] NZCA 144.

22     Sweeney v R, above n 18, at [27].

(d)The fact that the children remain in the care of their mother is relevant to the size of the appropriate discount but does not preclude a discount being given. In Philip, the fact that a primary caregiver (Ms Hayman) remained in the home with the child was acknowledged, but a discount of approximately 10 per cent given by the High Court was nevertheless considered appropriate, to recognise  the  effect  of  sentencing  on  Mr Philip’s young child.23

[33]     The cases where a discount has been applied indicate that higher discounts may be available when the dependent child is not left with any primary caregiver. Even where a primary caregiver remains, I consider that a discount of five per cent is well-justified in the present circumstances, and it was an error not to provide an adjustment for this factor.

Custodial sentence or home detention

[34]     If, through an adjustment for the above factor, the sentence of imprisonment becomes one of short duration, the appellant submits it is appropriate to commute the sentence to home detention as the least restrictive appropriate sentence to meet the purposes of deterrence, accountability, and denunciation. On the other hand, the Crown says that even if the end sentence were a short term of imprisonment, the statutory presumption of imprisonment should still apply without any exception made.

[35]     Pursuant to s 6(4) of the Misuse of Drugs Act (for certain offences relating to class A controlled drugs), there is a presumption of imprisonment. That presumption may be displaced in “relatively exceptional circumstances” such as where an offender has accepted responsibility by pleading guilty and where their rehabilitative prospects would be better supported by a sentence of home detention.24

[36]     The discretion is to be exercised on a case-by-case basis, with no absolute rules. Nevertheless, it is relevant to note the Court  of  Appeal’s  comment  in  Bryant v R:25

23     Philip v R, above n 13, at [48] and [58].

24     Zhang v R, above n 8, at [55].

25     Bryant v R [2011] NZCA 512 at [24].

The key point is that where the drug dealing has been undertaken from a home environment, sending the offender back into that same environment will usually be inappropriate because it will not properly serve the principles and purposes of deterrence, denunciation and accountability.

[37]This endorsed similar comments in R v Hill:26

[38]      Fifthly, in this class of case the presumption of imprisonment created by s 6(4) of the Misuse of Drugs Act must not be overlooked. That presumption reflects the seriousness with which Parliament views drug offending and the weight it gives to factors such as denunciation, accountability and deterrence in this context. Such factors are of particular importance in the case of methamphetamine, the use of which is currently seen as a serious social problem in New Zealand.

[39]      Cases involving the supply of methamphetamine vary greatly – from sophisticated, large-scale commercial operations undertaken by persons whose motivation is financial, to cases involving addicts who deal in a small way to friends or acquaintances essentially as a by-product of their own use and involvement in the drug subculture. End sentences that meet the definition of “short-term sentence” for the purpose of s 15A are only likely to be imposed in cases at the lower end of the spectrum …

[38]             More broadly, there is no presumption that a short term of imprisonment will be commuted to home detention. An analysis of the circumstances of the particular case is required. In Fairbrother v R, the Court of Appeal stated:27

… the judge must make a considered and principled choice between the two forms of sentence [a short sentence of imprisonment and home detention], recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[39]             In Palmer v R, the Court of Appeal commented on the decision between imprisonment and home detention:28

… [T]here is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either general or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D(CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.

26     R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

27     Fairbrother v R, above n 11, at [30].

28     Palmer v R [2016] NZCA 541 at [19] (footnotes omitted).

[40]             On the facts of this case, I do not consider that there is a sufficient basis for displacing the presumption of imprisonment in s 6(4) of the Misuse of Drugs Act.  Mr Tuimauga was a “central figure” in commercial levels of supply of methamphetamine. This was not at the lower end, where it was contemplated in Hill that home detention might be appropriate. Applying Bryant to the facts of this case, principles of deterrence, denunciation and accountability must be given priority.

[41]             I acknowledge the very positive steps that Mr Tuimauga has taken to address his substance abuse and other issues and the sound progress he is making, including a significant period of abstinence. While the range of therapy options available on home detention might be wider, I do not consider that a short term of imprisonment is necessarily detrimental to his rehabilitation and prospects of positive reintegration into society. Other mitigating factors, including the impact of imprisonment on his children, have been accounted for in discounts given.

[42]             For the above reasons, I am not prepared to  commute  the  sentence  to  home detention.

Result

[43]             The appeal is allowed. The sentence of two years and three months’ imprisonment imposed in the District Court is quashed and a sentence of 23 months and two weeks’ imprisonment is substituted on each charge, to be served concurrently.

O’Gorman J