Ruka v The King

[2025] NZHC 505

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2025-412-000001

[2025] NZHC 505

BETWEEN

RICHARD RUKA

Appellant

AND

THE KING

Respondent

Hearing:	10 March 2025 via AVL from Wellington
Appearances:	S A Saunderson-Warner for Appellant J C Collins for Respondent
Judgment:	13 March 2025

JUDGMENT OF CULL J

[1]                  Richard Ruka appeals his sentence of three years and three months’ imprisonment, following his pleas of guilty to charges of possession of methamphetamine for supply,1 unlawful possession of a firearm,2 and possession of methylphenidate for supply.3

[2]                  The issue on appeal is whether the Judge erred in giving a 12 month uplift for possession of methylphenidate for supply, bringing the starting point to 54 months’ imprisonment. Mr Ruka says this sentence is manifestly excessive.

1      Misuse of Drugs Act 1975, s 6(1)(f) and 6(2)(a). Maximum penalty life imprisonment.

2      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment and or fine not exceeding

$5,000.

3      Misuse of Drugs Act, s 6(1)(f) and 6(2)(b). Maximum penalty 14 years’ imprisonment.

Ruka v R [2025] NZHC 505 [13 March 2025]

What happened?

[3]                  On 27 March 2024, Police executed a search warrant at Mr Ruka’s Dunedin address on Middleton Road. They located a cut-down, Marlin brand lever action 30- 30 calibre rifle in Mr Ruka’s wardrobe. Other ammunition, although not for the rifle, was also located. Mr Ruka has no firearms licence.

[4]                  In a lock box, police further discovered 97 tablets (735 milligrams) of Ritalin. Ritalin is a Class B drug and is the brand name for methylphenidate. Alongside the Ritalin was $4650 cash, a set of scales and small plastic bags. There were also 24 small plastic bags, which each contained approximately 0.24 grams of methamphetamine. This added up to a total quantity of 5.76 grams of methamphetamine.

[5]                  Mr Ruka admitted that he owned the lockbox and its contents. He also claimed ownership of the rifle.

The sentencing decision

The starting point

[6]                  As Mr Ruka possessed 5.76 grams of methamphetamine, the Judge placed the offending within the top of band one and the bottom of band two of the R v Zhang categories.4

[7]                  The Judge considered the scales, cash and packaging located by Police, indicated commerciality 5 and characterised Mr Ruka’s offending as a “commercial enterprise,” rather than “addiction-driven.”6 He described Mr Ruka as a “street dealer working alone” and considered that Mr Ruka’s offending was motivated by “lifestyle,” rather than the desire to consume methamphetamine.7

4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. R v Ruka [2024] NZDC 30067 [Decision

under appeal] at [8].

5 At [8].

6 At [9].

7 At [13].

[8]                  In rejecting the submission that Mr Ruka’s moral culpability should be reduced because of his unemployment,8 the Judge considered that Mr Ruka was “not without means,” had some available money, and had a choice to apply for a benefit, yet chose to deal in drugs.9 Weighing these aggravating factors, the Judge adopted a starting point of two years and six months’ imprisonment for the methamphetamine charge.10

Uplifts

[9]                  The uplifts to the starting point are at issue in this appeal. For the unlawful possession of the rifle, the Judge noted that the firearm was modified but had no ammunition,11 that it was owned by Mr Ruka as protection for drug dealing activity and could be directly linked to the criminal offending.12 The Judge noted that 12- months’ imprisonment for possession of a sawn-off pistol was within range.13

[10]              On the methylphenidate possession charge, otherwise called Ritalin, the Judge considered the 735 milligrams of the Class B drug in the 97 tablets was for commercial gain, rather than addiction and again characterised Mr Ruka as the street dealer.14 The Judge stated that the typical starting point for such offending would be between two years and six months’ and three years’ imprisonment15 and adopted a “starting point of 12 months”16 on a totality basis. This brought the total starting point to four years and six months’ imprisonment, or 54 months’ imprisonment.17

Adjustments and mitigating factors

[11]              Because Mr Ruka’s previous convictions were unrelated to his historical and index offending, the Judge considered that no uplift was required.18

8 At [14].

9 At [16].

10 At [17].

11 At [21].

12 At [19].

13 At [21]. Henderson v Police [2021] NZHC 78 at [26].

14     Decision under appeal, above n 4, at [22].

15 At [23].

16 At [23].

17 At [24].

18 At [25].

[12]              The Judge gave a 20 per cent discount for Mr Ruka’s pleas of guilty, having initially pleaded not guilty and elected trial by jury.19 The Judge declined a discount for rehabilitation, as Mr Ruka had no particular rehabilitative need or addiction.20 No discount was given for his health needs, because no “evidential foundation” was provided.21 However, a discount of three and a half months’ (six per cent) was given for Mr Ruka’s compliance with his restrictive bail conditions for seven months.22

Sentence calculation

[13]              From the total starting point of 54 months’ imprisonment, the reduction by 26 per cent (being the guilty plea and bail compliance discounts), resulted in an end sentence of 39.9 months’ imprisonment, reduced to 39 months.23 Concurrently, Mr Ruka was sentenced to imprisonment for one year on the unlawful possession of a firearm charge, and one year for the possession of methylphenidate, both sentences are to be served concurrently with the sentence of three years and three months for the lead charge of possession of methamphetamine for supply.24

Grounds of appeal

[14]              Mr Ruka’s primary appeal ground is that the 12-month uplift for possession of methylphenidate for supply resulted in an excessive overall starting point. There was no authority cited by the Judge in support of his view that the starting point for this offence as a stand-alone charge should be between two years and six months’ and three years’ imprisonment.25 This range exceeded the Crown’s estimate of 18 months to two years as a starting point for the stand-alone offence.

[15]              The Crown accepts that it submitted at the District Court that an 18 month to two years’ starting point for the methylphenidate offending was appropriate, and the Judge adopted a starting point in excess of this. However, the Crown contends that there is no mathematical formula for converting a standalone starting point to an uplift

19 At [26].

20 At [27].

21 At [30].

22 At [31].

23 At [32].

24     At [33]–[36].

25 At [23].

on a lead sentence and the courts retain wide discretion for this exercise. The Crown submits that a higher uplift than the 12 months’ uplift adopted for the firearms offence was possible. Thus, even if the methylphenidate uplift was impermissible, the overall sentence did not require correction, as the other components of the sentence “balance out.”

Was the starting point too high?

[16]              The sole issue to be considered in this appeal is whether the Judge erred in adopting a starting point of 54 months. This requires the sentencing exercise in relation to the starting point to be carried out afresh, to assess whether the 54-month starting point was within range. Mr Ruka takes issue with the uplift for the methylphenidate charge but has accepted that the starting point for the methamphetamine charge and the uplift for the firearms were available.

[17]              The first step in setting the starting point is to examine the seriousness of the offence and the culpability of the offender, with regard to the aggravating and mitigating factors relating to the offence. Given the commercial nature of Mr Ruka’s dealing, the Judge correctly identified the appellant’s offending as falling within band two of the Zhang, as this category covers 5–250 gram quantities and 5.76 grams of methamphetamine was found in Mr Ruka’s possession. It is accepted by Mr Ruka that a starting point of two years and six months’ imprisonment was stern but within range.

[18]              As noted, the real issue on appeal is the 12 month uplift for the methylphenidate possession. It was accepted by both counsel that the Judge’s statement that “this charge would lead to a starting point of between two years and six months and three months’ imprisonment” was not based on any cited authorities. In Andrews v R, a starting point of two years three months’ imprisonment was upheld for supplying 90 tablets of Ritalin.26 Mr Ruka’s Counsel has argued that the offending in Andrews had more aggravating features than Mr Ruka’s offending. Counsel drew the Court’s attention to the Crown’s submission in the District Court, to support the view that a lower starting point between 18 months and two years was appropriate here.

26     Andrews v R [2012] NZCA 76 at [17].

[19]              In the hearing before me, both Counsel accepted that R v Halaholo was the most comparable authority, addressing uplifts for lesser drug offending on a lead Class A drug sentence.27 In particular, Counsel agreed on the approach which should be adopted for converting a stand-alone starting point for a Class B drug offence, to an uplift on the lead sentence for a Class A drug sentence.

[20]              In Halaholo, the lead offence was one of possession of methamphetamine for supply, along with a number of other drug charges. A starting point of four years’ imprisonment was adopted for the methamphetamine offending and an uplift was applied for a number of MDMA drug charge offending, which was described as “very serious” as it occurred for a sustained period.28 Mr Halaholo was regularly dealing large amounts of MDMA, doing daily “drop-offs” and had other dealers working under him.29 This Court considered that that offending on a stand-alone basis would warrant a starting point of three years and six months’ imprisonment.30 However, on a totality basis, the Court concluded that an uplift of six months was “appropriate to capture the overall gravity” of the offending.31

[21]              Similarly, in Kee v R, 5 grams of methamphetamine and 9 grams of cannabis plant material was located on Mr Kee’s property, alongside a sawn-off .22 rifle.32 On appeal, a six-month uplift for the cannabis offending was substituted for the initial 12- month uplift, as the cannabis offending was “part and parcel” of the methamphetamine offending.33 Mr Kee received a starting point of 41 months’ imprisonment, 13 months lower than Mr Ruka’s starting point.34

[22]              I accept Ms Saunderson-Warner’s submission that the highest uplift that could be justified in this case for the Class B drug offending was six months but I do not accept her submission that a more modest uplift in the region of three months would be within range, I consider that 12 months was excessive in these circumstances. The

27     R v Halaholo [2022] NZHC 3031.

28     At [21] and [24].

29 At [24].

30 At [24].

31 At [24].

32     Kee v R [2023] NZHC 1133.

33     At [40] and [31].

34 At [42].

Ritalin and methamphetamine offending were interlinked and Ritalin was part of the overall methamphetamine operation. A six month uplift is consistent with the authorities and is sufficient to capture the overall gravity of Mr Ruka’s offending.

[23]              I find that the appropriate uplift for the Class B drug offending was six months and the end sentence is adjusted accordingly.

Result

[24]The appeal is allowed.

[25]              The sentence of three years and three months’ imprisonment is set aside and a sentence of two years and nine months’ imprisonment is substituted.

Cull J

Solicitors:

S A Saunderson-Warner for Appellant Crown Solicitor, Dunedin, for Respondent