Su'a v The King
[2023] NZHC 1485
•14 June 2023
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2023-441-006
[2023] NZHC 1485
BETWEEN SOVITE TIMOTHY SU’A
Appellant
AND
THE KING
Respondent
Hearing: 14 June 2023 Counsel:
C J Tennet for Appellant
C R Walker for Respondent
Judgment:
14 June 2023
JUDGMENT OF ELLIS J
[1] After accepting a sentence indication,1 Mr Su’a was sentenced by Judge Matenga on 28 April 2023 to two years and six months’ imprisonment on the following charges:2
(a)One charge of supplying methamphetamine (representative);3
(b)One charge of possession for supply of methamphetamine (representative);4
1 R v Su’a DC Napier CRI-2021-041-001449, 30 August 2022 [Sentence Indication]. The indication related to 21 charges which were subsequently consolidated and replaced by the charges to which guilty pleas were entered. The indication was for a starting point of five years six months’ imprisonment, with a discount of 20 per cent for guilty pleas, with the possibility of further discounts for personal factors left open.
2 R v Su’a [2023] NZDC 8081 [Sentencing Decision]. Sentencing had been deferred under s 25A of the Sentencing Act 2002 to enable Mr Su’a to participate in rehabilitative programmes.
3 Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(a) (maximum penalty of life imprisonment).
4 Misuse of Drugs Act, ss 6(1)(c), (1)(f) and (2)(a) (maximum penalty of life imprisonment).
SU’A v R [2023] NZHC 1485 [14 June 2023]
(c)One charge of offering to supply methamphetamine (representative);5
(d)One charge of possession for sale of cannabis (representative);6
(e)One charge of possessing methamphetamine;7
(f)One charge of possessing cannabis;8
(g)One charge of consuming cannabis.9
[2]Forfeiture orders were made in relation to cash seized by Police.10
[3]Mr Su’a now appeals his sentence on the grounds that:11
(a)The Judge erred in fact and in law by not giving a credit for Mr Su’a’s s 27 report.
(b)The Judge erred by failing to give a greater discount for rehabilitation.
(c)The Judge erred by not imposing a sentence that was the least restrictive outcome.
[4] Although the essential thrust of Mr Su’a’s appeal was, initially, that he should receive sentence of 24 months’ imprisonment or less so that it could then be converted to home detention, the home detention aspect was abandoned orally today.12 That is partly because it seems Mr Su’a is doing well in prison, and will shortly be eligible for parole with a possible placement in the DTU in advance of that.
5 Misuse of Drugs Act, ss 6(1)(c) and (2)(a) (maximum penalty of life imprisonment).
6 Misuse of Drugs Act, ss 6(1)(e), (1)(f) and (2)(c) (maximum penalty of eight years’ imprisonment).
7 Misuse of Drugs Act, ss 7(1)(a) and (2) (maximum penalty of six months’ imprisonment or $1000 fine).
8 Misuse of Drugs Act, ss 7(1)(a) and (2) (maximum penalty of three months’ imprisonment or $500 fine).
9 Mr Su’a did not plead guilty to this charge but was found guilty after a judge alone trial.
10 Sentencing Decision, above n 2, at [19].
11 Criminal Procedure Act 2011, s 250.
12 As the Judge recorded in his sentencing notes, the Crown had indicated that it would not oppose a sentence of home detention if that had become an option.
The offending
[5]The facts of the offending were summarised by Judge Matenga as follows:13
[4] …On 25 June 2021, a production order was obtained to receive text data from your cellphone. The data showed that in the period from January to June 2021, you dealt in 140.1 grams of methamphetamine and 56 grams of cannabis. Text messages show that you had sourced amounts of up to an ounce of methamphetamine and supplying smaller quantities at street level. The Summary of Facts then lists 18 separate instances.
[5] On 27 July 2021, a search warrant was executed at your home at Shackleton Street, Napier. Police located unused plastic snap-lock bags, multiple sets of electronic scales, a notebook containing information about debts owed for methamphetamine, these debts owed to you. You were also found with $3,280 in cash in a bum bag that was on your person. You were charged then subsequently released on bail.
[6] On 14 December 2021, you were located in a vehicle. You were in breach of the curfew terms of your bail. You were located with 2.35 grams of methamphetamine, 5.13 grams of cannabis and a bum bag containing $5,770 in cash.
[6] The Judge said “all up” the offending involved 142.45 grams of methamphetamine and 61.13 grams of cannabis.14
Sentencing indication and sentencing
[7] The Judge considered Mr Su’a’s culpability fell in the middle of Band 2 of Zhang v R.15 He adopted a five-year starting point and gave a six-month uplift for the offending on bail. No uplift for criminal history (which was historic) was imposed.
[8]In terms of mitigating personal factors, the Judge:
(a)accepted that Mr Su’a’s cultural report showed intergenerational issues including violence, alcohol addictions and loss of cultural identity;16
13 Sentencing Decision, above n 2.
14 Sentencing Decision, above n 2, at [7].
15 Sentence Indication, above n 1, at [9]; This would mean the Court would look at a starting point of three to nine years’ imprisonment as per Zhang v R [2019] 3 NZLR 648 at [19].
16 Sentencing Decision, above n 2, at [10]. It had been accepted by the Crown that the cultural report established a connection between Mr Su’a’s background, his addiction and his offending.
(b)acknowledged Mr Su’a’s rehabilitative efforts since the sentence indication, which included completion of the Salvation Army Bridge programme and a “very well-written apology” which the Judge described as “heart-felt”.17
(c)gave discounts of:18
(i)20 per cent for guilty pleas;
(ii)five per cent for remorse; and
(iii)20 per cent for addiction and rehabilitative efforts.
[9] This combined 45 per cent discount took Mr Su’a’s starting point down to three years’ imprisonment. The Judge then reduced that by a further six months for the almost seven compliant months spent on restrictive EM bail.19 The Judge acknowledged that Mr Su’a had served eight months in custody but noted, rightly, that this would be taken into account “in due course”, when calculating his release date.20
[10] The Judge also made orders forfeiting the $3,280 seized on 27 July 2021 and the $5,770 seized on 14 December 2021.21
Approach on appeal
[11] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
17 Sentencing Decision, above n 2, at [4]-[5].
18 Sentencing Decision, above n 2, at [13].
19 Sentencing Decision, above n 2, at [14].
20 Sentencing Decision, above n 2, at [15].
21 Sentencing Decision, above n 2, at [18].
[12] Where these conditions are not met, the Court retains no discretion and must dismiss the appeal.
[13] When considering whether a different sentence should be imposed, the Court will focus on the end sentence, rather than the process by which it was reached. The Court will intervene where the sentence under appeal is “manifestly excessive” and not justified by the relevant sentencing principles.22 It must be shown that there has been an error made by the sentencing Judge.23 The Court will not ‘tinker’ with a sentence imposed if the sentence is one that was available to the first instance judge and “in range”.24
Discussion
[14] On appeal, no issue is taken with the five and a half year starting point. Rather, Mr Tennet submitted that a greater discount should have been given for Mr Su’a’s addiction and rehabilitation efforts and a further discrete discount for s 27 cultural factors was warranted.
[15] It is plain from the sentencing notes that the Judge regarded Mr Su’a’s addiction issues as the relevant causative matter identified by the s 27 report. He made that clear when he said:25
[The report] showed intergenerational issues including transmission of violence, intergenerational violence issues, alcohol addictions, loss of cultural identity - those sorts of matters. It was accepted by the Crown that the cultural report establishes a causative contribution between your background, the methamphetamine addiction which you clearly had and your offending. What I have seen in the various reports is a vicious cycle, if you like, of offending- causing addiction which in turn fed the addiction requiring further offending to then feed the addiction. That is that vicious cycle and sadly it had a voracious appetite.
22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]-[35].
23 Tutakangahau v R, above n 22, at [30].
24 R v Boyd (2004) 21 CRNZ 169 at [38].
25 Sentencing Decision, above n 2, at [10].
[16] There can be no doubt either that the Judge then afforded a discount for that, combined with a discount for the efforts made by Mr Su’a to address these issues. So, to the extent Mr Tennet’s submission is predicated on no discount being afforded for cultural matters, I cannot accept it.
[17] Nor can there be any quibble with the Judge treating the discounts for addiction and for rehabilitation holistically. Such an approach on sentencing is commonplace. By way of example only:
(a)in Solicitor-General v Heta,26 a global discount of 30 per cent was warranted for the offender’s background, a successful restorative justice outcome and rehabilitative prospects;
(b)in Poi v R,27 a 20 per cent discount was given for a combination of severe deprivation, rehabilitative prospects and steps taken to address the impact of offending; and
(c)in Tarau v Police,28 (which involved a similar suite of charges to those for which Mr Su’a was sentenced) Toogood J gave a combined 50 per cent discount for mitigating factors (difficult upbringing, guilty pleas, rehabilitation efforts and remorse).
[18] As these cases indicate, the size of the combined discount here (20 per cent, or 25 per cent if remorse is included), was well within range.29 As noted by Mr Stuart for the Crown, this was the level of discount given by the Supreme Court in Berkland for the same combined factors.30 Mr Su’a also received what was, Mr Tennet responsibly accepts, a generous discount for the time spent on EM bail.
26 [2018] NZHC 2453; [2019] 2 NZLR 241.
27 [2020] NZCA 312.
28 [2021] NZHC 1793.
29 The combined reduction was 45 per cent once the guilty plea discount is included.
30 Berkland v R [2022] NZSC 143; [2022] 1 NZLR 509 at [163].
Conclusion
[19] I am unable to discern any error by the sentencing Judge. The sentence imposed on Mr Su’a was not manifestly excessive. Rather, it was well within range.
[20]The appeal is dismissed, accordingly.
Rebecca Ellis J
Solicitors:
Crown Solicitor’s Office, Napier for Respondent
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