Tai v The the Queen
[2022] NZCA 403
•26 August 2022 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA174/2022 [2022] NZCA 403 |
| BETWEEN | TRISTIAN JORDAN TAI |
| AND | THE QUEEN |
| Hearing: | 13 July 2022 |
Court: | Miller, Lang and Cull JJ |
Counsel: | D J Dufty for Appellant |
Judgment: | 26 August 2022 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cull J)
Mr Tai pleaded guilty to three sets of charges involving drug and firearm offending, wounding with attempt to injure, perverting the course of justice and sentence breaches. He appeals his sentence of 10 years and four months’ imprisonment imposed by Judge MacKenzie in the District Court at Rotorua.[1]
[1]R v Tai [2022] NZDC 4199 [Sentencing notes].
Mr Tai appeals on three grounds. First, he says the starting point was too high based on a mischaracterisation of his role in the offending. Second, the Judge erred in finding his addiction and mental health issues did not reduce his culpability. Third, he contends his sentence failed to achieve parity with his co-offender.
Factual background
As a result of a police surveillance operation in late June 2020, it was revealed that Mr Tai and his co-offender, Ms Wairua, were operating a mid-level drug distribution business. They were engaged in a cycle of obtaining large quantities of methamphetamine for distribution to lower‑level dealers across the Bay of Plenty region. The cycle began with the collection of cash from their customers, followed by meetings with wholesale suppliers and multiple instances of drug resupply between May and July 2020. Mr Tai and Ms Wairua also sold cannabis. Police found over 805 grams or $350,000 worth of methamphetamine in their respective possession, and 1.7 kilograms or $15,400 worth of cannabis.
On 1 July 2020, police located Mr Tai and Ms Wairua in a holiday cabin. In their search of the premises, police found .22 ammunition, 12-gauge shotgun rounds, some cash, drug paraphernalia and a modified pistol. A search of their motor vehicle revealed an unlocked gun case containing firearms including a .22 calibre rifle, 12-gauge shotgun and more live ammunition. On a search of Mr Tai’s residential address, the police found a fully functioning pipe bomb and eight rifle rounds.
Twenty-five drug and firearms charges arise from this first set of offending, including conspiracy to supply and procure methamphetamine,[2] further methamphetamine charges for possession to supply,[3] supplying and offering to supply,[4] conspiracy to supply of cannabis,[5] possession of cannabis for supply,[6] together with two charges of unlawful possession of firearms and an explosive.[7]
[2]Misuse of Drugs Act 1975, ss 6(1)(b)–(c) and (2A)(a); maximum penalty 14 years’ imprisonment.
[3]Section 6(1)(f) and (2)(a); maximum penalty life imprisonment.
[4]Sections 6(1)(c) and (2)(a); maximum penalty life imprisonment.
[5]Sections 6(1)(e) and 6(2A)(c); maximum penalty seven years’ imprisonment.
[6]Sections 6(1)(f) and 6(2)(c); maximum penalty eight years’ imprisonment.
[7]Arms Act 1983, s 45(1)(b); maximum penalty four years’ imprisonment.
The second set of charges relates to an unprovoked attack on a person living in the same complex as Mr Tai. Mr Tai approached the victim who was waiting at the entrance of the block of flats and asked, “What are you up to?”, before swinging a bat at her head. The victim suffered a deep lateral facial laceration to her right eyebrow, requiring stitches. A wounding with intent to injure charge arose from this offending.[8] Mr Tai was further charged with perverting the course of justice because he knew Ms Wairua made a false statement to the police taking responsibility for the assault.[9]
[8]Crimes Act 1961, s 188(2); maximum penalty seven years’ imprisonment.
[9]Section 116; maximum penalty seven years’ imprisonment.
The third set of charges resulted from offending in April and May 2020. On 3 April 2020, police stopped Mr Tai while driving and found an LSD tab in his possession. He was charged with being in possession of a Class A drug and breaching his sentence conditions. On 20 May 2020, Mr Tai failed to return to his curfew address resulting in a charge of breach of community detention.
Sentencing decision
In sentencing Mr Tai, the Judge first considered his methamphetamine offending. It was accepted that the offending fell within band four of Zhang v R, suggesting a starting point of eight to 16 years’ imprisonment.[10] The Judge adopted a notional starting point of 12 years’ imprisonment, noting specifically that she was taking into account Mr Tai’s leading role, as well as the quantity of methamphetamine of at least 722 grams.[11]
[10]Sentencing notes, above n 1, at [24], referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125]. Band four covers methamphetamine offending between 500 grams and two kilograms.
[11]At [50].
Although the Judge accepted that Mr Tai had a methamphetamine addiction, the starting point was not reduced on this basis. The Judge noted that Mr Tai had demonstrated deliberateness and control over the mid-level enterprise. Given the commercial nature and scale of the operation, the Judge did not accept that any addiction to methamphetamine had impaired Mr Tai’s rational choice to offend, thereby reducing his moral culpability.[12] With regard to his mental health factors, the Judge found that the psychological report provided to the Court did not support a conclusion that there was an operative mental health issue at the time of the offending.[13]
[12]At [36].
[13]At [37].
For the remaining drug and firearms charges, the Judge imposed a 15-month uplift for the cannabis offending, an 18-month uplift for the firearms offending and a three-month uplift for the pipe bomb offending.[14] The end result was a notional starting point of 15 years’ imprisonment for the drug and firearms offending.[15]
[14]At [52]–[57].
[15]At [58].
In respect of the second set of offending, the Judge, applying Nuku v R,[16] observed that the wounding with intent charge would have attracted a starting point of at least 18 months’ imprisonment as a standalone offence.[17] For the attempt to pervert the course of justice charge, the Judge considered a two-year standalone sentence would have been appropriate.[18] However, on a totality basis, the Judge increased the sentence by 18 months for both charges.[19]
[16]Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [12].
[17]Sentencing notes, above n 1, at [60].
[18]At [64].
[19]At [64].
For the final set of charges, the Judge considered the best approach was to sentence Mr Tai to three months’ imprisonment to be served on a concurrent basis.[20] For all of the offending, the Judge adopted a total starting point of 16 years, six months’ imprisonment.[21]
[20]At [67].
[21]At [68].
Turning to Mr Tai’s personal circumstances, the Judge gave an uplift of six months’ imprisonment for his previous convictions.[22]
[22]At [70]–[71].
While Mr Tai’s addiction and mental health issues were found not to impede his moral culpability in the offending, the Judge observed that they were relevant personal mitigating factors and would make a prison sentence more difficult.[23] The Judge gave a discount to reflect Mr Tai’s efforts towards his rehabilitation.[24]
[23]At [78].
[24]At [79].
Ultimately the Judge awarded discounts totalling 40 per cent, consisting of:[25]
(a)fifteen per cent for Mr Tai’s cultural background, deprivation, addiction and mental health struggles;
(b)ten per cent for Mr Tai’s rehabilitation prospects; and
(c)fifteen per cent for Mr Tai’s guilty pleas.
[25]At [80]–[85].
The result was an end sentence of 10 years, four months’ imprisonment.[26]
Leading role
[26]At [89]. This was recorded as a sentence of 10 years’ and four months’ imprisonment for the methamphetamine offending, with concurrent sentences ranging from one month to two years for the other charges. Mr Tai’s $2,000 fine was cancelled and a concurrent sentence of three months’ imprisonment was imposed.
The key difference between the Crown and the defence was the categorisation of Mr Tai’s role in the methamphetamine offending. The Judge rejected Mr Dufty’s submission that Mr Tai’s role was “somewhere between lesser and significant”, but not leading. The Judge noted particularly the submission that Mr Tai distributed only 168 grams compared to Ms Wairua’s 366 grams and not all of the methamphetamine he received was distributed.[27]
[27]At [31].
The Judge found that Mr Tai’s role was a leading one in the joint enterprise of the mid-level, profit-motivated, wholesale methamphetamine distribution operation. The Judge accepted that Mr Tai did not have control over the suppliers but he did have control over the on-supply of methamphetamine.[28] Although Mr Tai was running the wholesale operation alongside Ms Wairua, the Judge accepted that he had links to wholesale suppliers to source the methamphetamine and obtained quantities of methamphetamine to on-supply them, controlling the distribution of various lots of methamphetamine in the Bay of Plenty. The Judge found Mr Tai had control over pricing and supply.[29]
[28]At [41].
[29]At [41].
Mr Dufty made the same submissions to this Court, pointing to the lack of evidence of any significant financial gain or any influence or control Mr Tai had over those further up the supply chain.
We can find no error in the Judge’s approach. Adopting the Zhang classifications,[30] we consider Mr Tai’s role falls within the “leading” categorisation. It is true that this was a mid-level operation, but it does not follow that Mr Tai was merely the instrument of others above him in the chain of distribution. He appears to have operated in an autonomous way. First, he organised the buying and selling on a commercial scale. Over the two-month police investigation, Mr Tai and Ms Wairua had approximately 805 grams of methamphetamine in their possession. The street value was estimated at $350,000.
[30]Zhang v R, above n 10, at [126].
Second, Mr Tai had substantial links to, and influence on, others in the chain. It was open to the Judge to find Mr Tai was the key link between wholesale suppliers and lower-level dealers, as he had the connections and contacts to provide and distribute methamphetamine from the wholesale suppliers to the dealers. He had the contracts with the wholesalers and others below him, who were relying on him and Ms Wairua for supply.
The street value of the methamphetamine in their possession was also indicative of the substantial financial gain Mr Tai expected and received from the operation. We are unable to accept Mr Dufty’s submission that the operation ran only for the two-month duration of the police investigation and was unsophisticated. The scale of the operation and the money involved evidence the contrary.
We consider the Judge was not in error in following the guidance in Zhang, by undertaking the starting point evaluation not just on the quantity of methamphetamine, but also of the offender’s role. We are satisfied that the starting point of 12 years was within the appropriate range and was comparable with the other authorities.[31]
Mental health and addiction
[31]Martin v R [2020] NZCA 318 – starting point 12 years for 600 grams of methamphetamine in a solo operation; Zhang v R, above n 10, at [229]–[242] (relating to the appellant Ms Hobson) – starting point was nine years’ imprisonment for an unsophisticated importation and distribution of 300 grams of methamphetamine and the role was assessed to be at the lower end of leading; Wellington v R [2020] NZCA 277 – starting point was 12 years’ imprisonment for a financially motivated distribution network involving 1.54 kgs and role was assessed to be significant; and Miller v R [2020] NZCA 131 – starting point of 11.5 years’ imprisonment for supply of 905 grams of methamphetamine, involving a large scale operation in which the appellant was a significant player.
Mr Dufty submits that insufficient consideration was given to Mr Tai’s mental health and addition issues. A psychological report confirms that Mr Tai was diagnosed with schizophrenia and post-traumatic stress disorder at 16, and concluded that his methamphetamine offending was primarily motivated to help medicate his addiction issues. These factors, he submits, demonstrate Mr Tai’s reduced culpability and should be reflected in a lower starting point.
In Zhang, this Court observed that addiction would likely be of little mitigatory significance to commercial dealing as offending on such a scale is “likely to be inconsistent with the impairment of the ability to exercise rational choice”.[32] Here, the Judge held that while Mr Tai was skimming methamphetamine for his own use, it did not alter the fact that this was a midsize wholesale methamphetamine operation, in which he had a leading role and was difficult to excuse. Accordingly, the Judge did not accept that addiction and mental health issues impaired Mr Tai’s rational choice to offend.[33] Nevertheless, these factors were taken into account when assessing the appropriate discount for Mr Tai’s personal factors and rehabilitation prospects. The Judge noted that she could not separate out these factors from Mr Tai’s personal background, and that his addiction and mental health struggles would make a prison sentence more difficult.[34]
[32]Zhang v R, above n 10, at [147].
[33]Sentencing notes, above n 1, at [36].
[34]At [78]–[80].
We consider this was an appropriate assessment. Any reduction for addiction and mental health factors was adequately addressed through a stage-two discount, rather than as a mitigating factor to the starting point.
Parity
Mr Dufty submits that the starting point for Mr Tai’s offending ought to have been similar or closer to Ms Wairua’s starting point, as they had similar roles in the offending and were conducting a joint enterprise. He noted there was no distinction drawn in the summary of facts to suggest Mr Tai had a leading role over or above that of Ms Wairua and Ms Wairua distributed a greater amount of methamphetamine while on bail. However, Ms Wairua’s role was characterised by a different Judge at her later sentencing as “significant”, rather than leading.[35]
[35]R v Wairua [2022] NZDC 9467 at [14]–[15].
Ms Wairua received a starting point of 14 years’ imprisonment for her drug and firearm offending, and one charge of perverting the course of justice.[36] While Mr Tai faced additional charges, he received a starting point of 16 years’ imprisonment for the analogous offences.[37]
[36]At [15].
[37]Fifteen years’ imprisonment for all drug and firearm offending and a further 12-month uplift for the perverting the course of justice charge.
A key reason why Ms Wairua’s offending was regarded as less serious than Mr Tai’s was the assumption of the sentencing Judge that Mr Tai convinced Ms Wairua to take responsibility for the wounding incident.[38] Mr Dufty says this assumption was made in error. He refers to the summary of facts for the wounding charge and drew our attention to the text message from an unknown person advising Mr Tai that there may be someone who could take the “rap” for his wounding offending. He submits that this indicates no pressure was placed on Ms Wairua by Mr Tai, by virtue of a more senior position in the partnership. This error is said to have led to the disparity as it influenced Ms Wairua’s sentencing.
[38]R v Wairua, above n 35, at [13].
We have given careful consideration to Mr Dufty’s submissions on parity. However, we do not uphold them for three reasons.
First, the assessment of Mr Tai’s role as leading was centred on the scale and scope of the mid-level methamphetamine distribution enterprise. Any influence Mr Tai had over Ms Wairua’s choice to make a statement to the police was not part of the Judge’s consideration of this aspect of his sentence.[39]
[39]We note that this was mentioned when determining the appropriate uplift for Mr Tai’s guilty plea to perverting the course of justice. The Judge observed that this was a “blatant attempt” and “calculated behaviour” on his part to avoid responsibility for the assault: Sentencing notes, above n 1, at [61]. However, this was separate to the methamphetamine assessment.
Second, the Judge specifically did not engage with relativity between Mr Tai and Ms Wairua. The Judge noted that Ms Wairua was yet to be sentenced and the assessment of her role should be left to the sentencing Judge.[40] As noted, we do not find error in the Judge’s assessment of Mr Tai’s role in this commercial joint enterprise.
[40]At [43].
Third, on the application of the principles regarding parity, there must be a gross and unjustifiable disparity to warrant appellate interference.[41] A reduction may be required to ameliorate that disparity to some degree. It is not merely whether the offender thinks they have been unfairly treated but whether there is a real justification for that grievance. The test is whether a reasonably minded independent observer would be led to believe that something has gone wrong in the administration of justice.[42] Further, the Court should not reduce the sentence to a level which would itself cause public concern about the administration of justice.[43]
[41]R v Thompson CA245/98, 22 December 1998 at 13; R v Rameka [1973] 2 NZLR 592 (CA) at 594; R v Lawson [1982] 2 NZLR 219 (CA) at 223; and Singh v R [2013] NZCA 245 at [4].
[42]R v Lawson, above n 41, at 223.
[43]R v Ryder CA116/98, 23 June 1998 at 6; and Mau’u v R [2011] NZCA 385 at [28].
Where a sentence imposed on a co-offender is unduly lenient, it is not necessary for the Court to impose the same sentence to ensure parity.[44] As this Court observed in Mau’u v R:[45]
On a number of occasions, this Court has emphasised that “a gross and unjustifiable disparity” does not necessarily result in the reduction of a sentence imposed on a co-offender. This is reflected in the principle that no greater adjustment is appropriate than is necessary to protect the integrity of the criminal justice system. For example, in both R v Ryder and R v Thompson this Court observed that an appellate court must consider “whether reducing a proper sentence imposed on one offender in order to bring it into line with the sentence imposed on a co-offender would itself cause public concern at the administration of justice.” Two wrongs do not make a right.
[44]R v Feterika [2008] NZCA 127 at [47]; R v Te Kaha CA49/05, 5 July 2005 at [48]; and R v Walter (1992) 9 CRNZ 178 (CA).
[45]Mau’u v R, above n 43, at [28] (footnotes omitted).
These principles have been recently applied by this Court in Kulu v R where the Court said that because a co-offender has received a sentence which the appellate Court considers too lenient, that cannot of itself be a ground for interfering with an appellant’s longer sentence.[46]
[46]Kulu v R [2022] NZCA 284 at [33].
While Ms Wairua may have received a lenient sentence, we do not accept that interference is necessary. The Judge appropriately sentenced Mr Tai on the basis of his links to wholesale suppliers and dealers in the chain of methamphetamine dealing and on his control over the distribution, pricing and supply in the Bay of Plenty. Mr Tai was sentenced on a different basis to Ms Wairua. His sentence was not manifestly excessive, and the disparity was neither gross nor unjustifiable.
Result
The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland, for Respondent
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