Tarau v Police
[2021] NZHC 1793
•15 July 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-65
[2021] NZHC 1793
BETWEEN TAWHAI TARAU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 July 2021 Counsel:
R O Gowing and C A Gentleman for appellant I J Hayden for respondent
Judgment:
15 July 2021
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 15 July 2021 at 3pm
Registrar/Deputy Registrar Date:
Solicitors:
Gowing & Co, Whakatane for appellant Crown Solicitor, Tauranga for respondent
TARAU v NEW ZEALAND POLICE [2021] NZHC 1793 [15 July 2021]
[1] Tawhai Tarau appeals against a sentence of two years and four months’ imprisonment imposed on him by Judge Bidois in the District Court at Whakatane on 28 April 2021.1
[2] He seeks a reduction of the sentence to one of two years’ imprisonment on the basis that the learned District Court Judge adopted an approach to calculating the appropriate sentence by a method that did not accord with the Court of Appeal’s directions in Moses v R.2 Realistically, Mr Gowing does not suggest that if a sentence of two years’ imprisonment is accepted as being appropriate on appeal, the Court should consider whether a sentence of home detention should be imposed. In part, that is because of the seriousness of the offending, but principally it is because Mr Tarau has been in custody for almost a year and, if a sentence of two years’ imprisonment is imposed, he will be eligible for early release within a matter of weeks.
[3] It is acknowledged on behalf of the respondent that Judge Bidois’ methodology resulted in a lengthier sentence than that which would have been the outcome if the discounts allowed for the several mitigating factors had been applied in accordance with the two-step approach mandated by the Court of Appeal in Moses.
[4] I agree with the approach that counsel have taken and I am satisfied that it is appropriate to allow the appeal and impose a total effective sentence of two years’ imprisonment.
[5]These are my reasons for that view.
The sentence imposed in the District Court
[6]Mr Tarau pleaded guilty to:
(a)driving while disqualified (third or subsequent) (four charges);3
1 Police v Tarau [2021] NZDC 8040.
2 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
3 Land Transport Act 1992, ss 32(1)(c) and 32(4)(a) and (b), maximum penalty two years’ imprisonment or a fine not exceeding $6,000 and disqualification for one year or more.
(b)possession of methamphetamine/amphetamine for supply;4
(c)supplying methamphetamine/amphetamine;5
(d)supplying cannabis plant;6
(e)possession of cannabis plant for supply;7
(f)possession of cannabis plant;8 and
(g)obstructing/hindering Police.9
[7] The offending was serious in that 18 grams of methamphetamine was found at Mr Tarau’s address where he was on bail subject to a 24-hour curfew pending the hearing of other charges. During a bail check, the Police entered and searched Mr Tarau’s home where he lived with his partner and three young children. Eighteen grams of methamphetamine were found on the property, together with an ounce of cannabis and drug-dealing paraphernalia in relation to cannabis. Phone records relating to a cell phone that was seized revealed nine sales of around six grams of methamphetamine and offers to sell between 0.25 grams and seven grams of the drug.
[8] Mr Tarau was on bail at the time of the offending and he had previous convictions justifying a sentence uplift. The seriousness of the offending and Mr Tarau’s culpability were reflected in a sentence indication given by Judge Bidois on 4 November 2020 in which the Judge indicated an adjusted starting point of four years’ imprisonment.10
[9] Mr Tarau pleaded guilty. At sentencing, Judge Bidois had the benefit of a standard pre-sentence report, an alcohol and drug report and a cultural background
4 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a), maximum penalty life imprisonment.
5 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a), maximum penalty life imprisonment.
6 Misuse of Drugs Act 1975, s 6(1)(e) and (2)(c), maximum penalty eight years’ imprisonment.
7 Misuse of Drugs Act 1975, s 6(1)(f) and 2(c), maximum penalty eight years’ imprisonment.
8 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b), maximum penalty three months’ imprisonment, fine of $500.
9 Summary Offences Act 1981, s 23(a), maximum penalty three months’ imprisonment or fine of
$2,000.
10 R v T DC Whakatane CRI-2020-087-012, 4 November 2020 at [6].
report under s 27 of the Sentencing Act 2002. They revealed that Mr Tarau had had an appalling upbringing, immersed in a gang environment. He was subjected to repeated physical and sexual abuse and was expelled from school uneducated. He joined the gang full-time. Now aged 33, Mr Tarau had been using methamphetamine for eight years and was addicted. His path to Judge Bidois’ court was inevitable.
[10] Judge Bidois noted that the charges of possession of methamphetamine for supply and supplying methamphetamine attracted a maximum sentence of life imprisonment. The Judge confirmed his view in the sentence indication that a starting point of four years’ imprisonment was appropriate to reflect the seriousness of the offending.
[11] Addressing the contents of the cultural background report and the alcohol and drug report, Judge Bidois considered that a discount of eight months was appropriate to reflect a dysfunctional upbringing and an addiction to methamphetamine. That discount, the Judge said, reduced “the starting point” to one of 40 months’ imprisonment. The Judge then said he was prepared to give Mr Tarau a one third discount for his guilty pleas, some remorse, addiction issues and steps taken towards rehabilitation, which the Judge said amounted to a further discount of 12 months. On the Judge’s calculation, that brought the end sentence down to one of 28 months’ imprisonment.
The shared views of counsel
[12] Counsel agree that the discount of eight months for the factors contained in the cultural and drug reports warranted a 17 per cent or eight month discount, and that a further 33 per cent discount for plea, rehabilitation efforts and remorse was also appropriate, bringing the total discount to 50 per cent. They say that, applying Moses, those discounts should have resulted in a 50 per cent reduction from the starting point of 48 months imposed to reflect the seriousness of the offending. An end sentence of 24 months’ imprisonment would then have been imposed.
Discussion
[13] In Moses, the Court of Appeal described the two-step approach in these terms:11
[46]A two-step methodology should be used:
(a)the first step … calculates the adjusted starting point, incorporating aggravating and mitigating features of the offence;12
(b)the second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.
[47] Because the court fixes all second-step uplifts and discounts by reference to the adjusted starting point under this methodology, it makes no difference to sentence length if the guilty plea discount is the last step in the sentence calculation. However, the sentencing judge should still quantify a guilty plea discount, for several reasons: the discount is justified in substantial part by systemic and social considerations distinct from the offender’s personal circumstances; the discount must be transparent, which aids predictability; and the calculation allows others, including the offender and the victim, to identify the sentence that would have been imposed but for the plea. It should be apparent that the discount does not exceed the maximum of 25 per cent of the adjusted starting point.
[48] This methodology does not preclude credit for some mitigating factors being assessed by reference to what would otherwise be the end sentence (that is, the product of step 2), where that is appropriate. For example, credit for time spent on electronically monitored bail is commonly calculated in that way.
[14] Adopting that approach, Judge Bidois was required to apply the discounts for the personal factors related to Mr Tarau by assessing them in terms of percentages of the adjusted starting point. Based on the approach illustrated by the Court of Appeal’s table at [30] of Moses, it would have been appropriate for the Judge to then apply a total percentage discount for personal mitigating factors such as his dysfunctional upbringing, remorse, addiction issues and steps to rehabilitation, and an identified separate percentage discount for the guilty plea. As the Court of Appeal said at [47], sentencing judges should still quantify the guilty plea discount separately, for the
11 Moses v R, above n 2 (footnotes omitted).
12 I interpolate that aggravating features such as offending on bail and prior convictions calling for added deterrence are included in the adjustment at this step.
reasons given in the judgment. That includes making it apparent that the discount for the plea does not exceed the maximum allowable under Hessell v R.13
[15] It may be that Judge Bidois intended to apply the two-step approach in Moses and allow a total 20-month discount from the adjusted starting point of four years’ imprisonment. That would have been a discount of around 42 per cent of the starting point. But the explanation for the discounts is confusing because of the Judge’s reference to an eight-month discount for dysfunctional upbringing and methamphetamine addiction, leading to an adjusted starting point, and his application of a percentage (actually, a fraction) discount for guilty pleas, remorse, addiction and rehabilitation steps, without identifying the figure to which the percentage should be applied. Indicating that the one third discount was “approximately 12 months” cannot easily be reconciled with either a 48-month starting point or a 40-month starting point after the discount for upbringing and addiction.
[16] Moreover, the Judge referred separately to Mr Tarau’s addiction to methamphetamine, in his reference to the first eight-month discount and, less explicitly, in his reference to “Zhang addiction issues” in support of the second, 12-month discount.14 It appears that the Judge may have inadvertently taken Mr Tarau’s addiction into account twice in assessing the appropriate discount.
[17] The way in which the Judge expressed his approach makes it difficult to discern how he assessed the discount factors, and whether the guilty plea discount was adequate. Because the Judge’s explanation lacked the transparency that the Court of Appeal prescribed in Moses, it is necessary to approach the matter afresh on appeal to determine whether the Judge erred in his assessment.
Applying Moses to the assessment
[18] Counsel are agreed that the 48-month adjusted starting point was an appropriate reflection of the seriousness of Mr Tarau’s offending and the aggravating culpability factors. They agree also that the discount factors referred to by the Judge
13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
14 Referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [67]–[80] and [139]–[150].
deserve recognition. Adopting the Moses approach, therefore, I would allow the following discounts from the adjusted starting point:
Dysfunctional background 15 per cent Methamphetamine addiction 10 per cent Remorse and rehabilitation efforts 5 per cent Guilty plea 20 per cent Total discount 50 per cent
[19] The total discount, therefore, should have been 50 per cent of four years’ imprisonment. In agreement with counsel, I consider that the Judge erred in not following the approach to the assessment of Mr Tarau’s sentence in accordance with the Court of Appeal’s directions in Moses and that a different total effective end sentence of two years’ imprisonment should be imposed.15
Special release conditions
[20] The Provision of Advice to Courts report provided to the District Court recommended special release conditions in the event that Mr Tarau was sentenced to a short term of imprisonment. Mr Gowing has submitted that the recommended conditions would assist Mr Tarau in his rehabilitation. I agree.
[21] The following special conditions will be imposed under s 93(2) and (2A) of the Sentencing Act 2002, such conditions to expire six months after Mr Tarau’s sentence expiry date. Mr Tarau shall:
(a)not possess, consume or use any alcohol or drugs not prescribed to him.
(b)undertake and complete the Te Ihu Waka programme and abide by the rules of the programme to the satisfaction of a Probation officer;
(c)attend an assessment for drug and alcohol abuse as directed by a Probation officer;
15 Criminal Procedure Act 2011, s 250(2).
(d)attend and complete any counselling, treatment or programme as recommended by the assessment as directed by, and to the satisfaction of, a Probation officer;
(e)attend and complete an appropriate programme/treatment/counselling to address identified offending needs to the satisfaction of a Probation officer: the specific details of the appropriate programme shall be determined by a Probation officer.
Result
[22] I allow the appeal in part by quashing the sentences of two years and four months’ imprisonment imposed for the charges of possession of methamphetamine for supply and supplying methamphetamine, and substituting concurrent sentences of two years’ imprisonment on each of those charges. The special conditions set out at [21] shall apply to those charges. The concurrent sentences on the other charges remain undisturbed, as do the orders for forfeiture of money seized and for the destruction of the drugs.
Toogood J
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