Tarm v The Queen
[2016] NZCA 261
•16 June 2016 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA326/2015 [2016] NZCA 261 |
| BETWEEN | CHUCK LOU TARM |
| AND | THE QUEEN |
| Hearing: | 24 May 2016 |
Court: | Stevens, Woodhouse and Wylie JJ |
Counsel: | M E Goodwin and G Ghahraman for Appellant |
Judgment: | 16 June 2016 at 11.30 am |
JUDGMENT OF THE COURT
AThe application to extend the time to appeal is granted.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Woodhouse J)
Following a sentence indication given by Lang J, the appellant, Mr Tarm, pleaded guilty to 26 charges of dealing in class A and class B controlled drugs. These were: eight charges of supplying methamphetamine; two charges of possession of methamphetamine for supply; one charge of conspiring to supply methamphetamine; 14 charges of supplying pseudoephedrine; and one charge of possession of pseudoephedrine for supply.
On 5 May 2015, Mr Tarm was sentenced by Lang J to 12 years and six months’ imprisonment with a minimum period of imprisonment of six years and three months.[1]
[1]R v Tarm [2015] NZHC 930 [Sentencing notes].
Mr Tarm has appealed against the sentence. His only contention is that a minimum period of imprisonment should not have been imposed, or that it should have been shorter.
Mr Tarm’s notice of appeal was filed out of time. As the delay is minimal and explained, we grant an extension of time within which to bring his appeal.
The offences
On eight occasions between August and December 2013, Mr Tarm supplied others with a total of 700 grams of methamphetamine with an estimated value of $247,500. On 14 occasions between July and November 2013, he supplied a total of around eight kilograms of pure pseudoephedrine contained in 20 kilograms of ContacNT (a cold and flu medication). This had an estimated value of $765,000. At the end of the police operation, Mr Tarm’s home and work premises were searched. Mr Tarm was found in possession of 70 grams of methamphetamine and $169,970 in cash at his home, and 140 grams of methamphetamine, two kilograms of ContacNT and $150,000 in cash at his work premises. The conspiracy charge related to half an ounce of methamphetamine in respect of which actual supply could not be established.
Lang J described Mr Tarm as a wholesaler.[2] Mr Goodwin for Mr Tarm did not take issue with that assessment.
Minimum periods of imprisonment: the statutory provision
[2]At [11].
The relevant provision is s 86(2) of the Sentencing Act 2002, as follows:
86Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
…
(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d) protecting the community from the offender.
The sentence
The Judge assessed the starting point for all offences, adjusted for totality, at 17 years’ imprisonment. This was reduced by six months for previous good character, four months for remorse, eight months for restrictive bail conditions and three years for guilty pleas. This produced an end sentence of 12 years and six months’ imprisonment on the lead charges of supplying and being in possession of methamphetamine.
The Judge had discussed a minimum period of imprisonment in his sentence indication.[3] He said that issues of deterrence, denunciation and accountability loomed large because of the serious nature of the offending, and that he did not consider that standard parole eligibility would be sufficient to meet those sentencing principles.[4] He concluded that, in the circumstances as outlined in the sentence indication, and in the absence of any material suggesting that Mr Tarm has personal characteristics rendering an order inappropriate, he would make an order for a minimum period of imprisonment of half the sentence.
[3]R v Tarm [2015] NZHC 553 [Sentencing indication].
[4]At [22].
In his sentencing remarks, after summarising the provisions of s 86(2), the Judge noted that this Court has often reminded sentencing judges that the requirements for a minimum period of imprisonment “are almost invariably met in cases of very serious drug offending”.[5] He described this offending as “very serious”, referring to the quantities earlier summarised.[6] He then said:
[24] … Dealing in drugs at that level produces very significant profits, and also creates the potential for very serious damage to our community. It is for that reason that sentencing Judges routinely, although not invariably, impose minimum terms of imprisonment in cases of this type.
[5]Sentencing notes, above n 1, at [23].
[6]At [24].
Reference was made to the decision of this Court in Makanesi v R.[7]In that case the sentencing Judge had imposed a minimum period of imprisonment of 50 per cent for supply of a total of around 500 grams of methamphetamine in a large number of transactions over five months. The appellant had no previous convictions. As Lang J noted, in Makanesi this Court had no hesitation in upholding the minimum period of imprisonment of 50 per cent.[8] He took a similar view of Mr Tarm’s offending to the effect that, although the offending was over a relatively short period, it involved very significant quantities of two types of controlled drug with very significant quantities of money.
[7]Makanesi v R [2015] NZCA 134.
[8]Sentencing notes, above n 1, at [25].
The Judge said there was an added factor. This was that the pre‑sentence report made clear that Mr Tarm has a significant gambling addiction, aspects of which the Judge had discussed with Mr Goodwin during sentencing submissions. The pre-sentence report identified Mr Tarm’s “gambling habit” as a key contributing factor in his offending, because of debts incurred and money then borrowed to pay debts. Mr Tarm told the probation officer that he had always gambled and his behaviour had worsened over the years. The Judge said that, until Mr Tarm was able to take meaningful steps to control and eliminate his gambling addiction, he remained at risk of further offending of the same type. The Judge said that this gave rise to “a special need for deterrence and a need to protect the community from further offending” by Mr Tarm.[9]
Evaluation
[9]At [28].
The following points of principle were not in issue:
(a)In order to succeed on appeal Mr Tarm has to establish that, for any reason, there was an error in the sentence imposed on conviction and that a different sentence should be imposed.[10]
(b)This Court has made clear that, although the discretion of the sentencing Judge cannot be fettered, it is almost invariable in cases of very serious drug offending that the criteria for a minimum period of imprisonment will be made out.[11]
(c)In cases of serious drug offending, personal factors generally cannot be given as much weight as they might be given in sentencing for other types of offending.[12]
[10]Criminal Procedure Act 2011, s 250.
[11]R v Anslow CA182/05, 18 November 2005 at [27]; R v Aram [2007] NZCA 328 at [78]; R v Wong [2009] NZCA 332 at [21].
[12]Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [13]; R v Wang [2014] NZCA 409 at [28].
Mr Goodwin submitted that there was error by the Judge in failing to give “due weight” to Mr Tarm’s personal characteristics — his first offender status, remorse and family support — and that this rendered a minimum period of imprisonment inappropriate. We consider there was no error in this regard. The Judge’s assessment of the weight, if any, to be given to factors of this nature is not open to reassessment on appeal. In any event, the Judge clearly directed himself to the matters of consequence in terms of s 86(2).
It was submitted that the Judge was wrong to conclude that Mr Tarm had failed to take meaningful steps “to control and eliminate his gambling addiction” and that Mr Tarm remained at risk of further offending. To the extent that there were conclusions to that effect, they are again not open to challenge on appeal because they are matters going to the weight given by the Judge to particular matters. But the Judge did not express any conclusion on the adequacy of any steps taken by Mr Tarm to deal with his gambling addiction. Mr Goodwin’s submission was founded on advice that, while Mr Tarm was on remand on EM bail, he had not gambled. That has no material bearing on the risk assessed by the Judge. His assessment was based on the acknowledged long-term addiction, and the risk to the community of further offences because of the addiction was in any event not determinative. The most important consideration is that the Judge concluded that a minimum period was required for all four of the purposes specified in s 86(2). We agree.
Mr Goodwin also submitted assessment under s 86 of the Sentencing Act should not be based solely on the seriousness of the offences and that the maximum penalty for the offences in question, and the range of final terms of imprisonment available to the sentencing Judge, should be the primary means for reflecting the seriousness of the offending. The first part of that submission may be taken to be directed to the need to ensure that the sentencing Judge does not fetter his or her discretion. It is plain that the Judge did not do so. He applied the statutory provision and the principle developed in the leading cases to the particular circumstances of this case. To the extent that the submission contained within it a proposition that the Judge was bound to have regard to mitigating factors of a personal nature, that aspect has already been addressed. It is correct, to use Mr Goodwin’s expression, that “the primary avenue for reflecting the seriousness of offending” is the sentence actually imposed, but that is a general proposition which does not point to any error in this case. If s 86 is engaged, it is applied in addition to the sentence already assessed having regard to the statutory directives earlier in the Sentencing Act, in particular ss 7 and 8.
For these reasons we are satisfied there was no error by the Judge in imposing the minimum period of imprisonment of six years and three months. It is not therefore necessary to address the alternative argument that a minimum term of imprisonment of 40 per cent ought to have been imposed.
Result
The application to extend the time to appeal is granted.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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