Taumata v The Queen
[2010] NZCA 107
•30 March 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA7/2010
[2010] NZCA 107BETWEENLIONEL PAUL JOSEPH TAUMATA
Appellant
ANDTHE QUEEN
Respondent
Hearing:17 March 2010
Court:O'Regan, Rodney Hansen and Simon France JJ
Counsel:S G Vidal for Appellant
S B Edwards for Respondent
Judgment:30 March 2010 at 10.30 am
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
BThe appeal against sentence is allowed. All sentences of imprisonment are cancelled. On the charge of possessing cannabis oil for supply, the appellant is sentenced to five months’ home detention with the conditions set out in [40]. On the remaining charges he is convicted and discharged.
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REASONS OF THE COURT
(Given by Simon France J)
Introduction
[1] Mr Taumata was charged with possessing cannabis for supply, and possessing cannabis oil for supply. He was acquitted in relation to the cannabis and convicted in relation to the oil. The cannabis was poor quality leaf, being what is known as “cabbage”. Cabbage is usually used to make cannabis oil and the jury obviously accepted Mr Taumata’s evidence that he possessed it for that reason. However, his evidence that all the cannabis oil was for his own use was rejected.
[2] Mr Taumata appeals his conviction on the sole ground that his video interview, which was played to the jury, contained inadmissible evidence that he had previously sold drugs.
[3] Mr Taumata was sentenced to two years six months’ imprisonment on the cannabis oil charge, and to concurrent sentences of six months’ imprisonment on two summary charges to which he had earlier pleaded guilty.[1] He appeals the sentence on the basis that it is manifestly excessive.
Factual background
[1] R v Taumata DC Invercargill CRI-2009‑025‑994, 3 December 2009.
[4] A search warrant was executed at the address where Mr Taumata was living with his partner and son. Located at the scene were:
(a) 687 grams of cannabis leaf in three separate bags;
(b) 22 grams of cannabis in a tin and a snaplock bag;
(c) A bottle containing 25 caps of cannabis oil;
(d)A container in which there were other bottles with both empty capsules and one filled capsule, and a spoon with oil residue on it;
(e) A rucksack with $10,130 cash, and $1,878 in cheques;
(f) A container with $572 in cash;
(g)In the car a container of Isopropyl alcohol, scales and what were alleged to be tick lists.
[5] Mr Taumata gave two police interviews during the course of which he admitted the drugs were his, but said it was all for his own use. He said he had brought a considerable quantity of cannabis with him when he moved to Gore from the North Island some months earlier. He admitted to making the cannabis oil.
[6] Mr Taumata explained some of the cash by reference to a series of transactions involving motor vehicles; the balance of the money was savings of his and his partner, which he preferred to keep in cash form.
[7] The prosecution evidence at trial was largely formal, in the sense that the record of what was found at the search was given, and the video interviews played. An experienced officer also gave the standard testimony about drug users, and the patterns of use and dealing that occur within the drug world.
[8] Mr Taumata testified. His evidence largely mirrored his video statements. There were some variations concerning his level of use, but generally there was consistency. Mr Taumata also called witnesses who gave evidence supportive of his evidence about dealing in cars.
The conviction appeal
(a) The inadmissible evidence
[9] In his second interview, the police officer went through all the items found at the house and sought Mr Taumata’s comment on them. It was a non‑confrontational interview. After the officer had put to Mr Taumata the oil capsules and the cannabis that had been found, the following occurred:
Q Have you anything you wish to say about that?
A No.
Q Okay. Have you ever, or do you at any time sell any of the drugs?
A No.
Q Have you ever sold drugs?
A Yeah back in the days when I was a young fella.
QAnd any of the money that we talked about, is any of that through drug dealing?
ANo.
[10] In relation to Mr Taumata’s admission that he sold drugs when he was a young “fella”, it can be observed that 22 years earlier when Mr Taumata was 26 years old he was sentenced to six months’ imprisonment for possessing cannabis plant for supply.
[11] Prior to trial no request was made for editing of the interview. At trial, in her opening address, the prosecutor summarised events in a narrative way. In a single paragraph she observed that interviews took place and then detailed what the appellant said. The items mentioned were the admission that the drugs were his, the level of personal use that he admitted to, his explanation for the cash and an explanation for the cheques. The paragraph concluded:
He also admitted that in the past he has previously sold cannabis.
[12] At the point in the trial when the video was to be played, trial counsel (not Ms Vidal) asked to be heard. The issue of the admission was raised. Defence counsel did not think it would be of particular significance but wished it had been excised. The Judge indicated he had noticed it but assumed it had been left in for tactical reasons to support a “that was then, this is now and I own up to my conduct” defence. In the course of this discussion with the Court it was agreed by all that the evidence was inadmissible in that the Crown did not seek to support its inclusion by reference to propensity or any other rule of admissibility.
[13] The issue therefore arose as to what to do. It was agreed that it was too late to edit the interviews because it had been referred to in opening. With agreement of both counsel the trial Judge, Judge MacAskill ruled the prosecution was not to refer to it further. Nor could it be mentioned in cross-examination of Mr Taumata, unless of course Mr Taumata testified in a way that made it legitimate to do so.
[14] The Judge further indicated that if defence counsel wished comment or stronger comment to be made during the summing up, he would do so. As it happens the topic was not again raised by counsel or by the Judge in his summing up.
(b) Appellant’s submissions
[15] Ms Vidal submits the inclusion of the evidence has led to an unfair trial. She submits that the impact of the evidence was particularly critical in a case where the defendant carried an onus as regards the purposes of possession. It had considerable capacity to undermine the appellant’s evidence.
[16] The ultimate thrust of Ms Vidal’s submission was that there should have been declared a mistrial. Within the option of the Judge commenting or not commenting, Ms Vidal accepted the trial counsel’s decision to choose the no comment option was an available one that could not be classed as a serious error. Her point was that the damage was done, could not be cured and had led to an unfair trial.
(c) Decision
[17] We begin with a passage from the Supreme Court judgment in R v Thompson:[2]
Whether or not to discharge a jury which has heard a witness disclose illegitimate prejudicial material is for the discretion of the trial Judge on the particular facts. An appellate Court will not lightly interfere with the exercise of that discretion. It depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course.
[2] R v Thompson [2006] NZSC 3; [2006] 2 NZLR 577 at [16] per Blanchard J.
[18] As Ms Vidal acknowledged, it was open in this case for the parties to decide that the best course was silence. The reasons for that are largely the reasons we now set out as to why we also consider it was not a situation where a mistrial should have been declared. Nor has it produced an unfair trial.
[19] First, the evidence itself does not have prominence in the video interview. It reads as an off–the–cuff comment which is not picked up on at all by the police officer. There is no attempt to elicit further information. Likewise, the reference by the prosecutor in her opening address is equally low key. The admission is noted only as part of a matter of fact description of the contents of Mr Taumata’s interview. Neither of these points contradicts the fact that the evidence is before the jury, nor the fact that the prosecutor did refer to it. It is just to observe there was no prominence attached to the statement in either situation, and these were the sole references to it. There was no suggestion to the jury at any point that the admission was seen as particularly significant or even relevant.
[20] Next, this impression of minor significance is reinforced by trial counsel’s comments in his discussions with the Court. This is not to be overweighted or used unfairly in what is now an exercise of review, but it is legitimate to observe that at the time counsel’s impression matched how the matter now reads. He thought it would be of little significance. Further, there was no application for a mistrial.
[21] Third, the trial significance of the video interviews diminished when the appellant testified in largely the same terms. The credibility assessment the jury had to make, and the appellant’s capacity to discharge the onus on him, would inevitably have shifted to his actual testimony given in front of the jury. Little prominence was given to the interviews other than in relation to the topic of his level of use.
[22] Fourth, to the extent that the admission is seen as an admission to dealing in cannabis plant (not in actual terms but how the prosecutor characterised it), it can be noted that the jury on this occasion acquitted Mr Taumata of that very charge. Again this should not be overweighted because there are strong evidential explanations for the acquittal. But in terms of later assessing whether the inadmissible evidence might have been influential, it is another factor.
[23] Overall our view is that it was a relatively benign admission. It should not have been in evidence, nor referred to by the prosecutor. However, it occurred in a context where the offender already admits to long time drug use and drug possession, and where he has admitted making cannabis oil. It also occurred in a context where the significance of the video interview was largely displaced by oral testimony from the accused. In those circumstances we do not consider that there is a real risk that there has been an unfair trial.
The sentence appeal
(a) The sentencing remarks
[24] In addition to the conviction for possessing cannabis oil for supply, Mr Taumata had earlier pleaded guilty to possession of a precursor substance (the Isopropyl) and possession of utensils for the purpose of smoking cannabis.
[25] Judge MacAskill was not available to sentence. He instead provided a summary of his findings for the benefit of the sentencing Judge, Judge Philip Moran, who accepted and applied that summary. The most significant development emerging from the trial was that the trial Judge declined to link the cash to the drug dealing for the purpose of sentencing. This not only ruled out forfeiture, but had to have an impact on the scale of the offending for which Mr Taumata was to be sentenced.
[26] In his sentencing remarks the Judge accepted and described the facts as provided to him by the trial Judge. He noted that the street value of the cannabis oil was $2,800, of which a significant part was for personal use. A starting point of two years was adopted.
[27] It was noted that Mr Taumata had been a long time cannabis user, often in the context of pain relief, and that at the time of sentencing Mr Taumata had been abstinent for 10 months. However, Mr Taumata’s criminal history was described as a significant aggravating factor. Noted were two convictions in 2006 for possessing cannabis, and the 1987 conviction for possessing cannabis for supply. A six months’ uplift was applied.
[28] This adjusted term of two years six months became the final sentence. Concurrent sentences of six months’ imprisonment were imposed for the summary offences of possession of instruments and possession of a precursor substance.
(b) Submissions on appeal
[29] The appellant’s main focus was on the six months’ uplift. Ms Vidal submitted it was excessive and not justified at all in relation to offences that occurred 22 years earlier. It was submitted that the uplift took no regard of Mr Taumata’s rehabilitative efforts which had been maintained for a considerable period.
[30] Ms Vidal also submitted the starting point was too high. However, she acknowledged that it was difficult to find authority in support because the relevant band[3] was so broad (zero to five years) and cases where cannabis oil was the drug that determined the sentence length were rare.
[3] R v Wallace [1999] 3 NZLR 159 (CA).
[31] For the Crown Ms Edwards supported both components of the final sentence. Concerning the starting point she noted that, although small scale, it was commercial offending. Ms Edwards drew support from the other paraphernalia, the cannabis leaf which was to be turned into oil, and the cash. She acknowledged, however, that the sentencing basis had to be limited to possession of some portion of $2,800 worth of oil for sale.
[32] Concerning the uplift it was submitted the 2006 offending sufficiently updated the older offence to make it available to the Judge to impose an uplift of this sort. It was noted that the pre‑sentence report assessed Mr Taumata as presenting a high risk of reoffending.
(c) Decision on sentence appeal
[33] Addressing the starting point first, we consider two years is too high. The evidence was that Mr Taumata was a significant user of cannabis oil and that the capsules were his personal supply as well as his stash for sale. It is reasonable to infer a significant portion was for his own use. That means the capsules that form the basis of the charge of possession for supply can have a street value of around $1,000 or a bit more.
[34] The band identified in R v Wallace is zero to five years. Given that it is a class B drug and the supply was to be commercial in nature, the very bottom of the range is not available. Noting also that Mr Taumata accepted he had manufactured the drug, we consider a starting point of around 15 months was appropriate. There is then the other offending, particularly the possession of the precursor substance, which warrants an increase of three months, leaving a sentence of 18 months’ imprisonment.
[35] We do not consider there is a need for an uplift. Mr Taumata’s 2006 offending was met with total fines of $600, and involved possession simpliciter. The early offending is more than 20 years ago and does not necessitate an adjustment on this occasion.
[36] That leaves the sentence at 18 months’ imprisonment, and therefore we are required to consider home detention as an alternative. Having read the pre‑sentence and related reports we consider such an outcome is appropriate. Mr Taumata has the care of his 14 year old son who is presently being looked after by his partner. He has made considerable strides in addressing his addiction issues, and is open to counselling. The home detention report notes that his main occupation of shearing work is unrealistic whilst subject to such a sentence, so there is some concern over idle time. That said, Mr Taumata is assessed as suitable for the sentence.
[37] On balance we consider society’s interests best served by a sentence of home detention. The relatively low level of the drug offending makes that possible, and it is preferable that Mr Taumata resume a parenting situation with his son.
[38] Two addresses have been assessed as available for home detention. The first address is where his partner is presently residing with his son. Assuming, as we are informed, it remains available, we prefer that option as involving less dislocation of the family. We acknowledge that it was the address at which the drugs were found but note both that there is no evidence Mr Taumata was dealing from there, and that there has been a break in his occupation of the residence.
[39] Ordinarily a sentence of around nine months would be imposed but it is necessary to acknowledge Mr Taumata has served nearly four months’ in prison. Accordingly we adjust the sentence to one of five months’ home detention.
[40] The standard conditions will apply together with the special conditions set out below:
(a)Following release, to go to 260 Elliott Road, Kaiwera and await the arrival of the Probation Officer and security officer;
(b)To reside at 260 Elliott Road, Kaiwera and not to move address without the prior written approval of a Probation Officer;
(c) Not to purchase, consume or be in the possession of illicit drugs;
(d)To undertake and complete alcohol and drug assessment/counselling/treatment as directed by the Probation Officer to the satisfaction of the Probation Officer and treatment provider.
[41] For the avoidance of doubt, if contrary to our understanding this address is not available, the alternative address at 1214 Waipahi Highway, Pukerau may be used.
[42] Finally there is the issue of the concurrent shorter sentences of six months’ imprisonment that were imposed at the same time. Although Mr Taumata is eligible for release on those having now served more than three months in jail, he is still subject to them. Home detention cannot be concurrent with a sentence of imprisonment and accordingly we quash those sentences also. Because the prison part of the sentence has been served, we do not substitute anything in its place. Accordingly in the unusual circumstances of this case, the formal record on these charges will be convicted and discharged. We emphasise this is only because the sentence has been served.
Conclusion
[43] The conviction appeal is dismissed. The sentence appeal is allowed and all terms of imprisonment are quashed. On the charge of possessing cannabis oil for supply we impose a sentence of five months’ home detention with the conditions identified in [40]. On the charges of possession of instruments for the consumption of cannabis, and possession of a precursor substance we impose no penalty.
Solicitors:
Southern Law, Invercargill for Appellant
Crown Law Office, Wellington for Respondent