Te Aho v The Queen

[2017] NZHC 3014

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI 2017-416-23 [2017] NZHC 3014

BETWEEN

GEORGE RATU TE AHO

Appellant

AND

THE QUEEN Respondent

Hearing:	4 December 2017 (via AVL)
Counsel:	M A Terekia for Appellant K A Courteney for Respondent
Judgment:	6 December 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr Te Aho  appeals  a  sentence  of  27 months’ imprisonment  imposed  for charges of possessing methamphetamine for supply and conspiring to supply methamphetamine.1    The District Court took a starting point of two years and nine months’ imprisonment.   This was then uplifted by five months to reflect that the offending occurred  while Mr Te Aho was a remand prisoner.   Two months was discounted for remorse, and then a full guilty plea discount was given.

[2]      The appeal focuses on the starting point of two years and nine months.  It is said that the quantity possessed for supply was small. The conspiracy involved seven grams but it is submitted that was reflective of dreams of grandeur well beyond the capacity of the appellant.  Objectively the underlying threat posed by the conspiracy

was much less than might appear.

1      R v Te Aho [2017] NZDC 25039.

TE AHO v THE QUEEN [2017] NZHC 3014 [6 December 2017]

[3]      Mr Te Aho was a remand prisoner.  The offending is all disclosed by calls he made  from  prison.    In  the  course  of  these  calls  Mr Te Aho  consistently  gives instructions to his partner concerning drug dealing. She is to contact a third party (now co-defendant) who will keep the business running.

[4]      Some of the calls involved a specific deal orchestrated by Mr Te Aho.  As a consequence, his partner acquired the drug and held it for collection.   This is the possession for supply charge (0.5 grams).  At a later point, the third party’s vehicle was stopped and searched, and various items pointing to drug dealing were identified. This, together with the phone call history, underlies the conspiracy charge. The agreed summary of facts speaks of a conspiracy involving seven grams. The sentencing Judge described that figure as conservative.  I agree.

[5]      The two key facts here, in terms of the appeal issue, are the reality of the operation, and the fact it was carried on from prison.   The latter point is already reflected in an uplift, but also belies the suggestion on appeal that the scale of the conspiracy was just exaggerated talk.  Over a relatively short period, there were over

100 calls from prison by Mr Te Aho.  There was, now obviously, considerable risk in doing this.   These calls are evidence of a determined commitment to an on-going enterprise that Mr Te Aho was completely immersed in, and was driven to maintain so, as he says, “it will be easier for me to get back in when I get out”.

[6]      The agreed summary of facts was favourable to Mr Te Aho. An uplift of five months for carrying on like this from prison was by no means stern. The starting point is consistent with the bands in R v Fatu.2  This was the type of conspiracy charge that covers an on-going drug enterprise, not just one that may happen in the future.  In these circumstances, the adjustment to the Fatu bands to reflect the lower charge of conspiracy needed only to be modest.3  The starting point here was appropriate.4

[7]      The appeal is dismissed.

2      R v Fatu [2006] 2 NZLR 72 (CA) at [34].

3      R v Ture [2007] NZCA 305, [2008] 3 NZLR 627 at [27]–[28].

4      See, for example, Mau’u v R [2015] NZCA 80 at [27], where the Court of Appeal held that a starting point of four years’ imprisonment for supply of eight grams of methamphetamine from prison would have been an orthodox application of the Fatu principles, with an additional discount of five to 10 per cent to reflect that it was a conspiracy charge only.

Simon France J