The Queen v Faifua

[2006] NZCA 48

IN THE COURT OF APPEAL OF NEW ZEALAND

CA287/05

THE QUEEN

v

SONNY ANDREW FAIFUA

Hearing:9 March 2006

Court:Chambers, John Hansen and Baragwanath JJ

Counsel:C P Comeskey for Appellant

E M Thomas for Crown

Judgment:27 March 2006     

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS

(Given by John Hansen J)

[1]       The appellant was tried in the Auckland High Court by a jury on counts of assault with a weapon, possession of a pistol without authority, possession of methamphetamine for the purposes of supply, possession of cannabis for the purposes of supply and possession of a pipe for the purposes of committing an offence against the Misuse of Drugs Act.  At the end of the Crown case he pleaded guilty to possession of the pipe and the possession of a pistol without a licence.  He was found guilty of assault with a weapon and possession of methamphetamine for supply.  He was found not guilty of possession of cannabis for the purpose of supply. 

[2]       On 15 July Williams J sentenced him to an effective term of seven years imprisonment made up as follows:

a)six years for possession of methamphetamine for supply;

b)three months for possession of the pipe –

both those sentences being concurrent; plus

c)one year on the assault with the pistol;

d)one year for possession of a pistol –

both those sentences being concurrent.

[3]       The one year sentence was cumulative on the six year sentence giving the effective sentence of seven years.

[4]       The appellant appealed against both conviction and sentence.  He has now abandoned the appeal against conviction and only challenges the sentence.

Background facts

[5]       On 8 November 2004 some local youths approached the appellant’s home and directed vulgar insults at his daughter and her friend.  The appellant drove them off armed with a piece of wood.  Later the same evening, the appellant’s brother went to the street in which the youths lived with the apparent intention of speaking to their parents.  He was attacked and his van was damaged with a hammer.  He returned to the appellant’s house and reported the incident.

[6]       The appellant’s response was to arm himself with a hand‑made .22 calibre pistol and a number of .22 ammunitions rounds.  The appellant was not the holder of a firearms licence.  He made his way to the address to confront one of the occupants he believed was involved in the earlier incidences.  When he arrived in the street he slowly drove his vehicle past the home of a 14 year old Tongan boy who was sitting on the verandah talking to a family member.  At the end of the street the appellant made a U‑turn and parked his vehicle on the street opposite the victim’s house.  Next, his exit was impeded by a householder’s car but in any event a further altercation ensued.  Some of the bystanders approached the appellant’s vehicle and it appears that one of them may have had a rock or something similar in his hand.  The 14 year old Tongan was the closest to the driver’s door and the jury accepted the appellant presented a gun at him and threatened several times to shoot if he came closer.  The appellant then raised his arm and fired a shot in the air. 

[7]       The police were called and on 10 November they executed search warrants at the appellant’s home and business premises.  They found some ammunition at the house but at the business, in a satchel, they found a total of 21.58 grams of methamphetamine.  It was found to be at least 50% purity.  They also located cannabis, a scanner tuned to police frequencies, a set of electronic scales, a methamphetamine pipe, the pistol, a number of bullets and a diary which appeared to be a tick list.  $689.95 was found in the appellant’s wallet in the satchel, largely made up of $100, $50 and $20 notes.

[8]       These items led to the various charges upon which the appellant was tried.

The sentence

[9]       In his sentencing notes the Judge noted a number of aggravating features, including the use of a weapon, threats of violence and the harm to the young victim that the pistol was pointed at.  The presence of the pistol along with the possession of methamphetamine for supply was seen as a further, serious aggravating feature.  The appellant had previous convictions for violence and the possession of cannabis but the Judge noted, apart from a common assault conviction in 2003, for which the appellant was fined, the offending occurred prior to 1987. 

[10]     In mitigation the Judge noted the late guilty plea on the charges of possession of the methamphetamine pipe and the pistol.  The Judge took into account the appellant’s involvement with his family, community and sport as well as some steps he had taken to undergo drug rehabilitation.

[11]     In sentencing the Judge considered the two drug offences and the two firearms offences separately.  He considered the possession of methamphetamine for supply to be the lead sentence and found the offending fell at the lower end of category 2 as set in R v Wallace and Christie [1999] 3 NZLR 159.

Submissions

[12]     Although the appellant contends the sentence on the firearm charges should be concurrent with the drug sentencing, the focus on the appeal was the starting point used by the Judge on the possession of methamphetamine for supply. 

[13]     The appellant submits that the starting point in relation to the count of possession of methamphetamine for supply is excessive.  Based on the decisions of this Court in R v Arthur [2005] 3 NZLR 739 and R v Fatu CA415/04 18 November 2005 it was submitted an appropriate starting point was one of three years six months imprisonment.

[14]     Counsel arrived at this starting point by way of a mathematical calculation.  He said that if five grams equalled a starting point of three years imprisonment and 250 grams was at the upper level of category 2 and equated to nine years imprisonment, common-sense and a mathematical calculation would arrive at three years and six months in this case.  He submitted that such an approach was predicated on the basis that each additional gram of methamphetamine was the equivalent of 13.41 days of imprisonment.  He accepted that such a mathematical approach could only assist in establishing a starting point and aggravating and mitigating factors needed to be taken into account.

[15]     Mr Comeskey submitted that such an approach is justified on the basis of the Sentencing Act and the decisions of this court in Arthur and Fatu. 

[16]     He further submitted that in this case, the purity of the methamphetamine involved was only about 50% but that P was generally found in purities of 60 to 70%.  He submitted that in line with this Court’s decision in Fatu, to the effect that low purity meant the sentencing response might be less stern, a further 15% discount should be applied in this case giving a starting point of three years.

[17]     Counsel responsibly accepted the aggravating features in relation to the assault with the weapon but pointed to the substantial provocation that occurred on the night in question.  Furthermore, he submitted that a concurrent sentence should have been imposed and the totality of the offending could have been adequately addressed by increasing the sentence on the lead charge.

[18]     The Crown submission points out that the offending occurred after the reclassification of methamphetamine to a class A drug.  The Crown also submitted that the guidelines in Fatu were only to apply to cases determined after the date of that judgment: Fatu at [44].

[19]     In those circumstances the Crown submitted it was correct for the Judge to identify the offending as falling within the second category described in Wallace and Christie.  The Crown further noted that the category two classification, giving a starting point of five years, applied to methamphetamine when it was still classified as a class B drug.

[20]     The Crown submitted the following cases were of assistance: R v Keenan CA425/04 23 June 2005; R v Faulkner HC PN CRI-2004-054-2090 23 July 2004 (Miller J); and R v Dudley & Ors HC ROT CRI-2003-063-9651 12 May 2005 (Williams J).

[21]     The Crown also argued that it was appropriate in this case to impose cumulative sentences for the firearms offending as it was separate and distinct offending: s 84 Sentencing Act 2002. 

Discussion

[22]     Mr Comesky advanced this appeal on the basis that the sentence imposed was inconsistent with the tariffs established by Arthur and Fatu.  In his written submissions, he referred to no other authorities.  That was a reasonable stance to adopt if those decisions apply.  The difficulty is that Mr Thomas, for the Crown, submits they do not apply because the offending in this case took place before those tariffs were established.

[23]     We have decided not to resolve that issue for two reasons.  First, the possible “retrospective” effect of guideline judgments is due to be determined by the permanent court in a case to be heard in May.  We do not want in any way to prejudge what this Court may decide on that topic.  Secondly, on whichever basis this case is approached, the result is the same: Williams J’s sentence was not manifestly excessive.

[24]     Our first approach is to compare this overall sentence with the sentences imposed in comparable cases which had already been determined at the date of this sentencing.  We begin with Keenan, the one authority (apart from Arthur and Fatu) to which Mr Comesky referred in his oral submissions.  We do not, with respect, consider that that case assists the appellant here.  Keenan was found guilty following trial of having a class A controlled drug, methamphetamine, in his possession for the purposes of supply.  The amount of drug found was 13.5 grams.  As well, cash and other drug paraphernalia were located.  The Judge felt a six and a half year sentence could have been adopted, but in the end the Judge adopted an effective sentence of five years’ imprisonment.

[25]     In upholding the sentence this Court noted at [28]:

The sentence appeal is entirely without merit.  Mr Keenan could consider himself fortunate with respect to the sentence actually imposed.  The sentence appeal is dismissed. 

[26]     We accept that the present appellant’s criminal record is not as extensive as Keenan’s.  However, in this case there was the presence of a firearm.  That is one of the most serious aggravating features that can be found in drug cases.

[27]     We have also considered the other authorities to which the Crown referred us: see [20] above.  We agree that they are comparable.  We also agree that the present sentence is consistent with them. 

[28]     We have also considered relevant authorities from the schedule of High Court cases appended to Arthur.  Again, the sentence under appeal is shown to be consistent with them, particularly when the aggravating features of the present offending are taken into account.

[29]     The same conclusion is reached from a proper application of Arthur and Fatu, assuming, for present purposes, their applicability. Mr Comesky’s approach to those decisions, as summarised at [14]-[16] above, is quite wrong. There is nothing in those decisions supporting a mechanical approach, still less a “daily rate”.

[30]     Fatu and Arthur are concerned with establishing sentencing bands.  Where an offender is shown to have supplied or to have had in his possession for supply a quantity of drugs in the range of 5 grams to 250 grams, that person can legitimately be considered a commercial dealer.  We have no doubt that the evidence established the appellant was a commercial dealer, particularly when one considers all the other paraphernalia and the large sum of cash discovered, as detailed in [7] above.  So, if one applies Arthur/Fatu, there can be no doubt that the appellant falls within band 2.

[31]     Once the band has been determined (on the basis of quantity of methamphetamine involved), the sentencing Judge is then required to consider a myriad of factors in determining where within the band the starting point in that particular case should be fixed.  In that assessment, the precise quantity of drugs is but one factor among many: Arthur at [19] and [25]. Here, the quantity of drugs and its level of purity, when taken in conjunction with the fact that this was a possession for supply case (rather than actual supply), were factors in favour of a starting point in the lower half of the range. But other features of the overall offending (the scanner, the scales, the pipe, the large sum of cash, and the possession of a firearm) would suggest that this was a serious dealer, for whom deterrence must be a primary focus of the sentencing. Those other factors would clearly justify a movement of the starting point towards the middle or upper end of the band.

[32]     So, whichever approach is adopted, the result is the same: the Judge’s starting point in this case was appropriate.  So was the overall sentence eventually reached.

[33]     Mr Comesky’s final point was that, at the very least, the sentences should have been concurrent, not partly concurrent, partly cumulative.  This sort of debate is rather sterile.  There was nothing wrong with the way the Judge structured the sentence.  We accept that one could also justify a series of sentences which were entirely concurrent.  What matters, as this Court has frequently said, is the totality of the sentences, not the precise make-up.  A total sentence of seven years’ imprisonment was not excessive.

Result

[34]     We are bound to say that this sentence appeal, like Keenan, is without merit.  It is dismissed. 

Solicitors:
Crown Law Office, Wellington