Tilialo-Staples v Police
[2013] NZHC 1255
•27 May 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000144 [2013] NZHC 1255
BETWEEN JOSHUA TILIALO-STAPLES Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 27 May 2013
Counsel: S Moala for Appellant
LM Mills for Respondent
Judgment: 27 May 2013
JUDGMENT OF ASHER J
Solicitor/Counsel:
Moala Merrick, Auckland. Crown Solicitor, Auckland.
TILIALO-STAPLES v NZ POLICE [2013] NZHC 1255 [27 May 2013]
Introduction
[1] Joshua Tilialo-Staples appeals against a sentence imposed upon him of three years’ imprisonment for his conviction on one charge of the supply of pseudoephedrine, a Class B drug. Mr Tilialo-Staples was involved in a most serious drug importation. However, for the reasons that I am now going to traverse, I consider that the end sentence imposed upon him was too high.
[2] On 19 July 2012, the vessel “Cap Mondego” was inspected at the Port of Auckland. A portable air compressor packed with 21.9 kilograms of pseudoephedrine was discovered. The source was China. The Police valued the worth of the pseudoephedrine at $940,000. The summary of facts reveals the Police knew a good deal about this importation.
[3] Because most of the co-offenders have still to stand trial I will refer to them by their initials.
[4] One of the organisers was allegedly a Mr L who had arranged for the lodging of an application for a Customs client code under a false name. The aim was to permit the collection of the compressor through a Customs broker. The Police assert that Mr L arranged for Mr C to be responsible for the collection of the compressor from the Customs broker.
[5] On 9 September 2012, Mr C contacted Mr Tilialo-Staples and a Mr B and they agreed to collect the compressor. On the same day, Mr L emailed the Customs broker using a false name, notifying them that Mr Tilialo-Staples would collect the compressor. In fact, by the Police summary it was Mr B who collected the compressor.
[6] The compressor was taken to Mr Tilialo-Staples’ parents’ address in Flatbush.
It was there for 20 minutes and it was then allegedly taken to Mr B’s address. At
6 pm, Mr Tilialo-Staples collected the compressor and took it back to his home where it stayed for some hours. The Police say Mr L and Mr C then arrived at Mr Tilialo-Staples’ home. Mr Tilialo-Staples’ mother and stepfather were still awake and he asked them to go away and come back when they had gone to bed. Mr L and
Mr C did this, returning at 11 pm. The compressor was then removed at about midnight.
[7] The Police executed a search warrant on Mr L’s address and the compressor was found. He admitted to having collected it from Mr Tilialo-Staples’ home. When arrested, Mr Tilialo-Staples immediately admitted his involvement. He had been paid $500 to collect the compressor. He needed the money to collect his car, which had been impounded. Clearly he knew that there was an illegal transaction in train. However, he had no knowledge of the type of drugs in the compressor or the quantity.
The decision
[8] Judge Andrée Wiltens fixed a starting point of six years’ imprisonment. He observed that the amount of drugs involved was “enormous” and referred to methamphetamine as the “most pernicious substance in our society” causing “untold harm and damage”.1 He stated that Mr Tilialo-Staples’ involvement was at “the very low end of culpability”.2 However, he emphasised the large amount of drugs involved in fixing his starting point. In reaching his decision he observed:3
My difficulty is that I have to follow the law. I have the Sentencing Act
2002 considerations to take into account, and I have the decisions of other Courts telling me what the appropriate starting point for this type of offending is.
[9] Mr Tilialo-Staples at the time of the offending had just turned 18. The Judge reduced the starting point by two years and observed:4
That involves the limited involvement in the offending by you, your limited knowledge of the situation, your youth, your previous character, remorse and assistance to the police.
[10] In addition to that two year discount, he discounted the four years’
imprisonment by 25 per cent for the guilty plea.
1 R v Tilialo-Staples DC Manukau CRI-2012-092-16186, 10 April 2013 at [2]
2 At [9].
3 At [21].
4 At [25].
[11] Ms Moala for Mr Tilialo-Staples submits that the starting point that was adopted was too high having regard to the low level of offending, and that insufficient discount had been given for the personal and mitigating features.
The starting point
[12] The maximum sentence for this crime is 14 years’ imprisonment. There is no tariff decision. Pseudoephedrine is a Class B drug and the necessity to denounce and deter those who are involved at any level in the manufacture, importation or supply of methamphetamine in New Zealand has been frequently stated.
[13] The Judge was right to emphasise the very large quantity of pseudoephedrine involved and its relevance in assessing culpability. Indeed, the quantity of the drug was recognised in the tariff decision on methamphetamine sentencing of R v Fatu5 as a critical factor in fixing the sentencing bands.
[14] There is no tariff decision in relation to sentencing for pseudoephedrine offending. Since the reclassification of pseudoephedrine from a Class C to a Class B drug there have been, to the best knowledge of counsel, no Court of Appeal decisions setting out appropriate sentencing levels.
[15] The level of Mr Tilialo-Staples’ involvement is important. The position was set out by the Court of Appeal in R v Wallace6 where it was stated:
Instigators, masterminds, prime mover or controllers are at the top level and when convicted must attract sentences at the upper end of the relevant range. Participants in distribution at lower levels should be dealt with proportionately to their culpability as assessed by the sentencer.
[16] In an often quoted decision, Chambers J in R v Wickremasinghe7 following R v Wallace observed in relation to drug rings and those who are involved at different levels:
Within those groups there will be those who are prime movers and those who assist or play lesser roles. The mastermind might be found at any level or indeed remote entirely from the handling of the drug. The Court of
5 R v Fatu [2006] 2 NZLR 72 (CA).
6 R v Wallace [1999] 3 NZLR 159 (CA) at [25](4).
7 R v Wickremasinghe HC Auckland T013408, 28 March 2003 at [20].
Appeal stressed that to fix the culpability of individual offenders requires assessment of the facts of particular cases.
[17] Chambers J in that decision observed that there were two categories of drug importers. The first was the masterminds and prime movers who will know the scale of the importation, and the rewards that can be expected. Then there is a second category of drug importer, the person “who is a crucial player in the importation, but who is not the instigator, mastermind, prime mover or controller”.8 He referred to
the sentencing remarks of Robertson J in R v Lam9 and his reference in relation to
this second less serious kind of offender as being a person who nonetheless had “an
involvement which was of critical importance”.
[18] I would venture that in addition to there being persons involved in those first and second categories, there is also a third category of offender who, while a link in the chain of offending, is not in fact a crucial player and whose involvement is not of critical importance. In my view, Mr Tilialo-Staples is in this third category.
[19] While his involvement was part of the chain of events that constituted the importation, it could not be regarded as of “prime” importance. It can be surmised that if Mr C had not persuaded Mr Tilialo-Staples to accept possession of the machine for a short period of time, he would have found someone else who would have done so. Mr Tilialo-Staples had no idea at all as to what sort of drug was present and the quantity in the machine, the possession period was some six hours at his parents’ home, and the reward was a comparatively modest $500.
[20] I see his involvement as being at a lower level than that of an importation courier where the offender has to take a number of positive actions to assist the importation. Here the involvement of Mr Tilialo-Staples was minimal, effectively making his parents’ home available as the place where the machine could be kept for a short period of time.
[21] Chambers J noted in R v Wickremasinghe that for those who are high in the chain of importation, the quantity and value is of prime importance. This is because
8 At [23].
9 R v Lam HC Auckland T982692, 6 July 1999 at 4.
the prime movers know exactly how large the importation is, and it can be assumed that they will be the persons who will be rewarded by the fruits of the importation. So they have the most express knowledge of scale, the damage that can be caused to the community and the profit to themselves. Where offenders are at a low level in the chain of command, then amount and value as aggravating factors, while still of importance, are less central.
[22] I approach pseudoephedrine sentencing cases that come from the time when it was a Class C drug with caution. However, in R v Lin10 where the Court of Appeal dealt with an importation of 13.28 kilograms of pseudoephedrine over two consignments is relevant. Mr Lin’s role was limited to providing two consignment addresses and handing the substance on to a person higher in the chain. When the second package was received at his home address he was present and signed for it under a false name. A number of relevant cases were considered and a starting point
of four years’ imprisonment was approved. The Court referred to the sentencing of
Mr Lin’s co-offender, a Mr Xu, who had been involved in the importation of
6.7 kilograms and who had the least knowledge of all those involved. There, a starting point of three years’ imprisonment had been fixed.
[23] It can be anticipated that somewhat higher starting points would have been fixed in R v Lin under the present regime where pseudoephedrine is now a Class B drug. But Mr Tilialo-Staples’ offending was of a scale similar to that of Mr Xu.
[24] Looking at this sentence in overview when fixing a starting point it is necessary to balance the very large amount of pseudoephedrine and its high value against Mr Tilialo-Staples’ lowest level of knowledge and involvement. Doing that, I consider that a starting point of four years’ imprisonment was appropriate in those circumstances, and six years to have been manifestly excessive.
[25] The Judge in reaching his higher starting point may not have given full weight to Mr Tilialo-Staples’ low level of involvement. Although he did refer to it in the course of his lead-up to fixing the starting point, he also referred to his “limited
involvement” in assessing the personal mitigating factors. It may be that the Judge
10 R v Lin [2010] NZCA 141.
gave weight to this factor in the wrong part of the sentencing. Whatever the case, the end starting point should have been lower.
Personal factors
[26] I now turn to the second assessment that must be made, of the mitigating factors. There is no doubt, as the Judge recognised, that Mr Tilialo-Staples was entitled to a significant discount for youth, remorse and good character. He had only just turned 18 at the time of the offending and was living with his parents and was in a fulltime course of education. He had no history of offending. A number of testimonials show him to have come from a good family environment and to be well regarded in the community, as well as truly remorseful. He has done part-time work for employers who speak about him favourably.
[27] The probation officer, who recommended home detention and community work as the appropriate sentence, identified Mr Tilialo-Staples as being at a low risk of re-offending, and as having been candid and co-operative at the interview. A restorative justice report shows an interchange where Mr Tilialo-Staples is truly remorseful. This is consistent with his immediate confession and his acceptance throughout of his culpability.
[28] All this material provides an overwhelming impression of a youth of good character and good prospects who was dazzled at the chance of getting a much needed but modest lump sum of cash and made a very foolish decision. A significant discount of up to 20 per cent would be appropriate for youth, remorse and his complete rehabilitation prospects alone.
[29] The Judge in fact allowed a one-third discount, also taking into account Mr Tilialo-Staples’ assistance to the Police. It is necessary to assess this assistance. Mr Tilialo-Staples has given a statement to the Police in respect of the pending trial of Mr B. He is to give evidence in that trial. It may be that the full extent of Mr Tilialo-Staples’ co-operation was not explained to the sentencing Judge.
[30] I accept Ms Moala’s submission that he will provide significant assistance. In assessing this for sentencing purposes, I bear in mind the observations of the
Court of Appeal in R v Hadfield.11 This is not assistance of the highest level in that there does not appear to be any personal danger to Mr Tilialo-Staples and as a consequence of his help, it is unlikely to assist in the trials against the most serious offenders. Nevertheless, it is material assistance that may lead to a conviction of an offender for a serious criminal offence, who might not otherwise have been convicted. Further, the assistance appears to have been offered openly and without condition, and from the time of initial arrest.
[31] In the circumstances the rough allowance of 16 or 17 per cent that I assess the Judge gave was too low. In my view, a discount of up to 25 per cent was warranted. If that was so, the total deduction for personal factors should have been 45 per cent which would have reduced the starting point down to 28.8 months’ imprisonment.
[32] Ms Moala does not quarrel with the guilty plea discount of 25 per cent, and rightly so as it is at the top of the allowance referred to in R v Hessell.12 When the
25 per cent discount is applied to 28.8 months, an end sentence of 21.6 months is reached. I therefore consider that the appropriate end sentence should have been one year and nine months’ imprisonment rather than the three years imposed.
[33] It is now necessary to consider the appropriate end sentence. Home detention is a sentencing option, given that the sentence is now under two years’ imprisonment. I have no doubt that it is the right option for Mr Tilialo-Staples. The very low level of his involvement limits the need to denounce and deter. This was an act of youthful foolishness. It can be hoped that Mr Tilialo-Staples will respond well to a period of home detention and still be able to carry on with his studies. Home detention is the least restrictive sentencing response in all the circumstances and entirely appropriate. There is an approved address for home detention for Mr Tilialo-Staples, at the home of his mother and stepfather. His birth parents are separated but it seems clear that both parents and their families are very supportive
of him.
11 R v Hadfield CA337/06, 14 December 2006,
12 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[34] It is necessary finally to fix the term of the home detention. I take into account that Mr Tilialo-Staples has already spent approximately six weeks in prison. In my view that should give rise to a further discount in terms of the period of home detention of two months.
[35] If it had not been for his time in prison I would have sentenced him to a term of approximately 10 months’ home detention. Taking into account that period in prison, I conclude the right period of home detention is eight months. Given the time Mr Tilialo-Staples has spent in prison I am not going to make an order that he do community work.
Result
[36] The appeal is allowed and the sentence of three years’ imprisonment is
quashed. In substitution a sentence of eight months home detention is imposed.
[37] This judgment is to have effect from 2 pm tomorrow afternoon, Tuesday
28 May 2013. Mr Tilialo-Staples is presently held in Springhill Prison near Huntly. He is to be released from prison in the afternoon of 28 May 2013 and is to be collected by his mother Mrs Jean Staples and then to travel directly to her place of residence in Flatbush to await the arrival of a probation officer and security officer. The following conditions will apply:
(a) He is to reside at his mother’s residence at Flatbush and not to move address without the prior written approval of a probation officer.
(b)He is not to possess or consume alcohol and/or illicit drugs other than those prescribed, for the duration of home detention.
(c) He is to attend any such programme or counseling as may be directed by a probation officer to the satisfaction of the programme provider or counselor and a supervising probation officer.
(d)He is to be assessed for, and if found suitable, to attend, participate and complete a departmental programme to the satisfaction of the programme facilitators and the probation officer.
(e) He is not to communicate or associate with co-offenders, unless with the prior written consent of the probation officer.
[38] Should these directions require amendment in the light of practical realities counsel should file an urgent memorandum for my attention.
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Asher J
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