To'a v R
[2020] NZCA 187
•28 May 2020 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA653/2019 [2020] NZCA 187 |
| BETWEEN | RICHIE TO’A |
| AND | THE QUEEN |
| Hearing: | 12 May 2020 |
Court: | Collins, Duffy and Edwards JJ |
Counsel: | P E Dacre QC for Appellant |
Judgment: | 28 May 2020 at 10.00 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of 12 years’ imprisonment is quashed and substituted with a sentence of 11 years’ imprisonment.
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REASONS OF THE COURT
(Given by Collins J)
Introduction
On 5 December 2019, Davison J sentenced Mr To’a to 12 years’ imprisonment in relation to five drug offences, one charge of unlawful possession of a firearm and two charges of unlawful possession of ammunition.[1] Mr To’a pleaded guilty to those charges on the first and second days of his trial.
[1]R v To’a [2019] NZHC 3232.
The drugs charges to which Mr To’a pleaded guilty comprised:
(a)one representative charge of supplying methamphetamine;
(b)one charge of offering to supply methamphetamine;
(c)one charge of possessing methamphetamine for supply;
(d)one charge of conspiring to supply methamphetamine; and
(e)one charge of possession of cannabis.
On appeal, Mr To’a accepts the starting point adopted by the High Court Judge but challenges:
(a)An uplift of 12 months’ imprisonment that was imposed to take account of Mr To’a’s firearms offending.
(b)A 3-month uplift applied by the Judge to reflect Mr To’a’s previous convictions for drug dealing and possession of a restricted weapon.
(c)The extent of the discounts given to reflect Mr To’a’s:
(i)drug addiction;
(ii)remorse; and
(iii)the amount of time Mr To’a spent on electronically monitored (EM) bail.
Background
In January 2018 police commenced an investigation into a methamphetamine supply chain. Mr To’a was one of three men and one woman, who were the focus of that investigation. Mr To’a was described in the summary of facts as “a main supplier”, with Mr Pomale, being a “middle man” and Mr Puhara and Ms Cassidy, being “street level” dealers. The investigation included an analysis of intercepted communications over a three-week period.
As a result of the investigations, Mr To’a was charged with:
(a)supplying at least 504 grams of methamphetamine, for which he received $65,800;
(b)conspiring to supply at least a further 504 grams of methamphetamine;
(c)offering to supply 196 grams of methamphetamine;
(d)having possession of one kilogram of methamphetamine; and
(e)having possession of nine grams of cannabis.
On 11 April 2018, police executed a search warrant at premises rented by Mr To’a. In those premises the police located 10 rounds of shotgun ammunition and 32 rounds of blank ammunition. A vehicle belonging to Mr To’a was also searched in which the police found a loaded revolver with seven live rounds of ammunition.
Sentencing decision
Starting point
The Judge adopted a starting point of 14½ years’ imprisonment in relation to Mr To’a’s drug offending. No issue is taken with that starting point, which was based on Mr To’a’s offending falling within the upper end of band four as defined in this Court’s judgment in Zhang v R.[2]
[2]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
Band four is reserved for quantities of less than two kilograms of methamphetamine. Mr To’a’s offending, however, involved more than two kilograms of methamphetamine. For sentencing purposes, his offending was placed in band four of the Zhang categories in order to reflect the fact that some of the charges to which Mr To’a pleaded guilty concerned offering to supply methamphetamine and conspiring to supply methamphetamine, rather than the actual supply of methamphetamine.[3]
Uplift for firearms offending
[3]R v To’a, above n 1, at [36].
Davison J increased the starting point by 1 year to reflect the seriousness of Mr To’a’s firearms offending. The Judge noted that the presence of a loaded firearm in Mr To’a’s vehicle was an aggravating factor.[4] The Judge also noted Mr To’a had told Dr Jansen, a psychiatrist whose report we will refer to later in this decision, that he had the gun because he thought someone was trying to kill him. Mr To’a did not know who that person was. Mr To’a also told Dr Jansen that he had never fired a gun. Davison J referred to Mr To’a’s previous conviction for unlawful possession of a restricted weapon and said this “conflicts with [Mr To’a’s] statement to Dr Jansen somewhat”.[5] We will return to this topic at [20] to [24].
Uplift for previous convictions
[4]At [45].
[5]At [43].
The Judge imposed a further uplift of 3 months’ imprisonment to reflect Mr To’a’s two previous convictions for drug dealing and one previous conviction for unlawful possession of a firearm.
The previous convictions to which the Judge was referring were:
(a)possession of methamphetamine for supply;
(b)possession of cannabis for supply; and
(c)unlawful possession of a restricted weapon.
Mr To’a was convicted of these, and other offences in 2015 when he was 25 years old. He was sentenced to a total of 150 hours’ community work and intensive supervision for 2 years. Unbeknown to Davison J, the unlawful possession of a restricted weapon charge related to Mr To’a having a “taser cellphone” and a “taser torch”.
Discount for personal factors
Dr Jansen’s report explained Mr To’a had a long history of drug and alcohol addiction dating back to when he was 16 to 17 years of age. The report set out how Mr To’a “had craved methamphetamine” and that he had become engaged in drug dealing in order to pay for his habit. Dr Jansen diagnosed Mr To’a as being in recovery from methamphetamine and alcohol dependence and that he had a recent history of methamphetamine induced psychosis. The psychiatrist also suggested Mr To’a was likely to have suffered from attention deficit hyperactivity disorder (ADHD).
In addition, the Judge referred to a cultural report prepared pursuant to s 27 of the Sentencing Act 2002. That report described Mr To’a’s high dependence on methamphetamine and alcohol.
After referring to the psychiatric and cultural reports, Davison J said that there was little evidence to suggest Mr To’a’s addiction caused his offending. The Judge said the amount of methamphetamine that was involved in Mr To’a’s offending showed that his criminal conduct was driven by financial gain rather than a need to satisfy his addiction.[6]
[6]At [64].
The Judge referred to Mr To’a’s efforts towards rehabilitation and his commitment to abstain from drug abuse. He also made reference to Mr To’a’s time spent on EM bail and his remorse. The Judge gave a discount of 15 per cent to reflect all of these personal factors.
Finally, the Judge granted a further discount of 10 per cent to recognise Mr To’a’s guilty pleas.
The firearms offending
In this Court, Mr Dacre QC contended for Mr To’a that the uplift of 1 year’s imprisonment to reflect his firearms offending was too severe and that at most, an uplift of 6 months’ imprisonment was all that was required to reflect this factor. Mr Dacre was critical of the Judge’s rejection of Mr To’a’s explanation to Dr Jansen that he had never fired a gun.
We agree with the uplift that Davison J imposed for Mr To’a’s firearms offending. The loaded gun found in close proximity to the driver’s seat of Mr To’a’s vehicle was a particularly aggravating factor. This Court has regularly endorsed uplifts of between 12 to 18 months’ imprisonment for those found in possession of firearms in association with drug offending.[7] The possession of the loaded firearm was a particularly serious aggravating feature of Mr To’a’s offending and required an uplift of between 12 to 18 months’ imprisonment. We reach this conclusion after putting to one side Mr To’a’s previous conviction for possession of a restricted weapon. We are also willing to accept the veracity of his statement that he had never fired a firearm. Nevertheless, we uphold the uplift of 12 months’ imprisonment for Mr To’a’s unlawful possession of a firearm.
Uplift for previous convictions
[7]R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [41]; Mills v R [2016] NZCA 245 at [18]; and Joyce v R [2020] NZCA 124 at [24].
We have already referred to Mr To’a’s previous convictions and sentence for drug offending and possession of a restricted weapon.
We have now seen the summary of facts for that offending, which was not presented to the High Court Judge. That summary confirms that the offending was at the lower end of the spectrum for offending of its type. Mr To’a’s possession of the “taser torch” and “taser cellphone” casts a different perspective on his earlier offending.
We agree with Mr Dacre that the High Court Judge probably misunderstood the true nature of Mr To’a’s previous Arms Act offending. While uplifts for previous offending are often justified, care is also required to avoid uplifts that are disproportionate to the previous offending.
In the present case, the High Court Judge imposed an additional 3 months’ imprisonment on Mr To’a for offending that originally attracted very modest community-based sentences.
The uplift of 3 months’ imprisonment was disproportionate to the original sentences and leads us to conclude that such an uplift was not required in the present case.
Addiction
In Zhang, this Court explained that addiction may be a mitigating factor where there is a causal link between a defendant’s offending and his or her addiction.[8] The rationale for treating addiction as a mitigating factor in these circumstances is that addiction may compromise an offender’s rational choice to offend and this in turn reduces the deterrent objectives of sentencing. Addiction may also lead to a prison sentence being disproportionately severe for a defendant. Addiction is, however, unlikely to be genuinely causative of offending that takes place on a commercial scale. This is because addiction in cases involving large quantities of methamphetamine is “likely to be inconsistent with the impairment of the ability to exercise rational choice, which is what diminishes culpability and justifies discounting the sentence”.[9]
[8]Zhang v R, above n 2, at [147].
[9]At [147].
It is clear from Dr Jansen’s report that Mr To’a was genuinely addicted to methamphetamine at the time of his offending. The magnitude of his offending, however, greatly exceeded the amounts of methamphetamine and money he required to support his addiction. Thus, while we accept a modest discount was warranted to reflect Mr To’a’s addiction, this was not a case in which any significant discount was justified to recognise Mr To’a’s addiction issues. In our assessment, a discount of five per cent to reflect Mr To’a’s addiction was all that could be justified.
Rehabilitation
We also accept, as did Davison J, that Mr To’a deserved credit for the efforts he has made towards rehabilitation and his commitment towards making a better life for himself and his family. Again, we believe this factor justified a reduction of five per cent.
Remorse
It is also clear from the cultural report and Mr To’a’s letter to the Court that he is genuinely remorseful. Davison J recognised this fact in his global discount for Mr To’a’s personal factors. We allocate a discrete discount of five per cent to reflect Mr To’a’s remorse.
EM bail
Mr To’a spent a little over a year on EM bail. No specific discount was given in the High Court to recognise this factor. In our assessment, Mr To’a should receive a discount of five per cent to recognise the time spent on EM bail.
Result
From the starting point of 14½ years’ imprisonment for Mr To’a’s drug offending, we add a further 1 year imprisonment to reflect his firearms offending.
Instead of applying a global discount of 15 per cent for personal circumstances, we discount:
(a)five per cent for addiction;
(b)five per cent for rehabilitation;
(c)five per cent for remorse;
(d)five per cent for EM bail; and
(e)ten per cent for guilty pleas.
This produces an end sentence of 11 years’ imprisonment.
We allow the appeal and quash the sentence of 12 years’ imprisonment and substitute that sentence with one of 11 years’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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