To'a v R

Case [2020] NZCA 187 28 May 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA653/2019
[2020] NZCA 187

BETWEEN	RICHIE TO’A Appellant
AND	THE QUEEN Respondent

Hearing:	12 May 2020
Court:	Collins, Duffy and Edwards JJ
Counsel:	P E Dacre QC for Appellant Z R Johnston for Respondent
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.

____________________________________________________________________

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading To'a v R

Details

AGLC: To'a v R [2020] NZCA 187
Case: [2020] NZCA 187
Decision Date: 28 May 2020 at 10.00 am

CaseChat Overview and Summary

The appeal in To'a v R was heard by Collins, Duffy and Edwards JJ. Richie To'a, the appellant, challenged the sentence of 12 years' imprisonment imposed on him by the High Court for five drug offences, unlawful possession of a firearm, and unlawful possession of ammunition. To'a argued that the uplifts imposed for firearms and previous convictions were too severe and that the discounts given for personal factors were insufficient. The court agreed that the uplift for previous convictions was disproportionate and reduced it, while affirming the uplift for firearms. It also adjusted the discounts for personal factors, leading to a final sentence of 11 years' imprisonment.

The appeal raised several issues related to the appropriateness of the sentence imposed by the High Court. To'a argued that the uplift for firearms offending was excessive, and the uplift for previous convictions was disproportionate. He also contended that the discounts for personal factors such as addiction, rehabilitation efforts, remorse, and time spent on electronically monitored bail were inadequate. The court had to determine whether the High Court's sentencing decisions were justified and whether the overall sentence was proportionate to the severity of To'a's offending.

The Court of Appeal upheld the starting point of 14½ years' imprisonment for To'a's drug offending but adjusted the uplifts and discounts. It found the 12-month uplift for firearms offending to be justified due to the aggravating nature of the loaded firearm found in To'a's vehicle. However, the 3-month uplift for previous convictions was deemed disproportionate and was reduced. Regarding personal factors, the court allocated specific discounts of five per cent each for addiction, rehabilitation, remorse, and time spent on electronically monitored bail, and ten per cent for To'a's guilty pleas. These adjustments led to a final sentence of 11 years' imprisonment. The court allowed the appeal and substituted the original sentence with the new one.

Orders