Tuala v The King
[2023] NZHC 1359
•31 May 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-138
[2023] NZHC 1359
BETWEEN ALVIN JUNIOR TUALA
Appellant
AND
THE KING
Respondent
Hearing: 30 May 2023 Appearances:
BCS Moyer for the Appellant STL Teppett for the Respondent
Judgment:
31 May 2023
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 31 May 2023 at 4:00 pm.
Registrar/Deputy Registrar
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: BCS Moyer, Auckland
TUALA v R [2023] NZHC 1359 [31 May 2023]
[1] Alvin Junior Tuala pleaded guilty to one charge of attempting to import a class B controlled drug 1,4-butanediol (also known as fantasy) from China in 2019. On 24 March 2023, he was sentenced by Judge E M Thomas to two years and five months’ imprisonment.1 He now appeals against that sentence on the basis it is manifestly excessive.
Factual background
[2] In early 2019, the appellant and two others arranged for 200 kilograms of the liquid 1,4-butanediol to be sent to New Zealand from China. It was contained in a metal drum purchased by the appellant via email from a Chinese industrial supplier.
[3] The drug 1,4-butanediol can be imported lawfully, for industrial purposes, to be used as a solvent and in the manufacture of some types of plastics, elastic fibres, and polyurethanes. However, lawful importation requires a permit from the Ministry of Health. This is because 1,4-butanediol is a class B controlled drug. It can be used to produce gamma-hydroxybutyrate (GHB), commonly known as “fantasy”. A litre of GHB can be sold unlawfully for between $1,800 and $4,000, according to recent data from the National Drug Intelligence Bureau. This puts the value of the 200 kilograms between $360,000 and $800,000, if sold at wholesale.
[4] The appellant arranged the importation with an associate, Mr Pei. Between themselves, they devised how they would pay a deposit for the purchase price, which would allow it to be shipped. In addition to arranging the purchase, the appellant and Mr Pei entered into an arrangement with Mr Forbes that a company owned by Mr Forbes would act as the named consignee and that he would receive the consignment at his home address.
[5] The communications between the appellant, Mr Pei, and Mr Forbes both in person and by phone used phrasing which made it plain each of them knew and intended the imported substance would be used unlawfully, as a controlled drug. The consignment arrived in New Zealand in a shipping container on board a ship docking at Auckland on 26 April 2019. On that date, the appellant visited the customs broker
1 R v Tuala [2023] NZDC 5710.
for the consignment, attempting to clear their consignment. He gave a false name and provided a contact number and email address of doubtful reliability.
[6] The appellant also visited the Mt Wellington branch of a freight company, enquiring about transport of the consignment from the freight company’s address to Mr Forbes’ address. The appellant had brought in the necessary paperwork to clear the goods on behalf of Mr Forbes’ company.
[7] On 29 April 2019, Mr Pei and Mr Forbes met and went in to the BNZ branch in Albany, where Mr Forbes paid $394.83 to a company in respect of its invoice for acting as the international freight provider for the consignment.
[8] In the following days, Mr Pei and Mr Forbes communicated at length about how they were going to get the consignment cleared. Mr Forbes told Mr Pei that he was continuing to work on getting the permit sorted and Mr Pei became increasingly frustrated with Mr Forbes about the on-going delays. Over this time, the customs broker repeatedly tried without success to contact the appellant using the phone number and email address provided, requesting the Ministry of Health permit. The customs brokers eventually contacted the New Zealand Customs Service, and the consignment was subsequently seized.
District Court sentence
[9] After setting out the factual background, Judge Thomas indicated that he would adopt the same starting point as the sentence indication provided to Mr Pei on 26 November 2021. The starting point then indicated was three and a half years’ imprisonment.
[10] The Judge noted the starting point could then be reduced for personal mitigating factors. First, he acknowledged the guilty plea by the appellant, and he indicated that the appellant would get a reduction for that. The Judge, however, saw a big difference between Mr Pei pleading guilty a few days after his sentence indication in November 2021 and the appellant pleading guilty nine months after that. The discount the Judge gave was 15 per cent, which he said reflected the fact the
appellant’s guilty plea had come quite a long time after the offending and quite a long time after the sentence indication he gave to Mr Pei.
[11] The Judge then indicated he was not able to give the appellant a reduction for the time he had spent in custody. That was for the prison authorities to work out and his sentence would, accordingly, be reduced administratively.
[12] The Judge then noted the appellant sought a discount for restrictive bail conditions. The Judge noted, however, that the appellant had received quite generous bail conditions and he was unable to give the appellant a separate discount for those. Discounts were only available for those on very restrictive bail conditions, which usually meant electronically monitored bail.
[13] Finally, the Judge recognised the contributing factor of the appellant’s upbringing to his offending. He had a cultural report prepared for sentencing. He acknowledged the appellant’s tough upbringing, which put him on a criminal path early. The Judge said, “in that sense, not all of this … is all your fault”, so the Judge reduced the sentence by 15 per cent to account for those factors as well. The total discounts therefore applied to the starting point of three and a half years’ imprisonment was 30 per cent, which led to an end sentence of two years and five months’ imprisonment.
Appellant’s submissions
[14] Counsel for the appellant does not raise any issues with the starting point of three years and six months’ imprisonment. Counsel submits the final sentence is manifestly excessive as the mitigating factors raised at sentencing were inadequately recognised.
[15]Five matters are advanced:
(a)Parity is sought with the co-defendant, Mr Pei, who received a 25 per cent discount for an early guilty plea. The appellant received a discount of only 15 per cent.
(b)The appellant completed rehabilitative programmes prior to sentencing and received no discount for that.
(c)Time spent on restrictive bail conditions was not accounted for.
(d)Inadequate discount was given for cultural factors outlined in the s 27 report; and
(e)Remorse was not recognised.
Discussion
Guilty plea discount
[16] Mr Pei’s sentence indication was given on 26 November 2021 shortly after the Crown agreed to modify the charge of importation to one of attempted importation, which halved the maximum penalty. Mr Pei pleaded guilty on 30 November 2021. The Judge found that it was not unreasonable for Mr Pei to wait to enter a plea until the charge had been modified. He therefore received the full 25 per cent discount.
[17] The appellant did not, however, enter his plea until eight months later, on 29 July 2022. The appellant has filed an affidavit in which he states that his guilty plea was entered on the understanding he would receive a 25 per cent discount. However, on the trial record sheet dated 29 July 2022, Judge Bonnar KC has written:
I raise why Mr Tuala requires SI [sentence indication], given Judge Thomas’ indication given in Nov 21 for Mr Pei?
If indication sought, I see no reason to depart from Judge Thomas’ starting point – but consider less than 25% discount now applic [applicable] – prob 15% given passage of time & insistence on SI, but sentencing should prob proceed before Judge Thomas.
[18] Judge Bonnar has then recorded a guilty plea entered through counsel with the appellant present. Counsel draws my attention to the fact the sentence indication was in fact sought on 18 March 2022, four months before the hearing on 29 July 2022. However, the appellant could have pleaded guilty at around the same time as Mr Pei did. There was no need to obtain his own sentence indication. In those circumstances,
the appellant has not demonstrated any error on the part of the sentencing Judge in granting him only a 15 per cent discount for his guilty plea eight months later.
Rehabilitative programmes
[19] The appellant participated in one course and completed a grief and loss two- day retreat. The Court was provided with a letter from Vaka Pasifika dated 19 October 2022. It states the appellant participated in a Non-Violence Programme for Pacific men, which was disrupted by a pandemic lockdown. The structure of the course and the actual rehabilitative work undertaken by the appellant is not specified. It appears to have involved group discussions. The appellant also attended a two-day grief and loss retreat at the Vaughan Park Anglican Retreat Centre. In addition, I was supplied with a certificate of completion for Life 101’s work-ready, world-ready programme, completed by the appellant after sentencing. However, such courses do not directly address his criminogenic needs and do not necessarily warrant any discount on sentence. Mr Tuala now acknowledges that he has drug addiction issues, which I note remain untreated.
[20] The appellant has not demonstrated any error on the part of the sentencing Judge in not granting him a specific discount for the two courses in which he has participated.
Time spent on restrictive bail
[21] Time spent on restrictive bail can provide a logical and reasonable basis for a discount on sentence. The Judge refused any discount because the appellant’s bail was not unduly restrictive. He had spent 18 months on bail initially on a 24-hour curfew and then on a night-time curfew before his bail was changed to delete any curfew. Of more concern, however, in the present case is that the appellant appears to have been offending while on bail. Police searched the address at which he was residing on 1 November 2022. He has now been charged with further offences for possession of methamphetamine for supply, unlawful possession of a pistol and unlawful possession of ammunition. I also note that he was then not residing at the address to which he was bailed.
[22] In those circumstances, there was no error on the part of the Judge in refusing the appellant a discount for time spent on restrictive bail.
Cultural report
[23] A fifteen per cent discount was granted for the factors identified in a cultural report obtained under s 27 of the Sentencing Act 2002. The appellant says this discount should have been higher. Fifteen per cent is said to be insufficient to reflect the challenges faced by him. What was not discussed at sentencing was the appellant’s deportation from Australia to New Zealand under s 501 of Australia’s Migration Act 1958. Mr Tuala found it difficult to adjust to living in New Zealand given his family were still in Australia.
[24] In Berkland v R,2 the Supreme Court confirmed that an offender’s background is an important element in sentencing. Background factors such as addiction, deprivation and historic dispossession can mitigate a sentence where those factors have contributed causatively, meaning “if they help to explain in some rational way why the offender has come to offend.”
[25] In the present case, there is no suggestion that the appellant’s offending was driven by addiction issues. Rather, it was driven by a desire to obtain significant profit in order to provide for his family so that they could join him in New Zealand.
[26] I also note that the report writer records that despite the appellant’s difficult upbringing, he was able to lead a pro-social life for some time in Australia. When he was 25 years old, Mr Tuala was employed in a finance company and he was the part owner of a business. Mr Tuala’s two sisters, his wife, and children have now joined him in New Zealand.
[27] In those circumstances, a discount of 15 per cent cannot be seen as manifestly inadequate.
2 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
Remorse
[28] The appellant has this morning provided a handwritten letter of remorse to the Court. While I accept that he now finds himself in a position where he regrets his actions, that is insufficient to demonstrate that the Judge fell into error in not granting him a separate discount for remorse in addition to the discount for his guilty plea.
Result
[29]The appeal is dismissed.
Woolford J
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