Tui v The Queen

[2021] NZHC 2168

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2021-483-10

[2021] NZHC 2168

BETWEEN

CORY JAMES TUI

Appellant

AND

THE QUEEN

Respondent

Hearing:

22 July 2021 [adjourned]

11 August 2021 (via AVL)

Appearances:

M McGhie for Appellant R Benic for Respondent

Judgment:

19 August 2021

JUDGMENT OF ISAC J

Introduction

[1]    Mr Tui appeals against his sentence of 15 months’ imprisonment after pleading guilty to one charge of conspiracy to supply a class B drug1 (cannabis oil in the form of two pills) and one charge of possession of a Class B drug, being cannabis oil.2

[2]    Counsel for Mr Tui submits an end sentence of around eight to nine months’ imprisonment would better reflect the relative seriousness of the offending and the personal circumstances of Mr Tui. The respondent’s position is that the end sentence of 15 months’ imprisonment falls squarely within range of other sentencing decisions imposed for similar offending involving the smuggling of small quantities of Class B drugs into a custodial environment.

1      Misuse of Drugs Act 1975, s 6(2A), maximum penalty 10 years’ imprisonment.

2      Section 7(1)(a) and 7(2), maximum penalty three months’ imprisonment or $500 fine.

TUI v R [2021] NZHC 2168 [19 August 2021]

[3]    I have concluded that the appeal should be allowed, and the sentence imposed in the District Court substituted. The error in approach was that the starting point adopted was too high, and consequently a different sentence should have been imposed. Given the short-term nature of the sentence, the error led to a manifestly excessive sentence.

[4]    I adjourned the first hearing of the appeal at Mr Tui’s request so he could consider whether he might wish to challenge his conviction for conspiracy for supply in light of relevant authority that suggested defendants could not enter into a conspiracy to supply drugs to themselves.3 Following the adjournment, Mr Tui through counsel advised the Court that he wished to proceed with the sentence appeal in light of the fact that the entry of his plea was part of an agreed resolution with the Crown that saw other serious charges withdrawn.

Background

[5]    Mr Tui was an inmate at Whanganui Men’s Prison between 1 September 2020 and 3 October 2020. Between 1 September and 2 September, Mr Tui spoke with his father over the prison phone system and arranged for him to deliver two packages containing cannabis oil to the address of a Ms Jessie Edwards.

[6]    Ms Edwards attempted to enter the Whanganui Men’s Prison to visit another inmate with two capsules of cannabis oil concealed in her mouth. She was intercepted by Corrections staff. This gave rise to the charge of conspiracy to supply a Class B drug.4

[7]    Mr Tui then arranged for his father to supply a Ms Paris Tahau with cannabis oil to bring to prison. She and his father visited Mr Tui at prison, and Ms Tahau was observed by Corrections staff passing a concealed item to Mr Tui. Once the visit was completed, Corrections officers searched Mr Tui. A small balloon fell out as his

3      See R v Lang (1998) 16 CRNZ 68 and R v R HC Wellington CRI-2002-085-206084, 12 August 2004.

4      For the purposes of the appeal I am prepared to accept Mr McGhie’s submission that the other inmate was Mr Tui’s cell mate, and the aim of the conspiracy was to enable Mr Tui to obtain the drugs for his own use.

clothing was removed, which contained two capsules of cannabis oil. This gave rise to the second charge of possession of a Class B drug.

District Court judgment

[8]Mr Tui was sentenced on 2 June 2021 in the District Court.5

[9]    The Judge considered the primary purposes of sentencing in a case of this nature was the need to denounce and deter Mr Tui and others from similar offending.6 He then considered the cases of R v Napia,7 R v Metcalfe8 and R v Clarke,9 which all involved attempts to smuggle drugs into prison. After noting Mr Tui’s counsel’s submission that these cases do not apply because they were concerned drug couriers rather than the intended recipient of the drugs, the Judge said:10

However, in this case, you were the organiser and orchestrator of the bringing of the cannabis oil into prison and it is difficult to see in my view that there is a real distinction between the present case and the cases that I have referred to that were cited by the Crown in sentencing.

[10]   The Judge viewed the relatively lenient non-custodial sentences imposed on Mr Tui’s co-defendants as a product of either their lack of or limited previous convictions,11 before noting the closest case to the present as R v Metcalfe, where the start point adopted was 21 months’ imprisonment.12 Taking into account the sentencing purposes and principles he had mentioned and the factors involved including a degree of premeditation in planning and organising the bringing in of cannabis oil into prison, the  Judge  considered  the  appropriate  start  point  to  be 20 months’ imprisonment.13

5      R v Tui [2021] NZDC 11947.

6 At [3].

7      R v Napia CA258/00, 27 September 2000.

8      R v Metcalfe CA 312/99, 18 October 1999.

9      R v Clarke [2008] NZCA 501.

10 At [7].

11 At [8].

12 At [9].

13 At [9].

[11]   There were no uplifts for previous offending,14 and no discounts were given for remorse,15 drug addiction,16 or rehabilitative efforts.17

[12]   Mr Tui was entitled to a 25 per cent discount for his early guilty plea, which brought the end sentence to 15 months in prison.18 The Judge noted this sentence was to be served cumulatively on Mr Tui’s current sentence.19

Approach on appeal

[13]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should have been imposed.20 A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.21 It is only appropriate for this Court to intervene and substitute its own view if the sentence being appealed is “manifestly excessive”.22

[14]   The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.23

Discussion

[15]   There are essentially two issues on appeal: whether the starting point was too high, and whether the Judge erred in failing to consider personal mitigating factors.

14 At [10].

15 At [10].

16     The Judge rightly noted at [11] such a credit is only available where there is a clear nexus between addiction and the relevant offending, and that it must be based on more than self-reporting.

17 At [12]. This was due to the “fairly limited nature of the description in the probation report”.

18 At [13].

19     At [13], citing the Court of Appeal guidance in Tryselaar v R [2012] NZCA 353 at [18].

20     Criminal Procedure Act 2011, ss 250(2) and 250(3).

21     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

22     Ripia v R [2011] NZCA 101 at [15].

23 At [15].

[16]   Before I address these two matters, I note the Court of Appeal’s statement in R v Napia:24

[12] Deterrence is an important aspect of sentencing in relation to the smuggling or attempted smuggling of drugs into prisons. In Callard this Court referred to three principal concerns of the prison authorities in respect of illicit drug use or dealings by inmates. First, there is a difficulty in managing prisoners indulging in drug taking with consequential implications for security and risks of harm. Second, any illicit market within the prison tended to be dominated by stronger inmates and stand-over tactics were common. Third, the availability of drugs interfered with management for rehabilitation. The consequences of smuggling drugs into prisons warrant a policy of deterrence and having regard to the deliberate premeditated nature of such offending deterrent policies can be expected to be generally effective. In view of this the appellant’s conduct needs to be examined for reasons why she was not deterred.

[17]   These concerns will always be at the forefront of the Court’s mind when sentencing for offences relating to the introduction of illicit substances into prisons. Indeed, given Mr Tui is unlikely to have received a custodial sentence had the offending occurred outside a prison setting, the imposition of a custodial sentence of some length reflects the high level of general deterrence attaching to cases such as this.

Starting point

[18]   The starting point for this offending appears to range from 12 to 24 months’ imprisonment.25 That range reflects two decisions of the Court of Appeal where the offending in issue and the circumstances of the appellants were not materially different from each other. But certainly the breadth of the range over a sentence of short duration made the sentencing exercise for the Judge difficult.

[19]   The Judge adopted a starting point of 20 months’ imprisonment. He considered R v Metcalffe to be the most comparable case.26 There, the appellant was sentenced to 15 months’ imprisonment after she had pleaded guilty to a charge of possession for supply of a class B controlled drug (morphine). She had gone to Rolleston Prison to

24 R v Napia, above n 7, at [12].

25 In R v Clark, above n 9, the Court of Appeal considered the start point of 12 months “was well within range and indeed might be seen as lenient” for that offending which involved the smuggling of four oxycodone tablets (a Class B drug which is similar to morphine) into prison.

26 R v Metcalffe, above n 8.

visit an inmate and was stopped at a checkpoint run by prison staff. A drug dog took an interest in her, and she was found with three 100 mg morphine sulphate tablets wrapped in film and a small container of acetic anhydride. When mixed and heated with the acetic anhydride as converting agent the tablets could produce heroin, a Class A drug.

[20]   The Court of Appeal dismissed the appeal against sentence. It said the combination of two serious factors — being caught in an attempt to take drugs into a prison and committing the offence charged while serving a sentence of periodic detention for other drug offending — made a prison sentence inevitable, and the 15-month sentence, which reflected an allowance of six months for the guilty plea, was entirely proper.27

[21]   The other case considered by the Judge was R v Clark. There, the appellant visited her former partner in prison. She concealed a package containing four oxycodone tablets on her body. She was observed on a monitored video camera passing a package to her partner. The visit was terminated, and the drugs were recovered. Ms Clark was charged with supplying a class B controlled drug. The sentencing judge adopted a starting point of one year’s imprisonment, and after mitigating factors including a guilty plea and the appellant’s largely good record, he reduced the sentence by a third to arrive at an end sentence of eight months.

[22]   On appeal, the Court of Appeal referred to both Metcalfe and Napia. It noted that Metcalfe was perhaps the closest on the facts to Ms Clark’s case.28 It noted the Court’s observation in Metcalfe that a 15-month sentence of imprisonment following a guilty plea was “an entirely proper sentence”. The Court also observed that the starting point of 12 months adopted by the sentencing judge was “well within range and indeed might be seen as lenient”.29

[23]Two further points should be made:

27 At [15].

28     R v Clark, above n 9, at [16].

29 At [17].

(a)Metcalfe, Napia and Clark all involved charges laid against an individual seeking to smuggle drugs into prison. Consequently, none of them apply directly to Mr Tui’s offending, concerning as it does a prisoner making phone calls to arrange delivery by others of small quantities of drugs into prison for personal use.

(b)Second, the most analogous cases of Metcalfe and Clark concerned supply or possession for supply charges, which carry a 14-year maximum penalty. In the present case the lead charge is conspiracy, which carries a substantially lower starting point of 10 years.

[24]   The respondent says Mr Tui’s culpability was greater than that of the appellant in R v Metcalfe, in that it involved a greater quantity of drugs, and Ms Metcalfe’s offending was more impulsive. The 20-month starting point for Mr Tui was therefore well within range, considering Ms Metcalfe’s starting point was 21 months’ imprisonment.

[25]   The respondent goes on to point to an agreed summary of facts, which suggested the charge of conspiracy was intended to encompass Mr Tui’s two attempts to bring drugs into the prison, in contrast to Metcalfe and Clark, where there was only one such attempt. It also submits that Mr Tui was the prime mover and driving force behind the offending, while the actions of the co-defendants were less culpable.

[26]   For Mr Tui, Mr McGhie argues that Mr Tui pleaded guilty to only one charge of conspiracy, so despite the terms of the agreed summary of facts he ought to have been sentenced on the basis of one attempted supply only.

[27]   Dealing first with the scope of the conspiracy charge, and whether sentencing ought to have encompassed both attempts to supply, I do not consider there was any error in the approach of the Judge. First, the starting point adopted was squarely consistent with that in Metcalfe, which only involved one attempt to smuggle drugs into a prison. The Judge did not make a discrete uplift to reflect Mr Tui’s offending on two discrete occasions. So nothing turns on the point.

[28]   Despite this, there was an error in approach that resulted in a sentence that was manifestly excessive. First, while the Judge considered the case closest to Mr Tui’s was Metcalfe, where a 21-month starting point was adopted, there is nothing significant to distinguish Mr  Tui’s  case  from  Clark,  where  a  starting  point  of  12 months’ imprisonment was recognised as within range (although considered to be lenient). In addition, the Court of Appeal in Clark also acknowledged that the facts of the case were similar to those in Metcalfe. The disparity in starting points between the two cases despite their similarities reduces the assistance that can be drawn from them when setting a starting point for Mr Tui’s offending.

[29]   Second, as noted, Metcalfe and Clark involved charges carrying a maximum penalty of 14 years’ imprisonment, whereas the maximum sentence for the lead charge Mr Tui faced was 10 years. The Judge did not make any adjustment to the starting point to reflect the lower maximum penalty. Had he done so, the range would have been eight and a half months and 15 months respectively.

Was Mr Tui’s role in the offending more culpable than the co-defendants?

[30]   Both the Judge and the respondent characterise Mr Tui as the prime mover, in contrast to the co-defendants. The respondent submits that this characterisation is a correct basis for a starting point perhaps at the higher end, and indeed the availability of the end sentence.

[31]   However, I am not convinced it is correct to distinguish so substantially between the role Mr Tui played in the offending as compared to his co-offenders in order to justify the starting point adopted. Mr Tui wanted drugs, it seems clearly for his own use. He called his father to arrange delivery to persons whom he hoped would bring them into the prison. The subsequent actions of the co-offenders in carrying out those steps — and their efforts to smuggle them into the prison — seem to me to be at least as serious as Mr Tui’s phone calls. And given the quantities involved, it also seems clear that the drugs were for Mr Tui’s personal use rather than for on-supply. I certainly do not consider Mr Tui’s culpability was significantly greater than the roles of the co-defendants, which involved similar degrees of pre-meditation and persistence in their efforts to bring the drugs into the prison setting. For this reason, I

do not accept the respondent’s characterisation of Mr Tui’s responsibility for the offending warranted a higher starting point when compared to that adopted for the co-defendants.

Conclusion on starting point

[32]   Given these factors, I consider the Judge fell into error by adopting a starting point of 20 months’ imprisonment. An adjusted starting point to reflect the lower maximum penalty of between eight and a half and 15 months’ imprisonment was the appropriate range.

[33] Given the circumstances of Mr Tui’s offending, and the fact that there were two separate occasions on which an attempt was made to introduce drugs to a prison, a starting point of 15 months’ imprisonment is more appropriate. This still reflects the need for deterrence but recognises the features of this offending mentioned at [31] above. A 15-month starting point also ensures parity with Mr Tui’s father’s sentence on charges of supply, which I turn to now.

Parity

[34]   Section 8(e) of the Sentencing Act 2002 states that the Court must take into account the “general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances”. In R v Rameka the Court of Appeal said that the Court would have regard to disparity in special cases but would only intervene when the disparity appears unjustifiable and is gross.30 And, when considering parity between two co-offenders, the parity of starting points is more important to be considered rather than end sentences, as fixing the starting point is the mechanism for seeking consistency in sentencing.31

[35]   The co-offenders received sentences of intensive supervision and supervision respectively. The starting points adopted are unavailable in respect of these two, but one had no previous criminal history and the other had a limited history relating to

30     R v Rameka [1973] 2 NZLR 592 (CA) at 594.

31     Stone v R [2016] NZHC 1289 at [23], citing R v Mako [2000] 2 NZLR 170 (CA).

driving offending and non-compliance with community work. They had no personal interest in the offending, whereas Mr Tui clearly did have. While given my assessment of the respective culpability of the co-offenders would set their conduct at a more serious level than that adopted by the sentencing judge, the disparity of sentencing outcome in my view was largely a reflection of the personal histories and lack of prior convictions of the co-defendants, as against Mr Tui. Seen in this light, the disparity between sentences cannot be said to be unjustifiable or gross.

[36]   I am advised that Mr Tui’s father received a sentence of six months and one and a half weeks’ home detention for two charges of supplying cannabis oil and three charges of offering to supply cannabis oil. Although the sentencing notes are not available, I do have the sentence indication. A starting point of 15 months’ imprisonment was adopted, which was uplifted by two months to reflect the offering to supply cannabis oil charges, leaving an adjusted start point of 17 months. The Judge indicated the full 25 per cent discount for guilty plea would be available, and that a community-based sentence would be open.

[37]   Mr Tui’s father therefore received a lower starting point to Mr Tui, albeit for more serious offences. Although a community-based sentence was eventually imposed, this no doubt reflects Mr Tui’s father’s personal circumstances. Overall, parity requires a reduction in Mr Tui’s starting point from that adopted by the District Court.

Personal mitigating factors

[38]   I largely agree with the Judge’s assessment of the availability of personal mitigating factors. Mr Tui is to be commended for his expressed willingness to engage in a drug treatment programme, but at this point in sentencing without evidence of such engagement I do not consider an additional reduction for this factor is warranted.

Conclusion

[39]   From a 15-month starting point, there is a 25 per cent discount for the early guilty plea. This leaves an end sentence of eleven months.

[40]   I do not consider this to be ‘tinkering’. The original sentence imposed was relatively short, and so the total adjustment is a reduction of just over one quarter of the original sentence.32

Result

[41]   The appeal is allowed. The sentence of 15 months’ imprisonment is quashed. A sentence of 11 months’ imprisonment is substituted.

[42]   As the District Court Judge found, this sentence is to be served cumulatively on Mr Tui’s current sentence.33

Isac J

Solicitors:

Ruapehu Law, Whanganui for Appellant

Crown Solicitor, Whanganui for Respondent

32     See Henderson v Police [2021] NZHC 78 where Mallon J reduced a sentence by a similar amount and did not consider it to be tinkering considering the length of sentence.

33     As is consistent with the approach in Tryselaar v R [2012] NZCA 353 at [18].