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Tule v The King

Tule v The King

Case [2023] NZCA 543 2 November 2023

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA73/2023
[2023] NZCA 543

BETWEEN	ARANUI JENNIFER TULE Appellant
AND	THE KING Respondent

Hearing:	26 September 2023 (further submissions received 24 October 2023)
Court:	Cooper P, Palmer and Jagose JJ
Counsel:	M J James and G A Walsh for Appellant I A A Mara and T R Simpson for Respondent
Judgment:	2 November 2023 at 11.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Jagose J)

Aranui Tule appeals against the sentence imposed by Judge Hollister-Jones in the District Court at Rotorua[1] to four years and six months’ imprisonment for possession of methamphetamine for supply,[2] a firearm,[3] ammunition[4] and cannabis.[5]
[1]R v Tule [2022] NZDC 23629.
[2]Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty: life imprisonment.
[3]Arms Act 1983, s 45(1). Maximum penalty: four years’ imprisonment or a fine of $5,000.
[4]Section 51. Maximum penalty: three years’ imprisonment or a fine of $4,000.
[5]Misuse of Drugs Act, s 7(1)(a) and (2). Maximum penalty: three months’ imprisonment or a fine of $500.
Concurrently, Ms Tule was sentenced, or convicted and discharged, on driving‑related and breach of bail charges. Ms Tule has abandoned her appeal against conviction, which she initially brought on grounds she “didn’t want to go guilty” and in relation to which she proposed to give evidence about the entry of her plea. No such evidence was filed.

Background

In May 2020, on executing a search warrant to search Ms Tule’s car in the wake of her driving offending, police found 136 grams of methamphetamine and seven grams of cannabis, a shotgun and ammunition, and a notebook with entries potentially indicating drug dealing. After receipt of a sentencing indication of six years’ imprisonment, she pleaded guilty on the morning of trial.

Judgment under appeal

Judge Hollister-Jones noted Ms Tule’s explanation she obtained the items she was charged with possessing (as well as the notebook) in collecting her deceased homeless brother’s personal effects from a park some time after his death. The Judge considered the explanation was most unlikely, and noted, if it were rejected, Ms Tule would face “a six-year starting point with minimal reductions for personal mitigating factors”.[6] Ms Tule resisted the Judge’s proposal then to adjourn sentencing for a disputed facts hearing centred on the notebook’s authorship, and instructed her counsel she wished the sentencing to proceed.[7] The Judge proceeded accordingly.
[6]R v Tule, above n 1, at [4].
[7]At [5]–[7] and [17].
Saying he found it “a difficult sentencing exercise”,[8] by reason of the “little information” he had about the circumstances of her possession,[9] the Judge located Ms Tule’s principal offending in “mid-band 2” of those established in Zhang v R. He set a starting point of four and a half years’ imprisonment on the methamphetamine charge, uplifted by a further year on the arms…

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 Tule v The King

Details

AGLC: Tule v The King [2023] NZCA 543
Case: [2023] NZCA 543
Decision Date: 2 November 2023 at 11.00 am

CaseChat Overview and Summary

Aranui Jennifer Tule appeals the four years and six months’ imprisonment imposed on her by Judge Hollister-Jones in the District Court at Rotorua for possession of methamphetamine for supply, a firearm, ammunition and cannabis. The appeal against sentence was filed 16 days out of time, but the Court granted an extension due to the explained delay and lack of prejudice to the Crown. Ms Tule abandoned her appeal against conviction, initially brought on grounds she "didn’t want to go guilty". No evidence was filed in support of this appeal. In May 2020, police found 136 grams of methamphetamine and seven grams of cannabis, a shotgun and ammunition, and a notebook with entries potentially indicating drug dealing in Ms Tule’s car after her driving offending. After receiving a sentencing indication of six years’ imprisonment, she pleaded guilty on the morning of trial.

The appeal against sentence hinged on whether the starting point and sentence imposed by the Judge were justified. Ms Tule argued the Judge took too high a starting point in unjustified reliance on the notebook, which was not mentioned in the summary of facts on which she was sentenced. The Crown emphasised the quantity of drugs in Ms Tule’s possession is deemed to be for supply, and any lesser role is for her to make out. The Court held that the Judge’s reliance on the notebook was immaterial because Ms Tule pleaded guilty to possession of methamphetamine for supply, implying she was supplying a substantial quantity of methamphetamine in her own operation and, absent evidence of external pressures or addiction, for financial gain. Given the amount of methamphetamine involved, a starting point in the middle of band two could be anticipated. The Court found the Judge’s end point well within a range properly justified by accepted sentencing principle and dismissed the appeal against sentence.

The application for an extension of time to appeal is granted. The appeal against sentence is dismissed.

Orders