| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA73/2023 [2023] NZCA 543 |
| BETWEEN | ARANUI JENNIFER TULE |
| AND | THE KING |
| Hearing: | 26 September 2023 |
Court: | Cooper P, Palmer and Jagose JJ |
Counsel: | M J James and G A Walsh for Appellant |
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…
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- Tule v The King [2023] NZCA 543
- Case
- [2023] NZCA 543
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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