Tuuta v R

[2019] NZHC 2788

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-417

[2019] NZHC 2788

BETWEEN

ISAAC MATOA TUUTA

Appellant

AND

THE QUEEN, NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS

Respondents

Hearing:	29 October 2019
Appearances:	P Heaslip for the Appellant Y Wang for the Respondents
Judgment:	31 October 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 31 October 2019 at 9:15 a.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr P Heaslip, Barrister, Auckland

Ms Y Wang, Meredith Connell, Office of the Crown Solicitor, Auckland

TUUTA v R [2019] NZHC 2788 [31 October 2019]

[1]    Mr Tuuta appeals against sentence following guilty pleas to the following charges:

(a)one charge of possession of methamphetamine for supply;1

(b)one charge of unlawful possession of firearm;2

(c)one charge of unlawful possession of ammunition;3

(d)three charges of driving whilst licence suspended or revoked;4

(e)one charge failing to carry out an obligation in relation to a computer search;5 and

(f)one charge of breach of supervision.6

[2]    On 26 August 2019, Judge B A Gibson in the Auckland District Court sentenced Mr Tuuta to two years and six months’ imprisonment, and a driving disqualification period of six months.7

Facts

[3]    On 11 February 2019 and 7 March 2019 Mr Tuuta drove while suspended from driving. On 14 March 2019 Mr Tuuta failed to report to a probation officer when required to do so.

[4]    The primary offending occurred on 22 March 2019. Police stopped Mr Tuuta’s vehicle and undertook a search. They located 16.3 grams of methamphetamine,

$4,230 cash and a sawn-off shotgun with 11 rounds of ammunition. Mr Tuuta also

1      Misuse of Drugs Act 1975, s 6(1)(f) & (2). Maximum penalty life imprisonment.

2      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment, $5,000 fine.

3      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment, $5,000 fine.

4      Land Transport Act 1998, s 32(1)(c) and 32(3). Maximum penalty three months’ imprisonment,

$4,500 fine.

5      Search and Surveillance Act 2012, s 178. Maximum penalty three months’ imprisonment.

6      Sentencing Act 2002, s 70(b). Maximum penalty three months’ imprisonment, $1,000 fine.

7      R v Tuuta [2019] NZDC 16694.

refused to provide the password of his phone to the Police. As his driver licence was suspended, Mr Tuuta was also charged with driving while disqualified.

District Court decision

[5]    The Judge noted that Mr Tuuta is 35 years of age and was deported from Australia, after having lived there for approximately 20 years, as a result of criminal offending. Since arriving in New Zealand he has been generally in employment and has been a good employee. He has an offer of employment when he is able to take it up.

[6]    The Judge said that counsel were agreed that Mr Tuuta fell towards the bottom end of band two of Fatu and that a starting point of three years’ imprisonment was appropriate.8 The Judge accepted that suggestion. The Judge added uplifts of six months for the firearms offences and two months for the breach of supervision.

[7]    In relation to personal circumstances, the Judge noted that the Court of Appeal had said that in relation to drug dealing offences, particularly class A offences, personal circumstances play little part in sentencing because of the pernicious nature of the offending and the widespread damage they cause in the community by leading to addiction and the way in which drug dealing fosters crime. The Judge did not attribute any uplift for Mr Tuuta’s previous offences in New Zealand and Australia.

[8]    The Judge said that Mr Tuuta was entitled to a 25 per cent discount for pleading guilty. He accepted Mr Tuuta was remorseful but rather than justifying any discrete discount he gave “some small discount” when rounding out the sentence. The 25 per cent discount brought the sentence down from three years and eight months’ imprisonment to two years and nine months’ imprisonment. This was reduced to two years and six months’ imprisonment to take account of the fact that Mr Tuuta spent some time on EM bail and “some of the other matters already mentioned to me” (likely remorse and prospects of being a good employee).

8      R v Fatu [2006] 2 NZLR 72 (CA).

Approach on appeal

[9]    To succeed on an appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.9

[10]   The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.10 The appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.11

Submissions

[11]   The grounds of appeal are that the three year starting point adopted by the Judge for the methamphetamine charge was too high, the six month uplift for the firearms charges was too harsh, and insufficient credit was given for the appellant’s personal mitigating factors.

[12]   Understandably, given the release of Zhang v R last week,12 submissions on this appeal have been iterative. Mr Heaslip’s written submission focused on the starting point, submitting that three years was an appropriate starting point taking into account not just the methamphetamine possession for supply but also the Arms Act 1983 charges. He also questioned the Judge’s approach to personal mitigating factors, citing a lack of transparency at least and possibly no discount for personal factors (apart from remorse in the rounding).

[13]   The submission proposed that the appeal be adjourned for an updated Provision of Advice to the Court report (PAC report) to enable consideration of an electronically monitored sentence and time for a s 27 cultural report to be completed.13

9      Criminal Procedure Act 2001, ss 250(2) and (3).

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

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

12     Zhang v R [2019] NZCA 507 (CA).

13 Mr Heaslip subsequently filed a further memorandum indicating that legal aid had been approved for Mr Tuuta’s cultural report, but the report writer was having difficulty arranging a discussion with Mr Tuuta as he had been moved by Corrections.

[14]   The Crown’s written submission  followed  the  release  of  Zhang  v  R.14  The Crown submitted that no material error has occurred, and the sentence imposed by Judge Gibson was well within range. The Crown acknowledged that Zhang applies to this appeal and that the applicable sentencing band is band two (for supply between 5 – 250 grams of methamphetamine), which now starts at two years’ imprisonment. The Crown submitted the starting point imposed by the Judge is still clearly within range. The Crown submitted that the greater emphasis of roles in Zhang is particularly not relevant on the facts of this case, given that Mr Tuuta was not offending together with others (or part of a wider criminal  syndicate).  In  oral  argument,  however,  Ms Wang acknowledged that role was still relevant and that Mr Tuuta’s role was in the “lesser” category, albeit with indicia taking it slightly higher than the bottom of the band minimal role as a street level dealer.

[15]   The Crown considered the Judge’s uplift for the Arms Act charges could not be criticised. Thus, a global starting point of three years and eight months’ imprisonment for all charges was within range.

[16]   In relation to personal factors, the Crown characterised the Judge’s reduction as a three month (or just over nine per cent) discount to reflect the various personal features and time spent by Mr Tuuta on EM bail.

[17]   The Crown submitted that in the absence of a cultural report or medical evidence relating to Mr Tuuta’s ADHD, there is no basis for these matters to be properly considered. The Crown also resists a discrete discount for Mr Tuuta’s addiction.

[18]   In light of Zhang, Mr Heaslip filed a reply submitting the starting point for the drug offending should be two years’ imprisonment.  He also  raised  the  issue  of  Mr Tuuta’s methamphetamine addiction as both causative of his offending and a personal mitigating circumstance. The submission reinforced the request for an adjournment.

14     Zhang v R [2019] NZCA 507 (CA).

[19]   At the hearing, however, Mr Heaslip indicated that he had updating instructions from Mr Tuuta. In the interests of finality and moving forward with his life in a positive way, Mr Tuuta no longer sought an adjournment to address an electronically monitored sentence or cultural factors. He was prepared to accept a finite prison sentence, ideally a short-term sentence of 24 months’ imprisonment or less, and with special conditions on release. Mr Heaslip acknowledged that Mr Tuuta would not be prejudiced by the absence of further reports, including the absence of linkage between Mr Tuuta’s cultural background and the offending. His cultural background was known and there was background information in the PAC report. Mr Tuuta identifies as Maori of the Iwi Ngati Mutunga.

[20]   Mr Heaslip described the drug offending as low level dealing. He submitted the starting point should be two years and six months’ imprisonment taking into account the Arms Act offending.

[21]   He acknowledged there was limited evidence of addiction but submitted there was sufficient given the context – a discrete discount for addiction was not sought or needed for the appeal to succeed. Ms Wang acknowledged there was an evidential foundation for Mr Tuuta’s addiction in his criminal history, which includes an offence of driving under the influence of a drug, and the PAC report, which refers to his attendance at a drug course.

Discussion

[22]Because this appeal was filed before the decision in Zhang was released, Zhang

is the applicable guideline judgment.15

[23]   The primary issue is whether the starting point should come down in light of Zhang. The District Court Judge, accepting the submission of both counsel, set the starting point at three years’ imprisonment as the bottom of band two of Fatu. Following Zhang, the bottom of band two is now two years’ imprisonment. The bands are defined by reference to the quantity of methamphetamine, with band two applying from 5 g up to 250 g. Here the quantity was 16.3 g.

15     Zhang v R [2019] NZCA 507 (CA) at [187]-[189].

[24]   The Court of Appeal stated in Zhang that quantity is highly relevant to culpability because it is an indicator of harm and may be indicative of commerciality, which is deserving of greater denunciation, but quantity alone cannot determine culpability.16

[25]   The Court stated that access to the new lower starting points may only be expected when a defendant’s role is lesser in degree, and where quantities are at the lower end of the relevant band.17 The Court did not exclude the possibility of starting points below the bottom of a band for cases involving “minimal participation”.18

[26]   The Court stated that, in assessing role, Judges may be assisted by reference to the following descriptions, based on those developed by the United Kingdom Sentencing Council, to distinguish between “lesser”, “significant” and “leading” roles:19

Lesser	Significant	Leading
1. performs a limited function under direction;	1. operational or management function in own operation or within a chain;	1.  directing or organising buying and selling on a commercial scale;
2. engaged by pressure, coercion, intimidation;	2. involves and/or directs others in the operation whether by pressure, influence, intimidation or reward;	2. substantial links to, and influence on, others in a chain;
3. involvement through naivety or exploitation;	3. motivated solely or primarily by financial or other advantage, whether or not operating alone;	3. close links to original source;
4. motivated solely or primarily by own addiction;	4. actual or expected commercial profit; and/or	4. expectation of substantial financial gain;
5. little or no actual or expected financial gain;	5. some awareness and understanding of scale of operation.	5. uses business as cover; and/or

16     Zhang v R [2019] NZCA 507 (CA) at [104].

17 At [123].

18 At [123].

19 At [126].

6. paid in drugs to feed own addiction or

cash significantly disproportionate to quantity of drugs or risks involved;

6. abuses a position of trust or responsibility.

7. no influence on those above in a chain;

8. little, if any, awareness or

understanding of the scale of operation;

and/or

9. if own operation, solely or primarily for own or joint use on non-commercial

basis.

[27]   It should be noted that some of these indicia are descriptive of conduct and any discount for associated mitigating personal considerations is a matter for the second sentencing stage.20

[28]   Mr Tuuta’s role was that of low or street level dealing. As Ms Wang acknowledged, I consider Mr Tuuta’s role was towards the bottom of the “lesser” category but with indicia taking it just slightly higher than the bottom. Given that and that the quantity is also a little above the bottom of the band, I do not consider this is a case where the starting point should move below the starting point for band two. The position could have been different if there had been persuasive evidence that Mr Tuuta was motivated solely or primarily by his own addiction.

[29]   In light of Zhang, I consider that, absent the Arms Act charges, the starting point of three years is too high. I consider a starting point of two to two and a half years’ imprisonment would have been within range for the drug offending.

[30]   The next question is whether the Judge’s three years and eight months figure for the overall offending is within range. I consider it was open to the Judge to treat the Arms Act offending as warranting an uplift rather than a concurrent sentence.

20     Zhang v R [2019] NZCA 507 (CA) at [126].

A six month uplift was available for the firearms offences. Uplifts of 12 to 18 months have been imposed for the “dangerous combination” of firearms and drug dealing (albeit in major commercial dealing cases, where more than one weapon has been found).21 An uplift for the breach of supervision was also open, although two months was stern. But, following Zhang and considering the totality principle, I consider that the combined total of three years and eight months’ imprisonment is too high.

[31]   In light of Zhang, I also consider the end sentence was too high. Mr Tuuta was entitled to the 25 per cent guilty plea discount and the three month discount when rounding out the sentence does not offset the high starting point. It is not clear exactly what the three month discount was for, but I consider a discount of at least three months was warranted given the combination of remorse, employment and rehabilitation prospects and time on EM bail. As to the District Court Judge stating that the personal circumstances “play little part” in Class A cases, Zhang has made it clear that personal mitigating factors are applicable in methamphetamine dealing cases.22 The segregated nature of the sentencing process adequately balances the purposes stated in s 7 of the Sentencing Act.23

[32]   Addiction is a particularly relevant factor, given an addict’s impaired ability to exercise rational choice and potential for rehabilitation and reintegration if addiction treatment is available.24 However, the Court in Zhang held that a discount for addiction must be based on persuasive evidence, as opposed to mere self-reporting.25 The onus of proof (to the civil standard) lies on the offender to establish the extent and effect of addiction. As Ms Wang acknowledged, there was an evidential foundation for Mr Tuuta’s addiction in his criminal history and the PAC report. But Mr Heaslip acknowledged the evidence was limited. If there had been more persuasive evidence in relation Mr Tuuta’s addiction, a larger discrete discount may have been warranted.

21 Such as Mills v R [2016] NZCA 245 where two loaded weapons were intended to be used in conjunction with the surveillance system warning of anyone approaching. See also R v Torea [2011] NZCA 96; Fonotia v R [2007] NZCA 188, [2007] 3 NZLR 388.

22     Zhang v R [2019] NZCA 507 (CA) at [136].

23 At [134].

24 At [145].

25 At [148].

[33]   Following Zhang, I consider the sentence on the possession for supply of methamphetamine charge is manifestly excessive. I consider a global starting point of two years and 10 months’ is appropriate (two years and three months for the drug offending, with a six month uplift for the Arms Act offending and one month for the breach of supervision). I would discount six months for remorse, rehabilitation prospects (particularly given Mr Tuuta will be receiving addiction treatment) and time on EM bail, bringing the sentence to two years and four months before the 25 per cent guilty plea discount of seven months, resulting in an end sentence of one year and nine months’ imprisonment.

[34]   As proposed, I would also impose a special release condition that Mr Tuuta is to attend such assessment, treatment or other programme as directed by a probation officer.

[35]   The Crown seeks, and the appellant does not oppose, orders for forfeiture to the Crown for destruction of the firearm and ammunition under s 69 of the Arms Act, and forfeiture of the cash seized under s 32 of the Misuse of Drugs Act 1975, which were not addressed in the District Court. It is appropriate to make these orders now.

Result

[36]   The appeal is allowed. The sentence on the possession for supply of methamphetamine charge (only) of two years and six months’ imprisonment is quashed and I impose a sentence of one year and nine months’ imprisonment.

[37]   I impose a post-release condition that Mr Tuuta is to attend such assessment, treatment or other programme as directed by a probation officer.

[38]I order forfeiture to the Crown of the shotgun and ammunition seized.

[39]I order forfeiture to the Crown of the $4,230 in cash seized.

Gault J