Tuuta v The Queen
[2015] NZHC 1194
•29 May 2015
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CIV-2015-425-000001 [2015] NZHC 1194
BETWEEN SHANE BERNARD TUUTA
Appellant
AND
THE QUEEN Respondent
Hearing: 29 May 2015 (By way of audio visual link) Appearances:
D G Slater for Appellant
S N McKenzie for RespondentJudgment:
29 May 2015
ORAL JUDGMENT OF GENDALL J
[1] This is an appeal by the appellant, Mr Shane Bernard Tuuta, against sentence for drug offending.
Introduction
[2] On 29 January 2015 following a guilty plea, the appellant, Mr Tuuta, was sentenced in the District Court at Invercargill to two years three months imprisonment on:
(a) one charge of cultivating cannabis;1
(b) three charges of offering to supply cannabis (represents (c)
144 offences);2
three charges of possession of cannabis for supply;3
1 Misuse of Drugs Act 1975, s 9(1).
2 Misuse of Drugs Act 1975, s 6(1)(e) and (2)(c).
TUUTA v R [2015] NZHC 1194 [29 May 2015]
(d) possession of non-approved psychoactive substance;4
(e) three charges of being an unlicensed person selling alcohol (and that represented 28 offences).5
[3] The appellant now appeals the sentence on the basis the starting point and end sentence here were manifestly excessive.
Facts of the offending
[4] Given what was said to be an increase in the number of people possessing and consuming home brew alcohol in the Invercargill region, the Invercargill police launched an investigation. Mr Tuuta, the appellant, was identified as a person who was responsible for distilling and selling bottles of home brew. As part of the ongoing investigation, the police intercepted his SMS message communications for specified periods of time.
[5] In relation to the alcohol offending, between the dates of 11 May and 31 July
2014, the intercepted messages showed the defendant sold home brewed alcohol on at least 28 occasions.
[6] In relation to the offering to supply offending, between the dates of 11 May and 2 August 2014, the defendant made 144 offers to supply cannabis. These offers including the following:
· 80 x $50 zip lock bags of cannabis;
· 34 x $20 - $25 “tinnies”;
· 3 x offers of sale of ½ ounce quantities;
· 8 x offers of full one ounce quantities.
3 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c).
4 Psychoactive Substances Act, s 71,
5 Sale and Supply of Alcohol Act 2012, s 233.
[7] The appellant it seems was sourcing the cannabis by growing it himself and by purchasing large quantifies, primarily by the ounce, and on-selling this in smaller quantities.
[8] On 14 August 2014, the police executed a search warrant at the appellant’s address. He co-operated with the police and assisted with the search. He showed them various locations where the cannabis was stored. This gave rise to the cultivating charge.
[9] When interviewed, the appellant admitted cultivating and selling cannabis over a three month period along with previously selling home brew alcohol. He said he was ashamed and remorseful and thanked the police for executing the search warrant as he was aware that the operation was getting out of hand.
District Court Judgment
[10] Turning now to the District Court judgment, the appellant was sentenced by Judge Saunders in the Invercargill District Court on 29 January 2015. The Judge took the following approach to the sentencing:
[11] The view that I have formed is that really something in the range of three years itself is appropriate for this level of offending when I factor in the commercial side of the selling, the number of offers to sell and the general conduct and period over which it existed. A one month uplift from that would be all that would be required in relation to the unlicensed person selling alcohol. Even then factoring the full 25 percent credit for the early guilty plea and co-operation and allowing, very modestly, for the fact that you seemed to be in other respects devoted as a family man, the sentence cannot, in my view, come below two years three months.
[11] The appellant was sentenced accordingly as follows:6
(a) In relation to the charges of cultivation, possession for supply and offer to supply, I have reached the view that the sentence should be one of two years three months.
(b) In relation to the selling of the alcohol, I have already factored in the one month for that; and that will be one month concurrent with the two years three months.
(c) On the fineable only matter, I convict and discharge you on that.
6 R v Tuuta [2015] NZDC 1447 at [14].
(d) Leaving the funds untouched at this stage to be able to show in the forfeiture hearing as to whether or not that is legitimately money that had been saved from wages or untainted property. There will be an order for the confiscation and forfeiture of the property that was used in the cultivation. I have recorded (as you have heard me say) that
$779 is not opposed as part of the forfeiture order. The balance can be the subject of further submissions and order in due course.
Jurisdiction
[12] Turning now to jurisdiction, the appellant is able to appeal the sentence imposed as of right.7 As first appeal Court, this Court will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed and that a different sentence should be imposed.8 In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).9
[13] Section 245 of the Criminal Procedure Act confirms that the right of appeal is not affected by the fact that the appellant has received a sentence indication.
Submissions
Submissions for the appellant
[14] Turning now to the submissions I have received for the appellant, counsel for the appellant submits that the starting point taken by the Judge Saunders for all of the offending was too high and resulted in a sentence that was manifestly excessive. It is submitted that the appropriate starting point should have been no more than two years six months’ imprisonment and thus an end sentence of no more than two years’ imprisonment should have been imposed.
[15] In relation to the charge of offering to supply, it is noted that other than three offers to supply half ounces and eight offers to supply full ounces, the rest of the
offers related to ‘street dealer’ levels of supply of “tinnies” and $50 bags.
7 Criminal Procedure Act 2011, s 244.
8 Sections 247 and 250.
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
[16] It is submitted also for the appellant that the cases relied on by the crown, in particular Tomars and Morgan showed dealing in greater quantities than in the present case.10 It is contended that both these cases arguably involved more serious offending than the present. Both of these cases took a starting point of three years’ imprisonment.
[17] Next, it is noted that had the Court taken a starting point of two years six months’ imprisonment, after applying a full 25 per cent discount, an end sentence of something in the order of 22 and a half months would have resulted.
[18] Also before me Mr Slater, for the appellant, noted that a letter had been put before the Court from Nga Kete Matauranga Pounamu Trust which was a matter which was not before the District Court Judge. This letter was before this Court to indicate that after the appellant had been arrested he took some steps to address his drug problem. This self referral, it is suggested, showed that this was a man here who was prepared to take steps to address his offending. Mr Slater noted also that the appellant, who is aged 35, had no previous record of offending for drug type matters.
Submissions for the respondent
[19] Turning now to the submissions advanced on behalf of the respondent, the respondent describes the offending here as persistent, small to moderate scale offending of a commercial nature, along with a similarly scaled commercial cannabis growing operation. There was also a commercial unlicensed home brew alcohol sales operation.
[20] Over the course of the investigation, Ms McKenzie for the Crown noted that
144 cannabis sales were detected. They were largely, it seems, small street level deals, however a sale of eight ounces was also discovered. Upon searching the
appellant’s home, the police located 32 cannabis plants between 50 – 60 cm high.
10 Tomars v R [2013] NZCA 54; R v Morgan [2013] NZHC 2549.
[21] It is the respondent’s position that the starting point adopted by Judge Saunders was within the available range and the end sentence was not manifestly excessive.
Discussion
Approach to sentencing
[22] Turning now to a discussion of these matters, the cannabis offending here is the most serious offence so it will be taken as the lead charge. It is accepted that for the purposes of sentencing, there is no distinction between cultivation offences and possession for supply offences and I refer to Gray.11
[23] The tariff case for cannabis cultivation offending is R v Terewi.12 Both parties agree that the offending is accurately categorised as category two which is a category which encompasses:
… small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
It seems, therefore, the sentencing range here for category two offending is two to four years.
Authorities cited
[24] Turning now to the authorities which have been cited, a number of cases have been cited by the appellant and respondent as being relevant to the present offending. Naturally, the two parties have relied on different cases in order to determine a starting point for the offending.
[25] The respondent, as I have noted, submitted that the case of Tomars provides the best indication that the starting point adopted here was appropriate.13 In Tomars,
the appellant had been sentenced by Heath J for nine charges of offering to sell
11 R v Gray [2008] NZCA 224 at [12].
12 R v Terewi [1999] 3 NZLR 62.
13 Tomars v R [2013] NZCA 54.
cannabis, five of selling cannabis and three of possessing cannabis for supply. The offending was summarised as follows:14
The five charges of sale, two of the charges of possession, and two of the charges of offering to sell involved offers or sales of ‘tinnies’ and ounce bags to special duty police officers. The remaining seven charges of offering to sell arose from text messages on the appellant’s cellphone discussing ounce quantities. One charge of possession arose from execution of a search warrant at the appellant’s home. A plastic shopping bag containing a mixture of cannabis leaf and cannabis head material was located, as well as two snap lock bags containing in total approximately one and a half ounces (42 grams) of cannabis head.
[26] On appeal, the Court of Appeal upheld a starting point of three years. They described the activities as “a relatively low-grade but persistent commercial enterprise”.15 The Court of Appeal went on to explain why it did not consider the starting point to be manifestly excessive in these words:
[10] When the scale of the offending is compared to the other cases relied on, we assess the Judge’s starting point as being at or towards the top of the available range, but not above the available range. It was not manifestly excessive. Another judge might have adopted a lower starting point within the available range. But it is trite law that sentencing involves the exercise of a discretion and that different judges may make different assessments. Provided the starting point adopted by the judge is within range (as we have held it was), it is not sufficient for the appellant to show that another judge might have adopted a lower starting point. We therefore reject the appellant’s first submission.
[27] However, in the present case before me, Mr Slater for the appellant submits that this case, Tomars, shows dealing in greater quantifies than the case at hand. Ms McKenzie for the appellant instead, cites Gillard v Police where Mr Gillard had been convicted of one representative count of offering to supply cannabis, one representative count of possession of cannabis for supply, and one count of possession of a class B drug for supply.16 Mr Gillard appealed his sentence on the ground that it was manifestly excessive. The charge of offering to supply represented at least 15 $50 bags of cannabis plant. Again, the offending fell within category two.
A starting point of two years was adopted for the class C offending which was
14 At [2].
15 At [8].
16 Gillard v Police [2014] NZHC 3262.
uplifted by a further 12 months for the class B offending. The starting point in that case was described by Her Honour Mallon J as “not overly lenient”.17
[28] The appellant also submits that R v Anderson is a more similar case to the current offending.18 Mr Anderson was sentenced following guilty pleas to three charges of cultivation of cannabis, six charges of possession of cannabis for the purposes of supply, and 15 charges of offering to sell cannabis. The starting point imposed was one of two years, three months’ imprisonment. In doing so, the Judge noted the defendant’s lesser role in the cannabis operation and he was labelled as merely a “foot soldier”. 19
Analysis
[29] Turning now to my analysis of the position, from the outset, the level of offending in the present case appears similar to that, in my view, identified in Tomars v R. The offending involved 144 offers to supply cannabis. Although the majority of the offers were for $50 bags and “tinnies”, there were eight offers to supply ounce bags which is significant. In relation to the cultivation charge, the cannabis grow was located in a small partitioned room in the garage which was attached to the house. The room was lined with polythene sheeting and was accessed through a wardrobe.
[30] Inside the room were 32 cannabis plants situated underneath four growing lamps, a significant quantity, although not the largest plantation involved in some of the authorities which have been referred to. The cannabis plants measured approximately 50-60cm in height, as I have noted. The police estimated the potential yield of the grow to equate to a street value of $32,000. This is indicative of a moderate level of sophistication.
[31] It cannot, in my view, be said by any means that this was a small operation. The appellant was both a grower and seller of cannabis. There was a commercial purpose behind his operations and a profit was being taken by the appellant. That is
not to say it was one of the worst types of category two offending, however, it was
17 At [14].
18 R v Anderson [2013] NZHC 3079.
19 At [28].
certainly not at the lower end of category two either, as I see it. Judge Saunders in the District Court in referring to relevant cases was correct in pitching the offending in the middle of the category two range. Although this might be said as being at the harsher end of the Judge’s available range it did not, in my judgment, fall beyond it.
[32] It must also be remembered, as pointed out by Judge Saunders, that very rarely are cases found that are said to be “on all fours”. Sentencing is not an exercise in certainties. Providing a particular sentence is found to fall within the range of the sentencing Judge’s discretion, that discretion should not be disturbed. As far as the starting point is concerned, in my view, that is the case here.
[33] If the three years starting point adopted was, however, to be considered harsh, a more moderate starting point, in my view, would only have been in the area of two years nine months. Once a one month uplift is given for the unlicensed sale of alcohol taking the total to 34 months, a 25% discount would amount to 2 years, one or possibly two months’ imprisonment. This would, in my view, undoubtedly amount to tinkering in this case.
[34] One final observation is that a full 25% discount was given for the guilty plea. Although that guilty plea was entered at the earliest possible opportunity, it must also be noted here that the Crown case against the appellant was all but unassailable. In such circumstances, a full 25% discount is not always a certainty. This could represent perhaps a small level of generosity from the sentencing Judge.
[35] For these reasons, I conclude that it is clear here the sentence imposed was not manifestly excessive and this appeal, therefore, is dismissed.
...................................................
Gendall J
Solicitors:
David Slater, Invercargill
Preston Russell Law, Invercargill
0
6
0