Wikohika v The Queen

[2019] NZHC 79

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-000036

[2019] NZHC 79

HINE WIKOHIKA

v

THE QUEEN

Hearing:	5 February 2019
Counsel:	M J Phelps for Defendant C Stuart for Crown
Judgment:	5 February 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 9 November 2018, Ms Wikohika was sentenced by Judge Rea in the Napier District Court1 in respect of one representative charge of supplying methamphetamine.2 She was sentenced to three years and four months’ imprisonment.

[2]She appeals on the basis that:

(a)the starting point adopted by the sentencing Judge was too high;

1      R v Wikohika [2018] NZDC 24128.

2      Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(a); maximum penalty life imprisonment.

WIKOHIKA v R [2019] NZHC 79 [5 February 2019]

(b)the Court’s decision in R v Fatu failed to provide appropriate guidance as to the sentencing Judge on how the culpability of secondary offenders is to be assessed in adopting an appropriate starting point;3

(c)having regard to the secondary role of the appellant, a sentence of home detention ought to have been imposed; and

(d)in all the circumstances of the case, the sentence imposed was manifestly excessive.

[3]    The Crown opposes the appeal, submitting that the starting point adopted by the sentencing Judge was generous based on the guideline judgment of R v Fatu and that it is artificial to differentiate between the types of supply in this case. It is submitted that there is no identifiable error in the sentence and the appeal should be dismissed.

Factual background

[4]    Ms Wikohika is a mother of four, the eldest of whom is 16 years of age. At the time of the offending, she was living with her partner and children, along with her brother and his partner, and she was working two jobs.

[5]    Her brother is a methamphetamine dealer involved in dealing commercial quantities of methamphetamine. When he was out of town, as it appears he was reasonably frequently, Ms Wikohika, acting under his instructions, took on a role in supplying methamphetamine. This is alleged to have occurred between 1 November 2016 and 13 September 2017, although Mr Phelps makes a point with some force that the actual involvement appears to have been concentrated between 4 July 2017 and 18 August 2017. She is said to have received no financial benefit for her role in this supply. The total quantity of methamphetamine that Ms Wikohika had dealings with was 536.25 grams.

3      R v Fatu [2006] 2 NZLR 72.

[6]    Ms Wikohika has no previous convictions, has been assessed as being low risk of reoffending, has taken full responsibility for her actions, and has expressed genuine remorse.

District Court decision

[7]    The sentencing Judge, noting that Ms Wikohika’s counsel had referred him to a number of decisions in which the promptings of mercy had allowed for a departure from the tariff set in R v Fatu,4 stated that those cases involved similar quantities of drugs.5 However, although the starting point for the overall quantity of drugs would generally be in the vicinity of 10 years’ imprisonment, he agreed with the Crown that a significant discount to reflect Ms Wikohika’s actual involvement was warranted.6

[8]    A starting point of six years’ imprisonment was adopted, with deductions of six months each for Ms Wikohika’s lack of previous convictions, the impact any sentence would have on her children, and to take into account the tragic circumstance she had encountered in recent times.7 These reductions resulted in a revised starting point of four years and six months. Once a full 25 percent discount was given for her guilty plea, Ms Wikohika received an end sentence of three years and four months’ imprisonment.8

Approach to appeal

[9]    This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.9 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.10

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

5      R v Wikohika, above n 1, at [8].

6 At [11].

7 At [14].

8 At [15].

9      Tutakangahau v R [2014] NZCA 279.

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

Ms Wikohika’s submissions

[10]   Counsel for Ms Wikohika, Mr Phelps, submits that, while the Court of Appeal decision in R v Fatu continues to be the guideline case for the sentencing of individuals who deal in methamphetamine, this decision offers little guidance to a sentencing Judge beyond the suggestion that the quantity of methamphetamine is “of prime importance” in fixing starting points. Mr Phelps notes that the decision in R v Fatu has come under recent criticism for the rigidity of the sentencing bands, with Palmer J observing that the Court in R v Fatu did not provide reasons for setting the bands where it did, nor did it analyse why those quantities reflected low-level, commercial, large commercial or very large commercial supply.11 His Honour stated that the Fatu bands are not to be applied mechanistically or rigidly. He said:12

The culpability of an offender is influenced not only by the quantity of methamphetamine they supply but also by their role in a drug dealing operation and other aggravating or mitigating factors including whether they are addicted to drugs themselves.

[11]   In respect of that last matter Mr Phelps urged similarity of the case of R v Follas and submitted that I should adopt the same approach taken by Lang J. However, I note in that case the defendant was an addict and that is a particular factor that the Court was entitled to have regard to in that case and did, but is not a factor that arises in the present case.

[12]   Mr Phelps acknowledges that the sentencing Judge was confronted with a difficult sentencing exercise, faced as he was with an entirely pro-social woman who had only become involved in the not insignificant supply of methamphetamine at the behest of her brother and who had received no financial benefit at all.   However,   Mr Phelps submits that the Judge adopted too rigid an approach in his assessment of the quantity of the methamphetamine in this case which impacted on his assessment of Ms Wikohika’s culpability. He argues that her dealing in methamphetamine was capable of a more nuanced analysis and the failure to undertake such an analysis, he submits, led the Judge into error.

11     R v Wellington [2018] NZHC 2196 at [12].

12 At [21].

[13]   Mr Phelps invites the Court to analyse Ms Wikohika’s dealing in the following way:

(a)supply as a principal: 105.25 grams;

(b)supply for safekeeping: 340 grams; and

(c)supply as a party: 91 grams.

[14]   Mr Phelps submits that there must be a distinction in culpability between someone who sells 340 grams of methamphetamine to another and someone who provides 340 grams to another for safekeeping, knowing the drugs will not be on-sold by that person. Equally, he submits that there must be a distinction in culpability between the person who actually supplies methamphetamine and a person who is a party to the supply. Once these distinctions are made, he submits that as the 340 grams that were  simply  provided  for  safekeeping  involved  no  commerciality  at  all,  Ms Wikohika would only be found to have been involved in supply of 196.25 grams, placing her level of criminality more correctly in band two which deals with the supply of commercial quantities of methamphetamine between 5 and 250 grams. I am unable to accept that submission.

[15]   It is unrealistic on the facts of this case to completely ignore the 340 grams. It is unrealistic to submit that the drugs were supplied simply for safekeeping knowing that they would not be on-sold by that person in the present case.   It is clear that   Ms Wikohika knew that these drugs would ultimately be on-sold, not necessarily by the person who had custody of them for safekeeping but in the future by another person. Indeed, there was some evidence that Ms Wikohika herself was involved in retrieving the drugs from the person she  had  delivered  them to  for  safekeeping. Mr Phelps submitted that the evidence did not justify a finding to that effect, and   Mr Stuart took me to passages in the evidence from the defended hearing as to facts which he says supported a conclusion that it was Ms Wikohika herself that uplifted these drugs having taken them for safekeeping.

[16]   However, for the purposes of this appeal, it is not necessary for me to determine whether or not it was Ms Wikohika or, as she said in the defended facts hearing, her partner, who uplifted them, the important thing is that she was aware that she was participating in, and facilitating the transmission of these drugs which would ultimately be sold in the same manner as the other drugs that she had been involved with and which form the subject of these charges.

[17]   I am prepared to accept that her involvement in relation to the supply of these drugs for safekeeping was different to the other instances of supply and that they should be regarded differently than the supply as a principal or even supplier as a party, but I am unable to accept as Mr Phelps effectively invited me to, that it should be completely or almost completely disregarded.

[18]   Mr Phelps’ submissions to me was that given that the Judge reduced the starting point from one of 10 years to one of six years to recognise the fact that Ms Wikohika was only drawn into the offending as a consequence of her relationship with her brother, that similarly, the starting point should be reduced from six years to four years’ imprisonment. He submits that once the discounts applied by the Judge for the mitigating factors he identified were taken into account, along with the guilty plea discount, Ms Wikohika would face an end sentence of imprisonment in the vicinity of 23 months which would make her eligible for home detention.

[19]   I would note that the mere fact that on that mathematical analysis the sentence arrived at might be less than the 24 months prerequisite for consideration of home detention, there is a strong principle in favour of imprisonment for people who are convicted of dealing with methamphetamine.

Crown’s submissions

[20]I turn now to the Crown submissions.

[21]   The Crown submits that there can be no sensible delineation between the supply to customers directly or as a party. It is argued that Ms Wikohika played an integral role in receiving orders and arranging for delivery between the dates of 4 July 2017 and 18 August 2017, and any doubt as to whether she herself physically handed

the methamphetamine to the customers cannot serve to reduce her culpability to any significant degree. It was noted that the total of 196.25 grams for both types of supply to customers would fall towards the upper half of band two of R v Fatu, arguably warranting a starting point of six years’ imprisonment by itself. I accept that submission, and I note that situation is arrived at if one completely discards the     340 grams supply for safekeeping, and, as I have mentioned, that is not something I believe the Court can do.

[22]   As to the supply of the 340 grams to the safe house, the Crown rejects the proposition that dealing with this amount of methamphetamine when there was no expectation of on-sale or commerciality involved in this supply should have no bearing on Ms Wikohika’s overall culpability. The Crown submits that Ms Wikohika had control over a large amount of methamphetamine and took steps to protect the security of it by supplying it to the safe house. There was some dispute between counsel as to whether it could be said that Ms Wikohika was integral to the substantial supply operation being run by her brother. The word ‘integral’ may be an overstatement, however, it is clear that she facilitated that operation at least in the months of July and August of 2017, and the extent of the facilitation was not insignificant.

[23]   There can be no dispute and it was a bit more seriously argued that she knew that the methamphetamine, including the 340 grams was earmarked or destined for eventual supply to customers. In that regard, there is an element of artificiality in suggesting that there was no commerciality or expectation of on-sale, or at least to the extent that it absolves her of any culpability.

[24]   Based on the total of 536.25 grams, the Crown submits that, on a strict application of R v Fatu, the starting point should not have been any lower than       10 years’ imprisonment. The Crown noted that it brought the case of R v Hsu to the Court’s attention at first instance, in which the defendant, the brother of the principal offender, had been involved in the supply of 336 grams of methamphetamine, assisting as a go-between.13 While the offending technically fell within band three of Fatu, Toogood J said that the bands should not be “followed slavishly according only to the

13     R v Hsu [2012] NZHC 931.

quantities of drugs involved in the offending”.14 Instead, the defendant was treated as if he fell around the mid-point of band two and a starting point of six years’ imprisonment was adopted.

[25]   As I indicated to counsel during the course of submissions, it is clear that the Court does have some flexibility in relation to the application of the bands in Fatu, and as in cases like this and in the other cases referred to me by counsel, has exercised that flexibility to have regard to factors other than simply the quantity of the methamphetamine involved.

[26]   The Crown submits that Ms Wikohika was well apprised of the nature of her brother’s methamphetamine business and played a supporting role. It submits the six- year starting point adopted by the Judge was generous, even having regard to her secondary involvement, given the greater quantity of methamphetamine involved in this case and the greater number of transactions in which she was involved. It is argued that it cannot sensibly be suggested that a starting point any lower than six years was available.

Discussion

[27]   While this Court has some sympathy for Ms Wikohika and acknowledges that, not only was she drawn into this offending by her brother, but she also appears to have been under a misapprehension as to the possible consequences for her should this offending come to light, I am not persuaded that the 340 grams of methamphetamine she provided to an associate for safekeeping should not count against her. Rather than using the double-negative, if I could express that and say, I believe it should count, although not to the same extent as if she had supplied that to an end-user. It is clear the quantity was intended eventually for supply and she played a role in that supply, and the Court cannot ignore or set that aside completely as counsel have invited the Court to do.

14 At [90].

[28]   I also note that the sentencing Judge made a finding as to naivety or otherwise of Ms Wikohika to the effect that she was not so naïve as to not understand what was going on. That finding seems to have been one well able for him to come to.

[29]   It is my view that the Judge working within the constraints of R v Fatu, was generous in identifying the starting point and made no error in doing so.

[30]   I acknowledge that there has been some judicial criticism of what is said to be inflexibility of the tariff structure of R v Fatu including a lack of guidance in the manner in which personal factors can be taken into account. However, from the cases that I have referred to, it is clear that the Courts do not have to slavishly apply R v Fatu and ignore the actual role played by the defendant in the defending.

[31]   That approach was taken by the sentencing Judge in this matter and it illustrates that R v Fatu is not straight jacket, that the Courts are unable in appropriate cases to depart from.

Conclusion

[32]For the reasons, the appeal is dismissed.

[33]I now intend addressing the issue of what will happen to Ms Wikohika.

[34]   There is an application in the submissions by Mr Phelps that she be admitted to bail. She has been on bail pending the hearing of this appeal.

[35]   In a separate decision, I dealt with an application by Mr Phelps that this appeal be adjourned pending the outcome of a Court of Appeal case R v Chen & Ors that is scheduled for April this year. This case is apparently one in which the Court of Appeal may review or reconsider aspects of R v Fatu and may possibly respond to some of the judicial criticisms of that case. I refused the application for adjournment on the basis that it was appropriate for the appeal to be heard and either to be granted or declined on its merits but indicated that it did appear to be a case with some similarities to the other cases which have been included in the R v Chen appeal. It may well be that counsel wishes to pursue an application to have an appeal in respect of this

decision considered by the Court of Appeal along with the other cases to be considered in the Chen matter. That is obviously an issue for counsel. However, it appears a reasonable course of action.

[36]   Accordingly, subject to hearing the views from the Crown, I propose granting Ms Wikohika bail pending what I anticipate to be the immediate appeal and, an application by Mr Phelps for this appeal to be heard along with Chen. The Crown is not opposing bail. It is granted accordingly.

[37]   Having been assured by counsel that an appeal will be lodged to the Court of Appeal, together with an application for this case to be heard at the same time as Chen, I grant bail to Ms Wikohika pending disposal of this appeal either as part of Chen or as a standalone appeal.

Churchman J

Solicitors:

M J Phelps, Barrister, Hastings for Appellant

Crown Solicitor’s Office, Napier for Respondent