Wirihana v R
[2020] NZCA 151
•8 May 2020 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA737/2018 [2020] NZCA 151 |
| BETWEEN | URIAH WHETU MONTY WIRIHANA |
| AND | THE QUEEN |
| Hearing: | 24 February 2020 |
Court: | Goddard, Ellis and Brewer JJ |
Counsel: | E R Fairbrother QC for Appellant |
Judgment: | 8 May 2020 at 9.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
B The sentence imposed in the District Court is quashed. We impose a sentence of 12 months’ home detention to be served at the address specified in the updated s 26 report dated 17 March 2020.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard and Ellis JJ)
Mr Wirihana pleaded guilty to two charges of possession of methamphetamine for the purpose of supply. The first charge involved the supply of 15.5 grams. The second involved 336 grams. On 30 November 2018 he was sentenced to three years and seven months’ imprisonment by Judge Rea in the District Court.[1]
[1]R v Wirihana [2018] NZDC 24961. He received a concurrent sentence of two years’ imprisonment on the first charge.
In the course of sentencing the Judge made it clear that he had considerable sympathy for the submission that a less severe sentence should be imposed, having regard to Mr Wirihana’s limited role in the supply operation and his personal circumstances, but felt constrained by the sentencing bands in the guideline judgment R v Fatu.[2]
[2]R v Fatu [2006] 2 NZLR 72 (CA).
Mr Wirihana appealed against his sentence.[3] The hearing of his appeal was deferred until after delivery of the decision of this Court in Zhang v R,[4] which was to be the new guideline judgment in relation to methamphetamine sentencing. Mr Shane Thompson, one of the appellants in Zhang, was the principal offender in the supply network in which Mr Wirihana was involved.
[3]Mr Wirihana also initially appealed against his conviction on the basis that the facts he accepted did not amount to possession for supply. However, the appeal against conviction was abandoned shortly before this appeal was heard.
[4]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Zhang was delivered late last year. As well as revising the sentencing bands (which continue to be based on quantity) this Court confirmed that:
(a)an offender’s role is a significant factor in sentencing for methamphetamine offending;
(b)as with sentencing for all other offending, the Sentencing Act 2002 (the SA) requires the personal circumstances of the offender to be taken into account in sentencing for methamphetamine offending; and
(c)a mechanical approach that ignores these factors, or gives them minimal weight, is inconsistent with the statutory framework.
The principal question for us in this appeal is whether Mr Wirihana’s sentence should be recalibrated in light of Zhang and, if so, what that sentence should be. Ultimately, we have concluded that in the quite unusual circumstances of his case, a sentence of 12 months’ home detention is appropriate. We give our reasons below.
Background
Mr Wirihana was arrested following a 2017 police operation known as Operation Lariat, which targeted a methamphetamine dealing network in Hawke’s Bay, headed by Mr Thompson. Mr Thompson pleaded guilty to a representative charge of supplying 4.2 kilograms of methamphetamine at both a wholesale and retail level, and one charge of possessing 2.6 kilograms of methamphetamine for supply.[5]
[5]Mr Thompson was sentenced by Judge Rea to 13 years’ imprisonment, with a minimum period of imprisonment of six years and six months: R v Thompson [2018] NZDC 11394. He did not contest the sentence of 13 years’ imprisonment, and his appeal against the minimum period of imprisonment was dismissed by this Court in Zhang.
It appears that Mr Wirihana was a longstanding friend of Mr Thompson. Intercepted communications revealed that:
(a)Between 24 July 2017 and 21 August 2017 Mr Wirihana sourced small amounts of methamphetamine (totalling 15.5 grams) from Mr Thompson for supply to other people.[6]
(b)Mr Wirihana stored a much larger amount (336 grams) at his home address on Mr Thompson’s behalf over a three-day period. Three quarters of that amount was later collected from Mr Wirihana’s address by associates of Mr Thompson (for supply to his customers). The remaining amount was collected by Mr Thompson personally when he returned to Hawke’s Bay on 21 August 2017.[7]
District Court sentencing
[6]These events gave rise to charge one.
[7]These events gave rise to charge two.
After setting out the circumstances giving rise to the two charges, the Judge noted that Mr Wirihana was a contributing member of the community. He had a full‑time job, and he and his partner had a cleaning business franchise. It appeared he used methamphetamine to remain awake so he could work two jobs. He was not an addict.
The Judge noted that the lesser quantity of 15.5 grams appeared to have been supplied by Mr Wirihana to facilitate his own methamphetamine use. He did not make any money out of this dealing.
The Judge recorded that Mr Wirihana also made no money out of storing the 336 grams, but observed that involvement with such a considerable quantity of methamphetamine was to be viewed very seriously. He said Mr Wirihana must have known that it was destined to end up on the streets of Hawke’s Bay because “it was the whole purpose of your property being used as a safe house, so that … Thompson … would not get caught with large quantities and you were prepared to facilitate that, presumably for some advantage to yourself”.[8]
[8]Wirihana, above n 1, at [4].
The Judge observed that sentencing Mr Wirihana was not easy. Fatu was binding on him. The sentencing bands in Fatu were based on the quantity of drugs involved, although (as the Judge noted) sentences could be imposed that were below the relevant band depending on an offender’s role. He also noted that “the central provisions of the Sentencing Act 2002 have to play a part”.[9]
[9]At [6].
Consistent with (what was then) relevant appellate authority, the Judge went on to observe that in the context of methamphetamine offending, personal circumstances took on a lesser role in sentencing. So while attracted to the submission that he should depart from the Fatu bands on the basis of Mr Wirihana’s personal circumstances and prospects, he noted that an earlier attempt by him to follow such an approach was not upheld on appeal. He observed that this Court had reminded sentencing courts not to depart from sentencing tariffs in a way that essentially makes them irrelevant.[10]
[10]At [11], referring to R v Kennedy [2011] NZCA 109.
So, the Judge said:[11]
If there is to be a change to the way that sentencing takes place in situations such as this, it is not for sentencing Judges but for the Courts of policy, namely the Court of Appeal or the Supreme Court, to deal with the issue.
[11]At [12].
The Judge had previously given a sentence indication with a starting point of five years’ imprisonment. Despite Mr Wirihana not accepting that indication at the time, the Judge considered that five years remained the appropriate starting point for the totality of Mr Wirihana’s offending. He considered Mr Wirihana was entitled to a six month discount for the fact that he had made real efforts to improve his situation following arrest, assisted by support from the community and his family. That reduced starting point of four and a half years was then further reduced by 20 per cent for his guilty plea. That yielded the end sentence of three years and seven months’ imprisonment.
On his own initiative the Judge then readmitted Mr Wirihana to bail, pending a signalled appeal. Mr Wirihana has remained on bail from that time to the present — a matter we return to later.
Mr Wirihana’s appeal
Mr Fairbrother QC submitted for Mr Wirihana that, following Zhang, more emphasis should be placed on the lesser role of Mr Wirihana in Mr Thompson’s operation. He referred to the statement in Zhang that, while the new entry points for each band are intended to encompass most cases of low culpability, the Court did not exclude the possibility of a case involving minimal participation which might fall below those entry points.[12] So, he said, because of his “close to” minimal role, Mr Wirihana should be regarded as falling within band two of Zhang (which applies to offending involving quantities between five and 250 grams) and contemplates starting points in the range of two to nine years.[13]
[12]Zhang, above n 4, at [123].
[13]At [125]. Ordinarily the quantity of drugs involved in the second charge would fall within band three of Zhang (250–500 grams), which normally attracts a starting point of six to twelve years’ imprisonment.
Mr Fairbrother said his submission as to Mr Wirihana’s lesser role was supported by reference to the indicators listed in Zhang, namely:[14]
(a)limited function and acting under direction, particularly in relation to the second charge;
(b)involvement through naivety;
(c)no actual financial gain, but rather payment in drugs;
(d)no influence on those above him in the chain; and
(e)limited awareness of the scale of the operation.[15]
[14]At [126], referring to the approach of the UK Sentencing Council.
[15]Evidenced by the fact that he was only identified as part of the network by an analysis of Mr Thompson’s text messages and that Mr Wirihana was not a party to any of the intercepted communications.
In the alternative, Mr Fairbrother submitted that if band three applied, then the appropriate starting point would be six years but reduced by three years to reflect Mr Wirihana’s lesser role. He said there should then be a 30 per cent reduction for personal circumstances and for the guilty plea, giving an end point of two years, making home detention an available sentence.
Updated pre-sentence report
Some 15 months elapsed between Mr Wirihana’s sentencing in November 2018 and the hearing of this appeal in February 2020. As we have said, Mr Wirihana was on bail throughout that period. At the February hearing we were advised by Mr Fairbrother that during this time Mr Wirihana had remained employed as a truck driver, and benefited from a range of pro-social influences.
In these rather unusual circumstances, it appeared to us that the sentencing purpose articulated in s 7(1)(h) of the SA (assisting in the offender’s rehabilitation and reintegration) might loom particularly large in Mr Wirihana’s case. To assist in our assessment of that factor we sought an updated report under s 26 of the SA. We directed that the report should also address the matters relevant to home detention set out in s 26A, although we made it clear that this was not to be taken as an indication of the likely result.
The updated report records that during his 15 months on bail Mr Wirihana has maintained his relationship with his partner. He continues to be in full-time employment. He completed alcohol and drug counselling in 2018, and remains open to attending further counselling as required. Mr Wirihana told the report writer that he had not used drugs since the charges were laid and he has distanced himself from the former associates involved in the offending. He advised that he is subject to random drug testing at work and produced evidence of this (and of clear results).
The report was accompanied by letters of support for Mr Wirihana from his partner, his employer, his landlords (who are also his neighbours), his mother and his grandmother. The letters convey a consistent theme of remorse on the part of Mr Wirihana for his offending and its consequences for others, commitment to his family and his employer, and ongoing support for Mr Wirihana from those around him. The letter from his employer is glowing in terms of Mr Wirihana’s work ethic and his contributions to the company.
The report writer assessed Mr Wirihana as posing a low likelihood of reoffending. He is seen as a suitable candidate for a community-based sentence. The report recommends home detention, with a number of special conditions. The report confirms that his address is suitable for home detention, and the necessary consent has been given by the other occupant (his partner).
Discussion
At the outset we record our agreement with Ms Wong’s submission for the Crown that the approach adopted by the Judge here did not represent a mechanical application of the Fatu guidelines. Rather, a generous starting point was adopted that was below the relevant Fatu band.
We also agree that, even under Zhang, it is difficult to place Mr Wirihana (in terms of quantity and role) other than at the lower end of band three which, as we said, ordinarily warrants a starting point of around six years (one year more than the starting point adopted by the Judge). And we agree that there could be no realistic quibble with the 20 per cent guilty plea discount.
Ordinarily, a court hearing an appeal against sentence would not take into account events occurring or personal circumstances arising subsequent to sentencing. Where an appellant is already serving a sentence of imprisonment, it will be for the Department of Corrections to deal with personal issues (such as medical problems) which develop. And similarly, while rehabilitative steps taken by an offender since being in prison might be noted as positive — and perhaps indicative of an offender taking responsibility and showing real remorse — any effect on the length of incarceration would be regarded as a matter that is properly for the Parole Board.
But Mr Wirihana’s case is different. It is almost three years since his offending. We understand he has spent the whole of that period on bail. His conduct during that time evidences not only prospects of, but actual, rehabilitation. He has taken steps to address the causes of his offending and he is willing to take more. He has a stable and supportive family life and is a valued and contributing member of society. He is drug free. The likelihood of him re-offending is assessed as low.
That said, Mr Wirihana’s case is one which engages s 6(4)(a) of the Misuse of Drugs Act 1975; a sentence of imprisonment is the default position for anyone convicted of an offence against s 6(1)(f) of that Act in relation to a Class A controlled drug. But equally, the Court is not required to sentence him to imprisonment if, having regard to the particular circumstances of the offence or of the offender, it is of the opinion that he should not be so sentenced. And as the Court noted in Zhang:[16]
… a more liberal application of the proviso in s 6(4) of the Misuse of Drugs Act is appropriate where an offender plays a lesser role in offending, and particularly where health issues contribute to the offending.
[16]Zhang, above n 4, at [123], n 80.
Mr Wirihana has, to our knowledge, no contributing health issues. But he did undoubtedly play a limited role without any financial reward in Mr Thompson’s operation. Given the quantity of methamphetamine involved, we do not consider there is room for movement below the starting point imposed by the Judge (which was below the bottom of Zhang band three). But we consider that Zhang underscores the importance of adopting a flexible approach in a case which does not fit the ordinary mould, in a manner that reflects the purposes and principles that underpin the SA.
We consider that imprisoning Mr Wirihana now would have a disproportionately severe effect on him in terms of s 8(h) of the SA. He would lose his job and — almost certainly — the benefits of the progress he has made and the commitment he has shown. We consider that this result would be wholly inconsistent with the s 7(1)(h) purpose. And as this Court said in Zhang, at stage two of the sentencing exercise:[17]
… a substantial measure of discretion is vested in the sentencing judge to mitigate the starting point for personal circumstances that mean applying the starting point would be inconsistent with s 7(h) — the rehabilitation and reintegration of offenders — and the considerations expressed in the latter part of s 8.
[17]At [134].
Here, the sentencing Judge gave a 10 per cent discount for personal circumstances. We acknowledge that this discount could not be regarded as miserly under Fatu. But in doing so the Judge made it plain that he did not consider that this approach adequately reflected Mr Wirihana’s circumstances or yielded the appropriate sentence. That view was clearly behind his decision to grant Mr Wirihana bail pending this appeal. We have no doubt that the Judge would have imposed a non-custodial sentence if he thought that course was open to him. We observe that subsequent developments confirm the Judge’s view of Mr Wirihana’s prospects.
We consider that Mr Wirihana’s manifest rehabilitative prospects and the positive steps he has already taken, in light of the greater level of flexibility now afforded under Zhang, warrant a discount that reflects those prospects and the desirability of seeing them fully realised. We consider a discount of 50 per cent to reflect these factors can be justified here.
In the unique circumstances of this case, therefore, we allow the appeal. The sentence of three years and seven months’ imprisonment is quashed. If we were to impose a sentence of imprisonment, we consider that an appropriate term would be two years. Home detention therefore becomes an available option and in our view it is the least restrictive sentencing outcome that is appropriate in this case. We therefore impose a sentence of 12 months’ home detention. The standard conditions for a sentence of home detention set out in s 80C of the SA will apply.[18]
[18]The updated pre-sentence report recommends that if a sentence of home detention is imposed, several special conditions should be imposed. However s 80D(2) of the SA provides that the special conditions contemplated by that Act may be imposed only if, among other criteria, there is a significant risk of further offending by the offender. That is not the case here, so we do not impose any special conditions.
We emphasise that one of the primary reasons for imposing this sentence is to enable Mr Wirihana to continue in his employment. Our expectation is that the probation service will manage his sentence, and will provide appropriate approvals under s 80C(3)(c)(ii) to ensure that this can occur.
Result
The appeal is allowed.
We quash the sentence imposed by the District Court, and substitute a sentence of 12 months’ home detention, which is to be served at the address specified in the updated s 26 report dated 17 March 2020.
Solicitors:
Crown Law Office, Wellington for the Respondent.
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