TULE v R [2023] NZCA 543

TULE v R [2023] NZCA 543 [2 November 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA73/2023[2023] NZCA 543BETWEEN ARANUI JENNIFER TULEAppellantAND THE KINGRespondentHearing: 26 September 2023(further submissions received 24 October 2023)Court: Cooper P, Palmer and Jagose JJCounsel: M J James and G A Walsh for AppellantI A A Mara and T R Simpson for RespondentJudgment: 2 November 2023 at 11.00 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Jagose J)[1] Aranui Tule appeals against the sentence imposed by Judge Hollister-Jones inthe District Court at Rotorua1 to four years and six months' imprisonment forpossession of methamphetamine for supply,2 a firearm,3 ammunition4 and cannabis.5[2] Concurrently, Ms Tule was sentenced, or convicted and discharged, ondriving-related and breach of bail charges. Ms Tule has abandoned her appeal againstconviction, which she initially brought on grounds she "didn't want to go guilty" andin relation to which she proposed to give evidence about the entry of her plea. Nosuch evidence was filed.Background[3] In May 2020, on executing a search warrant to search Ms Tule's car in the wakeof her driving offending, police found 136 grams of methamphetamine andseven grams of cannabis, a shotgun and ammunition, and a notebook with entriespotentially indicating drug dealing. After receipt of a sentencing indication ofsix years' imprisonment, she pleaded guilty on the morning of trial.Judgment under appeal[4] Judge Hollister-Jones noted Ms Tule's explanation she obtained the items shewas charged with possessing (as well as the notebook) in collecting her deceasedhomeless brother's personal effects from a park some time after his death. The Judgeconsidered the explanation was most unlikely, and noted, if it were rejected, Ms Tulewould face "a six-year starting point with minimal reductions for personal mitigatingfactors".6 Ms Tule resisted the Judge's proposal then to adjourn sentencing for adisputed facts hearing centred on the notebook's authorship, and instructed her counselshe wished the sentencing to proceed.7 The Judge proceeded accordingly.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 fineof $500.6 R v Tule, above n 1, at [4].7 At [5]–[7] and [17].[5] Saying he found it "a difficult sentencing exercise",8 by reason of the "littleinformation" he had about the circumstances of her possession,9 the Judge locatedMs Tule's principal offending in "mid-band 2" of those established in Zhang v R. Heset a starting point of four and a half years' imprisonment on the methamphetaminecharge, uplifted by a further year on the arms and ammunition charges.10[6] The Judge noted Ms Tule's lack of relevant previous convictions, middle ageand generally responsible social standing, including support in court by four of herchildren who his Honour assessed "look to be a credit to [her]".11 He also consideredreports which set out details of Ms Tule's disrupted childhood and experiences ofsexual assault but also her sense of cultural connectedness.12 He had difficultyconnecting her background to the circumstances of her offending "because whatappears from the notebook and the combined circumstances of methamphetamine andfirearms found is [Ms Tule was] operating as a low-level drug dealer".13 Nonethelesshe allowed "a discount of 12 per cent for background matters" and five per cent forher late guilty plea, together resulting in an end sentence of four years and six months'imprisonment.14[7] For Ms Tule, Ms James argues the Judge took too high a starting point inunjustified reliance on the notebook, which was not mentioned in the summary of factson which Ms Tule was sentenced. He failed to allow adequate discounts for her goodcharacter and rehabilitative prospects as illustrated by her criminal history andpre-sentence reports. Ms James contends there was no evidence on which to concludeMs Tule fulfilled other than a lesser role in drug dealing, which meant the Judge erredin setting the starting point. For the Crown, Mr Mara emphasises that the quantity ofdrugs in Ms Tule's possession is deemed to be for supply, and any lesser role is for herto make out.8 At [13].9 At [16].10 At [18], referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].11 At [12].12 At [19].13 At [20].14 At [22]–[23].Extension of time[8] Ms Tule's notice of appeal was filed 16 days out of time. As the delay wasexplained and there is no prejudice to the Crown, we grant the application for anextension of time.Jurisdiction and approach on appeal[9] As noted, Ms Tule initially filed an appeal against conviction and sentence, butsubsequently has abandoned her appeal against conviction. Had Ms Tule only wishedto pursue an appeal against sentence from the outset, she would have needed to fileher notice of appeal with the High Court.15 However, because she appealed againstboth conviction and sentence, her appeal against sentence became a related right ofappeal in respect of which this Court was then seized.16 That consequence arose froms 321 of the Criminal Procedure Act 2011, which relevantly provides:321 Related appeals that are to be heard by Court of Appeal(1) This section applies if—(a) a convicted person appeals to the Court of Appeal againstconviction under section 229:(b) a convicted person appeals to the Court of Appeal againstsentence under section 244 or the prosecutor appeals to thatcourt against sentence under section 246.(2) Appeals arising from the exercise of a related right of appeal by theconvicted person or the prosecutor must be heard and determined bythe Court of Appeal.[10] The Act does not directly address the situation where an appeal, in respect ofwhich a related right of appeal arises, later is abandoned. Following the hearing, wesought further submissions on the question of whether the Court retained jurisdictionto determine the appeal in the circumstances. Counsel agreed jurisdiction persistednotwithstanding abandonment of Ms Tule's conviction appeal.15 Criminal Procedure Act 2011, ss 244(1) and 247(1)(b)(i) and (c).16 Sections 320(1)(b) and 321(1)(a) and (2). Pursuant to ss 229, 230(1)(c), 320(1)(a)(ii) and321(1)(a) and (2), Ms Tule's right of appeal against conviction lies in this Court.[11] We agree. Ms Tule exercised her related right of appeal against sentence whenshe filed her notice of appeal in this Court. We explain below it was at that point hersentence appeal arose for the purposes of s 321(2) and, pursuant to that subsection, wenow must determine it.[12] A related situation arose in Gorgus v R, in which leave to appeal was sought inrespect of a pre-trial District Court decision regarding the admissibility of evidence.17In that case, the appellant was initially facing a charge of aggravated burglary,18a category 3 offence, and had elected to have a trial by jury. But after his applicationfor leave to appeal was filed in this Court, the charge against him was downgraded tobeing in an enclosed yard without reasonable excuse,19 a category 2 offence.A jurisdiction question arose: was this Court still the first appeal court for the purposesof s 219 of the Criminal Procedure Act? The Court held it retained jurisdiction as thefirst appeal court. Under s 219, the key determinant was the nature of the proceedingat the time of the decision being appealed.20[13] Similarly, under s 321(2), jurisdiction is conferred by the exercise of the relatedright of appeal. That occurs when a notice of appeal engaging ss 320 and 321 is dulyfiled. Accordingly, we are satisfied, although Ms Tule's appeal against sentenceinitially was parasitic on her appeal against conviction, this Court retains thejurisdiction to determine it.[14] We must allow the appeal only if satisfied both there is error in the sentence,and a different sentence should be imposed.21 In any other case, we must dismiss theappeal.22 The measure of error is the sentence be "manifestly excessive", a principle"well-engrained" in this Court's approach to sentencing appeals.23 The Court will notintervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether the sentence is "manifestly excessive" is to be assessed17 Gorgus v R [2022] NZCA 492.18 Crimes Act 1961, s 232.19 Summary Offences Act 1981, s 29(1).20 Gorgus v R, above n 17, at [8].21 Criminal Procedure Act 2011, s 250(2).22 Section 250(3).23 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].in terms of the sentence given; the process by which it is reached will rarely bedecisive.24Discussion[15] There is no dispute the amount of methamphetamine in Ms Tule's possessionplaced her firmly within Zhang's band two, which is for quantities of less than 250grams and involves a starting point of two to nine years' imprisonment.25 Zhang'sguidance is "[a]ccess to the lower sentence starting points may be expected only bythose whose role is found to be lesser in degree, and where quantities are at the lowerend of the relevant range".26[16] From that perspective, the Judge's reliance on the notebook is immaterial.Ms Tule pleaded guilty to possession of methamphetamine for supply. The inferenceis she was supplying a substantial quantity of methamphetamine in her own operationand, absent evidence of external pressures or addiction, for financial gain.27[17] If Ms Tule's role was to be found lesser in degree, that could only be byreference to information provided by her to establish any of the relevant criteria.28 TheJudge was entitled to reject the suggestions by Ms Tule as to how she came intopossession of the notebook that appeared in the pre-sentence report, the psychologicalreport and the background report. Ms Tule declined to pursue a disputed facts hearing.The accepted quantity of drugs alone, and her guilty plea to the charge of possessionfor supply attributes her with a significant role in her own operation. There was nosuggestion on the facts anyone else was involved. In cases like this, involvingsomeone who might be described as a "sole trader", it is not sensible to ask if she hada lesser role. Her role was at least significant, and inferentially leading as well. Sogiven the amount of methamphetamine involved, a starting point in the middle of band24 Ripia v R [2011] NZCA 101 at [15].25 Zhang v R, above n 10, at [125].26 At [123].27 At [126], and as updated in Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [51] and [70]–[71].28 At [127].two could be anticipated.29 In fact, the middle of a two to nine years' starting pointrange is five and a half years.[18] No issue is taken with the Judge's one-year uplift on the firearm andammunition charges; this Court regularly has "endorsed uplifts of between 12 to18 months' imprisonment for those found in possession of firearms in association withdrug offending".30[19] The Judge's universal "background" discount may be thought to haveincorporated all mitigating facts available to him from the reports before him, to whichhe expressly referred. If her extended period of not offending for some years prior tothe index offending offered room for credit, it was undone by her subsequent return todriving and bail related offending in later 2020 and 2021.[20] In short, we find the Judge's end point well within a range properly justifiedby accepted sentencing principle. It cannot be said at all excessive, let alone"manifestly" so.Result[21] The application for an extension of time to appeal is granted.[22] Ms Tule's appeal against sentence is dismissed.Solicitors:Crown Law Office | Te Tai Ture o te Karauna, Wellington for Respondent29 See Harris v R [2021] NZCA 143 at [21]–[22], accepting possession of 97.646 grams ofmethamphetamine "puts that offending closer to the middle of band two" for the offender's "ownoperation".30 To'a v R [2020] NZCA 187 at [19], citing R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at[41]; Mills v R [2016] NZCA 245 at [18]; and Joyce v R [2020] NZCA 124 at [24].