TUMAHAI v R [2023] NZCA 431

TUMAHAI v R [2023] NZCA 431 [7 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA276/2022[2023] NZCA 431BETWEEN DANIELLE HIRA TUMAHAIAppellantAND THE KINGRespondentHearing: 29 August 2023Court: Courtney, Whata and Downs JJCounsel: M J Taylor-Cyphers for AppellantA M McClintock for RespondentJudgment: 7 September 2023 at 11.30 amJUDGMENT OF THE COURTA The application to adduce fresh evidence is granted.B The appeal is allowed and the convictions are set aside.C The case is remitted to the District Court for redetermination.D Any question of bail is remitted to the District Court.____________________________________________________________________REASONS OF THE COURT(Given by Downs J)Introduction[1] Danielle Tumahai pleaded guilty to one charge of supplying a small amount ofmethamphetamine, and a second charge of offering to supply a similarly small amountof that drug. She was convicted and sentenced to a term of 15 months' intensivesupervision.1 Ms Tumahai appeals on the basis that given the unusual circumstancesof her case, she ought to have been discharged without conviction. A Court maydischarge a defendant without conviction if, and only if, the "direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence".2 Ms Tumahai does not challenge her sentence.[2] In this brief judgment, we explain why the appeal is allowed and the caseremitted to the District Court for redetermination.Background[3] Between 22 May and 9 June 2020, Ms Tumahai offered to supply at least2.75 grams of methamphetamine. Between 27 and 29 May 2020, Ms Tumahaisupplied at least 1 gram of the same drug.[4] Ms Tumahai was charged on 29 October 2020. She pleaded guilty on12 November 2021, following plea negotiations. Sentencing was scheduled for4 March 2022. Ms Tumahai sought, and was granted, an adjournment until9 May 2022 to facilitate her completion of a rehabilitative programme.[5] On 9 May 2022, Ms Tumahai sought another adjournment on the basis herprogramme had not finished. The Crown offered no opposition to an adjournment.Judge A-M Skellern declined an adjournment and sentenced Ms Tumahai to a term of15 months' intensive supervision.[6] Ms Tumahai's lawyer had been given permission to appear by VMR atsentencing. However, that technology was not available in the courtroom.Consequently, her lawyer appeared by telephone albeit, we gather, over a very poorline, such that she found it difficult to follow what was happening.[7] Ms Tumahai's lawyer had signalled an application would be made for adischarge without conviction under s 106 of the Sentencing Act 2002. However, no1 R v Tumahai [2022] NZDC 10741.2 Sentencing Act 2002, s 107.such application or supporting evidence was ever filed. So, while the Judge had whatshe described as a "very thorough" pre-sentence report,3 the Judge did not have thebenefit of any evidence about the offending, Ms Tumahai's background, or herrehabilitative progress to that point. Nor did the Judge have any evidence about thepotential impact of a conviction on Ms Tumahai's employment prospects.[8] The Judge was satisfied a community-based sentence was warranted becauseof Ms Tumahai's age (she was 30), otherwise good record, addiction tomethamphetamine, and rehabilitative progress. The Judge, therefore, imposedintensive supervision. The Judge convicted Ms Tumahai of the offending absent anapplication for a discharge without conviction.Fresh evidence[9] Ms Tumahai seeks permission to offer fresh evidence: her own affidavit ofJune 2023.4 On behalf of the respondent, Ms McClintock offers no opposition toreception of the evidence, acknowledging it is "sufficiently credible".[10] We accept the evidence could, and should, have been placed before theDistrict Court, but we also accept Ms Tumahai was not at fault in this respect. Likethe respondent, we consider the evidence credible. We therefore receive it.[11] Ms Tumahai says in 2015, she was in an abusive relationship and introducedto drugs. Her two children — who had been her world — were removed.Ms Tumahai's partner was then jailed for six and a half years. She turned fromcannabis to methamphetamine. Ms Tumahai describes the offending and subsequentevents this way:Circumstances of the offendingAt the time of this offending, I was hanging out with a drug-dealer to supportmy habit.I made a lot of "friends" – people used to come to me because they knew Ihad some, and I could make some extra money on my side, by giving some tothem.3 R v Tumahai, above n 1, at [4].4 The affidavit does not identify when in June it was sworn.At the time I was arrested, I had been in a hotel room with some guys. Themen I had come to the hotel room with had gone to do a drug deal, and left mein the hotel room.The drug deal went wrong, and a murder was committed.I was later a prosecution witness in the trial against Mr Filoa and Mr Davis,the men I went to the hotel with.It was my understanding that if I gave evidence for the prosecution, I wouldreceive a discharge without conviction on these charges.Steps taken following my offendingI have attended quite a lot of rehabs. I am clean.I first completed an 8-week programme called The Bridge. It is a residentialrehabilitation programme.Following that, I completed 10 weeks at another facility called HigherGround. This gave me the skills to then leave independently. It is at HigherGround that things really changed for me.I then went on to live with Wings Trust, which is a supported livingarrangement.I now live on my own, in Ōrākei. I am stable, safe, and clean.Consequences of a convictionThe day before I was sentenced, on 08 May 2022, I had reached the interviewstage for a job as a flight attendant, as cabin crew with Air New Zealand.The next step in the process was police vetting.I was shocked my sentencing went ahead the following day, without mylawyer there and without being able to ask for a discharge without conviction,and complete my rehabilitative work.I was then sentenced, and I knew that my convictions for supplyingmethamphetamine and offering to supply methamphetamine would show upon police vetting.I withdrew my application.I would very much like to re-apply, but I know that I will never be able to getthe job, because the convictions will mean I am unable to get a visa to flyinternationally to any other country.The charges both carry a maximum penalty of life imprisonment, and that isall people will see when they receive the police vetting results – that is what Iam scared of.I have applied for a lot of other jobs in the last year.If I am unable to work as cabin crew, I would like to do work that uses myexperience but does not let it define me.So I have applied for jobs with the Ministry of Social Development, St Johns,and as a Police Communicator with New Zealand Police.I have withdrawn these applications at the police vetting stage, because I donot want people to have that information about me.I believe that once this information is revealed, I would instantly be rejectedfor these roles.I have applied for Air Chathams also as cabin crew, as they only fly domestic.This too required police vetting.[12] With our permission, Ms Tumahai gave supplementary evidence, and wasbriefly cross-examined. Ms Tumahai said, among other things, that her children hadbeen returned. We found her testimony helpful.The appeal[13] Ms Taylor-Cyphers, who did not act for Ms Tumahai in the District Court,contends the sentencing process miscarried for two reasons. First, no application fora discharge without conviction was ever filed, even though Ms Tumahai wanted to bedischarged without conviction. Second, because of the combination of eventsdescribed at [5]–[8], Ms Tumahai had no effective representation at sentencing.[14] Ms Taylor-Cyphers acknowledges the charges are inherently serious, anddischarges without conviction for dealings in controlled drugs are rare. However, shenotes that such an outcome is possible, citing the observations of Palmer J in Walsh vR:5[10] Serious drug offending provides relatively few occasions for a Court todischarge an offender without conviction. But it does happen:(a) In 2003, in R v Hemard, a 25-year-old tourist received a parcelcontaining 0.7 of a gram of cocaine similar to possession forpersonal use.6 Panckhurst J said the level of criminality was lowand the level of stupidity was extremely high.7 Entry of aconviction would, on account of the offender's particular personalcircumstances of working in corporate leisure, have had direconsequences. He was discharged without conviction.5 R v Walsh [2023] NZHC 680.6 R v Hemard HC Christchurch T 30/03, 11 April 2003.7 At [9].(b) In 2012, in Bullock v New Zealand Police, a 17-year-old schoolboy admitted intending to sell some of his 16 ecstasy and 40 otherclass C drug tablets.8 Woodhouse J considered the District Courthad placed undue emphasis on the general nature of the offendingrather than the culpability of the particular offender.9 Theevidence indicated the risk of reoffending was low and theoffender's experience of the criminal justice system would havehad a substantial impact. The employment and other lifeconsequences of a conviction were held to be disproportionate tothe gravity of the particular offending. A discharge was granted.(c) In 2014, in R v Rakich, the offender sold 200 class C pills overthree separate occasions and conspired to sell at least 2,600 classC pills over seven occasions.10 Duffy J considered that his age of20, his previous good character, his remorse, and the fact he hadturned his life around since the offending reduced the gravity ofoffending to low. The consequences of conviction includedimpacting on his ability to travel to the United States for asuccessful business he had started. The Judge considered theconsequences of conviction would undermine the strongrehabilitative steps he had taken to date and would be out ofproportion given that he had clearly learnt his lesson and was veryunlikely to offend again.11 He was discharged without conviction.(d) Also in 2014, in Rodrigo v New Zealand Police, a 22-year-olduniversity student supplied Ritalin, a class B drug he had beenprescribed, to three people without profit.12 The gravity of theoffending was reduced by his age, being a first offender, admittinghis offending, his remorse, his undiagnosed ADHD, his familysupport, and his low likelihood of reoffending.13 A convictionwould have impacted on his ability to travel to his family in NorthAmerica and his employment prospects, and would have been outof all proportion to the low level of offending. He was dischargedwithout conviction.(e) In 2018, in Taylor v R, Ms Taylor pleaded guilty to charges ofpossession of methamphetamine for supply and conspiracy tosupply methamphetamine.14 Ms Taylor's part in the conspiracywas minimal and the gravity of the offending was very much atthe lower end of the scale. She acted as a result of her partner'sdomination of her, which she had a severely compromised abilityto resist due to her long history of abuse. Convictions formethamphetamine offending would preclude Ms Taylor fromentering the teaching profession and turn her life around, whichwould be out of all proportion to the gravity of her offending.Thomas J stated this was "a rare case" where an offender in8 Bullock v Police [2012] NZHC 1374.9 At [5].10 R v Rakich [2014] NZHC 3287.11 At [163]–[164].12 Rodrigo v Police [2014] NZCA 68.13 At [11].14 Taylor v R [2018] NZHC 688.respect of a class A controlled drug would be discharged withoutconviction.(f) Finally, in R v H, an 18-year-old who had been selling ecstasythrough the Mongrel Mob turned his life around and pleadedguilty to aggravated burglary.15 Cooke J discharged him withoutconviction, observing:[32] It is unusual for a person to have got himself involved indrug dealing, and then participated in this serious offending, toreceive a discharge without conviction. But you are a personwithout previous convictions, you are young, and there is a realprospect that you can now start your new life with the love andguidance of those who are seeking to support you both [in]Australia and New Zealand. The criminal justice system needs toaddress cases like this with the sensitivity they deserve. There isa public benefit in taking steps to prevent people like you fromentering the criminal justice system and prison systems. That isparticularly so for young people. Once those systems are enteredit becomes hard to stop a decline into a criminal lifestyle, highlyinfluenced by gang culture. Whilst this is serious offending, it canbe said that this is the very kind of case that a discharge withoutconviction provision is most effectively directed to.[15] Ms Taylor-Cyphers contends Ms Tumahai's circumstances are analogous tothose of the cases discussed in Walsh, especially once Ms Tumahai's prosecutiontestimony in the murder case is taken into account, along with the apparent offer byDetective Wood or Detective Roberta to provide a letter of support to thesentencing Judge. Ms Taylor-Cyphers emphasises this is an unusual case, in which anappellant has broken the grip of an addiction and has much to offer society — providedthe burden of an unwarranted criminal record is removed.[16] For all of these reasons, Ms Taylor-Cyphers contends the consequences ofconviction are out of all proportion to the gravity of the offending, and Ms Tumahaishould be discharged without conviction.[17] Ms McClintock responsibly acknowledges the sentencing process wasimperfect. However, she contends it was not wrong for the Judge to decline anadjournment as the case had already been adjourned once and no application for adischarge without conviction was ever filed.15 R v H [2023] NZHC 626.[18] Ms McClintock also contends the consequences of conviction are not out of allproportion to the gravity of the offending and the appeal should, therefore, bedismissed. Unsurprisingly, Ms McClintock emphasises the inherent seriousness of theoffending. She says the circumstances of the cases identified in Walsh aredistinguishable from those of Ms Tumahai; only one involved methamphetamine andin it, the defendant's ability to resist her partner's demands was severely compromisedgiven her long history of abuse.16Analysis[19] We must allow the appeal if satisfied a miscarriage of justice has occurred.17That would be so if an error or irregularity in the sentencing process has created a realrisk the outcome might have been different.18[20] We are satisfied this test is met notwithstanding Ms McClintock's submissions.Ms Tumahai wanted to apply for a discharge without conviction, and through no faultof her own, that application was never advanced. Relatedly, no evidence was placedbefore the District Court to support such an application. Sentencing then proceededeven though Ms Tumahai anticipated an unopposed adjournment, absent effectiverepresentation because of the unavailability of VMR and an "appearance" by no morethan a poor telephone line. Moreover, given the evidence now available, we aresatisfied there is a real possibility the outcome might have been different had theprocess not miscarried.[21] For completeness, none of this implies any criticism of the Judge.She, obviously, did not know what we now know.[22] We have decided the best course is to remit the case to the District Court forredetermination. This will ensure that Court has all of the information it needs to makewhat will be, we accept, a difficult determination. With this in mind, we anticipate:16 Taylor v R, above n 14, at [49].17 Criminal Procedure Act 2011, s 232(2)(c).18 Criminal Procedure Act, s 232(4)(a); and R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 at [61].(a) Ms Tumahai will file and serve additional evidence outlining, in detailand with supporting information:(i) Her attempts to gain employment.(ii) Her rehabilitative efforts and progress.(iii) Police representations of assistance in relation to her testimonyas a prosecution witness.(b) The Crown will inquire of the Police about [22(a)(iii)], file and serveevidence as appropriate, and identify the significance of Ms Tumahai'sevidence to the prosecution case.Result[23] The application to adduce fresh evidence is granted.[24] The appeal is allowed and the convictions are set aside.[25] The case is remitted to the District Court for redetermination. Any question ofbail is remitted to the District Court.Solicitors:Crown Solicitor, Auckland for Respondent