TUUTA v R [2019] NZHC 2788

TUUTA v R [2019] NZHC 2788 [31 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-417[2019] NZHC 2788BETWEEN ISAAC MATOA TUUTAAppellantAND THE QUEEN, NEW ZEALAND POLICEAND DEPARTMENT OF CORRECTIONSRespondentsHearing: 29 October 2019Appearances: P Heaslip for the AppellantY Wang for the RespondentsJudgment: 31 October 2019JUDGMENT OF GAULT JThis judgment was delivered by me on 31 October 2019 at 9:15 a.m.pursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors:Mr P Heaslip, Barrister, AucklandMs Y Wang, Meredith Connell, Office of the Crown Solicitor, Auckland[1] Mr Tuuta appeals against sentence following guilty pleas to the followingcharges:(a) one charge of possession of methamphetamine for supply;1(b) one charge of unlawful possession of firearm;2(c) one charge of unlawful possession of ammunition;3(d) three charges of driving whilst licence suspended or revoked;4(e) one charge failing to carry out an obligation in relation to a computersearch;5 and(f) one charge of breach of supervision.6[2] On 26 August 2019, Judge B A Gibson in the Auckland District Courtsentenced Mr Tuuta to two years and six months' imprisonment, and a drivingdisqualification period of six months.7Facts[3] On 11 February 2019 and 7 March 2019 Mr Tuuta drove while suspended fromdriving. On 14 March 2019 Mr Tuuta failed to report to a probation officer whenrequired to do so.[4] The primary offending occurred on 22 March 2019. Police stopped Mr Tuuta'svehicle and undertook a search. They located 16.3 grams of methamphetamine,$4,230 cash and a sawn-off shotgun with 11 rounds of ammunition. Mr Tuuta also1 Misuse of Drugs Act 1975, s 6(1)(f) & (2). Maximum penalty life imprisonment.2 Arms Act 1983, s 45(1). Maximum penalty four years' imprisonment, $5,000 fine.3 Arms Act 1983, s 45(1). Maximum penalty four years' imprisonment, $5,000 fine.4 Land Transport Act 1998, s 32(1)(c) and 32(3). Maximum penalty three months' imprisonment,$4,500 fine.5 Search and Surveillance Act 2012, s 178. Maximum penalty three months' imprisonment.6 Sentencing Act 2002, s 70(b). Maximum penalty three months' imprisonment, $1,000 fine.7 R v Tuuta [2019] NZDC 16694.refused to provide the password of his phone to the Police. As his driver licence wassuspended, Mr Tuuta was also charged with driving while disqualified.District Court decision[5] The Judge noted that Mr Tuuta is 35 years of age and was deported fromAustralia, after having lived there for approximately 20 years, as a result of criminaloffending. Since arriving in New Zealand he has been generally in employment andhas been a good employee. He has an offer of employment when he is able to take itup.[6] The Judge said that counsel were agreed that Mr Tuuta fell towards the bottomend of band two of Fatu and that a starting point of three years' imprisonment wasappropriate.8 The Judge accepted that suggestion. The Judge added uplifts of sixmonths for the firearms offences and two months for the breach of supervision.[7] In relation to personal circumstances, the Judge noted that the Court of Appealhad said that in relation to drug dealing offences, particularly class A offences,personal circumstances play little part in sentencing because of the pernicious natureof the offending and the widespread damage they cause in the community by leadingto addiction and the way in which drug dealing fosters crime. The Judge did notattribute any uplift for Mr Tuuta's previous offences in New Zealand and Australia.[8] The Judge said that Mr Tuuta was entitled to a 25 per cent discount for pleadingguilty. He accepted Mr Tuuta was remorseful but rather than justifying any discretediscount he gave "some small discount" when rounding out the sentence. The 25 percent discount brought the sentence down from three years and eight months'imprisonment to two years and nine months' imprisonment. This was reduced to twoyears and six months' imprisonment to take account of the fact that Mr Tuuta spentsome time on EM bail and "some of the other matters already mentioned to me" (likelyremorse and prospects of being a good employee).8 R v Fatu [2006] 2 NZLR 72 (CA).Approach on appeal[9] To succeed on an appeal against sentence, the appellant must satisfy the appealcourt that there has been an error in the imposition of the sentence and that a differentsentence should be imposed.9[10] The Court will not, ordinarily, intervene when the sentence is within the rangethat can be properly justified by accepted sentencing principles. The Court will onlyintervene and substitute its own view if the sentence is manifestly excessive or wrongin principle.10 The appeal court's focus is on the final sentence imposed rather thanits component parts or how the ultimate sentence was reached.11Submissions[11] The grounds of appeal are that the three year starting point adopted by theJudge for the methamphetamine charge was too high, the six month uplift for thefirearms charges was too harsh, and insufficient credit was given for the appellant'spersonal mitigating factors.[12] Understandably, given the release of Zhang v R last week,12 submissions onthis appeal have been iterative. Mr Heaslip's written submission focused on thestarting point, submitting that three years was an appropriate starting point taking intoaccount not just the methamphetamine possession for supply but also the Arms Act1983 charges. He also questioned the Judge's approach to personal mitigating factors,citing a lack of transparency at least and possibly no discount for personal factors(apart from remorse in the rounding).[13] The submission proposed that the appeal be adjourned for an updated Provisionof Advice to the Court report (PAC report) to enable consideration of an electronicallymonitored sentence and time for a s 27 cultural report to be completed.139 Criminal Procedure Act 2001, ss 250(2) and (3).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].11 Ripia v R [2011] NZCA 101 at [15].12 Zhang v R [2019] NZCA 507 (CA).13 Mr Heaslip subsequently filed a further memorandum indicating that legal aid had been approvedfor Mr Tuuta's cultural report, but the report writer was having difficulty arranging a discussionwith Mr Tuuta as he had been moved by Corrections.[14] The Crown's written submission followed the release of Zhang v R.14The Crown submitted that no material error has occurred, and the sentence imposedby Judge Gibson was well within range. The Crown acknowledged that Zhang appliesto this appeal and that the applicable sentencing band is band two (for supply between5 – 250 grams of methamphetamine), which now starts at two years' imprisonment.The Crown submitted the starting point imposed by the Judge is still clearly withinrange. The Crown submitted that the greater emphasis of roles in Zhang is particularlynot relevant on the facts of this case, given that Mr Tuuta was not offending togetherwith others (or part of a wider criminal syndicate). In oral argument, however,Ms Wang acknowledged that role was still relevant and that Mr Tuuta's role was inthe "lesser" category, albeit with indicia taking it slightly higher than the bottom ofthe band minimal role as a street level dealer.[15] The Crown considered the Judge's uplift for the Arms Act charges could notbe criticised. Thus, a global starting point of three years and eight months'imprisonment for all charges was within range.[16] In relation to personal factors, the Crown characterised the Judge's reductionas a three month (or just over nine per cent) discount to reflect the various personalfeatures and time spent by Mr Tuuta on EM bail.[17] The Crown submitted that in the absence of a cultural report or medicalevidence relating to Mr Tuuta's ADHD, there is no basis for these matters to beproperly considered. The Crown also resists a discrete discount for Mr Tuuta'saddiction.[18] In light of Zhang, Mr Heaslip filed a reply submitting the starting point for thedrug offending should be two years' imprisonment. He also raised the issue ofMr Tuuta's methamphetamine addiction as both causative of his offending and apersonal mitigating circumstance. The submission reinforced the request for anadjournment.14 Zhang v R [2019] NZCA 507 (CA).[19] At the hearing, however, Mr Heaslip indicated that he had updating instructionsfrom Mr Tuuta. In the interests of finality and moving forward with his life in apositive way, Mr Tuuta no longer sought an adjournment to address an electronicallymonitored sentence or cultural factors. He was prepared to accept a finite prisonsentence, ideally a short-term sentence of 24 months' imprisonment or less, and withspecial conditions on release. Mr Heaslip acknowledged that Mr Tuuta would not beprejudiced by the absence of further reports, including the absence of linkage betweenMr Tuuta's cultural background and the offending. His cultural background wasknown and there was background information in the PAC report. Mr Tuuta identifiesas Maori of the Iwi Ngati Mutunga.[20] Mr Heaslip described the drug offending as low level dealing. He submittedthe starting point should be two years and six months' imprisonment taking intoaccount the Arms Act offending.[21] He acknowledged there was limited evidence of addiction but submitted therewas sufficient given the context – a discrete discount for addiction was not sought orneeded for the appeal to succeed. Ms Wang acknowledged there was an evidentialfoundation for Mr Tuuta's addiction in his criminal history, which includes an offenceof driving under the influence of a drug, and the PAC report, which refers to hisattendance at a drug course.Discussion[22] Because this appeal was filed before the decision in Zhang was released, Zhangis the applicable guideline judgment.15[23] The primary issue is whether the starting point should come down in light ofZhang. The District Court Judge, accepting the submission of both counsel, set thestarting point at three years' imprisonment as the bottom of band two of Fatu.Following Zhang, the bottom of band two is now two years' imprisonment. The bandsare defined by reference to the quantity of methamphetamine, with band two applyingfrom 5 g up to 250 g. Here the quantity was 16.3 g.15 Zhang v R [2019] NZCA 507 (CA) at [187]-[189].[24] The Court of Appeal stated in Zhang that quantity is highly relevant toculpability because it is an indicator of harm and may be indicative of commerciality,which is deserving of greater denunciation, but quantity alone cannot determineculpability.16[25] The Court stated that access to the new lower starting points may only beexpected when a defendant's role is lesser in degree, and where quantities are at thelower end of the relevant band.17 The Court did not exclude the possibility of startingpoints below the bottom of a band for cases involving "minimal participation".18[26] The Court stated that, in assessing role, Judges may be assisted by reference tothe following descriptions, based on those developed by the United KingdomSentencing Council, to distinguish between "lesser", "significant" and "leading"roles:19Lesser Significant Leading1. performs a limitedfunction underdirection;1. operational ormanagement functionin own operation orwithin a chain;1. directing ororganising buying andselling on acommercial scale;2. engaged by pressure,coercion,intimidation;2. involves and/or directsothers in the operationwhether by pressure,influence, intimidationor reward;2. substantial links to,and influence on,others in a chain;3. involvement throughnaivety orexploitation;3. motivated solely orprimarily by financialor other advantage,whether or notoperating alone;3. close links to originalsource;4. motivated solely orprimarily by ownaddiction;4. actual or expectedcommercial profit;and/or4. expectation ofsubstantial financialgain;5. little or no actual orexpected financialgain;5. some awareness andunderstanding of scaleof operation.5. uses business ascover; and/or16 Zhang v R [2019] NZCA 507 (CA) at [104].17 At [123].18 At [123].19 At [126].6. paid in drugs to feedown addiction orcash significantlydisproportionate toquantity of drugs orrisks involved;6. abuses a position oftrust or responsibility.7. no influence on thoseabove in a chain;8. little, if any,awareness orunderstanding of thescale of operation;and/or9. if own operation,solely or primarilyfor own or joint useon non-commercialbasis.[27] It should be noted that some of these indicia are descriptive of conduct and anydiscount for associated mitigating personal considerations is a matter for the secondsentencing stage.20[28] Mr Tuuta's role was that of low or street level dealing. As Ms Wangacknowledged, I consider Mr Tuuta's role was towards the bottom of the "lesser"category but with indicia taking it just slightly higher than the bottom. Given that andthat the quantity is also a little above the bottom of the band, I do not consider this isa case where the starting point should move below the starting point for band two.The position could have been different if there had been persuasive evidence that MrTuuta was motivated solely or primarily by his own addiction.[29] In light of Zhang, I consider that, absent the Arms Act charges, the startingpoint of three years is too high. I consider a starting point of two to two and a halfyears' imprisonment would have been within range for the drug offending.[30] The next question is whether the Judge's three years and eight months figurefor the overall offending is within range. I consider it was open to the Judge to treatthe Arms Act offending as warranting an uplift rather than a concurrent sentence.20 Zhang v R [2019] NZCA 507 (CA) at [126].A six month uplift was available for the firearms offences. Uplifts of 12 to 18 monthshave been imposed for the "dangerous combination" of firearms and drug dealing(albeit in major commercial dealing cases, where more than one weapon has beenfound).21 An uplift for the breach of supervision was also open, although two monthswas stern. But, following Zhang and considering the totality principle, I consider thatthe combined total of three years and eight months' imprisonment is too high.[31] In light of Zhang, I also consider the end sentence was too high. Mr Tuuta wasentitled to the 25 per cent guilty plea discount and the three month discount whenrounding out the sentence does not offset the high starting point. It is not clear exactlywhat the three month discount was for, but I consider a discount of at least threemonths was warranted given the combination of remorse, employment andrehabilitation prospects and time on EM bail. As to the District Court Judge statingthat the personal circumstances "play little part" in Class A cases, Zhang has made itclear that personal mitigating factors are applicable in methamphetamine dealingcases.22 The segregated nature of the sentencing process adequately balances thepurposes stated in s 7 of the Sentencing Act.23[32] Addiction is a particularly relevant factor, given an addict's impaired ability toexercise rational choice and potential for rehabilitation and reintegration if addictiontreatment is available.24 However, the Court in Zhang held that a discount foraddiction must be based on persuasive evidence, as opposed to mere self-reporting.25The onus of proof (to the civil standard) lies on the offender to establish the extent andeffect of addiction. As Ms Wang acknowledged, there was an evidential foundationfor Mr Tuuta's addiction in his criminal history and the PAC report. But Mr Heaslipacknowledged the evidence was limited. If there had been more persuasive evidencein relation Mr Tuuta's addiction, a larger discrete discount may have been warranted.21 Such as Mills v R [2016] NZCA 245 where two loaded weapons were intended to be used inconjunction with the surveillance system warning of anyone approaching. See also R v Torea[2011] NZCA 96; Fonotia v R [2007] NZCA 188, [2007] 3 NZLR 388.22 Zhang v R [2019] NZCA 507 (CA) at [136].23 At [134].24 At [145].25 At [148].[33] Following Zhang, I consider the sentence on the possession for supply ofmethamphetamine charge is manifestly excessive. I consider a global starting pointof two years and 10 months' is appropriate (two years and three months for the drugoffending, with a six month uplift for the Arms Act offending and one month for thebreach of supervision). I would discount six months for remorse, rehabilitationprospects (particularly given Mr Tuuta will be receiving addiction treatment) and timeon EM bail, bringing the sentence to two years and four months before the 25 per centguilty plea discount of seven months, resulting in an end sentence of one year and ninemonths' imprisonment.[34] As proposed, I would also impose a special release condition that Mr Tuuta isto attend such assessment, treatment or other programme as directed by a probationofficer.[35] The Crown seeks, and the appellant does not oppose, orders for forfeiture tothe Crown for destruction of the firearm and ammunition under s 69 of the Arms Act,and forfeiture of the cash seized under s 32 of the Misuse of Drugs Act 1975, whichwere not addressed in the District Court. It is appropriate to make these orders now.Result[36] The appeal is allowed. The sentence on the possession for supply ofmethamphetamine charge (only) of two years and six months' imprisonment isquashed and I impose a sentence of one year and nine months' imprisonment.[37] I impose a post-release condition that Mr Tuuta is to attend such assessment,treatment or other programme as directed by a probation officer.[38] I order forfeiture to the Crown of the shotgun and ammunition seized.[39] I order forfeiture to the Crown of the $4,230 in cash seized.________________________________Gault J