MANUKA v R [2020] NZHC 1043

MANUKA v R [2020] NZHC 1043 [19 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-404[2020] NZHC 1043BETWEEN KINGI BEAU MANUKAAppellantAND THE QUEENRespondentHearing: 18 May 2020Appearances: G Duff for the AppellantM Davie for the RespondentJudgment: 19 May 2020JUDGMENT OF GORDON JThis judgment was delivered by meon 19 May 2020 at 3.00 pmRegistrar/Deputy RegistrarDate:Solicitors: Crown Law, WellingtonQ Duff, Auckland[1] The appellant, Kingi Manuka, appeals against a sentence of three years andthree months' imprisonment imposed following his guilty pleas to charges for dealingin methamphetamine, cannabis and cannabis oil. The charges were:(a) offering to supply a class A drug (methamphetamine);1(b) possession of a class A drug (methamphetamine);2(c) possession of utensils for consumption of methamphetamine;3(d) offering to supply a class B drug (cannabis oil);4(e) offering to supply a class C drug (cannabis);5(f) possession of a class C drug (cannabis);6 and(g) possession of utensils for consumption of cannabis.7Factual background[2] Mr Manuka offered methamphetamine, cannabis and cannabis oil by way oftext messages in the period from 1 January 2017 to 1 February 2017:(a) He offered methamphetamine for sale on no less than 84 occasions.The methamphetamine was offered in various sizes ranging from0.1 grams to 1.0 grams with a retail value of between $50 and $1000.In the course of the 84 offers, Mr Manuka offered no less thannine grams of methamphetamine;1 Misuse of Drugs Acts 1975, ss 6(1)(c) and 7(2)(a) (maximum penalty: life imprisonment).2 Misuse of Drugs Acts 1975, ss 7(1)(a) and (2) (maximum penalty: six months' imprisonment, a$1000 fine, or both).3 Misuse of Drugs Act 1975, ss 13(1)(a) and (3) (maximum penalty: one year's imprisonment, a$500 fine or both).4 Misuse of Drugs Act 1975, s 6(1)(c) (maximum penalty: 14 years' imprisonment).5 Misuse of Drugs Act 1975, s 6(1)(e) (maximum penalty: eight years' imprisonment).6 Misuse of Drugs Act 1975, ss 7(1)(a) and (2) (maximum penalty: three months' imprisonment, a$500 fine or both).7 Misuse of Drugs Act 1975, ss 13(1)(a) and (3) (maximum penalty: one year's imprisonment, a$500 fine or both).(b) Mr Manuka offered cannabis for sale on no less than 28 occasions. Thecannabis was offered for sale in one gram amounts retailing for $20each. The 28 offers involved no less than 57 grams (2.1 ounces) ofcannabis; and(c) Mr Manuka offered cannabis oil for sale on no less than four occasions.It was offered for sale in one capsule amounts which retailed for $40each. The four offers involved cannabis oil valued at a total of $160.[3] On 4 April 2017, the police executed a search warrant at Mr Manuka's homeaddress. In the kitchen they located a snaplock bag containing 0.98 grams of cannabishead, a small bag containing 0.04 grams of methamphetamine and a bong used for theconsumption of cannabis. In Mr Manuka's bedroom, the police located a glass pipecommonly used for the consumption of methamphetamine; two snaplock bagscontaining a useable quantity of methamphetamine crystals; a glass pipe commonlyused to smoke methamphetamine containing a usable quantity of methamphetamine;a snaplock bag containing 1.99 grams of cannabis head material and $90 in cash. Inexplanation to the police, Mr Manuka said, "I only smoke cannabis, the white stuff issalt".The District Court[4] Mr Manuka first appeared in court on the charges referred to above on 4 April2017. He pleaded guilty in July 2018 at a case review hearing and was remanded onbail for sentence on 16 August 2018. He failed to appear on that day. He was laterapprehended and sentenced on 19 August 2019 by Judge B A Gibson in the AucklandDistrict Court. 8[5] At sentencing the Judge applied the (then) guideline judgment of R v Fatu.9The Judge found that the methamphetamine offending fell towards the bottom end ofband 2 which applied to offending in excess of five grams (starting point of three tonine years' imprisonment).108 R v Manuka [2019] NZDC 16314.9 R v Fatu [2006] 2 NZLR 72 (CA).10 R v Manuka, above n 8, at [8].[6] The Judge noted the starting point suggested by the Crown for the lead offenceof offering to supply methamphetamine as between three years and three months andthree years and six months. The submission on behalf of Mr Manuka was that anappropriate starting point for the lead offence was two years and nine months to threeyears' imprisonment.11[7] The Judge considered there was no justification for falling below the startingpoint for band 2 and adopted a starting point of three years and four months'imprisonment.12 The Judge uplifted the starting point by four months to recognise theadditional charges, resulting in an end sentence of three years and eight months'imprisonment before any discounts were applied.[8] The Judge declined to give Mr Manuka a discount for personal mitigatingfactors. He acknowledged that while Mr Manuka had some medical issues, they werenot so compelling as to require a discount and in any event they were self-reported.As to dependency, the Judge found that was not significant, if indeed Mr Manuka wasin fact dependent on drugs. Although Mr Manuka had an unfortunate background, sodid most people appearing before the Court.13[9] As to the guilty plea discount, the Judge said that Mr Manuka would have beenentitled to a 20 per cent discount. However,he accepted the Crown's submission that,because Mr Manuka absconded on bail, any discount should be reduced to fivemonths' imprisonment (11.6 per cent discount) resulting in an overall end sentence ofthree years and three months' imprisonment.14Approach on appeal[10] In order to succeed on an appeal against sentence, an appellant must satisfy theappeal court that there has been an error in the imposition of the sentence and that adifferent sentence should be imposed.1511 At [10].12 At [11].13 At [12].14 At [12].15 Criminal Procedure Act 2001, ss 250(2) and (3).[11] The Court will not ordinarily intervene when a sentence is within the range thatcan 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.16 The appeal Court's focus is on the final sentence imposed rather thanits component parts or how the ultimate sentence was reached.17Application to admit new evidence on appeal[12] Mr Duff, appearing on behalf of Mr Manuka, applies to admit a psychologicalassessment dated 20 April 2020 provided by a registered clinical psychologist,Dr Maria Purcell.[13] Section 335 of the Criminal Procedure Act 2011 (CPA) allows the Court toreceive new evidence in an appeal if it considers it necessary or expedient in theinterests of justice. Generally new evidence will need to be credible and fresh, but theoverriding criterion is the interests of justice.18[14] Mr Duff acknowledges that the report is not fresh in the sense that it was opento Mr Manuka and his previous counsel to seek a report prior to sentence. However,he submits that the evidence is cogent and relevant to a fundamental question ofwhether the sentence was manifestly excessive.[15] I agree that the evidence could, with reasonable diligence, have been advancedin the District Court. However, I admit the evidence in the interests of justice. Therewas no opposition by the Crown to its admission.Summary of grounds of appeal[16] Mr Duff submits:16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].17 Ripia v R [2011] NZCA 101 at [15].18 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA) at[22].(a) The starting point should be reduced, in light of Zhang v R,19 to twoyears' imprisonment;(b) A discount of two months' imprisonment should be applied havingregard to Mr Manuka's role in the offending which falls into the"lesser" category (reducing the starting point to 22 months'imprisonment);(c) The uplift of four months for the balance of the offending is acceptedas being within range, although higher than invited by the Crown ordefence (bringing the starting point to 26 months' imprisonment);(d) A 30 per cent discount for personal mitigating features is appropriate asthey contributed to the index offending (eight months discount reducingthe sentence to 18 months' imprisonment);(e) The Judge erred in adjusting the discount for an early guilty plea. Thefull discount of 25 per cent should have been applied (4.5 monthsdiscount reducing the overall sentence to 13.5 months' imprisonment);and(f) The application of Zhang amounts to a more favourable sentence,20 andthe District Court decision ought to be quashed as it is manifestlyexcessive.Starting point[17] Mr Duff submits that the following factors referred to in Zhang, based on thosedeveloped by the United Kingdom Sentencing Council, to distinguish between"lesser", "significant" and "leading" roles21 apply: (1) performs a limited functionunder direction; (2) paid in drugs to feed own addiction; (3) no influence on thoseabove in the chain; (4) little, if any, awareness or understanding of the scale of the19 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.20 R v Manuka, above n 8, at [188].21 Zhang v R, above n 19, at [126].operation; (5) involvement through naivety or exploitation; and (6) little or no actualor expected financial gain. Mr Duff's submission is based on what Mr Manuka saidto Dr Purcell, that is, that an acquaintance asked him to be his driver. The man had nocurrent driver's licence and Mr Manuka relapsed into using methamphetamine toassist him to be alert for driving whenever asked by the man. For his driving role hewas provided with as much as methamphetamine as he wanted. Once that associatewas arrested and placed in custody, Mr Manuka then started funding hismethamphetamine addiction by selling parts of his purchased methamphetamine toothers.[18] Mr Duff refers to the quantity of methamphetamine being only nine grams andnotes the amount of cash was only $90. Mr Manuka explained the large number ofoffers to supply, saying this was often due to instances where he sent differentmessages offering the same methamphetamine while he awaited an affirmativeresponse. Mr Duff submits the dealing can be categorised as low level street dealing.[19] Mr Duff also points to the absence of firearms and other people involved whichdistinguishes the offending from a larger commercial operation. He refers to thedecision of this Court in Tuuta v R22 where, on appeal, a starting point of two to twoand half years was considered the appropriate range for the possession for supplycharge. In that case Mr Tuuta had possession of 16.3 grams of methamphetamine,together with $4,230 and a sawn-off shotgun and ammunition. A global starting pointof two years and 10 months' imprisonment was considered appropriate. Mr Duffsubmits that the offending in this case is less serious than in Tuuta.[20] The Crown acknowledges that Zhang arises for consideration because theappeal was filed before Zhang was delivered.23 But the Crown submits the applicationof Zhang would not produce a result which is more favourable to Mr Manuka.[21] The Crown submits that the offending falls into band 2 of Zhang (starting pointof two years to nine years' imprisonment). In terms of role, the Crown submits that22 Tuuta v R [2019] NZHC 2788.23 The decision applies retrospectively to appeals filed before 21 October 2019 provided itsapplication would result in a more favourable outcome to the appellant, Zhang v R, above n 19, at[10](p), [188]-[191]. The appeal was filed on 5 September 2019.although the appellant's operation was towards the lower end of the scale, there areindicia that he played a significant role. The Crown notes that Mr Manuka was anindependent drug dealer with his own customer base. Further, the offending was athigh frequency. Over the space of only a month he offered methamphetamine for saleon 84 occasions, cannabis for sale on 28 occasions and cannabis oil for sale on fouroccasions. Mr Davie for the Crown says this equates to an average of approximately3.75 offers per day.[22] As to Mr Manuka's motivation, the Crown submits that Mr Manuka had a dualmotivation. That is, both to raise money for drug consumption and to make money.The Crown submits that the Court should put little weight on the view expressed bythe psychologist that Mr Manuka's "primary motivation" for the offending wasaddiction to methamphetamine and cannabis.[23] Several points are advanced in support of this submission. First, the Crownsays there are inherent difficulties with the opinion, even from a psychologist, about aperson's motives for criminal offending, when the basis for the claim is the account ofthe person over three years after the events in issue.[24] Second, that conclusion is inconsistent with what Mr Manuka told the writersof the two pre-sentence reports, namely that he did not use drugs and that he offendedbecause of emotional instability arising from his relationship breakup and resultingfallout. Mr Davie makes it clear that the Crown is not suggesting that the appellanttold the truth when he said he did not use drugs, but rather if he had been addicted inthe way suggested, he might emphasise rather than downplay his drug use.[25] Third, Mr Davie submits that Mr Manuka had a motive to mislead Dr Purcell.When he spoke to her in March and April 2020, several months after the delivery ofthe Court of Appeal decision in Zhang, he had had ample time to reflect on theoffending.[26] As to the starting point of 22 months' imprisonment contended for by Mr Duff,the Crown submits that is manifestly inadequate. The offending in this case is moreserious than in Tuuta v R.24 In this case Mr Manuka dealt drugs on his own account.[27] The Crown also refers to Crighton v R,25 which was one of the Zhang appealswhere the Court of Appeal approved a starting point of two years' imprisonment foroffending which involved 3.75 grams of methamphetamine and 14 supplies or offersto supply. Because of the offender's addiction to methamphetamine and her abusivepartner, the Court found she played a lesser role. The Crown submits that theappellant's offending is more serious than in Crighton because of the greater quantitiesof drugs, because of the high number of offers and because the appellant's role wasmore significant.Discussion[28] I approach a consideration of the starting point not as a search for error in thedecision of the Court below, but rather by assessing the starting point against the newguidelines in Zhang.[29] In determining an offender's position within a particular band, both quantityand role are relevant.26[30] The quantity, nine grams, was towards the lower end of band 2. There were noindicia of involvement in a large commercial operation. For that reason, Mr Manukawas not under direction from others. He was running his own operation with his owncustomers.[31] I agree with the Crown submission that some caution is required whenconsidering Mr Manuka's statements to Dr Purcell and her conclusion based on thosestatements that Mr Manuka's primary motivation was to feed his habit. I say thatbecause of the differing accounts that Mr Manuka gave to the writers of the pre-sentence reports. Also the conclusion is based on self-reporting by Mr Manuka.24 Tuuta v R, above n 22.25 Zhang v R, above n 19, at [193].26 Zhang v R, above n 19, at [103] and [104].[32] The writer of the first PAC report recorded that Mr Manuka identified that thebreakdown of his relationship and not being able to have contact with his childrenwere the main factors in his offending. Mr Manuka reported that he used illicitsubstances to medicate himself after the breakup. He also said his landlord wasresponsible for the utensils. He said he did not believe he would benefit fromcounselling as he was not actively using drugs. He said he had been substance freefor the preceding eight months.[33] In the second PAC report dated 31 July 2019, the writer records thatMr Manuka told her that he did not reoffend during the period he had absconded.[34] It appears that Dr Purcell was alive to the pitfalls of self-reporting. She said:Although his self-report may be minimising his activities in specificsituations; the overall picture indicates his primary motivation was to meetsevere methamphetamine and cannabis addictions [35] The fact nevertheless remains that Mr Manuka was inconsistent in hisstatements to the writers of the PAC reports as compared to what he told Dr Purcell.Even based on what Mr Manuka said to Dr Purcell, I cannot find that it was addictionthat drove Mr Manuka's offending. It is clear he was able to stop usingmethamphetamine if he chose to. For example, he told Dr Purcell that he had startedusing methamphetamine when he was aged 20 years. But he said he stopped using itfor 10 years when he married his wife. He told Dr Purcell he was able to abstain forthe purpose of prioritising family and church values. He told her that when hismarriage ended he relapsed to using it when an acquaintance asked him to be a driver.In exchange for providing this service he was given methamphetamine. After thatperson was taken into custody he sold parts of his purchased methamphetamine tofund his "addiction". He said to Dr Purcell he had last used methamphetamine on theday of his arrest. (He then absconded for a lengthy period).[36] I therefore conclude, on the evidence summarised above, that Mr Manuka hasnot demonstrated his offending was driven by "addiction".[37] That brings me back to his role. It was a small operation, which Mr Manukaran himself. I accept he sold methamphetamine to fund his "use" (as opposed toaddiction). His motivation was twofold – to raise money for drug consumption and tomake money.[38] As to the decision in Tuuta v R, on the one hand there was a greater degree ofcommerciality in that case, having regard to the amount of methamphetamine(16.3 grams of methamphetamine) and a firearm was present. On the other hand, theoffender played a lesser role in a larger enterprise. In this case, Mr Manuka wasdealing drugs on his own account. Even accepting Mr Manuka's statement that therewas some duplication in his offers, there were a large number of offers in a relativelyshort period. But it was dealing at street level.[39] Having regard to Zhang and taking into account Crichton v R and Tuuta, Iconsider that the starting point of three years and four months' imprisonment on thelead charge is too high. I consider a starting point of two years and four months'imprisonment is appropriate.Deduction for lesser role[40] Mr Duff submits that a further discount of two months should be given forMr Manuka's lesser role. I do not accept that submission. I have already taken intoaccount Mr Manuka's role as part of the assessment of the appropriate starting point.Discount for personal mitigating factors[41] Here Mr Duff refers to Dr Purcell'sreport and submits that it details anunfortunate cluster of adverse formative circumstances which go some way toexplaining Mr Manuka's offendingand the continuation of that offending. Mr Duffreferred to the following themes: Mr Manuka was exposed to a catalogue of adversechildhood experiences which predisposed him to developing substance abuse andcognitive, social, learning and mental health problems. He gravitated to offending andsubstance use from an early age. Mr Duff also referred to Dr Purcell'sdiagnosis ofpost-traumatic stress disorder (PTSD).[42] Addressing first the issue of addiction. In Zhang the Court of Appeal said, "Wealso accept that commercial dealing is likely to be inconsistent with the impairment ofthe ability to exercise rational choice, which is what diminishes culpability andjustifies discounting the sentence".27 I have already discussed the issue of addictionin the context of the starting point. I do not consider that the psychologist's reportprovides an evidential foundation for a submission that Mr Manuka's rational facultieswere impaired. It does not go so far as to suggest that Mr Manuka's cognitivedifficulties were so severe as to impair the exercise of rational choice. There is alsono evidence that Mr Manuka was subject to pressure or influence from someonefurther up the drug supply chain. He was running his own operation. This is incontrast to other cases which have come before the Court where pressure and influencefrom others is often a feature of limited role offending. Further, Mr Manuka seems tohave run his business apparently successfully until it was closed down by the police.[43] As to PTSD, in Zhang the Court of Appeal said:28The degree of discount is said to depend on the severity of the mental healthcondition and the strength of the causal link between that condition and theoffending.[44] While I accept that PTSD may have been responsible for some of Mr Manuka'sconduct referred to in Dr Purcell's report, that report does not provide a basis to enablethe Court to draw a causal link between Mr Manuka's PTSD and the offending.[45] Thirdly, as to social deprivation, in Zhang the Court of Appeal said:29 social, cultural or economic deprivation that has a demonstrative nexuswith the offending may be presented in mitigation regardless of the specificethnicity of the offender.[46] I do not consider that the evidence available establishes a causal nexus betweenthe social deprivation referred to by Dr Purcell and the offending. It is apparent thatMr Manuka lived a relatively law-abiding life through a lengthy period. At that timehe was associated with a church and it is also apparent from the report that he wascapable of making positive choices. On his own account, he offended because of thestress arising from his relationship breakup, his lack of access to his children and the27 At [147].28 At [153].29 At [162].general fallout from the relationship breakup. That does not mean Mr Manuka shouldnot be held fully accountable for his actions.[47] I am not persuaded that there should be a discount for personal mitigatingfeatures. Those referred to did not contribute to the index offending.Discount for guilty pleas[48] Mr Duff submits that, notwithstanding the fact that Mr Manuka absconded, thepolicy reasons referred to by the Supreme Court in Hessell v R30 were satisfied. Thereshould have been no reduction in the guilty plea discount. Mr Duff accepts that thefirst opportunity to enter a guilty plea is at the first appearance. He says, however,typically in larger drugs cases, counsel does not have full disclosure until a case reviewhearing.[49] The Crown submits the discount given by the Judge of 11.6 per cent wasadequate.[50] There are conflicting High Court authorities on the issue of whether the Courtis entitled to reduce a guilty plea discount to take account of the fact that the offenderabsconded prior to sentencing.31[51] I consider the Judge was correct to reduce the discount to take into account thefact that Mr Manuka absconded prior to sentencing. The Supreme Court in Hessellheld that the appropriate discount for a guilty plea depends on all the circumstances.I agree with Mallon J, who said in Lopa that must include matters such as failure toappear.32 The failure to appear diminishes the value to the State of the guilty pleabecause it reduces the ability of the court system to efficiently allocate hearing time.33Secondly, Mr Manuka's decision to abscond and the fact that he did not surrendervoluntarily but was arrested, somewhat undercuts the notion that by his pleas he30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].31 Lopa v Police HC Wellington CRI 2010-485-109, 16 November 2011 and Jensen v R [2020]NZHC 726 at [36] support the Judge's approach. The decision of Nuku v Police [2015] NZHC137 is contrary to the Judge's approach.32 At [11].33 See Lopa v Police, above n 31, at [12] and Jensen v R, above n 31, at [36].intended to take responsibility for his actions. Both of those factors cut across therationale for guilty plea discount as expressed in Hessell.34[52] I also consider that a guilty plea discount of 20 per cent, which the Judgeindicated he was minded to make had Mr Manuka not absconded, was a generousdiscount for a guilty plea entered more than one year after the charges were laid. Thiswas not a case involving multiple offenders requiring significant disclosure. Theevidence was based on a search of Mr Manuka's phone and evidence found at hisaddress. That rather detracts from Mr Duff's submission that in larger drugs casesdisclosure is not available until a later stage in the court process.[53] Finally, and in any event as Mr Davie points out, Mr Manuka's conductengaged s 9(1)(k) of the Sentencing Act 2002, which provides that any failure by anoffender to comply with a procedural requirement, that in the Court's opinion causeda delay in the disposition of the proceeding, is an aggravating factor which the Courtmust take into account.35 Mr Manuka's failure to appear for sentence on 16 August2018 delayed disposition of the proceedings for more than a year. The Judge couldhave uplifted Mr Manuka's sentence on that basis.[54] I therefore do not consider the Judge erred by reducing the guilty plea discount.Conclusion[55] Following Zhang, I consider that the starting point of three years and fourmonths' imprisonment on the lead charge of offering to supply methamphetamine wastoo high. An appropriate starting point is two years and four months' imprisonment.No further reduction for "role" is required. Mr Manuka's role is accounted for in theappropriate starting point.[56] An uplift for the other offending of four months was not challenged on appeal.That brings the starting point to two years and eight months' imprisonment.[57] No discount for personal mitigating features is required.34 Hessell v R, above n 30, at [65].35 A failure to answer bail can trigger s 9(1)(k): MacEwan v Police [2019] NZHC 3320 at [42].[58] The discount of 11.6 per cent for the guilty pleas was appropriate. That equatesto four months (rounded up in favour of Mr Manuka). This results in a final sentenceof two years and four months' imprisonment.[59] The adoption of a starting point that was too high resulted in a sentence whichwas manifestly excessive.Result[60] The appeal is allowed. The sentence of three years and three months'imprisonment is quashed and a sentence of two years and four months' imprisonmentis substituted.___________________________________Gordon J