PARATA v R [2017] NZCA 48

PARATA v R [2017] NZCA 48 [7 March 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA344/2016[2017] NZCA 48BETWEEN LAWRENCE KYLIE KONEHU PARATAAppellantsAND THE QUEENRespondentCA567/2016BETWEEN TAI ANTHONY REWITAAppellantAND THE QUEENRespondentHearing: 13 February 2017Court: Wild, Simon France and Duffy JJCounsel: G R Tomlinson for Appellant ParataW T Nabney for Appellant RewitaJEL Carruthers for RespondentJudgment: 7 March 2017 at 3.30 pmJUDGMENT OF THE COURTThe appeals against sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)Introduction[1] These two sentence appeals arise from a common fact situation but involve discrete issues. Mr Rewita is a dealer in methamphetamine who was convicted at trial of five charges of supply, one charge of possession for the purposes of supply and one charge of conspiracy to supply. One of the people he supplied was Mr Parata, who was found in possession of 28 grams of methamphetamine.Mr Rewita's appeal[2] The supply and possession charges, of 221.2 grams, were taken together anda starting point of eight years' imprisonment was adopted.1 There is no challenge to this. However, there was then an uplift of six months for a further charge of conspiracy to supply methamphetamine. It is submitted this was excessive.[3] The facts were that Mr Rewita had arranged to sell 28 grams of methamphetamine for $12,500. However, the intended purchaser was stopped by police on the way to the arranged meeting place. She was in possession of $12,800 cash.[4] In terms of assessing an appropriate uplift, it is helpful to identify the basisfor the core starting point of eight years' imprisonment. The main supply offencesfell into band two of R v Fatu, which provides:2Band two – supplying commercial quantities (5 g to 250 g) – three years' to nine years' imprisonment.[5] Mr Rewita supplied, and possessed with the intention of supplying, 221.2 grams, hence an eight-year starting point reflecting the proximity of the quantum to the top of the range. Had Mr Rewita succeeded with the further offence of conspiracy, the total amount supplied would have been 249.2 grams, which is at the top of the band. In those circumstances, an increase to the starting point of oneyear giving an end sentence of nine years' imprisonment would have been1 R v Rewita [2016] NZHC 2523 at [23].2 R v Fatu [2006] 2 NZLR 72 (CA) at [34].appropriate. Allocating half of that potential increase (six months) for this incomplete offence was the correct approach.[6] The other challenge made on appeal is to the amount of credit given for personal factors. It is well-settled that deterrence is the dominant sentencing principle in this area of serious drug offending.3 Accordingly there is much less scope for recognition of personal mitigating factors that might otherwise result in some deduction. Here Edwards J determined that, notwithstanding the emphasis on deterrence, some recognition of Mr Rewita's situation was possible. The relevantmatters were his apparent remorse (notwithstanding, we note, that he denied the offending and went to trial), his difficult upbringing, his desire for rehabilitation and the fact that two members of the family were battling significant health issues.[7] We consider an appeal against this type of evaluation faces formidable hurdles. There is no applicable scale and the sentencing judge must make an evaluation. In the present case some judges may have given at best a little more, some less and indeed some none. It is, however, clear that an allowance of six months cannot itself be said to be manifestly inadequate. Nor has it contributed to a manifestly excessive sentence.[8] Mr Rewita's appeal against sentence is dismissed.Mr Parata[9] As with Mr Rewita, Mr Parata does not challenge the starting point, in his case of three years, six months' imprisonment.4 The sole challenge is to theadequacy of a four month credit for 10 months' of restrictive electronicallymonitored bail (EM bail).[10] Mr Tomlinson acknowledges that the credit given by Lang J is in accordance with several decisions of this Court. Those decisions indicate equivalence is not required, but a modest discount may be appropriate.5 However, it is submitted this3 Jarden v R [2008] NZSC 69, [2008] 2 NZLR 612 at [12]–[14].4 R v Parata [2016] NZHC 1245 at [4].5 R v Rangi [2014] NZCA 524 at [10]; R v Faisandier CA185/00, 12 October 2000 at [28];approach is incorrect and should be revisited. Mr Tomlinson focuses on the parallels between the sentence of home detention (a substitute sentence for imprisonment where equivalence in terms of quantum is often recognised) and EM bail, where the conditions of the detention are the same as home detention but where the credit given is much less than one-for-one.[11] We do not agree the current approach is flawed. The correct comparison is between the circumstances of EM bail and pre-trial remand in custody. They are not the same. Without downplaying the restrictive nature of EM bail when it involves a 24-hour curfew, there are nevertheless many facilities available to a person on bail which are denied to a remand prisoner. It can be appropriate to recognise, as the law presently does, the restrictive nature of some prolonged EM bail situations but it would not be legitimate to recognise equivalence.[12] The legislation directs that a one-for-one credit against any resulting jail sentence be given for pre-sentence custodial remand. That is no doubt because the conditions are largely the same as post-sentence imprisonment.6 Parliament has not done so for EM bail. Rather, it has simply made the time spent on EM bail a mandatory consideration,7 something the long line of authority in this Court is consistent with.[13] A further factor is that care is needed to avoid potential abuse. Were equivalence to be granted for EM bail, the incentives to extend the period of bail as a means of serving a sentence cannot be ignored (for example, where the EM bail period is ultimately ended by a guilty plea).[14] We accept that there is considerable similarity between the conditions of home detention and those experienced when subject to the most restrictive form of EM bail. However, home detention as a substitute for imprisonment is a legislative choice. It is for Parliament to alter matters if the long-established approach to EM bail is considered incorrect.R v Tamou [2008] NZCA 88 at [19]; Baillie v R [2010] NZCA 507 at [18]; and Keown v R[2010] NZCA 492 at [12]. More recently one can note Chea v R [2016] NZCA 207 at [110].6 Parole Act 2002, s 90. In fact the conditions on remand are often more restrictive as a consequence of the need to keep remand prisoners separate from sentenced prisoners.7 Sentencing Act 2002, s 9(2)(h).[15] In the present case Mr Parata spent 10 months on 24-hour curfew. Credit of four months was not in our view inadequate although we accept a higher figure would not necessarily be wrong. Mr Parata's case is not, however, helped by havingon one occasion breached his conditions.[16] Mr Parata's appeal against sentence is dismissed.Solicitors:Gowing & Co Lawyers Ltd, Whakatane for Appellant ParataCrown Law Office, Wellington for Respondent