TAPINE v R [2020] NZHC 977

TAPINE v R [2020] NZHC 977 [13 May 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-22[2020] NZHC 977PETER DOUGLAS TAPINEvTHE QUEENHearing: 12 May 2020Appearances: E Hall for the AppellantA D H Colley for the RespondentJudgment: 13 May 2020JUDGMENT OF COOKE J[1] Mr Tapine pleaded guilty to four charges of drug offending:(a) possession of a class A drug (methamphetamine) for supply,1(b) possession of a cannabis plant,2(c) possession of drug utensils,3 and(d) unlawful possession of medicines.41 Misuse of Drugs Act 1975, s 6(1)(f) and (2), maximum penalty life imprisonment.2 Section 7(1)(a) and (2), maximum penalty three months' imprisonment or $500 fine.3 Section 13(1)(a) and (3)(b), maximum penalty one year's imprisonment or $500 fine.4 Medicines Act 1981, ss 46 and 78, maximum penalty three months' imprisonment or $500 fine.[2] Mr Tapine was sentenced in March 2020 to two years and two months'imprisonment.5 Mr Tapine appeals his sentence on the grounds the starting point wastoo high, the uplift for previous offending was not justified and that greater allowanceshould have been made for mitigating factors.Factual background[3] The charges arose from a police traffic stop on 11 July 2019. Mr Tapine wassitting in the passenger seat and his partner was driving. Police noticed a container inhis pocket and questioned him about it. He admitted the container held two "joints".[4] A search of the vehicle located multiple items indicative of drug dealingincluding micro scales, multiple small unused zip-lock bags and seven Valium pills.The pills were not stored in a labelled medicine container and Mr Tapine did notproduce a prescription for them. A flick knife was also located in the glovebox of thevehicle. Mr Tapine was arrested and taken to the Masterton Police Station for furthersearching and processing.[5] At the station Mr Tapine was strip-searched. Police discovered a small zip-lock bag and a small plastic medicine container. Located in the zip-lock bag wasapproximately 30 grams of methamphetamine. Inside the plastic medicine containerwas a further quantity of methamphetamine, not yet weighed. Police also discovered$840 cash in his possession.[6] A search was conducted at Mr Tapine's home address. In the garage policelocated two cross-bows and four glass pipes. Police recovered a stun gun inMr Tapine's bedroom, and another two glass pipes in the living room and in a carparked at the address.Procedural background[7] Mr Tapine entered guilty pleas to the possession of cannabis and the possessionof drug utensils. He sought a sentence indication on 30 October 2019. Judge Barry5 R v Tapine [2020] NZDC 5535 [Sentencing decision].gave a sentence indication of two years, five months imprisonment based on thefollowing approach:6(a) Starting point of three years' imprisonment for the lead charge ofpossession with intent to supply,(b) Uplift of one year for a charge under the Arms Act 1983 (which waslater withdrawn),(c) Six months' discount for totality,(d) Three months' discount to acknowledge Mr Tapine's offending wasdriven by addiction, and(e) A full guilty plea discount of 25 per cent.[8] Mr Tapine declined the sentence indication on 12 November 2019.Negotiations as to the charges continued. On 11 December Mr Tapine then sought torevisit the sentence indication on the basis that one of the charges had been withdrawnby Police.7 Judge Barry declined to revisit the sentence on 19 December on thegrounds the withdrawn charge was subsumed by the lead charge in any event.8[9] The Crown withdrew the Arms Act charge and Mr Tapine pleaded guilty to theremaining charges.Decision under appeal[10] After outlining the facts the Judge turned to a consideration of Mr Tapine'spersonal circumstances. Mr Tapine had a lengthy criminal history but, significantly,this was his first offence related to drug dealing.9 The pre-sentence report recordedMr Tapine was reportedly using up to half a gram of methamphetamine a day and wasselling the drug to fund his personal use. The Judge acknowledged a message from6 R v Tapine DC Wellington CRI-2019-035-0756, 30 October 2019.7 Namely, breach of a protection order not to possess firearms.8 R v Tapine DC Wellington CRI-2019-035-756, 19 December 2019.9 Sentencing decision, above n 5, at [5].Mr Tapine accepting unconditional responsibility and expressing remorse for hisoffending and that he would "welcome any intervention available" to assist him withreintegration.10[11] Taking the possession for supply as the lead charge, the Judge considered theoffending was a street level dealing operation in terms of R v Zhang:11[11] With 30 grams it was well stocked and that probably included somefor his own consumption and the whole enterprise I accept was very probablysubsidising the addiction but underlying that, still a commercial context inwhich Mr Tapine was the controlling figure so there was a significant role instreet level methamphetamine dealing.[12] The Judge adopted a starting point of three years' imprisonment. The othercharges "would see an uplift warranted of about six months" but for totality the startingpoint was brought back down to three years.[13] Turning to personal factors, the Judge uplifted by three months for Mr Tapine'scriminal history, observing if there was a history of drug dealing offending the upliftwould be significantly greater.12 Recognising the underlying addiction issue the Judgediscounted 10 per cent. After a 25 per cent discount for guilty plea that amounted toan end sentence of two years, two months' imprisonment.Relevant lawApproach to appeal[14] This is a first appeal against sentence under s 244 of the Criminal ProcedureAct 2011. Under s 250, the appeal court must allow the appeal if satisfied that:(a) For any reason, there is an error in the sentence imposed on conviction;and(b) A different sentence should be imposed.10 At [2].11 Zhang v R [2019] NZCA 509.12 Sentencing decision, above n 5, at [13].[15] A sentence appeal is an appeal against a discretion and only if there is an errorof principle should the appellate court re-exercise the discretion.13 The focus is on thefinal sentence and whether that was in the available range, rather than the exact processby which it was reached.14 An appeal court should not engage in mere "tinkering".15The Court of Appeal has accepted, however that there may be cases, albeit rare, where"what has gone wrong is such as to require correction albeit the sentence imposed iswithin range".16Zhang v R: new guideline judgment[16] Zhang is the new guideline judgment for Class A offending for the supply ofmethamphetamine. The Court of Appeal held that assessing culpability requiresparticular consideration of the role played by the offender in the supply operation, aswell as the quantities involved.17 A two stage approach is required in selecting astarting point. The Court must first determine a band based on quantity as it "remainsthe first determinant of sentence".18 After a band and appropriate range has beenascertained, the Court must consider the role played by the offender in determiningplacement within the band. The bands are as follows:Band one: less than 5 grams Community based to 4 yearsBand two: less than 250 grams 2 – 9 yearsBand three: less than 500 g 6 – 12 yearsBand four: less than 2 kilograms 8 – 16 yearsBand five: more than 2 kilograms 10 years – life13 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].14 Ripia v R [2011] NZCA 101 at [15].15 Bull v Police [2019] NZHC 1720 at [21]; Ripia v R [2011] NZCA 101 at [15]; Knedler vCommissioner of Inland Revenue [2017] NZHC 2888, (2017) 28 NZTC 23-044 at [16];and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].17 Zhang v R, above n 11, at [104].18 At [103].[17] The Court of Appeal indicated that, in determining the role, sentencing Judgesmay derive assistance in this context from the following adaptation of the guidelinesadopted by the United Kingdom Sentencing Council:19RoleLesser Significant Leading• Performs a limitedfunction under direction;• engaged by pressure,coercion, intimidation;• involvement throughnaivety or exploitation;• motivated solely orprimarily by ownaddiction;• little or no actual orexpected financial gain;• paid in drugs to feedown addiction or cashsignificantlydisproportionate toquantity of drugs orrisks involved;• no influence on thoseabove in a chain;• little, if any, awarenessor understanding of thescale of operation;and/or• if own operation, solelyor primarily for own orjoint use on non-commercial basis.• Operational ormanagement function inown operation or withina chain;• involves and/or directsothers in the operationwhether by pressure,influence, intimidationor reward;• motivated solely orprimarily by financialor other advantage,whether or notoperating alone;• actual or expectedcommercial profit;and/or• some awareness andunderstanding of scaleof operation.• Directing or organisingbuying and selling on acommercial scale;• substantial links to, andinfluence on, others in achain;• close links to originalsource;• expectation ofsubstantial financialgain;• uses business as cover;and/or• abuses a position oftrust or responsibility.[18] In providing guidance as to the role the Court observed "role is a matter morelikely to be known by the offender than the Crown" but in practice, the facts necessaryto establish guilt will often justify inferences about role, knowledge and gain.20 Wherethose inferences are sufficient to prove an aggravating fact, an evidential burden willmove to the offender to displace the inference.21Ground one: starting point[19] There is no dispute that Band two is appropriate given Mr Tapine was foundwith 30 grams in his possession. The essential issue is whether, in light of Mr Tapine's19 At [126].20 At [127].21 At [127].role in the operation, his culpability falls in the middle range of the band, or the bottomend. Ms Hall submits a starting point of no more than two years' imprisonment isappropriate. She submits that much of the methamphetamine in Mr Tapine'spossession would have been for his own use, and that the Judge's conclusion thatMr Tapine had a "significant role" was misplaced as there is no evidence thatMr Tapine performed a management function, directed others within an operation, wasmotivated by financial gain or had an awareness of the scale of the operation. TheJudge inferred Mr Tapine played a significant role a street level dealing operation injustifying the three year starting point.[20] In my view the Judge's assessment was probably correct although Mr Tapine'srole does not fit perfectly into either the "lesser" or "significant" category. Mr Tapinewas likely motivated by his own addiction, which may indicate a lesser role. There isalso no direct evidence to suggest he was directing others or had any awareness orunderstanding of the overall scale of the operation. But it seems to me there are otherfactors that elevate his role to one of significance:(a) The quantity of the methamphetamine was of reasonably high value(the District Court Judge estimated in the order of $10,000). Thatwould likely generate an income in excess of that required to purelyfinance his drug habit, in addition to the $840 cash in his possession.(b) Possession of equipment (micro scales, multiple small zip lock bags)indicating his role was higher up in the operation than just a distributer.(c) Firearms found on the property and a knife in the glovebox of the carpotentially indicate his dealing activities were at a level where personalprotection was required.[21] The three year starting point is also in line with the following comparable casesprovided by the Crown:(a) Joyce v R:22 The offender was charged with possession of 28.35 gramsof methamphetamine to supply, supplying and offering to supply afurther 3.76 grams as well as charges for possession of cannabis andfirearms. The offender was found with the methamphetamine, a smallquantity of cannabis, a shotgun, two airguns, a tick book to recordtransactions, a cell phone and $12,885 in cash. Taking the possessionwith intent to supply as the lead charge, the Judge adopted a startingpoint of four years' imprisonment. The Court of Appeal held theoperation was small and functioning at retail level, and althoughMr Joyce suffered from an addiction there was no evidence hisaddiction was such as to diminish his culpability.23(b) Govender v R:24 Charged with possession of 29 grams ofmethamphetamine for supply. Police found a small quantity ofcannabis, digital scales, zip-lock bags, a notebook containingtransaction records and $816.80 in cash. The High Court Judge foundthat, while Ms Govender was motivated by an addiction, there was noevidence to suggest minimal participation.25 The quantity, cash andnotebook indicated a moderate degree of commerciality. The startingpoint of three years, six months' imprisonment was upheld on appeal.[22] For these reasons I see no error in the starting point adopted.Ground two: uplift[23] Ms Hall submits the three month uplift for previous convictions was in erroras Mr Tapine has no prior convictions for drug dealing. The effect, she says, is todouble punish Mr Tapine for previous offending. Significantly there had been no suchuplift in the sentencing indication.22 Joyce v R [2020] NZCA 124.23 At [20].24 Govender v R [2019] NZHC 3212.25 At [18].[24] Caution is needed when uplifting for previous offending to ensure thedefendant is not further sentenced to a crime they have already been punished for.Prior convictions may be taken into account where the history indicates a predilectionto commit a particular time of offence, or as a predictor of future behaviour justifyinga longer sentence to protect the public.26 Where the prior offending is of a similar typea greater uplift is justified, particularly where the history reflects a similar type ofoffending.27 There are a number of cases where uplifts for criminal history have beenoverturned if the offending was different in kind and did not justify a further uplift fordeterrence purposes.28[25] Mr Tapine has a lengthy criminal history, with over 130 convictions primarilyfor violence and dishonesty offences. He has several, relatively minor recentconvictions for drug offending (possession of drug utensils in 2015 and 2018,possession of cannabis in 2018). The District Court Judge recognised this wasMr Tapine's first dealing offence, noting the uplift would have been higher if thehistory was for offending of a similar type.29[26] It seems to me that an uplift in the present case can be questioned. Mr Tapine'sprevious offending involves violence and dishonesty offences. They would notnormally give rise to an uplift for drug dealing offending. There is some very minordrug related offending, but not such that would warrant an uplift. So even though theuplift was relatively small it can be legitimately questioned.[27] Ultimately what matters is the ultimate end sentence, rather than the processby which it was reached, however. I would not interfere with the sentence on thisground alone. I return to its significance below.Ground three: mitigating factors[28] The Judge gave a discount of 10 per cent to recognise Mr Tapine's strugglewith addiction and his expressed desire to take part in rehabilitative treatment.3026 Johnston-Walters v R [2011] NZCA 367.27 R v Arthur [2005] 3 NZLR 739 (CA).28 Te Hau v R [2013] NZCA 431; and R v Shepherd [2018] NZCA 232.29 Sentencing decision, above n 5, at [13].30 At [13]-[14].Ms Hall submits the discount was insufficient to reflect remorse and Mr Tapine's drugaddiction issues.[29] The Court of Appeal in Zhang held that addiction warrants a rehabilitativeapproach to sentencing and may warrant a discount of up to 30 per cent, depending onthe extent to which it mitigates moral culpability for the offending.31 In considering adiscount for addiction the sentencing Judge must consider:32(a) Addiction should only be relevant where it is causative of the offending.Non-causative addiction will be of little mitigatory relevance.(b) Addiction should generally not be treated as mitigating where theoffender operated above the street level or was a self-sufficient dealerbut it is possible for impairment to co-exist with more substantialoffending.(c) Any discount for addiction should be based on persuasive evidence, asopposed to mere self-reporting, and the onus of proof lies on theoffender to establish the extent and effect of addiction.[30] Ms Hall explains a drug and alcohol report was requested but not available atsentencing due to COVID-19 restrictions. The pre-sentence report referred to by theDistrict Court Judge records Mr Tapine scored at high risk for alcohol andmethamphetamine use on the Alcohol, Smoking and Substance Involvement Test.Mr Tapine also told the report writer he was using up to half a gram ofmethamphetamine per day and had started selling to fund his personal use. As torehabilitative potential, it appears the report writer was sceptical as to whetherMr Tapine's professed desire to change would persist post-sentence given he haddeclined to participate in treatment in 2019. Finally, the report discussed Mr Tapine'sdifficult upbringing, suffering from assault at the hands of family members andwitnessing domestic violence from a young age.31 Zhang v R, above n 11, at [149]-[150].32 At [147]-[148].[31] Turning to remorse at the outset of his judgment the Judge acknowledged amessage from Mr Tapine accepting "absolute unconditional responsibility andexpressing his remorse" but at the conclusion of his sentence did not give a separatediscount for remorse.33 Possibly that was an oversight on the part of the Judge. Giventhat expression, it is possible a further discount for remorse may have beenappropriate.34[32] More significantly a drug and alcohol report is now available. I accept that itis appropriate for this Court to take into account given that it was only not availablebecause of the COVID-19 restrictions. The report brings together the issues ofaddiction, personal deprivation and remorse. It records a series of post-traumaticincidents from early childhood. Mr Tapine was a victim of violence and witnessedmultiple deaths, and developed an increased dependence on alcohol abuse, with hisdrug addiction following. He is on prescribed medication for an anxiety disorder andalso says that he is on depression medication. He reports times of being in the care ofa boys penal facility, of mistreatment and abuse, and of living on the streets. At onepoint he was admitted to the psychiatric ward of Wellington Hospital and reports hehas been diagnosed with mental health disorders. These factors suggest that there arefactors that reduce the level of Mr Tapine's culpability.[33] In Miller v R the Court of Appeal gave a 19 per cent discount for mitigatingfactors including addiction, personal background, and mental health together withcommitment to rehabilitation.35 Given the contents of the new report, it seems to methat this case is in a similar category, and the discount for mitigating factors (includingremorse) should be approximately 20 per cent, rather than the 10 per cent allowed bythe District Court Judge.[34] As I indicated earlier, had the question of the uplift been the only issue in theappeal I would not have interfered with the sentence. But the greater discountwarranted for personal mitigating circumstances lead me to the conclusion that the endsentence was manifestly excessive.33 Sentencing decision, above n 5, at [2].34 See McArthur v R [2013] NZCA 600 at [13]–[14]; and Rowles v R [2016] NZCA 208 at [18].35 Miller v R [2020] NZCA 131 at [39].Ground four: calculation methodology[35] Finally, Ms Hall submits the Judge ought to have taken a global approach tocalculating the end sentence, instead of a three stage approach. She explains thepropriety of the global approach is currently before the Court of Appeal.36 Sheprovides the following table to demonstrate:Three-stage Two-stage or GlobalStarting Point 3 years 3 months (39 months) 3 years 3 months (39 months)Mitigatingfactors(10%addiction, 25%plea)10% for addiction leaves 35months minus 25% for plea =26 months35% for mitigating factors= 25 monthsEnd Sentence 26 months, 2 years 2 months 25 months, 2 years 1 month[36] It seems to me that, irrespective of the outcome of the impending decision ofthe Court of Appeal, what matters is the ultimate sentence, rather than the preciseprocess by which it is reached. By itself the District Court's approach does not leadto an excessive sentence.Result[37] Given the above circumstances it seems to me that the appropriate startingpoint was three years' imprisonment, that there should be no uplift for previousconvictions, and that there should be discounts of approximately 20 per cent formitigating circumstances and then approximately 25 per cent for a guilty plea. Theresulting sentence is materially lower than the one imposed. The District CourtJudge's sentence of 26 months is overturned and substituted with a sentence of 21months' imprisonment.[38] Given the time Mr Tapine has now spent in prison the question of homedetention is not in issue. But the sentence is now one of short duration. It is importantthat Mr Tapine now receives assistance in terms of his managing his addiction issues,and I note that he personally emphasised his desire not to go back to his former ways36 Moses v R CA167/2019. The oral hearing for this appeal was recently heard on 30 April 2020 andthe decision is awaiting release.during the hearing. The parties agreed that should I reach the point where a sentenceof short duration was imposed the following special conditions, in addition to thestandard release conditions, should apply:(a) To attend an assessment for alcohol and drug counselling as directed bya Probation Officer. To attend and complete any counselling, treatmentor programme as recommended by the assessment as directed by andto the satisfaction of a Probation Officer.(b) To attend a psychological assessment with a departmental psychologistas directed by a Probation Officer and complete any treatment and/orcounselling as recommended by the assessment to the satisfaction of aProbation Officer.Cooke JSolicitors:E Hall, Pipitea Chambers, Wellington for AppellantCrown Law, Wellington for the Respondent