TUKIWAHO v NEW ZEALAND POLICE [2023] NZHC 2395

TUKIWAHO v NEW ZEALAND POLICE [2023] NZHC 2395 [30 August 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2023-412-41[2023] NZHC 2395BETWEEN REGGIE TUKIWAHOAppellantAND NEW ZEALAND POLICERespondentHearing: 23 August 2023Appearances: L S Collins for AppellantC E R Power for RespondentJudgment: 30 August 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 30 August 2023 at 2.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Reggie Tukiwaho pleaded guilty to the following charges:(a) possession of cannabis for the purpose of sale;1(b) possession of methamphetamine;2(c) possession of methamphetamine utensils;3(d) possession of ammunition for an unlawful purpose;4(e) possession of a modified firearm without lawful purpose;5 and(f) possession of an offensive weapon (hammer) in a public space.6[2] Mr Tukiwaho was sentenced to two years and one month's imprisonment byJudge Turner.7 He appeals that sentence on the ground it is manifestly excessive. Healso says sentencing should have been adjourned to allow him to engage inrehabilitation.Facts[3] On 8 February 2023, around 2:10 am, Police observed Mr Tukiwaho stationaryat a stop sign intersection for an unusually long period. Police initiated a traffic stop,during which Mr Tukiwaho admitted to smoking cannabis in the vehicle earlier. Policethen conducted a warrantless search.1 Misuse of Drugs Act 1975, s 6(1)(f); maximum penalty eight years' imprisonment.2 Section 7(1)(a), (2); maximum penalty six months' imprisonment.3 Section 13(1)(a), (3); maximum penalty one year's imprisonment.4 Arms Act 1983, s 51; maximum penalty three years' imprisonment.5 Section 45(1); maximum penalty four years' imprisonment.6 Crimes Act 1961, s 202A(4)(a); maximum penalty three years' imprisonment.7 Police v Tukiwaho [2023] NZDC 8518.[4] Mr Tukiwaho had to be forcibly restrained during this search. Policesubsequently located a cut down .22 calibre bolt action rifle, 26 rounds of ammunition,a hammer, 0.69g of methamphetamine, 24.4g of cannabis, scales, a "tick book",unused zip lock bags and a methamphetamine pipe.[5] When Mr Tukiwaho was arrested, he said he had slipped back into old habitsand was dealing cannabis and that the weapons were for protection. Mr Tukiwaho hasnever held a firearms licence.District Court Decision[6] The Judge noted Mr Tukiwaho had convictions for possession of an offensiveweapon, assault and aggravated robbery from 2012, 2015 and 2017 respectively.Mr Tukiwaho was assessed as someone that presented a high risk of reoffending. Thisrisk was aggravated by Mr Tukiwaho's methamphetamine habit motivating much ofhis offending.[7] The Judge noted Mr Tukiwaho's lack of insight into the dangers of carryingweapons while under the influence of methamphetamine. Mr Tukiwaho was alsoknown to be gang associated, having purchased his rifle from a gang-member.Mr Tukiwaho had failed an earlier attempt at rehabilitation at Moana House butwanted another chance. Judge Turner declined to postpone sentencing for thispurpose, noting Moana House would not take someone on bail or awaiting sentence.[8] With reference to R v Terewi,8 the Judge found the offending fell withincategory 2 and adopted a starting point of 18 months' imprisonment for the leadoffence of selling cannabis. This accounted for the fact that Mr Tukiwaho was dealingto feed an addiction.8 R v Terewi [1999] 3 NZLR 62 (CA).[9] Having regard to the decisions in Police v Hatsell,9 Olsen v Police10 andTaranaki v Police11 a starting point of 20 months' imprisonment was adopted for thepossession of two weapons and ammunition, noting that although the rifle was notloaded, it could easily have been. The Judge found that Mr Tukiwaho plainly intendedto resort to the weapon if need be. A one-month uplift was applied for themethamphetamine and pipe charges, leading to a total of 39 months' imprisonment,adjusted to 34 for totality.[10] Mr Tukiwaho's previous firearm convictions led the Judge to increase thesentence by ten per cent. An early guilty plea justified a 25 per cent credit andMr Tukiwaho's addiction issues and motivation to change led the Judge to grant anadditional credit of ten per cent.[11] Granting a net 25 per cent credit, the Judge rounded the sentence down to atotal of 25 months' imprisonment.Principles on appeal[12] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.12 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".13 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.149 Police v Hatsell [2021] NZDC 21626.10 Olsen v Police [2019] NZHC 1259.11 Taranaki v Police [2021] NZHC 2746.12 Criminal Procedure Act 2011, ss 250(2) and 250(3).13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].14 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant's submissions[13] Mr Collins, appearing for Mr Tukiwaho, refers to several drug-related caseswhere far greater amounts of cannabis were found, leading to starting points of18 months' imprisonment.15 Mr Collins also refers to several firearms cases that tooklower starting points for possession offences.16 In McMillan v Police, the defendantwas involved in two methamphetamine use incidents where a stolen rifle was alsofound, alongside a semi-automatic shotgun, cannabis and pipes. The defendant therewas sentenced to six months' home detention.[14] Mr Collins notes that the defendant in Smith v R was found in possession of4852g of cannabis compared to Mr Tukiwaho's 24.4g.17 In Smith, the defendantreceived seven months' home detention. Mr Tukiwaho was in possession ofconsiderably less cannabis than in the cases cited in Smith v R, the majority of whichwere viewed as low-level offending, attracting starting points of 15-18 months'imprisonment.18 Mr Collins submits 15 months would be an appropriate starting pointon the cannabis charge.[15] In respect of the second issue raised on appeal, Mr Collins cites Williams J inBerkland v R to submit the Judge was in error when refusing to adjourn the sentencingfor Mr Tukiwaho.19 While acknowledging that adjournments are undesirable,Mr Collins says Mr Tukiwaho's crime had no identifiable victim and, furthermore, anadjournment and subsequent period at Moana House would have given the Courtinsight as to whether Mr Tukiwaho could demonstrate actual compliance in arehabilitative programme. Mr Collins submits a period at Moana House would helpMr Tukiwaho get his life back on track, noting he was enrolled in study and had beenappointed the head of the Maori Student Association at the Otago Polytechnic.15 Smith v R [2022] NZCA 606; Devereux v Police [2017] NZHC 167; Mowberry v Police [2012]NZHC 969; R v McGlip (2006) 23 CRNZ 526 (CA); R v Maats HC Gisborne CRI-2010-016-1863,14 December 2010.16 Moore v Police [2015] NZHC 3113, McMillan v Police [2019] NZHC 3323; Bidios v Police[2017] NZHC 589.17 Smith v R, above n 15 at [3].18 There are six cases cited at [16].19 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [132].Respondent's submissions[16] Mr Power, appearing for the respondent, accepts that the cases cited byMr Collins may be considered more serious than Mr Tukiwaho's offending if oneconsiders just the amounts of cannabis involved. However, Mr Power contends theamount of cannabis found on offenders is only one relevant factor. For example, inSmith, there was no evidence of commerciality. The Judge accepted it was for painrelief and granted a 30 per cent credit to reflect health issues.20 In contrast withMr Tukiwaho's offending there was some degree of commerciality evidenced by theother items he was found with. Mr Tukiwaho also admitted to selling cannabis to fuelhis methamphetamine habit.[17] Whilst noting care must be taken to avoid double counting, Mr Power submitsthe possession of a firearm, ammunition and hammer for protection "must indicatesome frequency of sales and accordingly a degree of commerciality". Mr Power notesthe cases cited in Smith, involved starting points of 18 months' imprisonment but alsoinvolved cannabis operations at the lower end of the commercial scale, if anycommerciality was found at all. Mr Power submits the 18-month starting point wastherefore within range.[18] Mr Power submits the 20-month uplift for firearm possession was within theavailable range. Even if it was high, the Judge's adjustment for totality cured anyerror. Mr Power distinguishes Moore v Police on the grounds that case involved onefirearm and ammunition that was subsequently found in various locations on thedefendant's property.21 Mr Tukiwaho was in possession of two weapons, with both theweapons and the ammunition readily accessible. Mr Power submits that, in light ofMcMillan, the 20-month uplift cannot be considered excessive, especially in light ofthe totality adjustment.[19] Referring to Berkland, Mr Power submits the 10% discount given forMr Tukiwaho's background matters was generous, noting it was based solely on apre-sentence report and information provided by counsel at sentencing.20 Smith, above n 15, at [6].21 Moore v Police, above n 16.[20] Finally, Mr Power notes that Moana House does not admit people on bail orawaiting sentence. It was not an option for Mr Tukiwaho to demonstrate hiscompliance through completion of the programme prior to sentencing and the Judgecould not have ordered this. In any event, Mr Power notes there are rehabilitationoptions open to Mr Tukiwaho in prison and he may attend Moana House when he isreleased.Analysis[21] On a strict application of R v Terewi, a starting point of two years was availableto the Judge.22 Mr Tukiwaho was clearly undertaking a commercial venture,evidenced by the zip-lock bags, a "tick book", scales, and his own admission. I acceptthe weapons found in his possession supported commercial intention. With that inmind, the Judge's 18 month starting point, which accounted for the fact Mr Tukiwahowas dealing to feed his own methamphetamine addiction, cannot be consideredmanifestly excessive.[22] However, noting the age of Terewi, it is relevant to consider recent cases,including Smith v R which provides recent Court of Appeal guidance on sentencingfor supply of cannabis. Mr Collins correctly points out that in Smith, the defendantwas found in possession of a substantial amount of cannabis head. However, I acceptthe respondent's submission that the Court in that case accepted it was for theappellant's chronic back pain, with no commercial intention proven.23 A starting pointof 21 months' imprisonment was adopted before being discounted by 30 per cent forMr Smith's medical issues. The Judge also noted that cannabis "is not seen to be thedrug it once was" before commuting the sentence to one of seven months' homedetention.24[23] I also note Mowberry v R, where a defendant undertook a "very minor" and"basic" commercial operation, in which the police seized 57 cannabis plants.25Gendall J adopted a starting point of 18 months' imprisonment. Mowberry is one of22 R v Terewi, above n 8, at [4].23 Smith, above n 15, at [4].24 At [7].25 Mowberry, above n 15 at [10].the several cases cited in Smith that deal with offending of this nature, with startingpoints ranging from 15 to 27 months' imprisonment.26 In Devereux, "low level"offending in which there was "no question of the commerciality" resulted in Mander Jadopting an 18 month starting point.27[24] With those cases in mind, the Judge's 18 month starting point was within theavailable range. Though Mr Tukiwaho was not found with a particularly large amountof cannabis, his intentions were clearly commercial. Commercial intention is the cleardivider between category one and category two classes of offending in Terewi. WhileI acknowledge that case's age, the general principle of separating classes of offendingremains appropriate. Terewi indicates a starting point of 24 – 48 months. The Judge's18 month starting point fairly reflects a more merciful approach to the application ofthe Terewi guidelines as well as the small amount of cannabis Mr Tukiwaho was foundwith.[25] In respect of the firearms charges, the case of McMillan v Police bearssignificant similarities. Mr McMillan was convicted of a total of eight charges overtwo separate incidents, one in Christchurch involving the possession of drugs andutensils in 2018 and one in Invercargill, involving possession of utensils, a .22 rifleand a sawn-off shotgun. Mr McMillan was also found with small quantities ofmethamphetamine and cannabis. The District Court Judge adopted a starting point of20 months for the Invercargill offending and uplifted that by a further two months forthe Christchurch offending, to reflect previous convictions and the fact Mr McMillanwas on bail at the time of the Invercargill offending.28[26] This Court on appeal placed weight on the fact the weapons concerned wereimmediately available in the defendant's car. I do not accept the submission thatbecause Mr Tukiwaho's weapons were in a bag, they were not readily accessible as inMcMillan. It has long been recognised that the presence of firearms in controlled drugoffending cases is a serious aggravating factor.29 As Judge Turner noted, while the26 Smith, above n 15, at [16].27 Devereux, above n 15, at [33].28 McMillan, above n 16, at [9].29 Bidois, above n 16, at [7].cut-down firearm weapon was not loaded, it easily could have been.30 Furthermore,Mr Tukiwaho admitted he retained the weapons in his car for self-protection.[27] While the starting point of 20 months included the possession of smallquantities of drugs as well, it must be noted there was no commercial element in hisdrug possession. In short, the starting point of 20 months for the firearm offendingwas within range. No issue is taken with the discrete one-month uplifts for themethamphetamine and pipe charges.[28] The reduction for totality from 39 to 34 was appropriate. However, the10 per cent uplift for previous offending could be viewed as stern. Mr Tukiwaho'smost recent offence was aggravated robbery in 2016 which, while serious, was 7 yearsago. I acknowledge some of the time since then was spent in prison. Mr Tukiwaho'slast firearm offence was a possession charge in 2012 and there is no formal record ofprior drug-related offending. As Mr Collins submits, Mr Tukiwaho has attempted toturn a corner in his life, returning to study and taking on the role of head of the MāoriStudents' Association at the Otago Polytechnic. Unfortunately, he slipped back into"old habits" when he could not get extra shifts at the Port, lost his student allowancedue to the summer break and suffered the emotional effects of a sudden break up. Anuplift of, say, five per cent may have more fairly reflected the extent to which thesepast offences reflected on Mr Tukiwaho's culpability and the need for an uplift fordeterrence purposes. However, Mr Tukiwaho has already had the benefit of full creditsfor other mitigating factors and has had the benefit of the rounding down of the endsentence. I cannot say the end sentence is manifestly excessive. Any adjustmentwould be tinkering.[29] The last issue raised on behalf of Mr Tukiwaho is the Judge's decision not toadjourn sentencing to allow Mr Tukiwaho to undertake a rehabilitation programme atMoana House. However, the only evidence before me is that such a programme wasnot available to someone awaiting sentence and that is the reason the Judge denied thisrequest. There can be no error in him doing so in those circumstances. Furthermore,30 Tukiwaho, above n 7, at [14].even if there had been such an error, it is difficult to see how it could be rectified onappeal when the option of adjourning sentencing is no longer open.Conclusion[30] The appeal is dismissed.Solicitors:Crown Solicitor, DunedinCopy to:L S Collins, Barrister, Dunedin