TO’A v R [2020] NZCA 187

TO'A v R [2020] NZCA 187 [28 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA653/2019[2020] NZCA 187BETWEEN RICHIE TO'AAppellantAND THE QUEENRespondentHearing: 12 May 2020Court: Collins, Duffy and Edwards JJCounsel: P E Dacre QC for AppellantZ R Johnston for RespondentJudgment: 28 May 2020 at 10.00 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of 12 years' imprisonment is quashed and substituted with asentence of 11 years' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 5 December 2019, Davison J sentenced Mr To'a to 12 years' imprisonmentin relation to five drug offences, one charge of unlawful possession of a firearm andtwo charges of unlawful possession of ammunition.1 Mr To'a pleaded guilty to thosecharges on the first and second days of his trial.[2] The drugs charges to which Mr To'a pleaded guilty comprised:(a) one representative charge of supplying methamphetamine;(b) one charge of offering to supply methamphetamine;(c) one charge of possessing methamphetamine for supply;(d) one charge of conspiring to supply methamphetamine; and(e) one charge of possession of cannabis.[3] On appeal, Mr To'a accepts the starting point adopted by the High Court Judgebut challenges:(a) An uplift of 12 months' imprisonment that was imposed to take accountof Mr To'a's firearms offending.(b) A 3-month uplift applied by the Judge to reflect Mr To'a's previousconvictions for drug dealing and possession of a restricted weapon.(c) The extent of the discounts given to reflect Mr To'a's:(i) drug addiction;(ii) remorse; and(iii) the amount of time Mr To'a spent on electronically monitored(EM) bail.1 R v To'a [2019] NZHC 3232.Background[4] In January 2018 police commenced an investigation into a methamphetaminesupply chain. Mr To'a was one of three men and one woman, who were the focus ofthat investigation. Mr To'a was described in the summary of facts as "a mainsupplier", with Mr Pomale, being a "middle man" and Mr Puhara and Ms Cassidy,being "street level" dealers. The investigation included an analysis of interceptedcommunications over a three-week period.[5] As a result of the investigations, Mr To'a was charged with:(a) supplying at least 504 grams of methamphetamine, for which hereceived $65,800;(b) conspiring to supply at least a further 504 grams of methamphetamine;(c) offering to supply 196 grams of methamphetamine;(d) having possession of one kilogram of methamphetamine; and(e) having possession of nine grams of cannabis.[6] On 11 April 2018, police executed a search warrant at premises rented byMr To'a. In those premises the police located 10 rounds of shotgun ammunition and32 rounds of blank ammunition. A vehicle belonging to Mr To'a was also searched inwhich the police found a loaded revolver with seven live rounds of ammunition.Sentencing decisionStarting point[7] The Judge adopted a starting point of 14½ years' imprisonment in relation toMr To'a's drug offending. No issue is taken with that starting point, which was basedon Mr To'a's offending falling within the upper end of band four as defined in thisCourt's judgment in Zhang v R.2[8] Band four is reserved for quantities of less than two kilograms ofmethamphetamine. Mr To'a's offending, however, involved more than two kilogramsof methamphetamine. For sentencing purposes, his offending was placed in band fourof the Zhang categories in order to reflect the fact that some of the charges to whichMr To'a pleaded guilty concerned offering to supply methamphetamine and conspiringto supply methamphetamine, rather than the actual supply of methamphetamine.3Uplift for firearms offending[9] Davison J increased the starting point by 1 year to reflect the seriousness ofMr To'a's firearms offending. The Judge noted that the presence of a loaded firearmin Mr To'a's vehicle was an aggravating factor.4 The Judge also noted Mr To'a hadtold Dr Jansen, a psychiatrist whose report we will refer to later in this decision, thathe had the gun because he thought someone was trying to kill him. Mr To'a did notknow who that person was. Mr To'a also told Dr Jansen that he had never fired a gun.Davison J referred to Mr To'a's previous conviction for unlawful possession of arestricted weapon and said this "conflicts with [Mr To'a's] statement to Dr Jansensomewhat".5 We will return to this topic at [20] to [24].Uplift for previous convictions[10] The Judge imposed a further uplift of 3 months' imprisonment to reflectMr To'a's two previous convictions for drug dealing and one previous conviction forunlawful possession of a firearm.[11] The previous convictions to which the Judge was referring were:(a) possession of methamphetamine for supply;2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].3 R v To'a, above n 1, at [36].4 At [45].5 At [43].(b) possession of cannabis for supply; and(c) unlawful possession of a restricted weapon.[12] Mr To'a was convicted of these, and other offences in 2015 when he was25 years old. He was sentenced to a total of 150 hours' community work and intensivesupervision for 2 years. Unbeknown to Davison J, the unlawful possession of arestricted weapon charge related to Mr To'a having a "taser cellphone" and a "tasertorch".Discount for personal factors[13] Dr Jansen's report explained Mr To'a had a long history of drug and alcoholaddiction dating back to when he was 16 to 17 years of age. The report set out howMr To'a "had craved methamphetamine" and that he had become engaged in drugdealing in order to pay for his habit. Dr Jansen diagnosed Mr To'a as being in recoveryfrom methamphetamine and alcohol dependence and that he had a recent history ofmethamphetamine induced psychosis. The psychiatrist also suggested Mr To'a waslikely to have suffered from attention deficit hyperactivity disorder (ADHD).[14] In addition, the Judge referred to a cultural report prepared pursuant to s 27 ofthe Sentencing Act 2002. That report described Mr To'a's high dependence onmethamphetamine and alcohol.[15] After referring to the psychiatric and cultural reports, Davison J said that therewas little evidence to suggest Mr To'a's addiction caused his offending. The Judgesaid the amount of methamphetamine that was involved in Mr To'a's offendingshowed that his criminal conduct was driven by financial gain rather than a need tosatisfy his addiction.6[16] The Judge referred to Mr To'a's efforts towards rehabilitation and hiscommitment to abstain from drug abuse. He also made reference to Mr To'a's time6 At [64].spent on EM bail and his remorse. The Judge gave a discount of 15 per cent to reflectall of these personal factors.[17] Finally, the Judge granted a further discount of 10 per cent to recogniseMr To'a's guilty pleas.The firearms offending[18] In this Court, Mr Dacre QC contended for Mr To'a that the uplift of 1 year'simprisonment to reflect his firearms offending was too severe and that at most, anuplift of 6 months' imprisonment was all that was required to reflect this factor.Mr Dacre was critical of the Judge's rejection of Mr To'a's explanation to Dr Jansenthat he had never fired a gun.[19] We agree with the uplift that Davison J imposed for Mr To'a's firearmsoffending. The loaded gun found in close proximity to the driver's seat of Mr To'a'svehicle was a particularly aggravating factor. This Court has regularly endorsed upliftsof between 12 to 18 months' imprisonment for those found in possession of firearmsin association with drug offending.7 The possession of the loaded firearm was aparticularly serious aggravating feature of Mr To'a's offending and required an upliftof between 12 to 18 months' imprisonment. We reach this conclusion after putting toone side Mr To'a's previous conviction for possession of a restricted weapon. We arealso willing to accept the veracity of his statement that he had never fired a firearm.Nevertheless, we uphold the uplift of 12 months' imprisonment for Mr To'a's unlawfulpossession of a firearm.Uplift for previous convictions[20] We have already referred to Mr To'a's previous convictions and sentence fordrug offending and possession of a restricted weapon.[21] We have now seen the summary of facts for that offending, which was notpresented to the High Court Judge. That summary confirms that the offending was at7 R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [41]; Mills v R [2016] NZCA 245 at [18];and Joyce v R [2020] NZCA 124 at [24].the lower end of the spectrum for offending of its type. Mr To'a's possession of the"taser torch" and "taser cellphone" casts a different perspective on his earlieroffending.[22] We agree with Mr Dacre that the High Court Judge probably misunderstoodthe true nature of Mr To'a's previous Arms Act offending. While uplifts for previousoffending are often justified, care is also required to avoid uplifts that aredisproportionate to the previous offending.[23] In the present case, the High Court Judge imposed an additional 3 months'imprisonment on Mr To'a for offending that originally attracted very modestcommunity-based sentences.[24] The uplift of 3 months' imprisonment was disproportionate to the originalsentences and leads us to conclude that such an uplift was not required in the presentcase.Addiction[25] In Zhang, this Court explained that addiction may be a mitigating factor wherethere is a causal link between a defendant's offending and his or her addiction.8 Therationale for treating addiction as a mitigating factor in these circumstances is thataddiction may compromise an offender's rational choice to offend and this in turnreduces the deterrent objectives of sentencing. Addiction may also lead to a prisonsentence being disproportionately severe for a defendant. Addiction is, however,unlikely to be genuinely causative of offending that takes place on a commercial scale.This is because addiction in cases involving large quantities of methamphetamine is"likely to be inconsistent with the impairment of the ability to exercise rational choice,which is what diminishes culpability and justifies discounting the sentence".9[26] It is clear from Dr Jansen's report that Mr To'a was genuinely addicted tomethamphetamine at the time of his offending. The magnitude of his offending,however, greatly exceeded the amounts of methamphetamine and money he required8 Zhang v R, above n 2, at [147].9 At [147].to support his addiction. Thus, while we accept a modest discount was warranted toreflect Mr To'a's addiction, this was not a case in which any significant discount wasjustified to recognise Mr To'a's addiction issues. In our assessment, a discount of fiveper cent to reflect Mr To'a's addiction was all that could be justified.Rehabilitation[27] We also accept, as did Davison J, that Mr To'a deserved credit for the effortshe has made towards rehabilitation and his commitment towards making a better lifefor himself and his family. Again, we believe this factor justified a reduction offive per cent.Remorse[28] It is also clear from the cultural report and Mr To'a's letter to the Court that heis genuinely remorseful. Davison J recognised this fact in his global discount forMr To'a's personal factors. We allocate a discrete discount of five per cent to reflectMr To'a's remorse.EM bail[29] Mr To'a spent a little over a year on EM bail. No specific discount was givenin the High Court to recognise this factor. In our assessment, Mr To'a should receivea discount of five per cent to recognise the time spent on EM bail.Result[30] From the starting point of 14½ years' imprisonment for Mr To'a's drugoffending, we add a further 1 year imprisonment to reflect his firearms offending.[31] Instead of applying a global discount of 15 per cent for personal circumstances,we discount:(a) five per cent for addiction;(b) five per cent for rehabilitation;(c) five per cent for remorse;(d) five per cent for EM bail; and(e) ten per cent for guilty pleas.This produces an end sentence of 11 years' imprisonment.[32] We allow the appeal and quash the sentence of 12 years' imprisonment andsubstitute that sentence with one of 11 years' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent