TARAU v NEW ZEALAND POLICE [2021] NZHC 1793

TARAU v NEW ZEALAND POLICE [2021] NZHC 1793 [15 July 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2021-463-65[2021] NZHC 1793BETWEEN TAWHAI TARAUAppellantAND NEW ZEALAND POLICERespondentHearing: 13 July 2021Counsel: R O Gowing and C A Gentleman for appellantI J Hayden for respondentJudgment: 15 July 2021JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 15 July 2021 at 3pmRegistrar/Deputy RegistrarDate:Solicitors:Gowing & Co, Whakatane for appellantCrown Solicitor, Tauranga for respondent[1] Tawhai Tarau appeals against a sentence of two years and four months'imprisonment imposed on him by Judge Bidois in the District Court at Whakatane on28 April 2021.1[2] He seeks a reduction of the sentence to one of two years' imprisonment on thebasis that the learned District Court Judge adopted an approach to calculating theappropriate sentence by a method that did not accord with the Court of Appeal'sdirections in Moses v R.2 Realistically, Mr Gowing does not suggest that if a sentenceof two years' imprisonment is accepted as being appropriate on appeal, the Courtshould consider whether a sentence of home detention should be imposed. In part,that is because of the seriousness of the offending, but principally it is becauseMr Tarau has been in custody for almost a year and, if a sentence of two years'imprisonment is imposed, he will be eligible for early release within a matter of weeks.[3] It is acknowledged on behalf of the respondent that Judge Bidois' methodologyresulted in a lengthier sentence than that which would have been the outcome if thediscounts allowed for the several mitigating factors had been applied in accordancewith the two-step approach mandated by the Court of Appeal in Moses.[4] I agree with the approach that counsel have taken and I am satisfied that it isappropriate to allow the appeal and impose a total effective sentence of two years'imprisonment.[5] These are my reasons for that view.The sentence imposed in the District Court[6] Mr Tarau pleaded guilty to:(a) driving while disqualified (third or subsequent) (four charges);31 Police v Tarau [2021] NZDC 8040.2 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.3 Land Transport Act 1992, ss 32(1)(c) and 32(4)(a) and (b), maximum penalty two years'imprisonment or a fine not exceeding $6,000 and disqualification for one year or more.(b) possession of methamphetamine/amphetamine for supply;4(c) supplying methamphetamine/amphetamine;5(d) supplying cannabis plant;6(e) possession of cannabis plant for supply;7(f) possession of cannabis plant;8 and(g) obstructing/hindering Police.9[7] The offending was serious in that 18 grams of methamphetamine was found atMr Tarau's address where he was on bail subject to a 24-hour curfew pending thehearing of other charges. During a bail check, the Police entered and searchedMr Tarau's home where he lived with his partner and three young children. Eighteengrams of methamphetamine were found on the property, together with an ounce ofcannabis and drug-dealing paraphernalia in relation to cannabis. Phone recordsrelating to a cell phone that was seized revealed nine sales of around six grams ofmethamphetamine and offers to sell between 0.25 grams and seven grams of the drug.[8] Mr Tarau was on bail at the time of the offending and he had previousconvictions justifying a sentence uplift. The seriousness of the offending andMr Tarau's culpability were reflected in a sentence indication given by Judge Bidoison 4 November 2020 in which the Judge indicated an adjusted starting point of fouryears' imprisonment.10[9] Mr Tarau pleaded guilty. At sentencing, Judge Bidois had the benefit of astandard pre-sentence report, an alcohol and drug report and a cultural background4 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a), maximum penalty life imprisonment.5 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a), maximum penalty life imprisonment.6 Misuse of Drugs Act 1975, s 6(1)(e) and (2)(c), maximum penalty eight years' imprisonment.7 Misuse of Drugs Act 1975, s 6(1)(f) and 2(c), maximum penalty eight years' imprisonment.8 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b), maximum penalty three months' imprisonment,fine of $500.9 Summary Offences Act 1981, s 23(a), maximum penalty three months' imprisonment or fine of$2,000.10 R v T DC Whakatane CRI-2020-087-012, 4 November 2020 at [6].report under s 27 of the Sentencing Act 2002. They revealed that Mr Tarau had hadan appalling upbringing, immersed in a gang environment. He was subjected torepeated physical and sexual abuse and was expelled from school uneducated. Hejoined the gang full-time. Now aged 33, Mr Tarau had been using methamphetaminefor eight years and was addicted. His path to Judge Bidois' court was inevitable.[10] Judge Bidois noted that the charges of possession of methamphetamine forsupply and supplying methamphetamine attracted a maximum sentence of lifeimprisonment. The Judge confirmed his view in the sentence indication that a startingpoint of four years' imprisonment was appropriate to reflect the seriousness of theoffending.[11] Addressing the contents of the cultural background report and the alcohol anddrug report, Judge Bidois considered that a discount of eight months was appropriateto reflect a dysfunctional upbringing and an addiction to methamphetamine. Thatdiscount, the Judge said, reduced "the starting point" to one of 40 months'imprisonment. The Judge then said he was prepared to give Mr Tarau a one thirddiscount for his guilty pleas, some remorse, addiction issues and steps taken towardsrehabilitation, which the Judge said amounted to a further discount of 12 months. Onthe Judge's calculation, that brought the end sentence down to one of 28 months'imprisonment.The shared views of counsel[12] Counsel agree that the discount of eight months for the factors contained in thecultural and drug reports warranted a 17 per cent or eight month discount, and that afurther 33 per cent discount for plea, rehabilitation efforts and remorse was alsoappropriate, bringing the total discount to 50 per cent. They say that, applying Moses,those discounts should have resulted in a 50 per cent reduction from the starting pointof 48 months imposed to reflect the seriousness of the offending. An end sentence of24 months' imprisonment would then have been imposed.Discussion[13] In Moses, the Court of Appeal described the two-step approach in theseterms:11[46] A two-step methodology should be used:(a) the first step calculates the adjusted starting point,incorporating aggravating and mitigating features of theoffence;12(b) the second step incorporates all aggravating and mitigatingfactors personal to the offender, together with any guilty pleadiscount, which should be calculated as a percentage of theadjusted starting point.[47] Because the court fixes all second-step uplifts and discounts byreference to the adjusted starting point under this methodology, it makes nodifference to sentence length if the guilty plea discount is the last step in thesentence calculation. However, the sentencing judge should still quantify aguilty plea discount, for several reasons: the discount is justified in substantialpart by systemic and social considerations distinct from the offender'spersonal circumstances; the discount must be transparent, which aidspredictability; and the calculation allows others, including the offender andthe victim, to identify the sentence that would have been imposed but for theplea. It should be apparent that the discount does not exceed the maximum of25 per cent of the adjusted starting point.[48] This methodology does not preclude credit for some mitigating factorsbeing assessed by reference to what would otherwise be the end sentence (thatis, the product of step 2), where that is appropriate. For example, credit fortime spent on electronically monitored bail is commonly calculated in thatway.[14] Adopting that approach, Judge Bidois was required to apply the discounts forthe personal factors related to Mr Tarau by assessing them in terms of percentages ofthe adjusted starting point. Based on the approach illustrated by the Court of Appeal'stable at [30] of Moses, it would have been appropriate for the Judge to then apply atotal percentage discount for personal mitigating factors such as his dysfunctionalupbringing, remorse, addiction issues and steps to rehabilitation, and an identifiedseparate percentage discount for the guilty plea. As the Court of Appeal said at [47],sentencing judges should still quantify the guilty plea discount separately, for the11 Moses v R, above n 2 (footnotes omitted).12 I interpolate that aggravating features such as offending on bail and prior convictions calling foradded deterrence are included in the adjustment at this step.reasons given in the judgment. That includes making it apparent that the discount forthe plea does not exceed the maximum allowable under Hessell v R.13[15] It may be that Judge Bidois intended to apply the two-step approach in Mosesand allow a total 20-month discount from the adjusted starting point of four years'imprisonment. That would have been a discount of around 42 per cent of the startingpoint. But the explanation for the discounts is confusing because of the Judge'sreference to an eight-month discount for dysfunctional upbringing andmethamphetamine addiction, leading to an adjusted starting point, and his applicationof a percentage (actually, a fraction) discount for guilty pleas, remorse, addiction andrehabilitation steps, without identifying the figure to which the percentage should beapplied. Indicating that the one third discount was "approximately 12 months" cannoteasily be reconciled with either a 48-month starting point or a 40-month starting pointafter the discount for upbringing and addiction.[16] Moreover, the Judge referred separately to Mr Tarau's addiction tomethamphetamine, in his reference to the first eight-month discount and, lessexplicitly, in his reference to "Zhang addiction issues" in support of the second,12-month discount.14 It appears that the Judge may have inadvertently takenMr Tarau's addiction into account twice in assessing the appropriate discount.[17] The way in which the Judge expressed his approach makes it difficult to discernhow he assessed the discount factors, and whether the guilty plea discount wasadequate. Because the Judge's explanation lacked the transparency that the Court ofAppeal prescribed in Moses, it is necessary to approach the matter afresh on appeal todetermine whether the Judge erred in his assessment.Applying Moses to the assessment[18] Counsel are agreed that the 48-month adjusted starting point was anappropriate reflection of the seriousness of Mr Tarau's offending and the aggravatingculpability factors. They agree also that the discount factors referred to by the Judge13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].14 Referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [67]–[80] and [139]–[150].deserve recognition. Adopting the Moses approach, therefore, I would allow thefollowing discounts from the adjusted starting point:Dysfunctional background 15 per centMethamphetamine addiction 10 per centRemorse and rehabilitation efforts 5 per centGuilty plea 20 per centTotal discount 50 per cent[19] The total discount, therefore, should have been 50 per cent of four years'imprisonment. In agreement with counsel, I consider that the Judge erred in notfollowing the approach to the assessment of Mr Tarau's sentence in accordance withthe Court of Appeal's directions in Moses and that a different total effective endsentence of two years' imprisonment should be imposed.15Special release conditions[20] The Provision of Advice to Courts report provided to the District Courtrecommended special release conditions in the event that Mr Tarau was sentenced toa short term of imprisonment. Mr Gowing has submitted that the recommendedconditions would assist Mr Tarau in his rehabilitation. I agree.[21] The following special conditions will be imposed under s 93(2) and (2A) ofthe Sentencing Act 2002, such conditions to expire six months after Mr Tarau'ssentence expiry date. Mr Tarau shall:(a) not possess, consume or use any alcohol or drugs not prescribed to him.(b) undertake and complete the Te Ihu Waka programme and abide by therules of the programme to the satisfaction of a Probation officer;(c) attend an assessment for drug and alcohol abuse as directed by aProbation officer;15 Criminal Procedure Act 2011, s 250(2).(d) attend and complete any counselling, treatment or programme asrecommended by the assessment as directed by, and to the satisfactionof, a Probation officer;(e) attend and complete an appropriate programme/treatment/counsellingto address identified offending needs to the satisfaction of a Probationofficer: the specific details of the appropriate programme shall bedetermined by a Probation officer.Result[22] I allow the appeal in part by quashing the sentences of two years and fourmonths' imprisonment imposed for the charges of possession of methamphetamine forsupply and supplying methamphetamine, and substituting concurrent sentences of twoyears' imprisonment on each of those charges. The special conditions set out at [21]shall apply to those charges. The concurrent sentences on the other charges remainundisturbed, as do the orders for forfeiture of money seized and for the destruction ofthe drugs.Toogood J