TRISTIAN JORDAN TAI v R [2022] NZCA 403

TRISTIAN JORDAN TAI v R [2022] NZCA 403 [26 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA174/2022[2022] NZCA 403BETWEEN TRISTIAN JORDAN TAIAppellantAND THE QUEENRespondentHearing: 13 July 2022Court: Miller, Lang and Cull JJCounsel: D J Dufty for AppellantB D Tantrum and V E Squires for RespondentJudgment: 26 August 2022 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cull J)[1] Mr Tai pleaded guilty to three sets of charges involving drug and firearmoffending, wounding with attempt to injure, perverting the course of justice andsentence breaches. He appeals his sentence of 10 years and four months'imprisonment imposed by Judge MacKenzie in the District Court at Rotorua.11 R v Tai [2022] NZDC 4199 [Sentencing notes].[2] Mr Tai appeals on three grounds. First, he says the starting point was too highbased on a mischaracterisation of his role in the offending. Second, the Judge erred infinding his addiction and mental health issues did not reduce his culpability. Third, hecontends his sentence failed to achieve parity with his co-offender.Factual background[3] As a result of a police surveillance operation in late June 2020, it was revealedthat Mr Tai and his co-offender, Ms Wairua, were operating a mid-level drugdistribution business. They were engaged in a cycle of obtaining large quantities ofmethamphetamine for distribution to lower-level dealers across the Bay of Plentyregion. The cycle began with the collection of cash from their customers, followed bymeetings with wholesale suppliers and multiple instances of drug resupply betweenMay and July 2020. Mr Tai and Ms Wairua also sold cannabis. Police found over805 grams or $350,000 worth of methamphetamine in their respective possession, and1.7 kilograms or $15,400 worth of cannabis.[4] On 1 July 2020, police located Mr Tai and Ms Wairua in a holiday cabin.In their search of the premises, police found .22 ammunition, 12-gauge shotgunrounds, some cash, drug paraphernalia and a modified pistol. A search of their motorvehicle revealed an unlocked gun case containing firearms including a .22 calibre rifle,12-gauge shotgun and more live ammunition. On a search of Mr Tai's residentialaddress, the police found a fully functioning pipe bomb and eight rifle rounds.[5] Twenty-five drug and firearms charges arise from this first set of offending,including conspiracy to supply and procure methamphetamine,2 furthermethamphetamine charges for possession to supply,3 supplying and offering tosupply,4 conspiracy to supply of cannabis,5 possession of cannabis for supply,6together with two charges of unlawful possession of firearms and an explosive.72 Misuse of Drugs Act 1975, ss 6(1)(b)–(c) and (2A)(a); maximum penalty 14 years' imprisonment.3 Section 6(1)(f) and (2)(a); maximum penalty life imprisonment.4 Sections 6(1)(c) and (2)(a); maximum penalty life imprisonment.5 Sections 6(1)(e) and 6(2A)(c); maximum penalty seven years' imprisonment.6 Sections 6(1)(f) and 6(2)(c); maximum penalty eight years' imprisonment.7 Arms Act 1983, s 45(1)(b); maximum penalty four years' imprisonment.[6] The second set of charges relates to an unprovoked attack on a person living inthe same complex as Mr Tai. Mr Tai approached the victim who was waiting at theentrance of the block of flats and asked, "What are you up to?", before swinging a batat her head. The victim suffered a deep lateral facial laceration to her right eyebrow,requiring stitches. A wounding with intent to injure charge arose from this offending.8Mr Tai was further charged with perverting the course of justice because he knewMs Wairua made a false statement to the police taking responsibility for the assault.9[7] The third set of charges resulted from offending in April and May 2020.On 3 April 2020, police stopped Mr Tai while driving and found an LSD tab in hispossession. He was charged with being in possession of a Class A drug and breachinghis sentence conditions. On 20 May 2020, Mr Tai failed to return to his curfew addressresulting in a charge of breach of community detention.Sentencing decision[8] In sentencing Mr Tai, the Judge first considered his methamphetamineoffending. It was accepted that the offending fell within band four of Zhang v R,suggesting a starting point of eight to 16 years' imprisonment.10 The Judge adopted anotional starting point of 12 years' imprisonment, noting specifically that she wastaking into account Mr Tai's leading role, as well as the quantity of methamphetamineof at least 722 grams.11[9] Although the Judge accepted that Mr Tai had a methamphetamine addiction,the starting point was not reduced on this basis. The Judge noted that Mr Tai haddemonstrated deliberateness and control over the mid-level enterprise. Given thecommercial nature and scale of the operation, the Judge did not accept that anyaddiction to methamphetamine had impaired Mr Tai's rational choice to offend,thereby reducing his moral culpability.12 With regard to his mental health factors, theJudge found that the psychological report provided to the Court did not support a8 Crimes Act 1961, s 188(2); maximum penalty seven years' imprisonment.9 Section 116; maximum penalty seven years' imprisonment.10 Sentencing notes, above n 1, at [24], referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR648 at [125]. Band four covers methamphetamine offending between 500 grams and twokilograms.11 At [50].12 At [36].conclusion that there was an operative mental health issue at the time of theoffending.13[10] For the remaining drug and firearms charges, the Judge imposed a 15-monthuplift for the cannabis offending, an 18-month uplift for the firearms offending and athree-month uplift for the pipe bomb offending.14 The end result was a notionalstarting point of 15 years' imprisonment for the drug and firearms offending.15[11] In respect of the second set of offending, the Judge, applying Nuku v R,16observed that the wounding with intent charge would have attracted a starting point ofat least 18 months' imprisonment as a standalone offence.17 For the attempt to pervertthe course of justice charge, the Judge considered a two-year standalone sentencewould have been appropriate.18 However, on a totality basis, the Judge increased thesentence by 18 months for both charges.19[12] For the final set of charges, the Judge considered the best approach was tosentence Mr Tai to three months' imprisonment to be served on a concurrent basis.20For all of the offending, the Judge adopted a total starting point of 16 years, six months'imprisonment.21[13] Turning to Mr Tai's personal circumstances, the Judge gave an uplift of sixmonths' imprisonment for his previous convictions.22[14] While Mr Tai's addiction and mental health issues were found not to impedehis moral culpability in the offending, the Judge observed that they were relevantpersonal mitigating factors and would make a prison sentence more difficult.23The Judge gave a discount to reflect Mr Tai's efforts towards his rehabilitation.2413 At [37].14 At [52]–[57].15 At [58].16 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [12].17 Sentencing notes, above n 1, at [60].18 At [64].19 At [64].20 At [67].21 At [68].22 At [70]–[71].23 At [78].24 At [79].[15] Ultimately the Judge awarded discounts totalling 40 per cent, consisting of:25(a) fifteen per cent for Mr Tai's cultural background, deprivation, addictionand mental health struggles;(b) ten per cent for Mr Tai's rehabilitation prospects; and(c) fifteen per cent for Mr Tai's guilty pleas.[16] The result was an end sentence of 10 years, four months' imprisonment.26Leading role[17] The key difference between the Crown and the defence was the categorisationof Mr Tai's role in the methamphetamine offending. The Judge rejected Mr Dufty'ssubmission that Mr Tai's role was "somewhere between lesser and significant", butnot leading. The Judge noted particularly the submission that Mr Tai distributed only168 grams compared to Ms Wairua's 366 grams and not all of the methamphetaminehe received was distributed.27[18] The Judge found that Mr Tai's role was a leading one in the joint enterprise ofthe mid-level, profit-motivated, wholesale methamphetamine distribution operation.The Judge accepted that Mr Tai did not have control over the suppliers but he did havecontrol over the on-supply of methamphetamine.28 Although Mr Tai was running thewholesale operation alongside Ms Wairua, the Judge accepted that he had links towholesale suppliers to source the methamphetamine and obtained quantities ofmethamphetamine to on-supply them, controlling the distribution of various lots ofmethamphetamine in the Bay of Plenty. The Judge found Mr Tai had control overpricing and supply.2925 At [80]–[85].26 At [89]. This was recorded as a sentence of 10 years' and four months' imprisonment for themethamphetamine offending, with concurrent sentences ranging from one month to two years forthe other charges. Mr Tai's $2,000 fine was cancelled and a concurrent sentence of three months'imprisonment was imposed.27 At [31].28 At [41].29 At [41].[19] Mr Dufty made the same submissions to this Court, pointing to the lack ofevidence of any significant financial gain or any influence or control Mr Tai had overthose further up the supply chain.[20] We can find no error in the Judge's approach. Adopting the Zhangclassifications,30 we consider Mr Tai's role falls within the "leading" categorisation.It is true that this was a mid-level operation, but it does not follow that Mr Tai wasmerely the instrument of others above him in the chain of distribution. He appears tohave operated in an autonomous way. First, he organised the buying and selling on acommercial scale. Over the two-month police investigation, Mr Tai and Ms Wairuahad approximately 805 grams of methamphetamine in their possession. The streetvalue was estimated at $350,000.[21] Second, Mr Tai had substantial links to, and influence on, others in the chain.It was open to the Judge to find Mr Tai was the key link between wholesale suppliersand lower-level dealers, as he had the connections and contacts to provide anddistribute methamphetamine from the wholesale suppliers to the dealers. He had thecontracts with the wholesalers and others below him, who were relying on him andMs Wairua for supply.[22] The street value of the methamphetamine in their possession was alsoindicative of the substantial financial gain Mr Tai expected and received from theoperation. We are unable to accept Mr Dufty's submission that the operation ran onlyfor the two-month duration of the police investigation and was unsophisticated.The scale of the operation and the money involved evidence the contrary.[23] We consider the Judge was not in error in following the guidance in Zhang, byundertaking the starting point evaluation not just on the quantity of methamphetamine,30 Zhang v R, above n 10, at [126].but also of the offender's role. We are satisfied that the starting point of 12 years waswithin the appropriate range and was comparable with the other authorities.31Mental health and addiction[24] Mr Dufty submits that insufficient consideration was given to Mr Tai's mentalhealth and addition issues. A psychological report confirms that Mr Tai was diagnosedwith schizophrenia and post-traumatic stress disorder at 16, and concluded that hismethamphetamine offending was primarily motivated to help medicate his addictionissues. These factors, he submits, demonstrate Mr Tai's reduced culpability and shouldbe reflected in a lower starting point.[25] In Zhang, this Court observed that addiction would likely be of little mitigatorysignificance to commercial dealing as offending on such a scale is "likely to beinconsistent with the impairment of the ability to exercise rational choice".32 Here,the Judge held that while Mr Tai was skimming methamphetamine for his own use, itdid not alter the fact that this was a midsize wholesale methamphetamine operation,in which he had a leading role and was difficult to excuse. Accordingly, the Judge didnot accept that addiction and mental health issues impaired Mr Tai's rational choice tooffend.33 Nevertheless, these factors were taken into account when assessing theappropriate discount for Mr Tai's personal factors and rehabilitation prospects.The Judge noted that she could not separate out these factors from Mr Tai's personalbackground, and that his addiction and mental health struggles would make a prisonsentence more difficult.3431 Martin v R [2020] NZCA 318 – starting point 12 years for 600 grams of methamphetamine in asolo operation; Zhang v R, above n 10, at [229]–[242] (relating to the appellant Ms Hobson) –starting point was nine years' imprisonment for an unsophisticated importation and distribution of300 grams of methamphetamine and the role was assessed to be at the lower end of leading;Wellington v R [2020] NZCA 277 – starting point was 12 years' imprisonment for a financiallymotivated distribution network involving 1.54 kgs and role was assessed to be significant; andMiller v R [2020] NZCA 131 – starting point of 11.5 years' imprisonment for supply of 905 gramsof methamphetamine, involving a large scale operation in which the appellant was a significantplayer.32 Zhang v R, above n 10, at [147].33 Sentencing notes, above n 1, at [36].34 At [78]–[80].[26] We consider this was an appropriate assessment. Any reduction for addictionand mental health factors was adequately addressed through a stage-two discount,rather than as a mitigating factor to the starting point.Parity[27] Mr Dufty submits that the starting point for Mr Tai's offending ought to havebeen similar or closer to Ms Wairua's starting point, as they had similar roles in theoffending and were conducting a joint enterprise. He noted there was no distinctiondrawn in the summary of facts to suggest Mr Tai had a leading role over or above thatof Ms Wairua and Ms Wairua distributed a greater amount of methamphetamine whileon bail. However, Ms Wairua's role was characterised by a different Judge at her latersentencing as "significant", rather than leading.35[28] Ms Wairua received a starting point of 14 years' imprisonment for her drug andfirearm offending, and one charge of perverting the course of justice.36 While Mr Taifaced additional charges, he received a starting point of 16 years' imprisonment forthe analogous offences.37[29] A key reason why Ms Wairua's offending was regarded as less serious thanMr Tai's was the assumption of the sentencing Judge that Mr Tai convinced Ms Wairuato take responsibility for the wounding incident.38 Mr Dufty says this assumption wasmade in error. He refers to the summary of facts for the wounding charge and drewour attention to the text message from an unknown person advising Mr Tai that theremay be someone who could take the "rap" for his wounding offending. He submitsthat this indicates no pressure was placed on Ms Wairua by Mr Tai, by virtue of a moresenior position in the partnership. This error is said to have led to the disparity as itinfluenced Ms Wairua's sentencing.[30] We have given careful consideration to Mr Dufty's submissions on parity.However, we do not uphold them for three reasons.35 R v Wairua [2022] NZDC 9467 at [14]–[15].36 At [15].37 Fifteen years' imprisonment for all drug and firearm offending and a further 12-month uplift forthe perverting the course of justice charge.38 R v Wairua, above n 35, at [13].[31] First, the assessment of Mr Tai's role as leading was centred on the scale andscope of the mid-level methamphetamine distribution enterprise. Any influenceMr Tai had over Ms Wairua's choice to make a statement to the police was not part ofthe Judge's consideration of this aspect of his sentence.39[32] Second, the Judge specifically did not engage with relativity between Mr Taiand Ms Wairua. The Judge noted that Ms Wairua was yet to be sentenced and theassessment of her role should be left to the sentencing Judge.40 As noted, we do notfind error in the Judge's assessment of Mr Tai's role in this commercial joint enterprise.[33] Third, on the application of the principles regarding parity, there must be agross and unjustifiable disparity to warrant appellate interference.41 A reduction maybe required to ameliorate that disparity to some degree. It is not merely whether theoffender thinks they have been unfairly treated but whether there is a real justificationfor that grievance. The test is whether a reasonably minded independent observerwould be led to believe that something has gone wrong in the administration ofjustice.42 Further, the Court should not reduce the sentence to a level which woulditself cause public concern about the administration of justice.43[34] Where a sentence imposed on a co-offender is unduly lenient, it is notnecessary for the Court to impose the same sentence to ensure parity.44 As this Courtobserved in Mau'u v R:45On a number of occasions, this Court has emphasised that "a gross andunjustifiable disparity" does not necessarily result in the reduction of asentence imposed on a co-offender. This is reflected in the principle that nogreater adjustment is appropriate than is necessary to protect the integrity ofthe criminal justice system. For example, in both R v Ryder and R v Thompsonthis Court observed that an appellate court must consider "whether reducing a39 We note that this was mentioned when determining the appropriate uplift for Mr Tai's guilty pleato perverting the course of justice. The Judge observed that this was a "blatant attempt" and"calculated behaviour" on his part to avoid responsibility for the assault: Sentencing notes, aboven 1, at [61]. However, this was separate to the methamphetamine assessment.40 At [43].41 R v Thompson CA245/98, 22 December 1998 at 13; R v Rameka [1973] 2 NZLR 592 (CA) at594; R v Lawson [1982] 2 NZLR 219 (CA) at 223; and Singh v R [2013] NZCA 245 at [4].42 R v Lawson, above n 41, at 223.43 R v Ryder CA116/98, 23 June 1998 at 6; and Mau'u v R [2011] NZCA 385 at [28].44 R v Feterika [2008] NZCA 127 at [47]; R v Te Kaha CA49/05, 5 July 2005 at [48]; and R v Walter(1992) 9 CRNZ 178 (CA).45 Mau'u v R, above n 43, at [28] (footnotes omitted).proper sentence imposed on one offender in order to bring it into line with thesentence imposed on a co-offender would itself cause public concern at theadministration of justice." Two wrongs do not make a right.[35] These principles have been recently applied by this Court in Kulu v R wherethe Court said that because a co-offender has received a sentence which the appellateCourt considers too lenient, that cannot of itself be a ground for interfering with anappellant's longer sentence.46[36] While Ms Wairua may have received a lenient sentence, we do not accept thatinterference is necessary. The Judge appropriately sentenced Mr Tai on the basis ofhis links to wholesale suppliers and dealers in the chain of methamphetamine dealingand on his control over the distribution, pricing and supply in the Bay of Plenty.Mr Tai was sentenced on a different basis to Ms Wairua. His sentence was notmanifestly excessive, and the disparity was neither gross nor unjustifiable.Result[37] The appeal is dismissed.Solicitors:Crown Solicitor, Auckland, for Respondent46 Kulu v R [2022] NZCA 284 at [33].