TUPOU ILA MALOLO v R [2022] NZCA 399

TUPOU ILA MALOLO v R [2022] NZCA 399 [25 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA121/2022[2022] NZCA 399BETWEEN TUPOU ILA MALOLOAppellantAND THE QUEENRespondentHearing: 12 July 2022Court: Miller, Lang and Cull JJCounsel: M J Taylor-Cyphers for AppellantJEB Bragg and BAM Mugisho for RespondentJudgment: 25 August 2022 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cull J[1] On 5 November 2021, Mr Malolo was sentenced to 10 years' imprisonment1by Judge Moala in the Manukau District Court for 63 charges of supplyingmethamphetamine and offering to supply methamphetamine.21 R v Malolo [2019] NZDC 25384 [Sentencing notes].2 Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(a); maximum penalty life imprisonment.[2] Mr Malolo appeals on two grounds. He contends that the starting point adoptedby the Judge was too high and that inadequate discounts were given for his mitigatingfactors. He says that the sentence was manifestly excessive.Leave to appeal out of time[3] Mr Malolo's appeal was not filed until 17 March 2022 and is therefore out oftime. The delay was caused by the handover of files from former counsel. The Crownis not prejudiced by the delay and does not oppose leave to appeal out of time beinggranted. We grant leave accordingly.Background to the offending[4] Mr Malolo was involved in methamphetamine dealing, together with hiscousin. He was arrested by the police following a six-month investigation betweenOctober 2018 and April 2019.[5] Mr Malolo originally faced 65 charges and elected trial by jury. On themorning his trial was to commence, he pleaded guilty to 36 charges of supplyingmethamphetamine and two charges of offering to supply methamphetamine. At theconclusion of the Crown case he pleaded guilty to another charge of supplyingmethamphetamine. The jury returned guilty verdicts on 24 charges and acquittedMr Malolo on two charges of supplying methamphetamine. Mr Malolo was sentencedon a total of 63 charges.3 Of the 38 charges to which he entered guilty pleas, theamount of supply of methamphetamine on nine of those charges was disputed.All quantum issues were resolved by the Judge at sentencing.4[6] Relying on intercepted communications by the police, the Judge found thatseven of the offers to supply were "close to completion".5 The final quantity ofmethamphetamine offending was determined by the Judge as involving "at least3 The total of charges was 63, not 62 as appellant's counsel submits. It appears the late guilty toone further charge at the close of the Crown case was omitted in counsel's calculation.4 Sentencing notes, above n 1, at [12]–[14].5 At [11].994 grams of methamphetamine", as the Crown contended.6 Mr Malolo was inpossession of $150,000 in cash on arrest.The sentencing decision[7] At sentencing, both counsel agreed that Mr Malolo's offending came withinband four of Zhang v R, which involves methamphetamine offending ranging inquantum from 500 grams to two kilograms.7 The Judge found Mr Malolo's role wasa leading one.8[8] As seven of the offers were "close to completion", the Judge treated them inthe same way as the supply charges, and took them into account when assessing thequantum of methamphetamine involved in the offending.9[9] The Judge noted that 12 of the supply charges involved the supply of unknownquantities of methamphetamine to the same person. However, an additional fourcharges of supply to that person involved a known quantity of 28 grams. Mr Malolomaintained that he had "consistently supplied [this person] with the same amount ofmethamphetamine". Relying on the clear data that Mr Malolo had supplied 28 gramson each of the four occasions, the Judge held that the amount supplied each time was28 grams, rather than the one gram he suggested. Her finding that the offendinginvolved at least 994 grams of methamphetamine was further supported by the amountof cash in Mr Malolo's possession, totalling over $150,000.10[10] The Judge considered the authorities, the amount of 994 grams, the appellant'sleading role in the offending and his offer to supply a further 500 grams to concludethat the appropriate starting point for the offending was 11 years' imprisonment.116 At [10] and [13].7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. This suggests a starting point of eight to 16years' imprisonment.8 Sentencing notes, above n 1, at [15]–[16].9 At [11].10 At [14]. The Judge considered that, making an assessment based on Smith v R [2020] NZCA 586,$150,000 amounts to the sale of about 700 grams of methamphetamine.11 At [19].[11] The Judge observed that the discounts to acknowledge mitigating featureswould be limited, particularly given the late nature of the appellant's guilty pleas andexpressions of remorse.12 She did not accept that the appellant had addiction issues,finding instead that the offending was about making money for his family, but alsoabout greed.13[12] While acknowledging that there was deprivation and poverty in Mr Malolo'sbackground, the Judge "struggl[ed]" to give the appellant credit for this, noting that hehad taken "the lazy and easy way out" through his offending.14 However, the Judgethen went on to consider his two years on bail, during which time he had a job andearned honest money; his strong prospect of rehabilitation as he had "finally startedto admit what [he] did and the seriousness of it"; and the strong family support behindhim.15[13] Given these factors, the Judge said she was prepared to give some discount forwhy he initially began offending but noted "there was no excuse for this level ofdealing. This is big money."16 The Judge gave a discount of 12 months, beingapproximately 10 per cent of the starting point.17 Alongside the end sentence of10 years' imprisonment, the Judge ordered the forfeiture of $1,675 cash18and declined to impose a minimum period of imprisonment.19Starting point[14] Although it was submitted that a lower starting point of 10 years and sixmonths' imprisonment was appropriate, Ms Taylor-Cyphers, counsel for the appellant,did not press this aspect of the appeal strongly. The essence of her submission wasthat the Judge erred in treating offers to supply that were near completion in the sameway as the supply charges, by adding the quantum of the offers to the total. A modest12 At [21].13 At [22] and [25].14 At [23].15 At [24].16 At [24].17 At [25].18 At [28].19 At [27].reduction from the starting point was warranted, counsel submits, to reflect the factthat methamphetamine did not change hands.[15] No issue is taken with the placement of the offending within band fouridentified in Zhang, nor is the characterisation of Mr Malolo's role as leading contestedon appeal.[16] We reject the appellant's submission that a modest reduction was appropriateto recognise that offering to supply is an inchoate offence and the methamphetamineinvolved did not change hands.[17] The Misuse of Drugs Act 1975 does not distinguish between the supply of, andoffers to supply, Class A drugs. Both offences are contained within the same provision,s 6(1)(c) of the Act, and have the same maximum penalty of life imprisonment.20As this Court noted in Zhang, the Act deliberately draws no distinction betweeninflicted and attempted harm to reflect the severity of harm caused bymethamphetamine offending.21 To take the approach advanced by the appellant wouldbe contrary to the purpose of the Act.[18] Zhang is the guideline judgment for all methamphetamine-related offending.The bands remain relevant where the main offence is offering to supply, with thequantum offered used to assess where within the Zhang bands the offending falls.22The Court has also taken a summation approach across different methamphetamineconvictions, such as supply, offer and possession for supply.23[19] We consider that the Judge's approach, in taking into account the seven offersnear completion, was not only open to her, but also lenient. The Judge could have alsoincluded the 500 gram offer in her assessment of quantum. As this Court noted in20 Misuse of Drugs Act, s 6(2)(a).21 Zhang v R, above n 7, at [51].22 For a recent example, see Gray v R [2020] NZCA 548.23 See Cossey v R [2021] NZCA 677, where Mx Cossey "was sentenced to a total term of sevenyears' imprisonment on similar charges involving between 110–320 grams of methamphetamine".This consisted of supplying 12.25 grams, offering to supply 102.4 grams, and possessing 20.74grams to supply: see [4]–[5].Dodd v R, it is open to the Court to assume that an offender had the ability to makegood on their offers.24[20] We are satisfied therefore that the starting point of 11 years' imprisonment wasavailable.[21] Ms Taylor-Cyphers also submitted that the Judge should have taken the mostfavourable inference of Mr Malolo's offending available to her when assessingquantum. This submission relies on the Judge accepting Mr Malolo's evidence as toquantum. The Judge clearly rejected this evidence, as was open to her to do. We donot take this submission further.Discounts for mitigating factors[22] The principal issue on appeal is the discount. The Judge gave a discount of12 months which approximated to 10 per cent of the starting point. This reflected theeconomic factors which led Mr Malolo into offending generally and his personalmitigating factors. It seems the Judge may have included a minimal discount for guiltypleas in the total discount awarded, but no discount was given for remorse or for hisself-reported addiction.[23] Ms Taylor-Cyphers contends that 10 per cent was inadequate to reflectMr Malolo's hardship and deprivation, his guilty pleas, his remorse and time spent onelectronically monitored (EM) bail. She submits that discounts of seven per cent forthe s 27 report factors, three per cent for remorse and 15 per cent for EM bail wereappropriate. Regarding his guilty pleas, Ms Taylor-Cyphers advanced a five per centdiscount, to be applied to the portion of his sentence she said represented the36 charges to which he pleaded guilty.[24] We do not accept that the Judge erred in declining to provide a discount forremorse. Remorse must be more than bare acceptance of responsibility. It is aquestion of fact and judgement.25 The Judge considered Mr Malolo's letter of remorse24 Dodd v R [2013] NZCA 138 at [14]; and Zhang v R, above n 7, at [198].25 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].was "very late" and self-serving.26 The Judge also rejected Mr Malolo's self-reportedaddiction issues and struggled to see how his offending was not about greed.27[25] Here, Mr Malolo's expressions of remorse are incongruous with his actions.28Mr Malolo did not plead guilty or acknowledge his offending in part until the morningof the trial. As the Judge observed, in any event the trial had to proceed because ofthe number of charges to which Mr Malolo pleaded not guilty.29 He contested factualaspects of his offending; namely, that he dealt in cannabis, not methamphetamine, andhe challenged the amounts of methamphetamine involved. The jury rejected hisevidence that he was dealing in cannabis.[26] It is unclear whether any discount was given for Mr Malolo's guilty pleas to36 charges, because it was so late and still required a jury trial. We consider that itwas open to the Judge not to give a guilty plea discount in those circumstances.The strength of the Crown case is relevant to such an assessment.30[27] We consider the Judge was also correct to decline a distinct discount for timespent on EM bail. While Mr Malolo spent a lengthy time on bail without issue for twoyears, the majority of that time was on bail simpliciter. This gave him an opportunityto work normal hours with an evening curfew imposed. We accept the Crownsubmission that his bail conditions were not particularly restrictive.[28] Although the specific discounts in the 10 per cent figure are not explicit, weconsider the Judge did not err in denying Mr Malolo any further credit for factors ofdeprivation or hardship. We consider the Judge appropriately acknowledgedMr Malolo's economic circumstances which led to his criminal activity but that couldnot explain or excuse his scale of commercial offending. The Judge carefullyevaluated his offending, which involved Mr Malolo directing, buying and sellingmethamphetamine on a commercial scale, receiving substantial monetary gain directly26 Sentencing notes, above n 1, at [21].27 At [22].28 Williams v R [2012] NZCA 176 at [15]–[16]. See also Simon France (ed) Adams on Criminal Law(online ed, Thomson Reuters) at [SA9.22].29 Sentencing notes, above n 1, at [21].30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60].or on his behalf, his substantial links and influence on others in the chain of operation,and that he was discussing the expansion of his operation to the South Island.[29] The causal connection between Mr Malolo's background and his extensiveoffending was insufficient to warrant a greater discount. The pre-sentence report ands 27 report noted that he had a strong connection to his Tongan culture and family anda large pro-social network. He and his wife were poor and struggled to make endsmeet, but as he has acknowledged, he had the option of obtaining better-paidemployment (as he has since done). It was open to the Judge to conclude that he hadtaken the easy way out. He may well have been frustrated that, when his offendingbegan, he could not provide more than the bare necessities for his family on his wage,but it does not excuse his extensive operation in methamphetamine dealing.Such offending may well exploit others in similar financial circumstances, especiallywhere drugs are sold on credit and the dealer is assiduous, as Mr Malolo was, inchasing up debts.[30] The Judge took into account Mr Malolo's good prospects of rehabilitation, theimpact his offending would have on his family, and Mr Malolo's ability to workconsistently, as he did while on bail.31 We acknowledge another Judge may haveapplied a discount greater than 10 per cent for all the mitigating factors, and we acceptthat Mr Malolo has potential for rehabilitation. But this does not mean that the Judge'sapproach was in error.[31] In the circumstances of this offending, we consider the 10 per cent discountimposed was available and was not in error.Result[32] The application for an extension of time is granted.[33] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent31 Sentencing notes, above n 1, at [22]–[24].