WIRIHANA v R [2020] NZCA 151

WIRIHANA v R [2020] NZCA 151 [8 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA737/2018[2020] NZCA 151BETWEEN URIAH WHETU MONTY WIRIHANAAppellantAND THE QUEENRespondentHearing: 24 February 2020Court: Goddard, Ellis and Brewer JJCounsel: E R Fairbrother QC for AppellantM L Wong for RespondentJudgment: 8 May 2020 at 9.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence imposed in the District Court is quashed. We impose asentence of 12 months' home detention to be served at the address specifiedin the updated s 26 report dated 17 March 2020.____________________________________________________________________REASONS OF THE COURT(Given by Goddard and Ellis JJ)[1] Mr Wirihana pleaded guilty to two charges of possession of methamphetaminefor the purpose of supply. The first charge involved the supply of 15.5 grams.The second involved 336 grams. On 30 November 2018 he was sentenced to threeyears and seven months' imprisonment by Judge Rea in the District Court.1[2] In the course of sentencing the Judge made it clear that he had considerablesympathy for the submission that a less severe sentence should be imposed, havingregard to Mr Wirihana's limited role in the supply operation and his personalcircumstances, but felt constrained by the sentencing bands in the guideline judgmentR v Fatu.2[3] Mr Wirihana appealed against his sentence.3 The hearing of his appeal wasdeferred until after delivery of the decision of this Court in Zhang v R,4 which was tobe the new guideline judgment in relation to methamphetamine sentencing.Mr Shane Thompson, one of the appellants in Zhang, was the principal offender in thesupply network in which Mr Wirihana was involved.[4] Zhang was delivered late last year. As well as revising the sentencing bands(which continue to be based on quantity) this Court confirmed that:(a) an offender's role is a significant factor in sentencing formethamphetamine offending;(b) as with sentencing for all other offending, the Sentencing Act 2002(the SA) requires the personal circumstances of the offender to be takeninto account in sentencing for methamphetamine offending; and(c) a mechanical approach that ignores these factors, or gives themminimal weight, is inconsistent with the statutory framework.[5] The principal question for us in this appeal is whether Mr Wirihana's sentenceshould be recalibrated in light of Zhang and, if so, what that sentence should be.1 R v Wirihana [2018] NZDC 24961. He received a concurrent sentence of two years' imprisonmenton the first charge.2 R v Fatu [2006] 2 NZLR 72 (CA).3 Mr Wirihana also initially appealed against his conviction on the basis that the facts he accepteddid not amount to possession for supply. However, the appeal against conviction was abandonedshortly before this appeal was heard.4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.Ultimately, we have concluded that in the quite unusual circumstances of his case,a sentence of 12 months' home detention is appropriate. We give our reasons below.Background[6] Mr Wirihana was arrested following a 2017 police operation known asOperation Lariat, which targeted a methamphetamine dealing network inHawke's Bay, headed by Mr Thompson. Mr Thompson pleaded guilty to arepresentative charge of supplying 4.2 kilograms of methamphetamine at both awholesale and retail level, and one charge of possessing 2.6 kilograms ofmethamphetamine for supply.5[7] It appears that Mr Wirihana was a longstanding friend of Mr Thompson.Intercepted communications revealed that:(a) Between 24 July 2017 and 21 August 2017 Mr Wirihana sourced smallamounts of methamphetamine (totalling 15.5 grams) fromMr Thompson for supply to other people.6(b) Mr Wirihana stored a much larger amount (336 grams) at his homeaddress on Mr Thompson's behalf over a three-day period.Three quarters of that amount was later collected from Mr Wirihana'saddress by associates of Mr Thompson (for supply to his customers).The remaining amount was collected by Mr Thompson personallywhen he returned to Hawke's Bay on 21 August 2017.7District Court sentencing[8] After setting out the circumstances giving rise to the two charges, the Judgenoted that Mr Wirihana was a contributing member of the community. He had afull-time job, and he and his partner had a cleaning business franchise. It appeared he5 Mr Thompson was sentenced by Judge Rea to 13 years' imprisonment, with a minimum period ofimprisonment of six years and six months: R v Thompson [2018] NZDC 11394. He did not contestthe sentence of 13 years' imprisonment, and his appeal against the minimum period ofimprisonment was dismissed by this Court in Zhang.6 These events gave rise to charge one.7 These events gave rise to charge two.used methamphetamine to remain awake so he could work two jobs. He was not anaddict.[9] The Judge noted that the lesser quantity of 15.5 grams appeared to have beensupplied by Mr Wirihana to facilitate his own methamphetamine use. He did not makeany money out of this dealing.[10] The Judge recorded that Mr Wirihana also made no money out of storing the336 grams, but observed that involvement with such a considerable quantity ofmethamphetamine was to be viewed very seriously. He said Mr Wirihana must haveknown that it was destined to end up on the streets of Hawke's Bay because "it wasthe whole purpose of your property being used as a safe house, so that Thompson would not get caught with large quantities and you were prepared to facilitate that,presumably for some advantage to yourself".8[11] The Judge observed that sentencing Mr Wirihana was not easy. Fatu wasbinding on him. The sentencing bands in Fatu were based on the quantity of drugsinvolved, although (as the Judge noted) sentences could be imposed that were belowthe relevant band depending on an offender's role. He also noted that "the centralprovisions of the Sentencing Act 2002 have to play a part".9[12] Consistent with (what was then) relevant appellate authority, the Judge wenton to observe that in the context of methamphetamine offending, personalcircumstances took on a lesser role in sentencing. So while attracted to the submissionthat he should depart from the Fatu bands on the basis of Mr Wirihana's personalcircumstances and prospects, he noted that an earlier attempt by him to follow such anapproach was not upheld on appeal. He observed that this Court had remindedsentencing courts not to depart from sentencing tariffs in a way that essentially makesthem irrelevant.108 Wirihana, above n 1, at [4].9 At [6].10 At [11], referring to R v Kennedy [2011] NZCA 109.[13] So, the Judge said:11If there is to be a change to the way that sentencing takes place in situationssuch as this, it is not for sentencing Judges but for the Courts of policy, namelythe Court of Appeal or the Supreme Court, to deal with the issue.[14] The Judge had previously given a sentence indication with a starting point offive years' imprisonment. Despite Mr Wirihana not accepting that indication at thetime, the Judge considered that five years remained the appropriate starting point forthe totality of Mr Wirihana's offending. He considered Mr Wirihana was entitled to asix month discount for the fact that he had made real efforts to improve his situationfollowing arrest, assisted by support from the community and his family. That reducedstarting point of four and a half years was then further reduced by 20 per cent for hisguilty plea. That yielded the end sentence of three years and seven months'imprisonment.[15] On his own initiative the Judge then readmitted Mr Wirihana to bail, pendinga signalled appeal. Mr Wirihana has remained on bail from that time to the present— a matter we return to later.Mr Wirihana's appeal[16] Mr Fairbrother QC submitted for Mr Wirihana that, following Zhang, moreemphasis should be placed on the lesser role of Mr Wirihana in Mr Thompson'soperation. He referred to the statement in Zhang that, while the new entry points foreach band are intended to encompass most cases of low culpability, the Court did notexclude the possibility of a case involving minimal participation which might fallbelow those entry points.12 So, he said, because of his "close to" minimal role,Mr Wirihana should be regarded as falling within band two of Zhang (which appliesto offending involving quantities between five and 250 grams) and contemplatesstarting points in the range of two to nine years.1311 At [12].12 Zhang, above n 4, at [123].13 At [125]. Ordinarily the quantity of drugs involved in the second charge would fall within bandthree of Zhang (250–500 grams), which normally attracts a starting point of six to twelve years'imprisonment.[17] Mr Fairbrother said his submission as to Mr Wirihana's lesser role wassupported by reference to the indicators listed in Zhang, namely:14(a) limited function and acting under direction, particularly in relation tothe second charge;(b) involvement through naivety;(c) no actual financial gain, but rather payment in drugs;(d) no influence on those above him in the chain; and(e) limited awareness of the scale of the operation.15[18] In the alternative, Mr Fairbrother submitted that if band three applied, then theappropriate starting point would be six years but reduced by three years to reflectMr Wirihana's lesser role. He said there should then be a 30 per cent reduction forpersonal circumstances and for the guilty plea, giving an end point of two years,making home detention an available sentence.Updated pre-sentence report[19] Some 15 months elapsed between Mr Wirihana's sentencing in November2018 and the hearing of this appeal in February 2020. As we have said, Mr Wirihanawas on bail throughout that period. At the February hearing we were advised byMr Fairbrother that during this time Mr Wirihana had remained employed as a truckdriver, and benefited from a range of pro-social influences.[20] In these rather unusual circumstances, it appeared to us that the sentencingpurpose articulated in s 7(1)(h) of the SA (assisting in the offender's rehabilitation andreintegration) might loom particularly large in Mr Wirihana's case. To assist in ourassessment of that factor we sought an updated report under s 26 of the SA.14 At [126], referring to the approach of the UK Sentencing Council.15 Evidenced by the fact that he was only identified as part of the network by an analysis ofMr Thompson's text messages and that Mr Wirihana was not a party to any of the interceptedcommunications.We directed that the report should also address the matters relevant to home detentionset out in s 26A, although we made it clear that this was not to be taken as an indicationof the likely result.[21] The updated report records that during his 15 months on bail Mr Wirihana hasmaintained his relationship with his partner. He continues to be in full-timeemployment. He completed alcohol and drug counselling in 2018, and remains opento attending further counselling as required. Mr Wirihana told the report writer thathe had not used drugs since the charges were laid and he has distanced himself fromthe former associates involved in the offending. He advised that he is subject torandom drug testing at work and produced evidence of this (and of clear results).[22] The report was accompanied by letters of support for Mr Wirihana from hispartner, his employer, his landlords (who are also his neighbours), his mother and hisgrandmother. The letters convey a consistent theme of remorse on the part ofMr Wirihana for his offending and its consequences for others, commitment to hisfamily and his employer, and ongoing support for Mr Wirihana from those around him.The letter from his employer is glowing in terms of Mr Wirihana's work ethic and hiscontributions to the company.[23] The report writer assessed Mr Wirihana as posing a low likelihood ofreoffending. He is seen as a suitable candidate for a community-based sentence.The report recommends home detention, with a number of special conditions.The report confirms that his address is suitable for home detention, and the necessaryconsent has been given by the other occupant (his partner).Discussion[24] At the outset we record our agreement with Ms Wong's submission forthe Crown that the approach adopted by the Judge here did not represent a mechanicalapplication of the Fatu guidelines. Rather, a generous starting point was adopted thatwas below the relevant Fatu band.[25] We also agree that, even under Zhang, it is difficult to place Mr Wirihana(in terms of quantity and role) other than at the lower end of band three which, as wesaid, ordinarily warrants a starting point of around six years (one year more than thestarting point adopted by the Judge). And we agree that there could be no realisticquibble with the 20 per cent guilty plea discount.[26] Ordinarily, a court hearing an appeal against sentence would not take intoaccount events occurring or personal circumstances arising subsequent to sentencing.Where an appellant is already serving a sentence of imprisonment, it will be for theDepartment of Corrections to deal with personal issues (such as medical problems)which develop. And similarly, while rehabilitative steps taken by an offender sincebeing in prison might be noted as positive — and perhaps indicative of an offendertaking responsibility and showing real remorse — any effect on the length ofincarceration would be regarded as a matter that is properly for the Parole Board.[27] But Mr Wirihana's case is different. It is almost three years since his offending.We understand he has spent the whole of that period on bail. His conduct during thattime evidences not only prospects of, but actual, rehabilitation. He has taken steps toaddress the causes of his offending and he is willing to take more. He has a stable andsupportive family life and is a valued and contributing member of society. He is drugfree. The likelihood of him re-offending is assessed as low.[28] That said, Mr Wirihana's case is one which engages s 6(4)(a) of the Misuse ofDrugs Act 1975; a sentence of imprisonment is the default position for anyoneconvicted of an offence against s 6(1)(f) of that Act in relation to a Class A controlleddrug. But equally, the Court is not required to sentence him to imprisonment if, havingregard to the particular circumstances of the offence or of the offender, it is of theopinion that he should not be so sentenced. And as the Court noted in Zhang:16 a more liberal application of the proviso in s 6(4) of the Misuse of DrugsAct is appropriate where an offender plays a lesser role in offending, andparticularly where health issues contribute to the offending.[29] Mr Wirihana has, to our knowledge, no contributing health issues. But he didundoubtedly play a limited role without any financial reward in Mr Thompson'soperation. Given the quantity of methamphetamine involved, we do not consider there16 Zhang, above n 4, at [123], n 80.is room for movement below the starting point imposed by the Judge (which wasbelow the bottom of Zhang band three). But we consider that Zhang underscores theimportance of adopting a flexible approach in a case which does not fit the ordinarymould, in a manner that reflects the purposes and principles that underpin the SA.[30] We consider that imprisoning Mr Wirihana now would have adisproportionately severe effect on him in terms of s 8(h) of the SA. He would losehis job and — almost certainly — the benefits of the progress he has made and thecommitment he has shown. We consider that this result would be wholly inconsistentwith the s 7(1)(h) purpose. And as this Court said in Zhang, at stage two of thesentencing exercise:17 a substantial measure of discretion is vested in the sentencing judge tomitigate the starting point for personal circumstances that mean applying thestarting point would be inconsistent with s 7(h) — the rehabilitation andreintegration of offenders — and the considerations expressed in the latter partof s 8.[31] Here, the sentencing Judge gave a 10 per cent discount for personalcircumstances. We acknowledge that this discount could not be regarded as miserlyunder Fatu. But in doing so the Judge made it plain that he did not consider that thisapproach adequately reflected Mr Wirihana's circumstances or yielded the appropriatesentence. That view was clearly behind his decision to grant Mr Wirihana bail pendingthis appeal. We have no doubt that the Judge would have imposed a non-custodialsentence if he thought that course was open to him. We observe that subsequentdevelopments confirm the Judge's view of Mr Wirihana's prospects.[32] We consider that Mr Wirihana's manifest rehabilitative prospects and thepositive steps he has already taken, in light of the greater level of flexibility nowafforded under Zhang, warrant a discount that reflects those prospects and thedesirability of seeing them fully realised. We consider a discount of 50 per cent toreflect these factors can be justified here.[33] In the unique circumstances of this case, therefore, we allow the appeal.The sentence of three years and seven months' imprisonment is quashed. If we were17 At [134].to impose a sentence of imprisonment, we consider that an appropriate term would betwo years. Home detention therefore becomes an available option and in our view itis the least restrictive sentencing outcome that is appropriate in this case. We thereforeimpose a sentence of 12 months' home detention. The standard conditions for asentence of home detention set out in s 80C of the SA will apply.18[34] We emphasise that one of the primary reasons for imposing this sentence is toenable Mr Wirihana to continue in his employment. Our expectation is that theprobation service will manage his sentence, and will provide appropriate approvalsunder s 80C(3)(c)(ii) to ensure that this can occur.Result[35] The appeal is allowed.[36] We quash the sentence imposed by the District Court, and substitute a sentenceof 12 months' home detention, which is to be served at the address specified in theupdated s 26 report dated 17 March 2020.Solicitors:Crown Law Office, Wellington for the Respondent.18 The updated pre-sentence report recommends that if a sentence of home detention is imposed,several special conditions should be imposed. However s 80D(2) of the SA provides that thespecial conditions contemplated by that Act may be imposed only if, among other criteria, thereis a significant risk of further offending by the offender. That is not the case here, so we do notimpose any special conditions.