Mau'u v R [2015] NZCA 80 (24 March 2015)

Last Updated: 30 March 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA406/2014 [2015] NZCA 80
BETWEEN	DENNIS MAU'U Appellant
AND	THE QUEEN Respondent

Hearing:	9 March 2015
Court:	Stevens, Asher and Williams JJ
Counsel:	M N Pecotic for Appellant P D Marshall for Respondent
Judgment:	24 March 2015 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Introduction

[1] When arraigned in the Auckland District Court on 28 April 2014, the appellant, Dennis Mau’u, faced seven charges relating to supply of drugs, robbery and violence. He pleaded guilty and on 4 July 2014 was sentenced by Judge Sharp to three years’ imprisonment.^[1]
[2] During the entire period of his offending between August 2010 and April 2011, the appellant was an inmate at Auckland Central Remand prison. He was serving a sentence of three years and six months’ imprisonment on kidnapping, indecent assault and various firearms related charges committed in 2009. He was also on remand for other charges relating to aggravated robbery, kidnapping and unlawful possession of a firearm committed in 2010.
[3] Mr Mau’u now appeals his sentence.

Summary of offending

[4] The offending to which this sentence related involved the appellant and his two brothers, Tuvale and Henry. The brothers were not in prison. The evidence of offending was drawn largely from the record of telephone calls made by the appellant from Auckland Central Remand prison to the Mau’u family home in Glen Eden, where his brothers resided. For ease of identification, we refer to each.

Count 1 – conspiracy to commit common assault

[5] The appellant and Henry spoke by telephone and, as a result of the conversation, Henry agreed he would assault a third party – Junior Leota.

Count 2 – conspiracy to commit robbery

[6] In a telephone conversation between Dennis and Tuvale, Tuvale agreed that he would “tax” a third party by the name of Glen, by taking Glen’s black HQ Holden. It was agreed in a second call that Tuvale would use a cricket bat to enforce the vehicle theft.

Count 3 – theft

[7] Dennis arranged with Tuvale to undertake a fake drug sale in order to obtain $20,000 from a prospective drug buyer. Tuvale later informed Dennis that they had successfully obtained $19,980 through this fake sale and discussed how the money would be divided and spent between those involved in the theft.

Count 5 – conspiracy to supply methamphetamine (representative)

[8] This count relates to planning among Dennis and his brothers in relation to multiple transactions for or with unknown third parties, across a number of months.
[9] Dennis spoke to Tuvale by telephone and asked him to obtain two grams of methamphetamine from an unknown associate to be delivered to Dennis via a corrupt prison guard. Tuvale duly complied. The drugs were then split into Q-bags to be on-sold.
[10] Dennis also arranged for Tuvale to obtain first one gram and then later seven grams of cannabis for delivery to Dennis. Delivery would be by the corrupt prison guard in exchange for a fee. The one gram was duly received.
[11] Dennis and Tuvale then organised for Tuvale to obtain three grams of methamphetamine for delivery to the corrupt prison guard in exchange for a fee. 3.8 grams was in fact delivered. Dennis became ill consuming some of the drugs received in the course of these dealings.
[12] Dennis and Tuvale then arranged for Tuvale to hide 1.5 grams of methamphetamine in 30 gram tobacco pouches, to be smuggled into prison via the corrupt prison guard.

Count 6 – conspiracy to supply a precursor substance

[13] Dennis called Henry to obtain 446 grams of pseudoephedrine with a total street value of up to $20,000. This quantity of precursor substance can be used to manufacture 150 grams of methamphetamine (around 5 ounces). Dennis informed Henry it was for supply to some contacts of his, referred to as the “Asians”. The transfer was not completed because the police happened to be at the Mau’u family Glen Eden address at the appointed transaction time. After this apparently aborted transaction, further calls were made between Dennis and Tuvale to arrange for the acquisition of two containers said to contain pseudoephedrine. It was found that they did not.

Count 7 – conspiracy to sell cannabis

[14] Dennis arranged with Tuvale to package cannabis for delivery by a third party, Pohua, for delivery into the prison by the corrupt prison guard for a fee.
[15] Dennis also arranged with Tuvale for him to obtain an ounce of cannabis from an associate named Rocky and to split it in half – one half for delivery to an outside address on behalf of a fellow inmate. The cannabis was delivered but the occupant of the outside address was arrested on unrelated matters before it could be taken up.
[16] Dennis and Tuvale then arranged for Tuvale to go back to the address, recover the package and split the cannabis again. This was then delivered to another associate.
[17] Cannabis was also subsequently wrapped, sealed and delivered to Dennis via the corrupt prison guard.

Count 8 – sale of cannabis

[18] Dennis arranged for Tuvale to deliver a $100 bag of cannabis to another associate in exchange for stolen meat. A further smaller bag was delivered to the same recipient for on-delivery to Dennis in the prison.

Sentencing decision

[19] Judge Sharp identified Dennis to be the ring leader in this offending.^[2] The key aggravating features identified in respect of this offending included the length of time and extent of the offending, that it was conducted in prison, that it involved supplying drugs to prison, that a prison officer was corrupted and that the offending constituted organised criminal activity.^[3]
[20] The Judge identified conspiracy to supply methamphetamine as the lead offence (count 5).^[4] The offending was placed at the bottom of band two in R v Fatu justifying a starting point of four years if the offending had involved an actual supply.^[5] The Judge then discounted the starting point by six months, to a point of six years and six months to take account of the fact that the charge was conspiracy only.^[6]
[21] Having arrived at a starting point of three and a half years’ imprisonment or 42 months, the Judge then uplifted this by 40 per cent to reflect the aggravating features of the offending outlined above.^[7] In fact the Judge made a slight arithmetical error. The uplift for prison context was actually 43 per cent not 40 per cent – 18 months rather than 17 months.^[8] She then added a further 18 months to reflect the other offending for which the appellant was charged.
[22] This led to a starting point of 78 months or six years and six months’ imprisonment.^[9]
[23] The Judge then discounted that sentence by 10 per cent for guilty plea but refused to give any further discounts for personal mitigating factors. That discount should have brought the sentence to approximately 70 months – five years and 10 months, but the Judge rounded it down to five years and nine months, effectively correcting the earlier over-calculation of uplift.
[24] The Judge then stood back and considered, given the appellant was already imprisoned for previous offending, whether a further deduction from the sentence should be made to accord with the principle of totality. She deducted a further 33 months or two years and nine months for totality in light of the fact that the appellant was a serving prisoner. A final sentence of three years’ imprisonment was imposed cumulative on his then existing sentence. Lesser concurrent terms were imposed for all other offending.

Appellant’s arguments

[25] In careful and comprehensive submissions, Ms Pecotic made three points. First, the starting point of three and a half years’ imprisonment was too high in light of the fact the lead offence was a conspiracy count. Secondly, the Judge gave no discount for personal mitigating factors despite the fact that a significant proportion of the offending was for the purpose of feeding the appellant’s own drug addiction. Thirdly, the end sentence was manifestly excessive with regard to the totality principle, when the appellant’s existing sentence of imprisonment was taken into account.

Our evaluation

[26] We consider the Judge’s sentencing represented an appropriate application of the Taueki sentencing methodology.^[10] We can find no material error.
[27] We need to refer only briefly to the key features of the Judge’s reasoning as follows:

• (a) A starting point of four years’ imprisonment for completed supply of eight grams of methamphetamine would have been an orthodox application of the Fatu principles.^[11] The Judge was correct to place such offending at the lower end of band 2.
• (b) The discount of 12.5 per cent for the fact the charge was one of conspiracy only was actually a little generous. The leading case on point in this Court, Te Rure, would in these circumstances have restricted any discount to between five and 10 per cent in light of the fact that the conspiracy had proceeded well past a mere theoretical plan.^[12] The methamphetamine had been acquired and smuggled into the prison, and there is no question but that the methamphetamine was being cut and/or packaged for on-sale.
• (c) The 40 per cent (or thereabouts) uplift for the fact that the offending occurred while the appellant was in prison was again, unexceptional. The cases establish a consistent pattern of significant uplifts for drug offending from prison.^[13]
• (d) The uplift of 18 months for the remaining counts must also be seen as orthodox. The collateral offending was serious – the arrangement from prison of assaults, robberies, supply of precursor substances and cannabis, as well as the theft of $20,000. The uplift could well have been higher, but for the issue of totality.
• (e) The reduction for totality of 33 months or nearly 48 per cent was unquestionably generous. Indeed there is ample authority for the proposition that reductions on a totality basis for serious reoffending while in prison should be minimal only.^[14]

Result

[28] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Mau’u DC Auckland CRI-2011-090-8940, 4 July 2014 [sentencing decision].

^[2] Sentencing decision, above n 1, at [21].

^[3] Sentencing decision, above n 1, at [26].

^[4] At [39].

^[5] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [34](b), noted at [25] of the Sentencing decision.

^[6] Although not expressly referring to it, this discount was in accordance with the statement of principle of this Court in R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627.

^[7] Relying on Garrity v R [2011] NZCA 552, with specific reference to the fact the appellant was in prison at the time of the offending.

^[8] I note here then the Crown submitted that the uplift for this factor was in fact 47 per cent, but that seems to be in error.

^[9] At [39]. We note further this was recorded in the sentencing decision as 79.8 months – however we have calculated this to be in fact 78 months.

^[10] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[11] R v Fatu, above n 5, at [33]–[34].

^[12] Te Rure, above n 6, at [28].

^[13] See for example Garrity v R [2011] NZCA 552 and Taylor v R [2012] NZCA 332 at [46]–[47] (involving a 40 per cent uplift), and Napia v R CA258/00, 12 October 2000 at [12], in which the Court noted that the key ingredient in the uplift for prison context is deterrence because of the negative effect of drugs on prison order generally, prison violence in particular, the deliberately premeditated nature of offending and the need to achieve prisoner rehabilitation.

^[14] See especially R v Connelly [2010] NZCA 52 at [31] and Tryselaar v R [2012] NZCA 353 at [16]–[18] in which no totality discount was given. See further Kepu v R [2011] NZCA 104 at [18]–[19] and R v Campbell CA141/06, 12 October 2006 at [15], referred to in Tryselaar at [16]–[18].