Tule v R [2023] NZCA 543 (2 November 2023)

Last Updated: 6 November 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA73/2023 [2023] NZCA 543

	BETWEEN	ARANUI JENNIFER TULE Appellant
	AND	THE KING Respondent

Hearing:	26 September 2023 (further submissions received 24 October 2023)
Court:	Cooper P, Palmer and Jagose JJ
Counsel:	M J James and G A Walsh for Appellant I A A Mara and T R Simpson for Respondent
Judgment:	2 November 2023 at 11.00 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Jagose J)

• [1] Aranui Tule appeals against the sentence imposed by Judge Hollister-Jones in the District Court at Rotorua^[1] to four years and six months’ imprisonment for possession of methamphetamine for supply,^[2] a firearm,^[3] ammunition^[4] and cannabis.^[5]
• [2] Concurrently, Ms Tule was sentenced, or convicted and discharged, on driving‑related and breach of bail charges. Ms Tule has abandoned her appeal against conviction, which she initially brought on grounds she “didn’t want to go guilty” and in relation to which she proposed to give evidence about the entry of her plea. No such evidence was filed.

Background

• [3] In May 2020, on executing a search warrant to search Ms Tule’s car in the wake of her driving offending, police found 136 grams of methamphetamine and seven grams of cannabis, a shotgun and ammunition, and a notebook with entries potentially indicating drug dealing. After receipt of a sentencing indication of six years’ imprisonment, she pleaded guilty on the morning of trial.

Judgment under appeal

• [4] Judge Hollister-Jones noted Ms Tule’s explanation she obtained the items she was charged with possessing (as well as the notebook) in collecting her deceased homeless brother’s personal effects from a park some time after his death. The Judge considered the explanation was most unlikely, and noted, if it were rejected, Ms Tule would face “a six-year starting point with minimal reductions for personal mitigating factors”.^[6] Ms Tule resisted the Judge’s proposal then to adjourn sentencing for a disputed facts hearing centred on the notebook’s authorship, and instructed her counsel she wished the sentencing to proceed.^[7] The Judge proceeded accordingly.
• [5] Saying he found it “a difficult sentencing exercise”,^[8] by reason of the “little information” he had about the circumstances of her possession,^[9] the Judge located Ms Tule’s principal offending in “mid-band 2” of those established in Zhang v R. He set a starting point of four and a half years’ imprisonment on the methamphetamine charge, uplifted by a further year on the arms and ammunition charges.^[10]
• [6] The Judge noted Ms Tule’s lack of relevant previous convictions, middle age and generally responsible social standing, including support in court by four of her children who his Honour assessed “look to be a credit to [her]”.^[11] He also considered reports which set out details of Ms Tule’s disrupted childhood and experiences of sexual assault but also her sense of cultural connectedness.^[12] He had difficulty connecting her background to the circumstances of her offending “because ... what appears from the notebook and the combined circumstances of methamphetamine and firearms found is [Ms Tule was] operating as a low-level drug dealer”.^[13] Nonetheless he allowed “a discount of 12 per cent for background matters” and five per cent for her late guilty plea, together resulting in an end sentence of four years and six months’ imprisonment.^[14]
• [7] For Ms Tule, Ms James argues the Judge took too high a starting point in unjustified reliance on the notebook, which was not mentioned in the summary of facts on which Ms Tule was sentenced. He failed to allow adequate discounts for her good character and rehabilitative prospects as illustrated by her criminal history and pre‑sentence reports. Ms James contends there was no evidence on which to conclude Ms Tule fulfilled other than a lesser role in drug dealing, which meant the Judge erred in setting the starting point. For the Crown, Mr Mara emphasises that the quantity of drugs in Ms Tule’s possession is deemed to be for supply, and any lesser role is for her to make out.

Extension of time

• [8] Ms Tule’s notice of appeal was filed 16 days out of time. As the delay was explained and there is no prejudice to the Crown, we grant the application for an extension of time.

Jurisdiction and approach on appeal

• [9] As noted, Ms Tule initially filed an appeal against conviction and sentence, but subsequently has abandoned her appeal against conviction. Had Ms Tule only wished to pursue an appeal against sentence from the outset, she would have needed to file her notice of appeal with the High Court.^[15] However, because she appealed against both conviction and sentence, her appeal against sentence became a related right of appeal in respect of which this Court was then seized.^[16] That consequence arose from s 321 of the Criminal Procedure Act 2011, which relevantly provides:

321 Related appeals that are to be heard by Court of Appeal

(1) This section applies if—

(a) a convicted person appeals to the Court of Appeal against conviction under section 229:

(b) a convicted person appeals to the Court of Appeal against sentence under section 244 or the prosecutor appeals to that court against sentence under section 246.

(2) Appeals arising from the exercise of a related right of appeal by the convicted person or the prosecutor must be heard and determined by the Court of Appeal.

...

• [10] The Act does not directly address the situation where an appeal, in respect of which a related right of appeal arises, later is abandoned. Following the hearing, we sought further submissions on the question of whether the Court retained jurisdiction to determine the appeal in the circumstances. Counsel agreed jurisdiction persisted notwithstanding abandonment of Ms Tule’s conviction appeal.
• [11] We agree. Ms Tule exercised her related right of appeal against sentence when she filed her notice of appeal in this Court. We explain below it was at that point her sentence appeal arose for the purposes of s 321(2) and, pursuant to that subsection, we now must determine it.
• [12] A related situation arose in Gorgus v R, in which leave to appeal was sought in respect of a pre-trial District Court decision regarding the admissibility of evidence.^[17] In that case, the appellant was initially facing a charge of aggravated burglary,^[18] a category 3 offence, and had elected to have a trial by jury. But after his application for leave to appeal was filed in this Court, the charge against him was downgraded to being in an enclosed yard without reasonable excuse,^[19] a category 2 offence. A jurisdiction question arose: was this Court still the first appeal court for the purposes of s 219 of the Criminal Procedure Act? The Court held it retained jurisdiction as the first appeal court. Under s 219, the key determinant was the nature of the proceeding at the time of the decision being appealed.^[20]
• [13] Similarly, under s 321(2), jurisdiction is conferred by the exercise of the related right of appeal. That occurs when a notice of appeal engaging ss 320 and 321 is duly filed. Accordingly, we are satisfied, although Ms Tule’s appeal against sentence initially was parasitic on her appeal against conviction, this Court retains the jurisdiction to determine it.
• [14] We must allow the appeal only if satisfied both there is error in the sentence, and a different sentence should be imposed.^[21] In any other case, we must dismiss the appeal.^[22] The measure of error is the sentence be “manifestly excessive”, a principle “well-engrained” in this Court’s approach to sentencing appeals.^[23] The Court will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether the sentence is “manifestly excessive” is to be assessed in terms of the sentence given; the process by which it is reached will rarely be decisive.^[24]

Discussion

• [15] There is no dispute the amount of methamphetamine in Ms Tule’s possession placed her firmly within Zhang’s band two, which is for quantities of less than 250 grams and involves a starting point of two to nine years’ imprisonment.^[25] Zhang’s guidance is “[a]ccess to the lower sentence starting points may be expected only by those whose role is found to be lesser in degree, and where quantities are at the lower end of the relevant range”.^[26]
• [16] From that perspective, the Judge’s reliance on the notebook is immaterial. Ms Tule pleaded guilty to possession of methamphetamine for supply. The inference is she was supplying a substantial quantity of methamphetamine in her own operation and, absent evidence of external pressures or addiction, for financial gain.^[27]
• [17] If Ms Tule’s role was to be found lesser in degree, that could only be by reference to information provided by her to establish any of the relevant criteria.^[28] The Judge was entitled to reject the suggestions by Ms Tule as to how she came into possession of the notebook that appeared in the pre-sentence report, the psychological report and the background report. Ms Tule declined to pursue a disputed facts hearing. The accepted quantity of drugs alone, and her guilty plea to the charge of possession for supply attributes her with a significant role in her own operation. There was no suggestion on the facts anyone else was involved. In cases like this, involving someone who might be described as a “sole trader”, it is not sensible to ask if she had a lesser role. Her role was at least significant, and inferentially leading as well. So given the amount of methamphetamine involved, a starting point in the middle of band two could be anticipated.^[29] In fact, the middle of a two to nine years’ starting point range is five and a half years.
• [18] No issue is taken with the Judge’s one-year uplift on the firearm and ammunition charges; this Court regularly has “endorsed uplifts of between 12 to 18 months’ imprisonment for those found in possession of firearms in association with drug offending”.^[30]
• [19] The Judge’s universal “background” discount may be thought to have incorporated all mitigating facts available to him from the reports before him, to which he expressly referred. If her extended period of not offending for some years prior to the index offending offered room for credit, it was undone by her subsequent return to driving and bail related offending in later 2020 and 2021.
• [20] In short, we find the Judge’s end point well within a range properly justified by accepted sentencing principle. It cannot be said at all excessive, let alone “manifestly” so.

Result

• [21] The application for an extension of time to appeal is granted.
• [22] Ms Tule’s appeal against sentence is dismissed.

Solicitors:
Crown Law Office | Te Tai Ture o te Karauna, Wellington for Respondent

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^[1] R v Tule [2022] NZDC 23629.

^[2] Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty: life imprisonment.

^[3] Arms Act 1983, s 45(1). Maximum penalty: four years’ imprisonment or a fine of $5,000.

^[4] Section 51. Maximum penalty: three years’ imprisonment or a fine of $4,000.

^[5] Misuse of Drugs Act, s 7(1)(a) and (2). Maximum penalty: three months’ imprisonment or a fine of $500.

^[6] R v Tule, above n 1, at [4].

^[7] At [5]–[7] and [17].

^[8] At [13].

^[9] At [16].

^[10] At [18], referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

^[11] At [12].

^[12] At [19].

^[13] At [20].

^[14] At [22]–[23].

^[15] Criminal Procedure Act 2011, ss 244(1) and 247(1)(b)(i) and (c).

^[16] Sections 320(1)(b) and 321(1)(a) and (2). Pursuant to ss 229, 230(1)(c), 320(1)(a)(ii) and 321(1)(a) and (2), Ms Tule’s right of appeal against conviction lies in this Court.

^[17] Gorgus v R [2022] NZCA 492.

^[18] Crimes Act 1961, s 232.

^[19] Summary Offences Act 1981, s 29(1).

^[20] Gorgus v R, above n 17, at [8].

^[21] Criminal Procedure Act 2011, s 250(2).

^[22] Section 250(3).

^[23] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

^[24] Ripia v R [2011] NZCA 101 at [15].

^[25] Zhang v R, above n 10, at [125].

^[26] At [123].

^[27] At [126], and as updated in Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [51] and [70]–[71].

^[28] At [127].

^[29] See Harris v R [2021] NZCA 143 at [21]–[22], accepting possession of 97.646 grams of methamphetamine “puts that offending closer to the middle of band two” for the offender’s “own operation”.

^[30] To’a v R [2020] NZCA 187 at [19], citing R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [41]; Mills v R [2016] NZCA 245 at [18]; and Joyce v R [2020] NZCA 124 at [24].