R v Tua [2020] NZDC 2361 (12 February 2020)

Last Updated: 19 June 2020

IN THE DISTRICT COURT AT NAPIER I TE KŌTI-Ā-ROHE KI AHURIRI

CRI-2018-020-003335

[2020] NZDC 2361

THE QUEEN

v

ROMAN DANIEL TUA

Hearing:	12 February 2020
Appearances:	A Bryant for the Crown E Forster for the Defendant
Judgment:	12 February 2020

NOTES OF JUDGE G A REA ON SENTENCING

[1] Mr Tua, you are here for sentence on two separate charges. One of supplying methamphetamine where the allegation is that you did so between 1 April 2018 and 25 October that same year. You have also pleaded guilty to a charge of being in possession of methamphetamine during the same time period for the purpose of supplying it to others.

[2] You were what is described as the principal offender in a group operation where significant quantities of methamphetamine were brought into the community and sold at both wholesale and retail level. It is a fact that this operation as far as I am aware is the second largest one to have been uncovered by the police in this district in the last few years. You were able to source methamphetamine from both Auckland and Hamilton. You made purchases approximately every month, although the quantities

R v ROMAN DANIEL TUA [2020] NZDC 2361 [12 February 2020]

purchased on all but the last occasion are unknown. On the last occasion, which was on 4 October 2018 you purchased a kilogram of methamphetamine from an Auckland supplier. Police were aware that two others had been used by you as safe houses for both money and drugs. One of those has already been sentenced. The other is a woman who awaits sentence.

[3] On 13 July 2018 the man who had that role at the time said that he only had three left of 27 “sausages” that he had taken into stock. A “sausage” was two ounces or 56 grams of methamphetamine so the quantity that he was talking about was

1.5 kilograms. He also perhaps very unwisely showed an associate a briefcase containing more than $310,000 in neatly organised bundles of cash. This conversation was secretly video recorded and that became available to the police.

[4] A week after that you were out of town on what is described as a “reload” which I understand means that you were resupplying with methamphetamine and you had an unknown amount of cash with you to enable that to be done. The safe house was burgled and the remaining cash which totalled approximately $200,000 was stolen.

[5] Another “reload” was undertaken on 22 September 2018. You travelled to Auckland with two others. An unknown amount of methamphetamine was purchased. You soon found that you had been cheated and that the purchase was heavily cut unlike the product that you had sampled before purchase.

[6] You remained in Auckland for some two days attempting to remedy the situation, but you were unable to do so. You then returned to Hawke’s Bay and that methamphetamine was supplied to two others involved in your group in an attempt to what is called “clean” it, in other words to produce methamphetamine that would be usable by an addict or somebody wishing to use the drug. In the end 309 grams of methamphetamine of unknown purity was recovered.

[7] On 4 October 2018 you again went to Auckland with two others. You purchased a kilogram of methamphetamine. On termination, which was three weeks later, just over 450 grams of methamphetamine were recovered by police. This was recovered from a vehicle and an address but did not include methamphetamine that had previously been “cleaned”. Also, on termination a total of nearly $275,000 in cash was recovered from two addresses, one of them being your own and also from wallets of two people involved in this operation.

[8] The summary of facts records that ignoring the “cleaned” methamphetamine and the purchases which cannot be quantified, you were responsible for either the supply or possession for supply of approximately two and a half kilograms of methamphetamine. It is a fair comment to make that while that is the basis upon which you are being sentenced, there is a very strong likelihood indeed that considerably more methamphetamine was involved over that period of time because of an inability of the police to totally quantify what you obtained in the various trips you undertook to Waikato and Auckland to obtain supplies.

[9] There is no doubt at all that this was a significant commercial operation. You can dress it up however you like but you were in this to make as much money as you possibly could and the material before me indicates you were operating a business that dealt in the hundreds of thousands of dollars over a period of some months. This case has been adjourned awaiting the Court of Appeal decision in Zhang which was available to us in November of last year.1 Based on that you received a sentence indication of a starting point of 14 years and you accepted that sentence indication. Since that time I have a comprehensive probation officer’s report, a valuable cultural report, I have heard from Mr Forster both orally and in writing, I have read the letter that you wrote and I am well aware of your family support exemplified by your uncle speaking on your behalf today.

[10] As I have said Mr Tua in one form or another it is very clear the support that you have here today and that you have from your family. One of the things that the Court of Appeal judgment deals with is the high Māori imprisonment rate which

1 Zhang v R [2019] NZCA 507.

obviously Judges are acutely aware of. It also deals with the tragic effects that this drug has on young Māori people and the community generally. Day after day Judges around the country and certainly in this area see the devastation in people’s lives that methamphetamine causes. Horrendous domestic violence, people resorting to violence that never would consider doing so under normal circumstances, deprivation, poverty and criminality go hand in hand with this. And whether you accept it or not it was your actions and those working with you that brought a considerable quantity of this drug into this community and did untold damage. It is all well and good to say that people consuming this drug do so because they choose to. That may well be right to start with but it does not end up being right and it does not change the huge damage that it causes, particularly to the community in which you come from.

[11] The Court of Appeal has made it clear that when a major dealer is for sentence the profitability of the commercial scale drug offending and its associated sophistication make apprehension and sanction for those who lead the trade quite remote but when they are apprehended they and their ability to recruit others should not then be rewarded by moderate sentences that do not deter or denounce the conduct. I accept that you are in a different situation than Shane Thompson, who is often cited by both sides as an example of somebody who is in the same category as you are. His position is different. He had considerably more drugs than you did and was involved in a wider distribution than you were but that is relative. Your distribution in itself as I have already indicated has caused a good deal of grief simply by the sheer volume of it.

[12] The Court of Appeal has made it clear recently that at the top end deterrence, denunciation and accountability are very important factors, but it cannot be overlooked that personal factors important to you need to be considered and I fully intend to do that and I intend to do it in two ways. I see no reason to differ from the starting point that I nominated in the sentence indication that I gave and that will be 14 years’ imprisonment. There needs to be a reduction to reflect the fact that you are remorseful, that you have the background that is outlined in the cultural report, that you have whānau support and also it cannot overlooked the physical difficulties that you have which will impact even greater on you in a prison setting than it would for other inmates who are not affected in the way that you are.

[13] I have to bear in mind, however, that such a reduction must be kept in line with the fact that you are major drug dealer, you chose this life, you were apprehended in carrying out significant drug dealing with the damage to the community that follows from it.

[14] The first part of the sentencing is to reduce the starting point by two years to reflect those matters. That takes it down to a sentence of 12 years’ imprisonment. You are entitled to a deduction for the fact that you have pleaded guilty. It has been agreed, and I accept, that the appropriate level is 20 percent of the sentence. That will mean an end sentence for you of nine years and six months’ imprisonment. The real issue here is whether a minimum non-parole period should be imposed upon you. Normally a non-parole period of somewhere up to 60 percent of that sentence would be imposed upon you in the circumstances in this case. But bearing in mind what the Court of Appeal had to say even in relation to dealers at your level, personal circumstances do need to be taken into account where they are relevant and I consider they are relevant here.

[15] If it was not for your disability a minimum non-parole period of between 50 and 60 percent of your sentence would have been imposed on you today. However, I reflect that the Parole Board will be in a far better position to assess your situation in a custodial context as time goes by than I ever possibly could at this juncture at the time of sentence. Accordingly, I do not intend to impose a minimum non-parole period on you. That means that you will be eligible for parole, but certainly does not mean you will get it, after three years and two months of the sentence, other than having to serve more than half or perhaps two-thirds of the sentence. That in my view is an added recognition for the difficulties that you will face and the material that I have received.

[16] I am confident based on what I have seen that you do have the support available to you to return to the community and to give back to your own people and to give back to the community generally but that will now be on you to prove that you are not

all talk in the way that you have written your letters and the way you have presented in your cultural report and probation report and to show that you actually do mean it.

G A Rea

District Court Judge