By Linny Folau
A drugs offender, Isaiah Takau lost his appeal against his prison sentence for possession of 11.94 grams of methamphetamine and cultivation of 10 plants containing 36.67 grams of cannabis.
In a judgment on 16 May, the Appeal judges stated that the appellant failed to prove both of his appeal grounds that his sentence imposed by the trial judge in the Supreme Court was excessive (CR 1½4). He had pleaded guilty to three charges of possession of 11.94 grams of methamphetamine, 0.02 grams of cannabis and cultivation of 10 cannabis plants weighing 36.67 grams, in two separate cases.
On 14 August 2024, he was sentenced by Acting Justice Langi to an effective sentence of four years and three months, with the final six months suspended. He challenged the sentences on several grounds contending that the start-point of five years was too high, and the resultant sentence was manifestly excessive and crushing.
The Appeal Court stated that the sentencing judge noted the factors that the appellant had one previous conviction in the Magistrate's Court for theft in 2007 and the various cases put forward as comparable authorities. The Crown contented that the overall sentence should be four and a-half years' imprisonment, with the final six months suspended
“The sentencing judge then set out his reasoning for the imposition of the sentences, which included: the negative effects of the use and distribution of methamphetamine which cannot be overstated; courts have continuously emphasized seriousness of drug offending through sentencing, and first time offenders can no longer rely on that fact to escape custody. The first point stemmed from her Honour's conclusion for sentencing purposes was that the appellant had the methamphetamine for the purpose of selling or supply. It was contended [on appeal] there was no factual basis for that finding.”
Meanwhile, the Crown's submissions on sentencing included the characterisation of the appellant's role as a drug supplier. This was said to be a conclusion open from the presence of drug related paraphernalia and the large sum of cash in the appellant's bag. On that basis, it was said that the appellant's role should be placed in the Zhang band two, namely significant rather than lesser or !eading.
The appellant's submissions filed six days later did not challenge this. He also admitted that he used the scale for cooking methamphetamine and the total amount of methamphetamine was 11.94 grams.
The sentencing judge's remarks referred to the Crown's characterisation of the appellant's significant role which derived from his being a supplier. The remarks also noted the appellant's acceptance of the summary of facts, and his statements in the pre-sentence report that "the reason for the offending was for personal use", and that he had been using cannabis for a long time and this was the first time he got involved with methamphetamine.
“The last point had some significance. If it was to be accepted that the circumstances of the first case were the appellant's first involvement with methamphetamine, the amounts involved (11.94g) plainly suggested something other than personal use. In that state of affairs it was, in our view, open to the learned sentencing judge to find that the circumstances surrounding the charges in this case showed the appellant was supplying methamphetamine. This ground failed,” stated the Appeal Court.
As for the second point the appellant argued that her Honour failed to take the appellant's addiction to methamphetamine into consideration.
The Appeal Court stated that the appellan'st admission to have had a long term illegal drugs addiction started when he studied in China. He studied in China as far back as 2012 and his attitude and behaviour was directly linked to...illegal drugs addiction problems. The learned sentencing judge's remarks also refered to the pre-sentence report and to its comments on the question of addiction.
One cannot overlook the appellant's account about the circumstances of the first case as reflected in the pre-sentence report. It was that he had been using cannabis for a long time and this was the first time he got involved with methamphetamine. On the appellant's own evidence, his involvement with methamphetamine at the time of the conduct on this case was very recent. There was, in our view no adequate foundation to find that the appellant's addiction was to methamphetamine, but rather cannabis or something else.
“In Zhang v R, the court referred to the fact that an accused's drug addiction was a mitigating factor if it was causative of the offending. However, here there was no sound basis to find that the appellant had an addiction to methamphetamine that was causative of the methamphetamine offending, stated the Appeal Court.
“Moreover, it must be noted that there was no submission made by the appellant to the learned sentencing judge that his addiction was to methamphetamine and was causative of the offending. This ground failed. Given the failure of both grounds there was no need to consider the question of re-sentencing.”
The appeal was then dismissed.
