| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 39/2023 [2023] NZSC 115 |
| BETWEEN | SELAIMA FAKAOSILEA |
| AND | THE KING |
| Court: | Glazebrook, Williams and Kós JJ |
Counsel: | G N E Bradford for Applicant |
Judgment: | 30 August 2023 |
JUDGMENT OF THE COURT
AThe application for an extension of time to apply for leave to appeal (R v F [2018] NZHC 3377) is dismissed.
BThe application for leave to appeal (Fakaosilea v R [2021] NZCA 401) is dismissed.
____________________________________________________________________
REASONS
The applicant has applied for leave to appeal against two sentences imposed in 2018 and 2019 for drug offending.
2018 sentencing
In early 2018 the applicant pleaded guilty to two charges of supplying methamphetamine (14.9 kilograms and nine kilograms) and one charge of supplying 1.9 kilograms of cocaine. She was sentenced to 14 years and six months’ imprisonment,[1] in reliance on the then-applicable guideline in R v Fatu.[2] The applicant has sought leave to appeal directly against that sentence.
[1]R v F [2018] NZHC 3377 (Palmer J). Palmer J set the starting point for the first charge of supplying methamphetamine at 13 years’ imprisonment. He uplifted it by four years for the second methamphetamine charge and one year for the cocaine charge, resulting in an overall starting point of 18 years’ imprisonment. He then discounted the sentence by 22 months for Ms Fakaosilea’s personal history and 20 months for her guilty plea.
[2]R v Fatu [2006] 2 NZLR 72 (CA).
2019 sentencing
The applicant was later convicted after a High Court jury trial on one charge of importing 501 kilograms of methamphetamine and one charge of participating in an organised criminal group.[3] She was sentenced to 12 years and six months’ imprisonment with an MPI of seven years.[4] This was cumulative on the sentence the applicant was already serving of 14 years and six months. The applicant’s effective end sentence was therefore 27 years.
[3]R v Cullen [2019] NZHC 2088 (Gordon J).
[4]That sentence was for the lead charge of importing methamphetamine, uplifted to reflect the additional charge of participating in an organised criminal group. Ms Fakaosilea was concurrently sentenced to seven years’ imprisonment for the offence of participating in an organised criminal group.
The applicant appealed to the Court of Appeal against conviction and sentence. Applying what was then the new guideline for sentencing drug offenders in Zhang v R,[5] that Court allowed her sentence appeal and reduced the effective end sentence to 24 years.[6]
[6]Fakaosilea v R [2021] NZCA 401 (Miller, Venning and Peters JJ). The High Court sentencing occurred before the Court of Appeal delivered its decision in Zhang. The Court of Appeal considered the applicant was entitled to any advantage from the new guideline.
In early 2022 this Court dismissed Ms Fakaosilea’s application for leave to bring a second appeal against the…
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- Case
- [2023] NZSC 115
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