Fakaosilea v The King - [2023] NZSC 115

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 39/2023
[2023] NZSC 115

BETWEEN	SELAIMA FAKAOSILEA Applicant
AND	THE KING Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	G N E Bradford for Applicant N J Wynne for Respondent
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]
[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZSC 115
Decision Date: 30 August 2023

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application by Selaima Fakaosilea to extend the time for applying for leave to appeal two sentences imposed in 2018 and 2019 for drug offenses. The applicant, Fakaosilea, had previously sought leave to appeal against these sentences, which were imposed for drug offenses and amounted to a total of 27 years in prison. The Court, comprising Glazebrook, Williams, and Kós JJ, ultimately dismissed both the application for an extension of time and the application for leave to appeal. Fakaosilea had applied for leave to appeal directly against the 2018 sentence of 14 years and 6 months' imprisonment, which was imposed for supplying methamphetamine and cocaine. The 2019 sentence of 12 years and 6 months' imprisonment was imposed for importing methamphetamine and participating in an organised criminal group. The Court of Appeal had previously allowed an appeal against the 2019 sentence, reducing the effective end sentence to 24 years. The Court noted that the applicant's personal circumstances and background factors had already been considered in the sentencing, and that the discount applied was within the appropriate range. The Court also found that the arguments advanced related to the application of settled judicial sentencing policy rather than any question of principle requiring consideration. The Court concluded that the requirements for leave to appeal were not met and dismissed both applications.

Orders