Fonua v The Queen - [2021] NZCA 480

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA738/2020
[2021] NZCA 480

BETWEEN	JAROME FONUA Appellant
AND	THE QUEEN Respondent

Hearing:	23 August 2021
Court:	Collins, Duffy and Peters JJ
Counsel:	R M Mansfield QC for Appellant M R Harborow and E H K Rangamuwa for Respondent
Judgment:	22 September 2021 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Fonua pleaded guilty to participating in an organised criminal group,[1] money laundering,[2] and possession of methamphetamine.[3] He was sentenced by Lang J on 24 November 2020 to a total term of four years and six months’ imprisonment.[4]
[1]Crimes Act 1961, s 98A.
[2]Section 243(2).
[3]Misuse of Drugs Act 1975, s 7(1)(a).
[4]R v Fonua [2020] NZHC 3107 (Sentencing notes).
The sentence comprised:[5]
(a)Four years and four months’ imprisonment for participating in an organised criminal group.
(b)Three years’ imprisonment for laundering money. That sentence was to be served concurrently with the sentence for participating in an organised criminal group.
(c)Two months’ imprisonment for possession of methamphetamine, to be served cumulatively to the sentence for participating in an organised criminal group.
[5]At [24].
Mr Fonua appeals the sentence. He contends the sentence was manifestly excessive because:
(a)the Judge adopted too high a starting point for the charges of participating in an organised criminal group and money laundering; and
(b)the Judge should have provided Mr Fonua with greater credit for his guilty plea.

Background

The amended summary of facts which Mr Fonua accepted when he pleaded guilty records that in early 2018 police commenced an investigation, codenamed “Nova”, into the suspected drug and money laundering activities of members and associates of the Comanchero Motorcycle Club (the Comancheros). Mr Fonua was the Secretary of the Comancheros during the period of time covered by the charges to which he pleaded guilty.

Organised criminal group

Mr Fonua, together with other members and associates of the Comancheros, became involved in a large-scale money laundering operation during the course of 2018 and 2019. Mr Andrew Simpson, who at the time was a practicing lawyer, was the architect of the money laundering enterprise. He allowed his trust account to be used to deposit cash totalling approximately $1.8 million during the relevant period. On most occasions the deposits were made by Mr Donald Vuisevuraki. The amended summary of facts makes clear that most, if not all the cash laundered through Mr Simpson’s trust account came from illicit drug deals.
Although there was no evidence Mr Fonua was personally involved in the drug deals, Lang J noted that by pleading guilty, Mr Fonua acknowledged that he was aware the funds laundered through Mr Simpson’s trust account “came from criminal activities, most probably in the form of drug offending”.[6]

Money laundering

[6]At [7].

Mr Fonua’s involvement in money laundering arose in two ways:
(a)In August 2018, he handed $60,000 in cash to Mr Donald Vuisevuraki. He in turn deposited…

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.

Continue reading Fonua v The Queen

Details

AGLC: Fonua v The Queen [2021] NZCA 480
Case: [2021] NZCA 480
Decision Date: 22 September 2021 at 11.30 am

CaseChat Overview and Summary

Mr Fonua appeals his sentence for participating in an organised criminal group, money laundering, and possession of methamphetamine. He argues the starting point for sentencing was too high and that he should have received greater credit for his guilty plea. The appeal court considers the starting point for the charges of participating in an organised criminal group and money laundering was within the range reasonably available. The starting point was set at five years because Mr Fonua was a senior and trusted member of the Comanchero Motorcycle Club and had a broad knowledge of the criminal activities of the group. The court considers the 13 per cent discount for the guilty plea was appropriate because the plea was entered late in the process. The appeal against sentence is dismissed.

Orders