Fonua v The Queen
[2021] NZCA 480
•22 September 2021 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA738/2020 [2021] NZCA 480 |
| BETWEEN | JAROME FONUA |
| AND | THE QUEEN |
| Hearing: | 23 August 2021 |
Court: | Collins, Duffy and Peters JJ |
Counsel: | R M Mansfield QC for Appellant |
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 that money into Mr Simpson’s trust account. Those funds were later used to assist the President of the Comancheros, Mr Pasilika Naufahu, to purchase a property in Bucklands Beach.
(b)In August 2018, Mr Fonua received the benefit of $239,000 that had been laundered through Mr Simpson’s trust account when he acquired a Range Rover. The vehicle was registered in the name of Mr Fonua’s partner.
Possession of methamphetamine
Operation Nova was terminated in April 2019. At that time, search warrants were executed at the residence of Mr Fonua, Mr Naufahu and four other members or associates of the Comancheros.
During the course of a second search of Mr Fonua’s home in May 2019, the police found 5.9 grams of methamphetamine. A money counting machine was also found at Mr Fonua’s home.
Sentencing notes
In sentencing Mr Fonua, Lang J explained why he was satisfied that throughout the relevant time Mr Fonua knew the organisation was receiving funds derived from drug-related activity. Those reasons were distilled to four points:
(a)The fact Mr Fonua was the Secretary of the Comancheros and as such he was “a senior and trusted member of the inner circle responsible for the governance of the organisation”.[7]
(b)Mr Fonua was trusted with cash and he had in his possession a money counting machine. The Judge noted “[f]ew persons would need a money counting machine for legitimate activities”.[8]
(c)The fact Mr Fonua received a valuable luxury motor car from laundered funds.[9]
(d)Having presided over the trial of some of Mr Fonua’s co-offenders, Lang J had seen photographs that showed “the closeness of the inner cadre who were responsible for the activities of the organisation”.[10] Although the Judge did not say so, we assume Mr Fonua appeared in some of those photos.
[7]At [11].
[8]At [11].
[9]At [11].
[10]At [11].
The Judge described Mr Fonua as being “an important player” in the organised criminal group “and one who had full knowledge of the group’s activities”.[11]
[11]At [13].
In adopting a five-year starting point for the lead charge of participating in an organised criminal group, Lang J had regard to the six-year starting point that had previously been adopted when van Bohemen J sentenced Mr Daniels for participating in an organised criminal group and money laundering.[12] Mr Daniels was the Vice‑President of the Comancheros.
[12]At [17], referring to R v Daniels [2020] NZHC 275.
The five-year starting point adopted by Lang J for the charge of participating in an organised criminal group encompassed the money laundering charge.[13] The possession of methamphetamine was treated as a discrete offence. A starting point of three months’ imprisonment was adopted in relation to that offence.[14]
[13]At [17].
[14]At [19].
In relation to the sentence for participating in an organised criminal group and money laundering, a discount of eight months was applied to reflect Mr Fonua’s guilty plea, which the Judge described as being “late” in the process.[15] That equated to a discount of 13 per cent from the starting point.[16] In relation to the sentence for possession of methamphetamine, this was reduced from three months to two months to reflect Mr Fonua’s guilty plea, which the Judge described as being “early”.[17] That equated to a discount of 33 per cent from the starting point. The sentence for possession of methamphetamine was to be served cumulatively to the sentence for participating in an organised criminal group.[18] This resulted in a total end sentence of four years and six months’ imprisonment.[19]
Grounds of appeal
[15]At [21].
[16]At [22].
[17]At [21]–[22].
[18]At [24].
[19]At [24].
Mr Mansfield QC, counsel for Mr Fonua, submitted Lang J erred in the following ways when setting the starting point of five years’ imprisonment for the organised criminal group charge:
(a)by inferring Mr Fonua had knowledge of the drug offending of the group, and of the amount of money the group was laundering; and
(b)by drawing an incorrect comparison between Mr Daniels’ offending, and that of Mr Fonua.
It was also submitted in relation to the organised criminal group charge that a discount of 15 per cent was warranted for Mr Fonua’s guilty plea.
The response
Mr Harborow and Ms Rangamuwa, who appeared for the Crown, submitted that there were no errors in the approach taken by Lang J when sentencing Mr Fonua and that appropriate inferences were drawn “that spoke to [Mr Fonua’s] overall culpability”. The discount for the guilty plea was said to be more than adequate.
Analysis
Starting point
In setting a starting point of five years’ imprisonment, Lang J was entitled to infer Mr Fonua had a “broad” understanding of the drug dealing and money laundering activities of the organisation.[20] Mr Fonua’s guilty plea involved his acceptance of the amended summary of facts and an acknowledgement he participated in an organised criminal group and that he had engaged in and benefited from significant money laundering.
[20]At [12].
We accept there is no evidence Mr Fonua was directly involved in the criminal offending that generated the money that was laundered. Nor is there evidence Mr Fonua knew of the full extent of the money laundering activities.
Lang J was careful to acknowledge Mr Fonua may not have had knowledge of individual money laundering transactions or drug deals. The Judge rightly inferred however, Mr Fonua had a “broad knowledge of what was happening”.[21] That inference was entirely reasonable because of:
(a)Mr Fonua’s trusted role within the organisation;
(b)the fact he benefited from the money laundering activities by receiving a very expensive luxury vehicle;
(c)his role in providing $60,000 cash to Mr Donald Vuisevuraki; and
(d)his possession of a money counting machine.
[21]At [12].
In assessing the starting point adopted by Lang J, it is necessary to ensure consistency in the sentences imposed on other defendants.[22] Two other sentences imposed upon persons investigated as part of Operation Nova are particularly relevant to Mr Fonua’s case:
(a)Mr Daniels pleaded guilty to nine charges of money laundering and was involved in offending on a greater scale than Mr Fonua. He derived a significant financial benefit. Mr Daniels also pleaded guilty to one charge of participating in an organised criminal group. As stated above, van Bohemen J adopted a starting point of six years’ imprisonment when sentencing Mr Daniels.[23]
(b)Mr Simpson pleaded guilty to 13 charges of money laundering. van Bohemen J adopted a starting point of four years and six months in relation to his offending.[24]
[22]Sentencing Act 2002, s 8(e).
[23]R v Daniels, above n 12, at [29].
[24]R v Daniels, above n 12, at [48].
In our assessment, the differences in culpability between Mr Daniels and Mr Fonua were accurately calibrated by Lang J, when he adopted a starting point of five years’ imprisonment for Mr Fonua. Both were senior members of the organisation and both benefited significantly from the money laundering activities of the organisation. It is also significant that although Mr Simpson was the architect of the money laundering scheme, he was sentenced solely on the basis of his money laundering offending. Unlike Mr Fonua and Mr Daniels, Mr Simpson was not sentenced for participating in an organised criminal group. That point alone distinguishes Mr Simpson’s case from that of Mr Fonua.
In concluding the starting point adopted by Lang J was within the range that was reasonably available we have had regard to the relevant purposes of sentencing, namely, the need:[25]
(a)to hold Mr Fonua accountable for the harm done to the community by his offending;
(b)to denounce his conduct; and
(c)to deter Mr Fonua and others from offending in a similar way in the future.
[25]Sentencing Act, s 7.
We have also had regard to the need to impose the least restrictive outcome that is appropriate.[26]
[26]Sentencing Act, s 8(g).
In our assessment, the five-year starting point adopted by Lang J was reasonable and reflected the seriousness of Mr Fonua’s participation in an organised criminal group and benefits he obtained through the money laundering activities of that organisation.
Discount for guilty plea
The 13 per cent discount for Mr Fonua’s guilty plea in relation to the organised criminal group charge was well within the range that was reasonably available. The Judge was correct in finding that Mr Fonua’s guilty plea was late in the process, being only two weeks before trial. The Judge also appropriately distinguished between Mr Fonua’s guilty plea to the organised criminal group charge with his guilty plea to the possession of methamphetamine charge, the latter being early in the process and resulting in a significant discount.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent