Kulu v R
[2022] NZCA 284
•1 July 2022 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA703/2020 [2022] NZCA 284 |
| BETWEEN | TEVITA KULU |
| AND | THE QUEEN |
| Hearing: | 22 June 2021 |
Court: | Kós P, Brewer and Davison JJ |
Counsel: | J E L Carruthers for Appellant |
Judgment: | 1 July 2022 at 9 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal is allowed in part.
CThe order for a minimum period of imprisonment of 50 per cent imposed by the High Court is quashed and substituted with a minimum period of imprisonment of 40 per cent.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
Mr Kulu appeals against his sentence of 18 years’ imprisonment with a minimum period of imprisonment (MPI) of 50 per cent on the basis that parity should mean his sentence should be reduced to be proportionate to that of his co-offender, Mr Fangupo, who earlier successfully appealed his sentence from one of 17 years’ imprisonment with an MPI of 50 per cent, down to 14 years and five months’ imprisonment with an MPI of 40 per cent.[1]
Background
[1]Fangupo v R [2020] NZCA 484.
Between June 2017 and January 2018, Messrs Kulu and Fangupo imported approximately 20 kg of methamphetamine in multiple packages from California to New Zealand.[2] Both men had conspired to import 21 kg of methamphetamine, imported 27 g of cocaine, and unlawfully possessed firearms. Additionally, Mr Kulu twice supplied 0.5 kg of methamphetamine and thrice offered to supply additional quantities of the drug. He had bundles of cash totalling almost $215,000 in his apartment when arrested.
[2]Mr Fangupo had imported one package fewer than Mr Kulu.
Messrs Kulu and Fangupo were convicted following a jury trial in 2019.
Sentencing
Downs J considered Messrs Kulu and Fangupo had “complementary, leading roles” and were equals “at the top” of a “home-grown operation” they established themselves.[3] The offending was “reasonably sophisticated” and “motivated by profit”.[4] The actions the two men took in importing the drugs were “not the actions of people other than at the top of their own enterprise”.[5]
[3]R v Fangupo [2019] NZHC 2896 at [16]. See also at [20].
[4]At [17].
[5]At [21].
For Mr Kulu, the Judge adopted a starting point of 20 years’ imprisonment for the importation offences, emphasising his leading role, financial motivations and the large quantities involved.[6] The Judge declined to uplift that starting point for Mr Kulu’s other drug charges, although acknowledged that he could have done so.[7]
[6]At [25].
[7]At [26]–[28].
For Mr Fangupo, the Judge adopted a slightly lower starting point of 19 years’ imprisonment, citing the fact that Mr Fangupo was convicted of one fewer importation than Mr Kulu and faced no supply charges.[8]
[8]At [29].
Turning to personal mitigating features, the Judge gave Mr Kulu a 10 per cent discount for the prospect of his reform despite his refusal to accept responsibility for the drug offending, and to acknowledge that Mr Kulu’s addiction to opiates “may make prison a little harder”.[9] The Judge declined to give a discount for good character, saying that Mr Kulu’s previous convictions in the United States and financial motivations made such a discount “awkward”.[10] The Judge likewise gave Mr Fangupo a 10 per cent discount for his prospects of rehabilitation despite his denial of the drug offending.[11]
[9]At [39].
[10]At [39].
[11]At [41].
The Judge imposed MPIs of 50 per cent for both men. The Judge considered that their becoming eligible for parole after serving only one third of their respective sentences “would send quite the wrong message”.[12]
[12]At [49]. See generally Parole Act 2002, s 84(1).
This produced an end sentence of 18 and 17 years’ imprisonment with MPIs of 50 per cent for Messrs Kulu and Fangupo respectively.[13]
Mr Fangupo’s successful sentence appeal
[13]At [51].
In 2020, Mr Fangupo appealed against his 17-year sentence on the grounds that the Judge had erred in concluding that he was as culpable as Mr Kulu and, in any event, had adopted an excessive starting point. Mr Fangupo also argued the discount for his personal mitigating factors was inadequate, and the 50 per cent MPI was too high.
The first ground of appeal was rejected; the Judge was justified in treating Messrs Fangupo and Kulu as equal partners in crime.[14] However, the starting point adopted was held to be too high having regard to later authority considered comparable.[15] Having regard to these cases — which, it should be noted, all involved defendants in the “significant” category as defined in Zhang v R[16] — a starting point of 17 years’ imprisonment was substituted.[17]
[14]Fangupo v R, above n 1, at [36].
[15]At [43]–[49]. The other authorities considered were Pai v R [2020] NZCA 146; Wan v R [2020] NZCA 328; and Berkland v R [2020] NZCA 150.
[16]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [126].
[17]Fangupo v R, above n 1, at [50].
Turning to Mr Fangupo’s personal circumstances, the discount given was increased from 10 to 15 per cent.[18] A discount was found to be available for Mr Fangupo’s previous good character.[19] An MPI of 40 per cent was considered sufficient to achieve the objectives of s 86 of the Sentencing Act 2002, having regard to Mr Fangupo’s age and his good prospects of rehabilitation.[20]
[18]At [58].
[19]At [53]–[58].
[20]At [64].
Overall, this produced an end sentence of 14 years and five months’ imprisonment with an MPI of 40 per cent.[21]
Extension of time
[21]At [67]–[68].
Mr Kulu’s appeal was filed about a year out of time.[22] An extension of time to appeal is required. It is not opposed by the Crown and will be granted.[23]
Appeal
[22]Criminal Procedure Act 2011, s 248(2).
[23]Court of Appeal (Criminal) Rules 2001, r 11.
Mr Kulu appeals on the basis of parity. The Judge considered that Messrs Kulu and Fangupo played “complementary, leading roles” in the offending; this Court endorsed that finding.[24] Yet, Mr Fangupo is now serving a significantly more lenient sentence. According to Mr Kulu, the appropriate sentence for him is one of 15 years and four months’ imprisonment with an MPI of 40 per cent.
[24]R v Fangupo, above n 3, at [16]; aff’d Fangupo v R, above n 1, at [36].
The Crown accepts that parity would require a lower starting point.
We had intended to issue this judgment after delivery and review of the judgment of the Supreme Court in Berkland and Harding v R.[25]That judgment is not yet to hand, and we consider the delivery of this judgment should not be delayed further.
Discussion
[25]For which leave to appeal was granted in Berkland v R [2020] NZSC 125 and Harding v R [2020] NZSC 127.
We focus on two matters: first, comparable appellate sentencing involving “leading” perpetrators and substantial band five (greater than 2 kg) quantities;[26] and secondly, whether parity could then justify reducing a sentence to one that is manifestly inadequate.
Commercial methamphetamine dealing sentencing
[26]See Zhang v R, above n 16, at [125].
As this Court explained in Cheung v R, the Full Court decision in Zhang, generally speaking, did not reduce starting points for those playing a substantial role in large-scale commercial drug dealing.[27] We emphasise that point, and note also the points made recently by the Permanent Court in Cavallo v R that the effect of s 8(c) and (d) of the Sentencing Act is that judges may not shrink from setting substantial starting points at the first stage of the sentencing process simply because greater, and yet greater, quantities can be imagined.[28] As this Court said there:[29]
A point comes where the volumes are so substantial, and the actual or potential harm they represent so serious already, that more means not much at all and the real discriminating issue remaining in setting a starting point is the role occupied by the offender.
[27]Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [63]. See also Harding v R [2020] NZCA 217 at [54].
[28]Cavallo v R [2022] NZCA 276, at [67].
[29]At [67].
We turn now look at leading role and band five comparator cases, apart from Fangupo, which we have discussed already.
Zhang dealt with the appeals of Messrs Yip and Thompson. Mr Yip had a leading role in the importation of 60.9 kg of methamphetamine. Ultimately this Court described Mr Yip as occupying a “mid-to-lower level leading role”: his remuneration was relatively low ($10,000) and he had relatively limited decision‑making power.[30] A starting point of 23 years’ imprisonment was fixed.[31] Mr Thompson’s role was not dissimilar to Mr Kulu’s: he too was at the top of a home‑grown enterprise, in his case concerned with 6.8 kg. This Court approved the 18-year starting point imposed as within the available range.[32] By way of comparison, Mr Zhang himself, who was involved in importing 17.9 kg of methamphetamine, but had a role at the lower end of the significant level, would have earned a starting point of 15 years’ imprisonment.[33]
[30]Zhang v R, above n 16, at [298]–[300].
[31]At [300].
[32]At [272].
[33]At [257].
We make the obvious point that, applying Zhang, the starting point for Mr Kulu would need to be below Mr Yip’s 23 years (because of quantity, but noting Mr Kulu’s role was at an appreciably higher level than Mr Yip’s), above Mr Thompson’s 18 years (because role was very similar, but the quantity here much higher) and well above Mr Zhang’s 15 years (because of substantially greater quantity and role). All that suggests the Judge was within range, and quite right, in setting a starting point of 20 years for Mr Kulu.
We turn now to four other cases, post-Zhang. Only the first of these decisions was referred to this Court in Fangupo, and two of the three others postdate it.
In Berkland v R the appellant was the “number two” in a Mongrel Mob methamphetamine supply operation in the Porirua area.[34] In a six-month period, he had been involved in the sale of 15 kg of methamphetamine. The Judge had adopted a starting point of 16 years and six months’ imprisonment. Applying Zhang on appeal, this Court considered that starting point was within range, acknowledging that Mr Berkland’s role was “towards the upper end of significant”.[35] We note that the sentence is currently on appeal to the Supreme Court, along with that in the next decision, Harding v R.[36]
[34]Berkland v R, above n 15.
[35]At [56].
[36]Harding v R, above n 27.
In Harding the appellant pleaded guilty to 11 charges “relating to the most substantial methamphetamine manufacturing and distribution network ever prosecuted in New Zealand”.[37] Mr Harding, a patched gang member of the Head Hunters, put together and directed 11 other patched members and associates of the gang to manufacture methamphetamine on an industrial scale. He was the mastermind of the operation and personally involved in manufacturing and distributing the drug. Between September and December 2014 the operation produced 6.5 kg of methamphetamine and supplied it to other members of the gang for sale into the Auckland market. Mr Harding himself was not an addict and was motivated purely by profit. In dismissing his appeal, this Court considered the Judge’s starting point of 30 years’ imprisonment was available even under Zhang.[38]
[37]At [1].
[38]At [4].
In Campbell v R the appellant was, it was uncontested, at the “top end of the leading role” in a Gisborne-based methamphetamine supply chain.[39] He sourced large quantities of the drug from an Auckland-based supplier and then on‑sold it in his local area. He was not a user and was motivated by profit. Over a two-year period he trafficked 6.3 kg of methamphetamine. The Judge applied an 18‑year starting point, which went unchallenged on appeal.[40]
[39]Campbell v R [2020] NZCA 631 at [4].
[40]At [10].
Finally, there is McMillan v R.[41] Mr McMillan had taken a leading role in a Wellington-based methamphetamine supply operation, and a starting point of 17 years’ imprisonment was adopted by the Judge on the basis of the supply of 10.37 kg. It appears Mr McMillan was the principal offender, a comparison with Mr Thompson’s case in Zhang having been made.[42] This Court held that the starting point was within the available range.[43]
[41]McMillan v R [2022] NZCA 128.
[42]At [29]. See [21] above.
[43]At [31] and [38].
None of these further cases give us reason to doubt the conclusion reached at [22] above — namely that Downs J was within range, and correct, in setting a starting point of 20 years for Mr Kulu. In particular, Mr Berkland’s role and relevant quantity were both well below that of Mr Kulu; Mr McMillan’s role was comparable, but the quantity was substantially less.
In Fangupo a differently constituted division of this Court said:[44]
When we compare Mr Fangupo’s position with the defendants in the cases we have just summarised, it becomes apparent that the 19-year starting point adopted by Downs J was significantly higher than in other cases that this Court has considered since Zhang was decided.
[44]Fangupo v R, above n 1, at [49].
As noted, however, that division did not have the benefit of the later authorities we have referred to. Furthermore, we have here focused only on authorities where the offender undertook a “leading” role, whereas those relied on in Fangupo involved offending at the intermediate “significant” role. It is unclear why that occurred; neither Mr Fangupo nor Mr Kulu were merely “significant” players in the enterprise they led.
In those circumstances we are not disposed to follow the approach taken in Fangupo. The starting point adopted by the Judge in the instant appeal was well within the available range mandated by Zhang and its satellite authorities, and in our view was correct. We would not therefore alter it unless compelled to do so by reason of parity.
Parity
As a general principle of even-handed justice, parity requires that like cases be treated alike.[45] Where two co-offenders participate in the same offending and possess the same personal circumstances, both can expect to be treated similarly, without disparity in their sentences.[46] But there are limits to this statement of general principle.
[45]R v K (CA345/02) (2003) 20 CRNZ 62 (CA) at [20].
[46]R v Lawson [1982] 2 NZLR 219 (CA) at 223.
When an appellate court is dealing with an offender whose sentence appears to it to be proper, the fact a co-offender has received a sentence which the appellate court considers too lenient is not of itself a ground for interfering with the appellant’s longer sentence.[47] Were the appellate court to take the over-lenient sentence as its benchmark, and reduce the appellant’s longer sentence accordingly, it would in effect be saying “where you have one wrong sentence and one right sentence, [the] Court should produce two wrong sentences”.[48] An appellate court in this situation must strike a balance between maintaining public confidence in the administration of justice on the one hand, and not amplifying the injustice of one manifestly inadequate sentence by adding another.[49]
[47]R v Rameka [1973] 2 NZLR 592 (CA) at 593; and R v Richards (1955) 39 Cr App R 191 at 192. See generally Hall’s Sentencing (online ed, LexisNexis) at [APPII.6.1].
[48]R v Stroud (1977) 65 Cr App R 150 at 152. See also Mau’u v R [2011] NZCA 385, at [28].
[49]Ryder v R CA116/98, 23 June 1998 at 6; and Thompson v R CA245/98, 22 December 1998 at 12–14. See also Mau’u v R, above n 48, at [27]–[28] and [30]–[31]; and Jacobs v Police HC Rotorua AP11/90, 21 May 1990 at 6.
The parity issue we have just discussed usually arises where the appellate court is seized only of one offender’s sentence appeal, and the contrast is made with another, unappealed sentence. (The fact the lighter sentence is not appealed is, in itself, entirely unsurprising.) Here however we are dealing with appeals that have proceeded separately, that of Mr Kulu out of time and doubtless encouraged by the result in his co-offender’s appeal. But the principles noted at [33] still apply. McKay v R involved a sentence appeal on the basis that Mr McKay’s co-offender had previously successfully appealed his sentence.[50] This Court observed that “[a] lenient or unusually merciful sentence extended to one offender cannot create an expectation other offenders will receive the same indulgence.”[51] On that occasion, we declined the Crown’s invitation to differ or disagree with the conclusions reached by it in the previous, successful sentence appeal.[52] “[S]ome adjustment” to Mr McKay’s sentence was required as a result of his co‑offender’s appeal, but we declined to reduce the sentence by the same amount.[53]
[50]McKay v R [2019] NZCA 493.
[51]At [27], citing McFarlane v R [2012] NZCA 317 at [24].
[52]At [28]. The Crown had submitted the Court’s reduction in the co-offender’s sentence by six months was “excessive” and “went too far”.
[53]At [29].
The guiding consideration remains the maintenance of public confidence in the administration of criminal justice. That consideration does not compel reduction of a sentence on appeal to fit better with another sentence reset on appeal at a level that, on reflection, or in light of further authority, appears markedly too lenient. The reasonably minded independent observer may in fact consider the injustice to be the too-lenient sentence, then compounded by repetition.[54]
[54]See, for example, Mau’u v R, above n 48, at [31]–[32].
In our view, when considering an earlier appellate decision the better course for this Court, which in the New Zealand judicial system takes primary responsibility for sentencing supervision, is to emphasise the overall integrity of the sentencing process, rather than follow a course taken on another appeal which on reflection proves to be materially out of step. In particular, where the Full Court has recently set out comprehensive sentencing considerations in a guideline judgment, using actual or example cases to guide future sentencing, consistency with that decision must take priority over parity in particular offending.
Both these points apply here. It follows that we decline to alter the original sentence starting point, which in our view was entirely correctly assessed, on parity grounds. If we are wrong in doing so, that must be determined elsewhere.
Other matters
We are not persuaded the Judge erred in the second stage of sentencing, in his assessment of personal factors mitigating sentence. It follows that parity with Mr Fangupo does not compel any adjustment either.
In Fangupo this Court reduced the MPI from 50 to 40 per cent. We accept that a similar adjustment is, on its own merits, appropriate here when the sentence is otherwise unadjusted.
Result
The application for an extension of time to appeal is granted.
The appeal is allowed in part.
The order for an MPI of 50 per cent imposed by the High Court is quashed and substituted with an MPI of 40 per cent.
Solicitors:
Crown Solicitor, Auckland for Respondent
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