Kulu v R

Case [2022] NZCA 284 1 July 2022

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA703/2020
[2022] NZCA 284

BETWEEN	TEVITA KULU Appellant
AND	THE QUEEN Respondent

Hearing:	22 June 2021
Court:	Kós P, Brewer and Davison JJ
Counsel:	J E L Carruthers for Appellant B D Tantrum for Respondent
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…

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 Kulu v R

Details

AGLC: Kulu v R [2022] NZCA 284
Case: [2022] NZCA 284
Decision Date: 1 July 2022 at 9 am

CaseChat Overview and Summary

In Kulu v R, Tevita Kulu appealed against his 18-year sentence with a 50 per cent minimum period of imprisonment (MPI) imposed by the High Court. Kulu argued that the principle of parity required his sentence to be reduced to align with his co-offender, Fangupo, whose sentence was reduced to 14 years and five months with a 40 per cent MPI on appeal. The Court of Appeal had to determine whether parity justified reducing Kulu’s sentence and if the High Court's sentencing process was appropriate.

The Court of Appeal considered whether the starting point for Kulu’s sentence was appropriate. The Judge had set a starting point of 20 years for Kulu, which the Court found to be correct and within range based on the quantity of drugs involved and Kulu’s leading role in the crime. The Court also considered several other cases with offenders in leading roles and found no reason to doubt the Judge’s assessment. The Court emphasised the importance of maintaining the integrity of the sentencing process and public confidence in the administration of justice, rather than adjusting sentences to fit with previously appealed sentences that appeared too lenient.

The Court of Appeal further examined the principle of parity, which requires like cases to be treated alike. However, the Court held that an appellate court must strike a balance between maintaining public confidence and not amplifying the injustice of a manifestly inadequate sentence. The Court concluded that the High Court's original sentence was correctly assessed and did not require alteration on parity grounds. Finally, the Court found that the High Court did not err in assessing personal mitigating factors and that a reduction of the MPI to 40 per cent was appropriate.

The Court of Appeal granted the application for an extension of time to appeal and allowed the appeal in part. The order for a 50 per cent MPI was quashed and substituted with a 40 per cent MPI.

Orders