Kuluv R - [2023] NZSC 26

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 78/2022
[2023] NZSC 26

BETWEEN	TEVITA SITANILEI KULU Applicant
AND	THE KING Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	J E L Carruthers for Applicant M K Regan and N J Wynne for Respondent
Judgment:	27 March 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant, Mr Kulu, and his co‑offender, Mr Fangupo, were found guilty of methamphetamine offending. The trial Judge found they were equal partners, playing complementary leading roles. The amount imported was substantial (around 20 kg).
The trial Judge sentenced Mr Kulu to 18 years’ imprisonment (from a starting point of 20 years) and Mr Fangupo to 17 years (from a starting point of 19 years).[1] Both were subject to a minimum period of imprisonment (MPI) of 50 per cent.
[1]R v Fangupo [2019] NZHC 2896 (Downs J).
Mr Fangupo appealed to the Court of Appeal.[2] The Court concluded that the 19-year starting point was out of step with the Court of Appeal’s decision in Zhang v R and reduced it to 17 years.[3] It also increased the allowance for personal factors from 10 per cent to 15 per cent, leading to an end sentence of 14 years and five months.[4] It reduced the MPI from 50 per cent to 40 per cent.[5]
[2]Fangupo v R [2020] NZCA 484 (Collins, Mallon and Ellis JJ).
[3]At [50], applying Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[4]At [58] and [67].
[5]At [64].
Mr Fangupo’s success prompted Mr Kulu to seek an extension of time to appeal to the Court of Appeal against his sentence. The essence of his case in the Court of Appeal was that parity demanded that his sentence be reduced commensurately with the reduction in Mr Fangupo’s sentence The Court of Appeal did not accept this.[6]
[6]Kulu v R [2022] NZCA 284 (Kós P, Brewer and Davison JJ).
Having considered the offenders in the Zhang case itself, as well as some cases decided after Zhang,[7] the Court concluded that the starting point adopted by the trial Judge in relation to Mr Kulu “was well within the available range mandated by Zhang” and was therefore correct.[8] The Court observed that it would not, therefore, alter Mr Kulu’s sentence unless parity required it to do so.[9]
[7]At [21]–[27].
[8]At [31].
[9]At [31].
As to parity, the Court decided that reducing Mr Kulu’s sentence would mean that both the sentence for Mr Kulu and the sentence for Mr Fangupo would be wrong.[10] It said it was necessary to strike a balance between maintaining confidence in the administration of justice and not amplifying the injustice of one manifestly inadequate sentence by adding another.[11]
[10]At [33]–[37].
[11]At [33].
The Court granted Mr Kulu an extension of time to appeal but dismissed the appeal, except in one respect: it reduced Mr Kulu’s MPI from 50 per cent…

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 Kuluv R

Details

AGLC: Kuluv R [2023] NZSC 26
Case: [2023] NZSC 26
Decision Date: 27 March 2023

CaseChat Overview and Summary

In Kuluv R, Tevita Sitanile Kulu sought leave to appeal against his sentence for methamphetamine offending. The case involved a substantial drug importation case, with Kulu and his co-offender, Mr Fangupo, both found guilty. Kulu was sentenced to 18 years imprisonment, while Mr Fangupo was sentenced to 17 years. Kulu's appeal against his sentence was dismissed by the Court of Appeal, which upheld the trial judge's sentence but made some adjustments. Kulu subsequently applied for leave to appeal to the Supreme Court.

The primary legal issue was whether Kulu's sentence was appropriate in light of the Court of Appeal's decision to reduce Mr Fangupo's sentence. Kulu argued that parity demanded his sentence be reduced commensurately. The Court also needed to consider whether Kulu's sentence was now out of step with revised sentencing levels, particularly in light of the Supreme Court's decision in Berkland v R.

The Court concluded that the starting point for Kulu's sentence was within the range mandated by Zhang v R. It found that reducing Kulu's sentence to achieve parity would mean both sentences would be wrong. The Court balanced maintaining confidence in the administration of justice against amplifying the injustice of one manifestly inadequate sentence. The Court also found that Kulu's argument, based on the revised sentencing levels in Berkland, did not have a sufficient prospect of success. The Court dismissed the application for leave to appeal, finding the parity argument was not of general or public importance and there was no appearance of a miscarriage of justice.

The final order was that the application for leave to appeal was dismissed.

Orders