Kuluv R
[2023] NZSC 26
•27 March 2023
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 78/2022 [2023] NZSC 26 |
| BETWEEN | TEVITA SITANILEI KULU |
| AND | THE KING |
| Court: | O’Regan, Ellen France and Williams JJ |
Counsel: | J E L Carruthers for Applicant |
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 to 40 per cent.[12]
[12]At [39].
Mr Kulu’s initial submissions in this Court were entirely focussed on the need for parity. However, on 13 December 2022, this Court then requested further submissions dealing with the decision of this Court in Berkland v R.[13] In those supplementary submissions, counsel for the applicant extended his argument to say that Mr Kulu’s sentence is now out of step with the revised sentencing levels from Berkland (and that Berkland, in effect, endorsed the approach taken by the earlier Court of Appeal in Fangupo).
[13]Berkland v R [2022] NZSC 143.
In this Court’s decision in Berkland, the Court said that the amended provisions relating to “significant role” in Zhang would apply to all sentences and appeals against sentence dealt with under Zhang, but only where the application of the amended significant role profile would result in a more favourable sentence.[14] In the present case, both Mr Fangupo and Mr Kulu are in the “leading” category, and are therefore not directly affected by the change in the significant role criteria that was provided for in Berkland.
[14]At [72] per Winkelmann CJ, William Young, Glazebrook and Williams JJ.
However, Mr Kulu wishes to argue on appeal, if leave is given, that, in light of the reductions in the sentences for the two appellants in Berkland, his sentence is too high. He does not suggest that he should have greater allowances for personal factors; his argument is just that the 20-year starting point is too high. Having considered that argument in light of Berkland, particularly at [48] of that decision, we find that argument has an insufficient prospect of success to justify the grant of leave.
That leaves the parity argument. We do not see that argument as raising a matter of general or public importance, given that it is specific to the facts of the present case (that of Mr Fangupo and the degree of perceived disparity between the starting points adopted for each of them).[15] Nor do we see any appearance of a miscarriage of justice in the way the Court of Appeal addressed that issue.[16]
[15]Senior Courts Act 2016, s 74(2)(a).
[16]Section 74(2)(b).
The application for leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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