Malolo v The the Queen - [2022] NZCA 399

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA121/2022
[2022] NZCA 399

BETWEEN	TUPOU ILA MALOLO Appellant
AND	THE QUEEN Respondent

Hearing:	12 July 2022
Court:	Miller, Lang and Cull JJ
Counsel:	M J Taylor-Cyphers for Appellant JEB Bragg and BAM Mugisho for Respondent
Judgment:	25 August 2022 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cull J)

On 5 November 2021, Mr Malolo was sentenced to 10 years’ imprisonment[1] by Judge Moala in the Manukau District Court for 63 charges of supplying methamphetamine and offering to supply methamphetamine.[2]
[1]R v Malolo [2019] NZDC 25384 [Sentencing notes].
[2]Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(a); maximum penalty life imprisonment.
Mr Malolo appeals on two grounds. He contends that the starting point adopted by the Judge was too high and that inadequate discounts were given for his mitigating factors. He says that the sentence was manifestly excessive.

Leave to appeal out of time

Mr Malolo’s appeal was not filed until 17 March 2022 and is therefore out of time. The delay was caused by the handover of files from former counsel. The Crown is not prejudiced by the delay and does not oppose leave to appeal out of time being granted. We grant leave accordingly.

Background to the offending

Mr Malolo was involved in methamphetamine dealing, together with his cousin. He was arrested by the police following a six-month investigation between October 2018 and April 2019.
Mr Malolo originally faced 65 charges and elected trial by jury. On the morning his trial was to commence, he pleaded guilty to 36 charges of supplying methamphetamine and two charges of offering to supply methamphetamine. At the conclusion of the Crown case he pleaded guilty to another charge of supplying methamphetamine. The jury returned guilty verdicts on 24 charges and acquitted Mr Malolo on two charges of supplying methamphetamine. Mr Malolo was sentenced on a total of 63 charges.[3] Of the 38 charges to which he entered guilty pleas, the amount of supply of methamphetamine on nine of those charges was disputed. All quantum issues were resolved by the Judge at sentencing.[4]
[3]The total of charges was 63, not 62 as appellant’s counsel submits. It appears the late guilty to one further charge at the close of the Crown case was omitted in counsel’s calculation.
[4]Sentencing notes, above n 1, at [12]–[14].
Relying on intercepted communications by the police, the Judge found that seven of the offers to supply were “close to completion”.[5] The final quantity of methamphetamine offending was determined by the Judge as involving “at least 994 grams of methamphetamine”, as the Crown contended.[6] Mr Malolo was in possession of $150,000 in cash on arrest.

The sentencing decision

[5]At [11].

[6]At [10] and [13].

At sentencing, both counsel agreed that Mr Malolo’s offending came within band four of Zhang v R, which…

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 Malolo v The the Queen

Details

AGLC: Malolo v The the Queen [2022] NZCA 399
Case: [2022] NZCA 399
Decision Date: 25 August 2022 at 11.30 am

CaseChat Overview and Summary

Tupou Ila Malolo, the appellant, brings an appeal against his sentence imposed by Judge Moala in the Manukau District Court, for 63 charges of supplying and offering to supply methamphetamine. The appeal contends that the starting point for sentencing was too high and that inadequate discounts were given for the appellant’s mitigating factors. Mr Malolo's appeal was filed out of time, however, the Court granted leave to appeal out of time due to the delay caused by the handover of files from former counsel, and the Crown not being prejudiced by the delay. The appellant's offending involved a significant quantity of methamphetamine, at least 994 grams, and he played a leading role in the offending. The Court rejected the appellant's submission that the Judge should have applied a lower starting point, finding that the Judge's approach was not only open to her, but also lenient. The Court also found that the 10 per cent discount imposed by the Judge was available and was not in error, despite the appellant's contentions to the contrary. The application for an extension of time is granted and the appeal against sentence is dismissed.

Orders