Malolo v The the Queen

Case [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)

  1. 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.

  2. 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

  1. 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

  1. 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.

  2. 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].

  3. 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].

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

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Malolo v The the Queen [2022] NZCA 399
Case
[2022] NZCA 399
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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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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