Nauleo v The Queen - [2017] NZHC 2149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-248 [2017] NZHC 2149

BETWEEN
SIMI MAAMALOA NAULEO

Appellant

AND

THE QUEEN Respondent

Hearing: 5 September 2017

Appearances:

M Pecotic for Appellant
H Max for Respondent

Judgment:

6 September 2017

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 6 September 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

NAULEO v THE QUEEN [2017] NZHC 2149 [6 September 2017]

[1] Mr Nauleo pleaded guilty in the District Court to charges of being in possession of methamphetamine for supply and being in possession of Gamma- Butyrolactone (GBL). On 26 June 2017 Judge Johns sentenced Mr Nauleo to two years five months imprisonment on the charge of being in possession of methamphetamine for supply.1 She imposed a concurrent sentence of one month’s imprisonment on the other charge.

[2] Mr Nauleo appeals against sentence on the basis that the Judge adopted a starting point that was too high on the methamphetamine charge, and gave Mr Nauleo insufficient credit for the time he had spent on electronically monitored bail and the steps he had taken to address his methamphetamine addiction. As a result, Mr Nauleo contends that the Judge imposed an end sentence that was manifestly excessive.

Background

[3] The charges were laid after the police executed a search warrant at an address where Mr Nauleo was living on 26 June 2015. That address had seven bedrooms occupied by different people. Mr Nauleo and his partner occupied one of the bedrooms at the address. The police had not obtained the warrant specifically to search Mr Nauleo’s bedroom, but they searched the bedroom when they executed the warrant they had obtained in respect of the entire address.

[4] The police found a total of 33.9 grams of methamphetamine inside clothing stored in Mr Nauleo’s wardrobe. These comprised a snap lock bag containing 29.2 grams of methamphetamine that was found inside the pocket of Mr Nauleo’s jeans and another bag containing 4.7 grams of methamphetamine that the police found in the pocket of a jacket.

[5] In addition, the police found a set of scales and 345 milligrams of GBL in a rubbish bin in the corner of the room. They also found the sum of approximately
$48,400 in cash, and three cellphones.

1 R v Nauleo [2017] NZDC 13712.

[6] Mr Nauleo acknowledged that he owned all of the items other than the cash. He said the methamphetamine and GBL were for his own use.

The sentence

[7] The Judge considered that Mr Nauleo’s offending involved a moderate degree of commerciality. Indicia of this included the quantity of methamphetamine found in Mr Nauleo’s possession together with the scales, cellphones and snaplock bags. The Judge observed that the presence of those items was not consistent with Mr Nauleo being in possession of the methamphetamine solely for his own use. She put to one side the cash found in the bedroom because Mr Nauleo…

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 Nauleo v The Queen

Details

AGLC: Nauleo v The Queen [2017] NZHC 2149
Case: [2017] NZHC 2149
Decision Date: 6 September 2017

CaseChat Overview and Summary

Simi Maamaloa Nauleo appealed against the sentence imposed by the District Court, arguing that the starting point selected was too high and that insufficient credit was given for time spent on electronically monitored bail and steps taken to address his methamphetamine addiction. The appeal was against the sentence imposed by Judge Johns, who had sentenced Mr Nauleo to two years and five months imprisonment on the charge of being in possession of methamphetamine for supply and a concurrent sentence of one month’s imprisonment on the other charge. The High Court found that the starting point of four years imprisonment was not manifestly excessive, but that the total discount of 12 months ought to have been given for time spent on electronically monitored bail and rehabilitative efforts. The appeal against sentence was allowed, the sentence of two years and five months imprisonment on the methamphetamine charge was quashed, and in its place the High Court imposed a sentence of two years and two months imprisonment.

Orders