Niuula v The King
[2024] NZHC 2027
•24 July 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-19
[2024] NZHC 2027
BETWEEN FREDERICK SIMEONA NIUULA
Appellant
AND
THE KING
Respondent
Hearing: 16 July 2024 Appearances:
K R Pascoe for Appellant K B Bell for Respondent
Judgment:
24 July 2024
JUDGMENT OF BOLDT J
This judgment was delivered by me on 24 July 2024 at 3:00 pm.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Ms K R Pascoe, Nicholsons Lawyers, New Plymouth Crown Law, Wellington
NIUULA v R [2024] NZHC 2027 [24 July 2024]
Introduction
[1] The appellant, Frederick Niuula, pleaded guilty to a representative charge of possessing methamphetamine for the purpose of supply.1 On 29 May 2024, Judge A S Greig sentenced him to four years and six months’ imprisonment.2 Mr Niuula appeals against that sentence, arguing it was manifestly excessive.
Background
The offending
[2] Mr Niuula acted as a courier in a drug dealing operation. On three occasions in March and April 2023 he drove consignments of methamphetamine from Auckland to New Plymouth, where he met a Mr John Bevin. Unbeknownst to Mr Niuula, Mr Bevin was under Police surveillance throughout.
[3] Between them, the three shipments comprised approximately 15 ounces, or 425 grams of methamphetamine. The summary of facts estimated the street value of the drugs Mr Niuula transported at $147,000.
[4] Mr Niuula’s visits to Mr Bevin were brief, lasting only a few minutes each time. It appears he drove back to Auckland immediately after dropping the drugs off.
[5] Mr Niuula was paid for transporting the drugs, though his financial gain was not substantial. The Crown could not prove he received more than $1,500; Police found a bundle of cash in that amount when they stopped Mr Niuula on his way back to Auckland after the third delivery. Ms Pascoe, for Mr Niuula, submitted the evidence is consistent with Mr Niuula receiving payment only on the third occasion, and that
$1,500 may have been his reward for all three shipments. While that appears unlikely, we simply do not know what reward, if any, Mr Niuula received for the first two trips.
[6] It is common ground that Mr Niuula played only a small part in a large dealing operation. Mr Bevin had been under surveillance since October 2022, and during that
1 Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2). Methamphetamine is a Class A controlled drug; possession of methamphetamine for supply carries a maximum penalty of life imprisonment.
2 R v Niuula [2024] NZDC 12180.
time more than 100 vehicles visited his address. Mr Bevin was sentenced to ten years’ imprisonment for his role in the operation.3
The appellant
[7] Mr Niuula is 40 years old and is married with three children, who in March this year were 16, 12 and 8 years old. At the time he was sentenced, Mr Niuula was in gainful employment.
[8] Mr Niuula is a patched member of the King Cobra gang. He says he is no longer active in the gang, though he still has friends who are. He has around a dozen previous convictions, the most serious of which are a conviction for assault with intent to injure in 2004 and assaulting a female in 2010. He has no convictions for drug-related offending.
[9] Mr Niuula was not, and has never been, a drug user. He told the writer of his pre-sentence report that the offending arose at a time when he had lost his job and was unable to find work. He was also temporarily separated from his wife. He said that during this time a gang associate offered him an opportunity to make some money, and that his actions were “purely … a means of making money for his family”.
Sentencing for methamphetamine-related offending
[10] In sentencing Mr Niuula, Judge Grieg applied the Court of Appeal’s decision in Zhang v R,4 as modified by the Supreme Court in Berkland v R.5 Zhang and Berkland are guideline judgments which establish a framework for sentencing offenders convicted of dealing in methamphetamine (including selling, possession for supply, manufacturing and importing).
[11] In Zhang, the Court of Appeal observed that the quantity of methamphetamine involved represents a reasonable proxy both for the social harm and the illicit gains associated with the offending.6 The Court recognised five weight-based sentencing
3 R v Niuula, above n 2 at [15].
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
5 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
6 Zhang v R, above n 4, at [10(b)].
bands, each of which is associated with a range in which the starting point is likely to fall. For example, dealing involving up to 500 grams of methamphetamine places an offender in band three. Band three offending generally attracts a starting point of between six and twelve years’ imprisonment.7
[12] The Court then explained how culpability should be assessed within the bands. The role played by the offender is critical. The Court identified three broad categories, which it described as “leading”, “significant” and “lesser”. Having identified the appropriate weight-based band, the starting point will usually depend on where the offender falls on that notional continuum.
[13] The Court went on to give examples of characteristics commonly associated with each category. That table was modified somewhat by the Supreme Court in Berkland. The “leading” category is irrelevant to this appeal, but the characteristics typically associated with the lesser and significant categories are as follows:8
Lesser Significant 1. Performs a limited function under direction;
2. engaged by pressure, coercion, intimidation;
3. involvement through naivety or exploitation;
4. motivated solely or primarily by own addiction;
5. little or no actual or expected financial gain;
6. paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved;
7. no influence on those above in a chain;
8. little, if any, awareness or understanding of the scale of operation; and/or
9. if own operation, solely or primarily for own or joint use on non-commercial
basis.
1. Management function in operation or chain where, under direction from a leader, this entails directing others in the operation whether by pressure, intimidation or reward;
2. operational function, whether operating alone or with others;
3. motivated solely or primarily by financial or other advantage;
4. actual or expected financial or other advantage, especially where commensurate with role and risk assumed; and/or
5. some awareness and understanding of the scale of the operation.
7 Zhang v R, above n 4, at [125]. The next tier down is band two, which encompasses offending involving up to 250 grams of methamphetamine. Band two offending generally attracts a starting point of between two and nine years’ imprisonment.
8 Berkland v R, above n 5, at [71].
[14] This is a flexible analysis, and the characteristics described in the two lists are only examples. In the end, the sentencing Court’s task is to stand back and, in a robust and commonsense way, assess how significant the offender’s role was. As the Supreme Court emphasised, the role the offender played is fundamental, and must not be unnecessarily fettered as a sentencing factor.9
District Court sentencing
[15] Judge Greig noted that possession for supply of 425 grams of methamphetamine placed Mr Niuula in band three, meaning he could expect a starting point in the six-to-twelve-year range. He observed that the quantity of the drugs placed Mr Niuula near the top of the band.10
[16] The Judge described some aspects of Mr Niuula’s role as consistent with the “lesser” category — he performed a limited function under direction and had no influence on those above him in the chain. On the other hand, the Judge noted that aspects of what Mr Niuula did were more consistent with his role being regarded as significant. Most importantly, Mr Niuula was performing an operational function and was motivated solely by financial advantage.11
[17] The Judge rejected Mr Niuula’s submission that he was unaware of the scale of the operation, but given his proven financial gain was only limited, the Judge adopted a starting point at the lowest end of the band three, namely six years’ imprisonment.12 The Judge reduced the sentence by 25 per cent to reflect Mr Niuula’s guilty plea and the lengthy period he had spent on curfew, leading to a final sentence of four years and six months’ imprisonment.
The appeal
[18] Ms Pascoe argues that the six-year starting point was manifestly excessive. She submits that Mr Niuula’s role places him squarely in the “lesser” category. In particular, she argues the Judge should not have placed much weight on the fact
9 Berkland v R, above n 5, at [77].
10 R v Niuula, above n 2, at [25].
11 At [26]–[27].
12 At [38].
Mr Niuula was motivated by financial gain rather than his own addiction. She says the evidence shows Mr Niuula to have been a mere courier who had no wider role in the enterprise.
[19] Ms Pascoe notes that Zhang and Berkland emphasised that the role the offender plays can affect sentence even more than the quantity of drugs involved, and may drive movements both within and between sentencing bands. For example, in Zhang the Court of Appeal noted that while the bands are intended to encompass most cases of low culpability, it did not rule out the possibility of a case involving minimal participation which might fall below the lowest end of the relevant band.13 Similarly, in Berkland the Supreme Court noted that there may be a case for movement between bands, irrespective of the weight of the drugs, if the offender’s role “falls within the lower end of ‘lesser’.”14
[20] Ms Pascoe relies on the sentencing decision of Gwyn J in R v Minns,15 where a starting point of four years and six months’ imprisonment was adopted despite the defendant having helped transport methamphetamine weighing two kilograms. It is notable that Mr Minns was heavily addicted to multiple substances, including methamphetamine, and was motivated by his own addiction rather than any substantial gain or commercial profit.
[21] Ms Bell, on behalf of the Crown, argued there could be no criticism of the six-year starting point. The drugs Mr Niuula transported placed him squarely within band three, and a starting point at the lowest end of that band does not indicate a sentence that is manifestly excessive.
Discussion
[22] The approach to appeals against sentence is well settled. Under s 250 of the Criminal Procedure Act 2011, I must dismiss the appeal unless I am satisfied, for any reason, that there was an error in the sentence and that a different sentence should be imposed. In accordance with orthodox principle, an appeal can be allowed only if the
13 Zhang, above n 4, at [123].
14 Berkland, above n 5, at [64].
15 R v Minns [2021] NZHC 638.
sentence was manifestly excessive, represented a material error of principle, or if there are exceptional circumstances.16
[23] Ms Pascoe’s central submission is that the Judge made an error, not only in attributing to Mr Niuula some of the characteristics that might indicate a “significant” role, but also in declining to place him in the “minimal” or “lower end of lesser” category which might have allowed him to slip out of band three altogether.
[24] The Judge set Mr Niuula’s starting point at the lowest end of band three. Although he noted that some aspects of Mr Niuula’s role might usually be associated with a significant offender, the Judge selected a starting point appropriate for someone in the “lesser” category. Although the Judge referred to Mr Niuula’s financial motivation being consistent with someone whose role was significant, he did not lift the starting point above the bottom of the band.
[25] It follows that the issue is not where in band three Mr Niuula’s offending falls, but whether the only available analysis is that Mr Niuula played a role so insignificant that the Judge was obliged to remove him from band three altogether.
[26] I agree Mr Niuula played a “lesser” role. He was a courier. There is no evidence he played any role other than transporting packages. In particular, there is no suggestion he exercised operational control, or had any influence on the wider enterprise. He was given a job to do, and he did it.
[27] At the same time, I do not accept that Mr Niuula’s role was so minor that the Judge was obliged to place him outside band three. Transportation, or logistics, is a vital part of any supply chain. A large-scale enterprise of this kind could not function without people willing to move drugs to where they are needed. Mr Niuula transported methamphetamine between cities on three separate occasions. This was not an isolated lapse of judgment. Ms Pascoe submitted that Mr Niuula made three trips and then stopped. It is more accurate to say that he made two and a half trips, and then was caught.
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]–[39].
[28] Moreover, Mr Niuula lacks many of the deeply compelling personal factors which, especially since Berkland, might persuade the Court to consider moving between bands. He did not transport the drugs out of desperation or to feed an addiction. Instead, Mr Niuula addressed his shortage of money by participating in a methamphetamine dealing operation. He made a calculated decision to become involved for financial gain. I agree with the Judge that Mr Niuula could not have been oblivious to the quantities he was moving. There is no suggestion he was placed under any pressure to do so. In pleading guilty, Mr Niuula confirmed he knew what he was doing, and his role should not be minimised.
[29] I am satisfied the Judge made no error in his approach. He adopted a starting point at the bottom end of band three. Indeed, another Judge may have taken a harsher view of Mr Niuula’s role, and a starting point somewhat higher than the six years Judge Greig selected may have been sustainable.
[30] As to Minns, Gwyn J’s sentence was a merciful one, though the defendant’s offending in that case was confined to a single shipment, and his culpability was significantly mitigated by his deeply challenging personal circumstances and a dreadful upbringing. He had been using drugs since he was seven and was motivated by his own very serious addiction. Against that background, Gwyn J held that the role Mr Minns played was so diminished that she was entitled to depart from the otherwise–appropriate band. None of those circumstances apply to Mr Niuula, who simply saw a quick way to make some cash.
[31] Judge Greig’s sentence was a textbook application of Zhang and Berkland. Mr Niuula’s sentence of four years and six months’ imprisonment was well within the available range.
Result
[32]The appeal is dismissed.
Boldt J
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