R v Afakasi

[2014] NZHC 2907

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-4424 [2014] NZHC 2907

THE QUEEN

v

HENRY AFAKASI KAINUI (BEN) KAUKASI FILIMAEA SILILOTO JORDAN IOANE

VADI TOBIA FOLAU POLAULU SIONE LAUNGAUE

JOHN FETU (aka TIMOTE TUPOU) CHRISTOPHER WISE JUSTIN LEE ABEL

Hearing:

20 November 2014

Appearances:

AJ Pollett for Crown

DPH Jones QC for Henry Afakasi SJ Bonnar QC for Kainui Kaukasi BL Sellars for Filimaea Sililoto RM Mansfield for Vadi Tobia

MN Pecotic for Jordan Ioane
AM Ives for Folau Polaulu
SNB Wimsett for Sione Laungaue
MW Ryan for John Fetu
MS Gibson for Christopher Wise
G Kayes for Justin Abel

Sentence:

20 November 2014

SENTENCING NOTES OF TOOGOOD J

R v AFAKASI & ORS [2014] NZHC 2907 [20 November 2014]

Table of Contents  Paragraph

Number

Introduction  [1] Background facts       [3] Approach to sentencing  [5] Henry Afakasi  [8] Starting point  [8] Personal circumstances  [20] Minimum period of imprisonment  [27]

Kainui (Ben) Kaukasi  [30] Starting point  [30] Personal circumstances  [36] Minimum period of imprisonment  [39] Filimaea Sililoto  [40] Starting point           [40] Personal circumstances  [49] Minimum period of imprisonment  [56]

Jordan Ioane  [58] Starting point  [58] Personal circumstances  [63]

Vadi Tobia, Folau Polaulu and Sione Laungaue  [68]

Starting   points   for   participating   in   an   organised criminal group

[69]

Vadi Tobia[73] Starting point  [73] Personal circumstances  [79]

Folau Polaulu  [86] Starting point  [86] Personal circumstances  [89]

Sione Laungaue  [94]

Starting point  [94]

Table of Contents  Paragraph

Number

Personal circumstances  [95] John Fetu      [98] Starting point [98] Personal circumstances  [104]

Justin Abel  [107] Starting point  [107] Personal circumstances  [112] Christopher Wise     [116] Starting point          [116]

The 2012 offending  [121] The 2014 offending  [122] Personal circumstances  [130]

Final sentences  [137]

Introduction

[1]      Henry Afakasi, Kainui (Ben) Kaukasi, Filimaea Sililoto, Jordan Ioane, Vadi Tobia, Folau Polaulu, Sione Laungaue, John Fetu, also known as Timote Tupou – I will refer to you as Mr Fetu, Christopher Wise and Justin Lee Abel, you appear for sentence after being found  guilty by a jury of  various  charges  relating to  your participation in a criminal group which was responsible for the manufacture of the Class A controlled drug methamphetamine; the production of the Class B controlled drug pseudoephedrine; and the distribution of those drugs.

[2]      Mr Wise, you appear for sentence also on a raft of charges stemming from offences you committed while on bail awaiting this trial, the sentencing for which was referred to this Court by the District Court.

Background facts

[3]      You  are  here  today  because,  after  a  fire  caused  by  an  explosion  at  a clandestine   methamphetamine   laboratory   in   Glendene,   West   Auckland   on

1 December  2011,  the  Police  mounted  an  extensive  operation  of  surveillance, interception and investigation into what proved to be a major drug-dealing enterprise which continued its activities for a period of 12 months up to  November 2012. Seven of you, and Zebulin Davoren, participated in the enterprise for varying lengths of time, to varying degrees, and  in varying roles; three of you were customers apprehended at the termination of the Police operation.

[4]      This was large-scale and persistent commercial dealing in methamphetamine, a drug which causes major damage to our community, and in its precursor pseudoephedrine.

Approach to sentencing

[5]      In sentencing you all today, I follow the standard approach which requires me to set the starting points for your sentences by looking at the nature and extent of your offending, with reference to similar cases and the sentences handed to your co-

offenders.1     For methamphetamine offences, this exercise is based on a guideline

1      Set out in R v Taueki [2005] 3 NZLR 372 (CA).

judgment, which sets out the appropriate sentencing bands ranked according to the amount of the drug involved.2    After fixing starting points which reflect the circumstances of your particular offending, I must then consider whether there is anything in your personal circumstances that would justify adjustments to those starting points – either mitigating factors that might reduce the sentence, or aggravating factors that might increase it.

[6]      I  must  also  consider  the  principles  and  purposes  of  sentencing,3   which include the need to hold you all accountable for the harm done to the community by your   offending;   to   promote   in   you   a   sense   of   responsibility   for,   and acknowledgement of, that harm; to denounce your conduct and deter you and others from future offending of this kind.

[7]      I will address each of you in turn, discussing the offending of which you were found guilty, your personal circumstances, and the factors which I have considered in determining the sentences to be imposed.  When I have been through that discussion, which will take some time, I will impose the appropriate sentences on each of you.  I realise you may be interested only in your own position but you were all in this together,  in  one  way  or  another,  and  it  is  right  that  each  of  you  should  hear

everything that is said about your crimes.

2      R v Fatu [2006] 2 NZLR 72 (CA).

3      Sentencing Act 2002, ss 7 and 8.

Henry Afakasi

Starting point

[8]      Henry Afakasi, would you please stand up.   You have been convicted of manufacturing methamphetamine on four separate occasions over a two-month period.  Each of those charges carries a maximum penalty of life imprisonment. You are being sentenced today on the basis that your offending resulted in the production of  about  280 grams  of  methamphetamine.    You  have  also  been  convicted  of producing an unknown quantity of pseudoephedrine; possessing methamphetamine for supply; possessing and supplying pseudoephedrine; and participating for material gain in an organised criminal group.

Offence	Quantity	Maximum penalty
Count 1: Producing pseudoephedrine	Unknown	14 years’ imprisonment
Count 2: Manufacturing methamphetamine	56.7 grams	Life imprisonment
Count 6: Manufacturing methamphetamine	56.7 grams	Life imprisonment
Count 7: Possessing methamphetamine for supply	28.3 grams	Life imprisonment
Count 10: Manufacturing methamphetamine	113.4 grams	Life imprisonment
Count 15: Manufacturing methamphetamine	Unknown but not less than 56.7 grams	Life imprisonment
Count 25: Supplying pseudoephedrine	5 sets / 1.115 kg of ContactNT (450 grams pseudoephedrine)	14 years’ imprisonment
Count 33: Possessing pseudoephedrine for supply	15 sets / 3.345 kg of ContactNT (1.35 kg of pseudoephedrine)	14 years’ imprisonment
Count 40: Possessing pseudoephedrine for supply	5 sets / 1.115 kg of ContactNT (450 grams pseudoephedrine)	14 years’ imprisonment
Count 50: Supplying pseudoephedrine	20 sets / 4.4 kg of ContactNT (1.775 kg of pseudoephedrine)	14 years’ imprisonment
Count 55: Participating in an organised criminal group	-	10 years’ imprisonment

[9]      Your  lead  offence  is  manufacturing  methamphetamine.     The  amounts involved put you towards the lower end of band 3 of the guideline; that is the band which covers the manufacture of large commercial quantities of methamphetamine. The  Crown  submits  that  a  starting  point  of 11  to 12  years’  imprisonment  is appropriate,  with  an  uplift  of three to  four  years to  reflect  the  totality of  your offending.  A minimum period of imprisonment of 50 per cent of the end sentence is also sought.

[10]     Mr Jones QC has submitted on your behalf that the starting point should be no more than 10 years’ imprisonment.  It is properly accepted by counsel that you should receive an uplift of about three years to reflect totality, but Mr Jones submits that you should also receive a discount for the mitigating factor of time spent on electronically monitored bail and for having no previous drug convictions.  It is also submitted that I should not order you to serve a minimum term.

[11]   Although  the  guideline  bands  are  referable  to  the  quantity  of methamphetamine involved, this is not the only consideration.  An offender’s role in the offending is  also relevant, and those  who are primary offenders can expect starting point sentences towards the higher end of the relevant band.  Sentences will

be correspondingly lower for those whose role is less significant. 4

[12]     Mr Jones QC submits that you were merely involved in the manufacture as a secondary party and the culpability of your actions should be viewed in that light.

[13]     I  do  not  accept  Mr  Jones’s  submission  that  you  were  only  a  secondary offender.   I have held that Mr Davoren and you were on an equal footing in the hierarchy of the group, but I accept that Mr Davoren was significantly more active in the manufacture, production and distribution of illicit drugs between November 2011 and November 2012.  That is reflected in the nature of the charges on which he was convicted and the greater number of them.  You, however, played a managing and encouraging or affirming role, providing assistance and materials so as to ensure the successful manufacture of methamphetamine; sourcing key ingredients; packing up

and transporting the manufacturing equipment and chemicals when necessary.

4 Fatu, above n 2 at [31].

[14]     The significance of your role is reflected in the substantial financial rewards that you reaped from your offending.  In August 2012, you purchased a customised Chevrolet  Impala  for  $78,000  in  cash.    On  1 November 2012,  when  you  were arrested with three others in a restaurant,  you  were in  joint possession of over

$245,000 in cash.  The Police also seized from you a ring valued at $29,600; a gold chain valued at $14,150; an 18-carat gold ring valued at $22,000; and an additional

$27,150 in cash.  On 28 November 2012, you were in possession of $10,070 in cash. You also enjoyed an extravagant holiday overseas during which more money was sent in your direction.

[15]     I  have  accepted  that  during  the  relevant  period  you  were  involved  in  a business with Mr Blackett and that you received money from him on a regular basis, along with a lump sum of $50,000 in July 2012.  But the evidence satisfies me that by  far  your  major  source  of  funds  for  over  a  year  up  to  your  arrest  was  the distribution of large quantities of controlled drugs.

[16]     I have considered broadly comparable cases to establish the proper starting point for sentencing you for your offending in relation to methamphetamine.5   You were an organiser and an instigator of that offending, and it involved repeated manufacture of similar commercial quantities over a period of time.

[17]     Taking all of these matters into account, and referring back to the guidelines, I consider that a starting point of 11 years six months’ imprisonment is appropriate for you, Mr Afakasi.

[18]     Next, I must consider the appropriate uplift in sentence to reflect the totality of  your  offending.   You  were  also  found  guilty of  producing  pseudoephedrine; possessing    methamphetamine    for    supply    (around    28 grams);    supplying pseudoephedrine; and the broad charge of participating in a criminal group.   The Crown  submits  that  your  offending  in  respect  of  the  pseudoephedrine  was particularly serious, being the distribution of commercial quantities.   You were involved in the supply of 45 sets of ContacNT containing a total of 4.05 kilograms of pseudoephedrine which in turn was capable of producing around two kilograms of

methamphetamine.  That offending alone would warrant a starting point of between

5      R v Collins [2009] NZCA 388; R v Crompton [2014] NZHC 1563; Baird v R [2012] NZCA 430.

five and seven years’ imprisonment.6   As for the other charges, supplying 28 grams of   methamphetamine   would   itself   attract   a   starting   point   of   four   years’ imprisonment.7

[19]     Viewed in totality, your offending was very serious.  I accept that an uplift of three years is appropriate to reflect your overall culpability.  Your adjusted starting point, therefore, is 14 years six months’ imprisonment.

Personal circumstances

[20]     I turn now to consider your personal circumstances and whether there is anything to suggest that the sentence should be uplifted or discounted from that starting point.

[21]     You are 37 years old.   You are of Samoan descent and grew up in South Auckland, the eldest of six children.  You describe your childhood as “unfortunate” because you did not know your father and your stepfather was not a male role model you could look up to.  After leaving school and spending some time in employment, you were homeless for a while.  However, prior to your remand in custody, you were living with your partner of four years with whom you have an 18-month-old son. You have seven other children from previous relationships.   In the last five years, you  have been  involved  in  some  legitimate business  activity,  including being a partner in a waterproofing company for four years, although that was de-registered after you failed to pay taxes.

[22]     You have had some drinking and gambling problems in the past. You also have  an  extensive  criminal  history  comprising  more  than  40 convictions  for violence, dishonesty, driving, nuisance and non-compliance offences, although the present   convictions   are   your   first   for   drug-related   offending.      You   have acknowledged that methamphetamine offending creates many victims; in your words these victims are “our families, my children, communities and other families”.  But you are assessed as posing a very high risk of reoffending based on your criminal

history, and as posing a high risk of harm to others based on your record of violence.

6      For example, in R v Li [2014] NZHC 2610, the supply of 10.35 kilograms of pseudoephedrine received a starting point of seven years six months’ imprisonment.

7      See  for  example  R  v  Bradley  [2012] NZHC 848, where the supply of 30 grams of

methamphetamine warranted a starting point of four years’ imprisonment.

I accept that to some extent that risk may be exaggerated in your case and I have listened to what Mr Jones has had to say about your maturity and your renewed approach to these matters.

[23]     The Crown does not argue that your criminal history warrants an uplift in penalty.  I must confess that I was a little surprised at that because I consider you to be a criminal who turned to the production and distribution of harmful, destructive drugs as a way to make easy money. You acted out of greed and you treated yourself well on the proceeds of other people’s misery.   Since you do not appear to have responded to earlier terms of imprisonment by rejecting criminal behaviour, I would have added an uplift of 12 months to provide extra deterrence.  But I will not do so in light of the Crown’s approach.

[24]     The  Supreme  Court  has  emphasised  that,  when  sentencing  an  offender convicted of dealing commercially in controlled drugs, his or her personal circumstances must be secondary to the importance of deterrence.8   I am aware that you have a young son who has been very unwell and that your absence from his daily life for a long period will have an adverse impact upon him and his mother.  I know  you  care  for  them  both.    But  you  have  only  yourself  to  blame  for  the

consequences  of  your  having  to  go  to  prison.    While  I  have  considered  what Mr Jones has said about your increased maturity and your new perspective on life, I am not satisfied there are any personal factors justifying reduction of the sentence.

[25]     I do need to have regard to the restrictions on your freedom resulting from the terms of your bail.   You spent six months on electronically monitored bail, including  a  24-hour  curfew,  and  you  complied  faithfully  with  the  conditions imposed.  You also complied faithfully with conditions for bail during your trial, in which I reposed a considerable degree of trust in you, and you did not let me down Mr Afakasi.  I allow a discount of six months on account of the bail conditions.

[26]     Your effective end sentence, therefore, will be one of 14 years’ imprisonment.

8      R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

Minimum period of imprisonment

[27]     In ordinary circumstances, you would be eligible for parole after serving one- third of your sentence,9  but the Court may impose a longer minimum period of imprisonment  if  it  is  satisfied  that  the  period  that  would  otherwise  apply  is insufficient for achieving all or any of the relevant sentencing purposes.10    It is almost invariable in cases of very serious drug offending that a minimum period of imprisonment is ordered.11

[28]     In this case, although I have listened carefully to what all counsel have said on this issue, I accept the Crown's submissions that the purposes of sentencing12 would not be met by the normal non-parole period, particularly because of the need to denounce the conduct in which you were involved, and to deter others from committing similar offences.  After careful consideration of Mr Jones’s submissions, I am satisfied nevertheless that a minimum period of 50 per cent of the end sentence is justified and necessary.

[29]     You may sit down now, thank you.

9      Parole Act 2002, s 84(1).

10     Sentencing Act 2002, s 86.

11     R v Aram [2007] NZCA 328 at [78].

12     Sentencing Act 2002, s 86(2).

Kainui (Ben) Kaukasi

Starting point

[30]     Mr Kaukasi, will you please stand.  You have been convicted of five counts of manufacturing methamphetamine and one count of participating in an organised

criminal group.

Offence	Quantity	Maximum penalty
Count 10: Manufacturing methamphetamine	113.4 grams	Life imprisonment
Count 15: Manufacturing methamphetamine	Unknown but not less than 56.7 grams	Life imprisonment
Count 21: Manufacturing methamphetamine	Unknown but not less than 56.7 grams	Life imprisonment
Count 22: Manufacturing methamphetamine	Unknown but not less than 56.7 grams	Life imprisonment
Count 23: Manufacturing methamphetamine	Unknown but not less than 56.7 grams	Life imprisonment
Count 55: Participating in an organised criminal group	-	10 years’ imprisonment

[31]     The total quantity of methamphetamine involved in your offending, which occurred over a two-month period, was not less than 336 grams.  Like Mr Afakasi, the quantities involved place you within the lower half of the guideline band 3. Therefore, you are liable to a sentence of imprisonment of between 10 to 15 years. The question is where you should be placed within that range.

[32]     I accept the Crown’s submissions that, in terms of your role in the group, you were a member of the inner circle and you played an active role in the manufacture and distribution of methamphetamine.   You were not as high up the hierarchy as Mr Afakasi  and Mr Davoren but  you  acted, effectively,  as their lieutenant.   For example, the evidence shows that between  6  and 8 January 2012,  you were in continual    contact    with    Mr Davoren    while    methamphetamine    was    being manufactured.   You also benefited materially from your offending.   You were the owner of the gold bar found at 40 Elstree Avenue, Glen Innes on 1 November 2012, and I have held that you were also the beneficial owner of a BMW motor vehicle valued at approximately $23,000 (and in possession of the $10,000 cash inside it); you also were the owner of a Chevrolet Impala valued at $20,000.   The evidence

indicates that you received methamphetamine to sell on your own behalf and that you received significant quantities of the cash proceeds from sales by others.

[33]     The Crown submits that your role is appropriately reflected in a starting sentence of 11 to 12 years’ imprisonment, with an uplift of two years for totality.

[34]     In  determining the proper starting point for  your offending,  I have been assisted by reference to other cases with similar facts.13    Referring to the relevant cases and to where I have started with Mr Afakasi and would start with Mr Davoren, I consider the proper starting point for your offending is one of 10 years’ imprisonment.  You were more heavily involved in the actual manufacture but you were not as culpable as Mr Afakasi as an organiser and instigator.  Like Mr Davoren

and Mr Afakasi, you were motivated by greed, but your lesser role in the group hierarchy, and the fact that you were not convicted of any specific offending during the second phase of the group's criminal activity, is reflected in the fewer additional charges you face as compared with Mr Afakasi and Mr Davoren.

[35]     The uplift for totality on your sentence will be less than Mr Afakasi’s, as I am required to take into account only the charge of participating in an organised criminal group.  The Crown submits that if this charge were considered separately, a starting point of five years’ imprisonment would be appropriate because you were part of the inner circle of the group and received significant material benefit from the enterprise. I accept that this charge on its own might warrant a starting point of three to four years’ imprisonment but in your case, as with Mr Afakasi's, there is an element of overlap with the specific offending.  Therefore, I uplift your sentence by only one year to reflect the totality of your offending, so that your adjusted starting point is

11 years’ imprisonment.

Personal circumstances

[36]     Turning to your personal circumstances, you are 30 years old.   You are of Niuean descent and are father to a three-year-old son who lives in Perth and with whom you have regular contact. You have been with your partner for three years and

it is clear from the letters I have received that you have a close and loving family.

13     Fleming v R [2011] NZCA 646; R v Crompton, above n 5; Baird v R, above n 5.

Before your incarceration, you were working in construction part-time.  You have some criminal convictions for alcohol and driving offences and disorderly behaviour, and one previous drug-related conviction for the possession of ecstasy in 2012. Your risk of harm to the community and likelihood of re-offending are assessed as high, but  I do  not  think  your  prior  offending  justifies  an  increase  to  provide  greater deterrence.

[37]     The family members who have written to me speak very highly of your personal qualities and I have no doubt that their continued love and support will be of considerable assistance to you.   But you did not appear to be thinking of them when you committed these crimes and, more significantly, you did not appear to think of the misery caused to other families through the addiction to the destructive drugs which you created solely for monetary gain.   I accept that you now have greater insight into your offending but the need for deterrence of this type of offending means that I am unable to pay regard to the good qualities to which your family members have referred as a factor reducing your sentence.

[38]     I acknowledge that you should be given some discount for the restrictions you faced while on bail and I will allow three months on that account.  The effective end sentence, therefore, will be 10 years nine months’ imprisonment.

Minimum period of imprisonment

[39]     In your case, the Crown did not ask for the imposition of a minimum term of imprisonment when its submissions were first filed.   But I think the same considerations in terms of meeting the purposes of sentencing apply for you as for Mr Afakasi – they are, particularly, the need to denounce your conduct and to deter others from committing similar offences.  I have given careful consideration to the case   Mr Bonnar   emphasised,   which   involved   prolonged   offending   by   a

methamphetamine addict,14  but I do not see it as providing much assistance for

offending  motivated  solely by greed.   You  will,  therefore,  also  be  subject  to  a minimum period of imprisonment of around 50 per cent of the end sentence.  You

may sit down, thank you.

14     Fleming, above n 13.

Filimaea Sililoto

Starting point

[40]     Mr Sililoto,  will  you  please  stand.   You  have  been  convicted  of  various counts of dealing in pseudoephedrine (both possessing for supply and supplying it) and one count each of producing pseudoephedrine, manufacturing methamphetamine

and participating in an organised criminal group.

Offence	Quantity	Maximum penalty
Count 1: Producing pseudoephedrine	Unknown	14 years’ imprisonment
Count 22: Manufacturing methamphetamine	Unknown but not less than 56.7 grams	Life imprisonment
Count 33: Possessing pseudoephedrine for supply	15 sets / 3.345 kg of ContactNT (1.35 kg of pseudoephedrine)	14 years’ imprisonment
Count 38: Supplying pseudoephedrine	10 sets / 2.223 kg of ContactNT (900 grams of pseudoephedrine)	14 years’ imprisonment
Count 40: Supplying pseudoephedrine	5 sets / 1.115 kg of ContactNT (450 grams pseudoephedrine)	14 years’ imprisonment
Count 44: Possessing pseudoephedrine for supply	5 sets / 1.115 kg of ContactNT (450 grams pseudoephedrine)	14 years’ imprisonment
Count 45: Possessing pseudoephedrine for supply	2 sets / 446 grams of ContactNT (180 grams pseudoephedrine)	14 years’ imprisonment
Count 48: Possessing pseudoephedrine for supply	10 sets / 2.223 kg of ContactNT (900 grams of pseudoephedrine)	14 years’ imprisonment
Count 55: Participating in an organised criminal group	-	10 years’ imprisonment

[41]     In total you supplied, or possessed for supply, 47 sets of ContacNT which the

Police   estimate   would   sell   for   around   $470,000.     This   amounts   to   about

4.2 kilograms  of  pseudoephedrine  which,  even  on  a  conservative  estimate,  can potentially yield more than two kilograms or $2 million worth of methamphetamine.

[42]     As for your role in the offending, the evidence at trial established that you were actively involved in the distribution of pseudoephedrine as a courier and driver. You were in close contact with the leaders of the group.   For example, between

29 November and 1 December 2011, you were assisting Mr Afakasi and Mr Davoren in producing pseudoephedrine at the factory in Culperry Road, and an explosion resulted in serious burns to your legs.   Several times at the end of August and beginning of September 2012, Mr Davoren got in touch with you directly to arrange for you to deliver pseudoephedrine to him or to others in the group.  You received modest benefits from this offending, such as the use of a motor vehicle which allowed you to carry out your role as a driver.

[43]     The Crown submits that a starting point of eight  years’ imprisonment is appropriate for your lead offence of dealing in pseudoephedrine, with an uplift of two years for totality, plus a further uplift of six to nine months to reflect the fact that you were subject to a sentence of life imprisonment at the time of this offending. Your counsel, Ms Sellars, submits that an appropriate starting point is six years six months or seven years, with an uplift of only one year for the methamphetamine charge.    She  submits  that  the  further  uplift  for  your  prior  offending  should  be confined to three to six months, and that this must be balanced against mitigating factors personal to you.

[44]     The  Crown’s  submissions  refer  to  a  Court  of Appeal  case15   which  has recently been confirmed as the leading case for pseudoephedrine sentencing.16   That sets out three categories for sentencing in cases involving Class B drugs, the most serious of which is for commercial activity on a major scale.   The starting point

before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved.  The Crown submits that your offending places you in the first category – that it, it was commercial activity on a major scale.17

[45]     Ms Sellars submits, however, that your role in the group’s offending should

properly be seen as a lesser one, and that the offending you were engaged in should

15     R v Wallace [1999] 3 NZLR 159 (CA).

16     R v Wang [2014] NZCA 409 at [26].

17     Wallace, above n 15, at [30].

be seen as coming within the middle category, that of commercial manufacture or importation on a substantial scale reflecting sophistication and organisation over a period of time, though not involving massive quantities.

[46]     I  have  had  regard  to  comparable  cases  to  assist  me  in  coming  to  the appropriate starting point.18   Although your conduct may have been part of a wider group that was engaging in “commercial activity on a major scale”, the sentencing categories are not to be applied inflexibly.19    While you appear to have been well integrated into the wider group, your role as a courier and driver was much less significant than numbers of your co-offenders.  I also accept Ms Sellars’ submission that you appear not to have profited in any meaningful sense from your activities with the group.

[47]     Your sentence must also reflect the quantity of pseudoephedrine which you have been convicted of dealing in, and that it is much less than many of the cases which have been referred to.  I consider the proper starting point for you is one of seven years’ imprisonment.

[48]     Next, I must consider an uplift in your sentence to reflect the totality of your offending.   As I have said, you have also been convicted of producing pseudoephedrine;   manufacturing   methamphetamine;   and   participating   in   an organised  criminal  group.     The  Crown  submits  that  your  methamphetamine offending alone falls within band 2 of the guideline (that is, manufacturing up to

250 grams),  and  would  invite  a  starting  point  of  between  four  and  11  years’ imprisonment if taken alone.  So it says your starting point should be uplifted by two years for your additional offending.  Ms Sellars says, however, that this is manifestly excessive, because the high starting points for pseudoephedrine offending reflect the reality that this drug is invariably used to produce methamphetamine, and in this case the manufacture is not so separate from other charges as to warrant a substantial uplift.  I take those points into account and uplift the sentence by 12 months, to give

an adjusted starting point of eight years’ imprisonment.

18     Wang, above n 16; Li, above 6; Lin v R [2010] NZCA 141; R v Ha [2014] NZHC 2621. In doing so, I have borne in mind the fact that pseudoephedrine was reclassified from a Class C to a Class B drug in 2011, meaning cases before that date are of limited assistance.

19     Wang, above n 16, at [22].

Personal circumstances

[49]     I now turn to consider your personal circumstances and whether there is anything that would support an uplift or reduction in sentence.

[50]     You are 34 years old and of Samoan descent.  Before your arrest you were living with your sister and her family in Manurewa.  You have a de facto partner, with whom you have been in a relationship for about four and a half years, and you act as a father to her 10-year-old child. Your family and friends remain supportive of you and I have been impressed by the letters they have provided.  You have not had much employment due to the fact that, when you were just 15 years old, you were convicted of murder and sentenced to life imprisonment.  You were, of course, still subject to this sentence when you committed the present offences.

[51]     Ms Sellars submits that, given these unusual circumstances, rehabilitation should be seen as especially important when considering your sentence.  She submits that it was your helpful nature, and your lack of employment, that contributed to your offending, in that you were at a loose end when you became friends with Mr Davoren and your other co-accused, and your obliging nature led you to “go along with” the offending.  I acknowledge that, having spent so much of your life in prison since your mid-teens, you were more susceptible to bad influences.  As I said to Ms Sellars during her submissions, you were imprisoned at a time when what you really needed was a loving and helpful family around you to provide you with some moral compass and some guidance as to how you should behave, particularly at a time when you were undergoing transformation from boy into man.   You did not have that and I take that into account in considering what is the appropriate penalty for you in this case.

[52]     But I have said already that the overwhelming importance of deterrence in serious drugs cases means I cannot give too much credit for positive personal attributes.  Your pre-sentence report says you do not show much remorse for your role in this offending, but I have read your letter to the Court and I accept that you are beginning to take some responsibility for the way you have behaved.

[53]     I think it is fair to take into account the serious injuries you suffered in the course of your offending.  The explosion at the laboratory in Culperry Road resulted

in third-degree burns to both your legs from the ankles to the knees. You suffer from ongoing discomfort and, due to the risk of blood clots, must massage your legs constantly throughout the day. Your legs are highly susceptible to infection.

[54]     Of course, a discount should not readily be given for injuries that offenders bring on themselves through criminal misconduct.  But there is some precedent for an injury warranting a reduction in sentence.20    Recently, I reduced a sentence on appeal on the basis that a modest reduction from the appellant’s sentence of imprisonment was justified because of long-term disability that would serve as a permanent reminder of his offending and act as a deterrent.21   I take into account that you continued to offend in this case notwithstanding the burns you received, but I do consider that some allowance should be made for your injury.

[55]     Taking all of these personal factors into account, I reduce your sentence by six months accordingly.  The effective end sentence, therefore, is one of seven years six months’ imprisonment.

Minimum period of imprisonment

[56]     For  the  reasons  I  have  already  given  in  respect  of  Mr Kaukasi  and Mr Afakasi, I consider a minimum term of 50 per cent to be appropriate for your offending.

[57]     Please sit down.

20     R v Potter (1994) 12 CRNZ 109 (CA).

21     Paikea v Police [2014] NZHC 2609.

Jordan Ioane

Starting point

[58]     Mr Ioane, would you please stand. You have been convicted of two counts of dealing in pseudoephedrine, one count of possessing methamphetamine for supply

and one count of participating in an organised criminal group.

Offence	Quantity	Maximum penalty
Count 46: Possessing pseudoephedrine for supply	0.9 of a set / 201 grams of ContactNT (81 grams of pseudoephedrine)	14 years’ imprisonment
Count 50: Supplying pseudoephedrine	20 sets / 4.4 kg of ContactNT (1.775 kg of pseudoephedrine)	14 years’ imprisonment
Count 54: Possessing methamphetamine for supply	12.5 grams	Life imprisonment
Count 55: Participating in an organised criminal group	-	10 years’ imprisonment

[59]     The lead offence is the charge of possessing methamphetamine for supply, which  arose out  of a Police search  of  your home on  2  November 2012,  when

25.6 grams of “wet” methamphetamine was found.  At a disputed facts hearing, I held that I would sentence you on the basis that this was the equivalent to 12.5 grams of usable methamphetamine.

[60]     The Crown submits on the basis of the guidelines22  that a starting point of four years’ imprisonment is appropriate, with an uplift of two to three years to reflect the totality of your offending.

[61]     I have referred to the cases presented by the Crown, as well as others, in deciding what is an appropriate starting point for you.23     Comparison with those

cases suggests that two years six months’ imprisonment is an appropriate starting

22     R v Conway CA275/04, 23 March 2005 at [21].

23     Nordstrand v Police HC Whangarei CRI-20011-488-51, 26 September 2011; R v McGrath HC Wellington CRI-2007-078-793, 7 November 2008; R v Doull [2012] NZHC 1048; R v Bradley [2012] NZHC 848; R v De Serville HC Auckland CRI-2006-004-18441, 29 August 2008; R v Baldwin HC Palmerston North CRI-2008-054-1871, 10 September 2009; R v Te Wani HC Auckland CRI-2008-092-17198, 30 June 2009.

point.   The quantity of methamphetamine puts you at the bottom of the guideline bands and no other evidence of commerciality was found by the Police.

[62]    Taking into account the convictions for dealing in pseudoephedrine and participating in an organised criminal group, I consider an uplift of two years to be sufficient to reflect the seriousness of your offending overall.  I do so primarily on the basis that I accept Ms Pecotic's submission that you were drawn into this offending by your cousin, Mr Davoren, who took advantage of you. That would take the adjusted starting point to four years six months’ imprisonment.

Personal circumstances

[63]     Mr Ioane, you are 24 years old.  You are of Samoan heritage but you were born in New Zealand.  Since leaving high school you have had varied employment and you have attained level 3 of a certificate in security management.   However, lately you have been unemployed and living with your mother, partner and your three-year-old daughter.  Your lifestyle is said to revolve around your family, as well as  your  search  for  more  permanent  employment  and  your  sporting  and  music interests.  Aside from Mr Davoren, it appears that your friends and associates are mainly positive  influences  on  you  and  you  have  strong  family  and  community support.   You do have previous convictions from your younger days, but you are assessed as having left this chapter of life behind you and I put that history to one side.

[64]     Although you have been found guilty of four offences, there is an overlap between the specific charges and your participation in the organised criminal group. I find your role in the overall offending to have been minor and you now appear to accept responsibility for your actions.  The probation officer says you have shown considerable and genuine remorse for your actions and you are assessed as being strongly motivated not to reoffend.  There is no evidence that you use illicit drugs yourself and your interests are positive ones.  You are therefore assessed as posing a low risk of harm.

[65]     Given the relatively low level of your involvement and your positive attitude, I propose to  indicate the Court's  support  for  your commitment  to  rehabilitating

yourself and also to take account of your youth at the time of the offending.  Overall

I allow a discount of 12 months’ imprisonment on account of these personal factors.

[66]   That makes the effective end sentence one of three years six months’ imprisonment. A minimum period of imprisonment would not be appropriate in your case, meaning that you will be eligible for parole after 14 months.  How soon after that you are actually released will depend entirely on whether you have demonstrated that you have turned your life around.

[67]     Please sit down.

Vadi Tobia, Folau Polaulu and Sione Laungaue

[68]     Mr Tobia, Mr Polaulu and Mr Laungaue – you may remain seated just for the moment.   The Crown has  discussed  the principles  applicable to  your  sentences together, as you were each convicted of one charge of participating in an organised criminal group and were not found to have committed any specific drug-related offences, and I adopt the same approach.   The maximum penalty for the offence, however, is one of 10 years’ imprisonment.

Starting points for participating in an organised criminal group

[69]     There is no tariff case for participating in an organised criminal group, and sentencing for this offence can be difficult because it covers such a wide range of conduct.  The “gist” of the offence is knowingly taking part as a member of a group that came together to commit a prescribed criminal activity, whether or not any substantive offence is actually committed.24    In this case, the essence of the charge was  that  the  intention  of  the  group  was  to  obtain  material  benefits  from manufacturing or producing methamphetamine and pseudoephedrine and distributing those drugs.

[70]     The degree of guilt of each individual member of an organised criminal group is not to be assessed by just collating the offending of each individual; a degree of responsibility for the wider scale of the offending is to be visited on each participant. That is the very purpose of the charge of participation in an organised criminal group.25

[71]     I have considered relevant cases for guidance as to the appropriate starting points for each of you, including one case concerning Anna Kaukasi, one of your co- offenders.26    I also bear in mind that I am required to impose the least restrictive sentences which are consistent with your offending and the principles of sentencing.

[72]     I will now turn to discuss your sentences one by one.

24     R v Mitford [2005] 1 NZLR 753 (CA) at [50].

25     Pahu v R [2011] NZCA 269 at [12].

26     R v Hikaka [2013] NZHC 2014; R v Kaukasi [2014] NZHC 1893; R v Green [2014] NZHC 51.

Vadi Tobia

Starting point

[73]     Mr Tobia, will you please stand.  Your involvement in the group’s activities was through what was a legitimate and successful business supplying wheels, tyres and suspension for customised vehicles.  You met Mr Davoren when he became a regular  customer.    I accept  that  you  effectively fell  into  offending through  this connection and I am satisfied that if you had not become enamoured of the group’s easy-money lifestyle you would not have become an offender at all.

[74]     You participated in the group by handling money, providing bank account numbers to conceal or move funds, arranging vehicles for the group and providing a storage facility or premises where the group could pick things up or meet.  You also wilfully removed parts from one of Mr Davoren’s vehicles stored at your premises when you knew they were subject to restraint by the Official Assignee.  In all of this, the jury must have accepted that you were fully aware that you were facilitating drug-dealing activities involving pseudoephedrine.  I agree with their view; you were more than just suspicious.  However, I am satisfied that your involvement with the group reflected a weakness of moral character and naivety rather than real criminal instincts, and you will pay the price for that in the mere fact of your conviction.

[75]     The Crown submits that a starting point for you of three to three years six months’ imprisonment is appropriate.   It submits that you were considerably more involved in the group’s activities than Ms Kaukasi; that you played an “essential role” in helping convert the cash made from drug dealing into assets.  In any event, the Crown submits that given the full picture of the group’s activities now that the trial is complete, Ms Kaukasi’s sentence was arguably lenient, and that the Court should not have regard to it for the purposes of sentencing you.

[76]   Mr Mansfield submits that the appropriate starting point is 18 months’ imprisonment because your role was a step removed from the group’s drug-dealing activities,  in  the  sense  that  you  were  involved  essentially  in  dealing  with  the proceeds of the drug offending.  The submission is that you facilitated Mr Davoren spending the proceeds of his illicit enterprise but you were only one of many individuals who did this.   The 18-month starting point is submitted as achieving

parity with other co-offenders, particularly Ms Kaukasi, who Mr Mansfield says was clearly more blameworthy than you.

[77]     I agree that you were less culpable than Ms Kaukasi, who was an active helper in the drugs-related side of the offending and who would have enjoyed the benefits of the offending through her relationship with Mr Davoren.  I cannot be sure that the $32,000 cash found in your kitchen was yours and the proceeds of offending by you.  It is possible you were simply holding that money for Mr Davoren.  That means there is insufficient evidence for me to be sure that you received financial reward  above  and  beyond  the  legitimate  business  that  arose  through   your connections.

[78]     But I consider an appropriate starting point for your sentence is 21 months’

imprisonment.  I now turn to consider other factors personal to you.

Personal circumstances

[79]     You were born in Baghdad 24 years ago but you came to New Zealand as a child.  You currently live with your wife, with whom you have been in a relationship with since school days, and she is soon to give birth to your first child.  You have close relationships with your family and with your wife’s family.   You have no criminal history prior to your conviction at this trial.  You are assessed as being at low risk of reoffending and at low risk of causing harm to others.

[80]     The Crown accepts that you should be entitled to a small discount in sentence because you have no previous convictions.  Mr Mansfield submits that this discount should be in the order of nine months, comprising a three-month discount to reflect the time you have spent on ordinary bail at trial and on post-verdict bail, and a further six months for other mitigating factors such as your previous good character. It is submitted also that your previous good character (including your compliance with all conditions of bail that you have been subject to while awaiting the outcome of the present proceedings), your strong motivation for change and your low risk of reoffending make you an appropriate candidate for a sentence of home or community detention.

[81]     I agree that there are strong mitigating factors in your favour, Mr Tobia. Your previous good character is clear on the evidence before the Court and you deserve credit for having established and maintained a successful business from scratch, with the help of your supportive and loving parents.   I do not think you are at risk of reoffending and sending you to jail would serve no useful purpose as a personal deterrent.   Moreover, you have been scrupulous in observing the fairly strict bail conditions to which you have been subjected for quite some time; I am permitted to

take this into account as a mitigating factor.27   For these reasons, and in recognition

of the positive factors coming from your letter to the Court, I reduce your sentence by six months, bringing the effective end sentence to 15 months’ imprisonment.

[82]     Because  that  sentence  is  one  of  less  than  two  years,  I  can  consider community-based sentences.28   The factors I have mentioned, including the strength of your marriage and your other family relationships, point to a community-based sentence as being appropriate.

[83]     I have considered carefully the recommendation of home detention and I have also  given careful thought  to the prospect of community detention and to community work, which I consider to be a more flexible blend of sentences.  But in the end I have decided that that combination would not adequately reflect the extent of your offending.  The inconvenience that you will suffer through home detention is intentional.  It is a substitute for imprisonment.  And if you are inconvenienced by it then that is your fault.   It is highly likely, however, that you will be given work release.

[84]     The period of home detention for which I will sentence you will be one of eight months.

[85]     Please sit down.

27     Sentencing Act 2002, ss 9(2)(h) and 9(3A); also R v Aram [2007] NZCA 328 at [77]; R v Potoru

HC Auckland CRI-2006-092-3877, 14 September 2007 at [16]-[17].

28     Sentencing Act, s 15A(1)(b); Parole Act, s 4(1).

Folau Polaulu

Starting point

[86]     Mr Polaulu, will you please stand.  Your sole conviction arising out of the trial is also for participating in an organised criminal group. I find it proved beyond reasonable doubt that you were involved in the collection and distribution of the proceeds from the sale of pseudoephedrine.  Although I consider you were closely involved in the group’s activities, I did not find it proved beyond reasonable doubt that you actually handled drugs on behalf of the group.

[87]     The Crown submits that a starting point of three years to three years six months’ imprisonment is appropriate, but Ms Ives submits that such a starting point cannot be sustained when your involvement is compared to that of Anna Kaukasi.

[88]     There is merit in those submissions and I adopt a starting point for you of

24 months’ imprisonment, which is higher than that for Mr Tobia.

Personal circumstances

[89]     Mr Polaulu, you are 28 years old.   You were born in Tonga and moved to New Zealand in 1998 to join your mother and your younger brother. At present, you live you with your mother and two younger sisters.  You appear to have the support of your family.  You rely on them for financial support, although prior to your arrest you were working in an insulation factory for about two years.  You are identified, however, as having a harmful pattern of alcohol abuse.

[90]     The probation officer also assesses you as having limited insight into your behaviour.  You have expressed some remorse for your offending but this is assessed as being potentially more to do with the circumstances you now find yourself in, than with actual recognition of the harm that this offending has done.  You have a number of prior convictions, mostly for non-compliance with court and other orders, but nine for violent offending and four for other drug offending.   Your consistent pattern  of  offending  since  2003  suggests  to  the  probation  officer  a  sense  of entitlement and an attitude which supports offending.  Your anti-social associates are also identified as being the major contributing factor to your present offending – you

have known some of your co-offenders since childhood. You are assessed, therefore, as being at a high risk of reoffending, and your risk to the community in general is assessed as moderate.

[91]     The Crown, however, does not seek an uplift for your previous convictions which, and I agree, are “somewhat dated”.  Ms Ives agrees and says further that you should have some discount from your starting point on account of restrictive bail conditions and short periods in custody.

[92]     Because the appropriate sentence is a short-term sentence of 24 months’ imprisonment, I am required to consider the option of home detention.29   It is not a soft option but a genuine substitute for imprisonment.   The Probation Service has confirmed that you have a suitable address and would be a suitable candidate so I propose to sentence you to home detention for 10 months, a period which makes some allowance for time served in custody and the restrictions of bail.

[93]     You may sit down.

29     Sentencing Act, s 15A(1)(b) and Parole Act, s 4(1).

Sione Laungaue

Starting point

[94]     Mr Laungaue, please stand. The Crown submits that a starting point of one to two years’ imprisonment is appropriate for you, reflecting the fact that you were the least involved member of the group.  I take your role to have been that of a general "gofer" for Mr Davoren without any proved involvement in actual drug dealing but with knowledge of the activities in which the group was involved.   Mr Wimsett submits that an appropriate sentence for you is at the bottom of the range identified by the Crown, and says that supervision will best serve the purposes and principles of sentencing in your case.   I consider that the appropriate starting point for your offending is 15 months’ imprisonment.

Personal circumstances

[95]     You are 28 years old. You live in Manurewa with your uncle and his son, and you have a partner of three years.  The eldest child in a large family, you report that there were difficulties in your family life growing up.  You are currently supported financially by your relatives although you have previously worked in a construction firm.  You have quite a number of criminal convictions and reportedly struggle to reintegrate back into society after a lengthy term of imprisonment on a serious charge that began when you were a teenager.  Of your criminal history, you express some regret but you say that personal problems led you to offend in an opportunistic manner. After your time in prison you encountered difficulty living your life in what the probation officer calls a “pro-social”, or “socially acceptable”, manner.   As a result you could no longer relate to many of your old friends and those who understood you best were friends you made in prison, such as Mr Davoren.   You appear to be remorseful for your part in this latest offending and you are assessed as being motivated to change.   It is troubling, however, that you are nevertheless assessed as being at a high risk of reoffending and causing harm to others.

[96]     I do not think there are any aggravating or mitigating factors in your personal history that I should take into account in setting your sentence.  But a relevant factor

is the time that you have already spent on EM bail since your arrest.30    You were subject to strict conditions including a 24-hour curfew.  On the basis of other cases I have considered,31  I consider a reduction of eight months is appropriate on that account,   meaning   the   appropriate   end   sentence   is   one   of   seven   months’ imprisonment.   Home detention is recommended and I will sentence you to home detention for four months.

[97]     You may now sit down.

30     Sentencing Act 2002, s 9(2)(h).

31     R v Aram, above n 27; R v Potoru, above n 27.

John Fetu

Starting point

[98]     Mr Fetu, please stand.   You were convicted of two charges of possessing pseudoephedrine for supply.   The maximum penalty for the offence is 14 years’ imprisonment.   You dealt with Mr Davoren on two occasions around the end of August and beginning of September in 2012.   In total, you received 15 sets of ContacNT (3.345 kilograms) from him.  That is the equivalent of 1.35 kilograms of pseudoephedrine, having a potential yield of somewhere between 675 and just over one kilogram of methamphetamine.  The circumstances of your offending were such that I am satisfied you intended to engage in activity of a substantial commercial nature, and that you would have continued to do so had you not been foiled by the Police investigation.

[99]     Referring to arguably similar cases, the Crown submits that a starting point of

four years’ imprisonment is appropriate for your offending.32

[100]   The Crown emphasises that you played a pivotal role in the drug operation, being in direct contact with Mr Davoren, the principal offender, to arrange supplies of pseudoephedrine to you for re-sale.   The Crown puts your culpability in the middle range and submits that the offending you engaged in falls into the lowest category of seriousness, namely “smaller operations which represented commercial dealing”.  Starting points of up to five years’ imprisonment are appropriate.33

[101]   Mr Ryan agrees that you properly come within that category.   Relying on previous decisions prior to 2011, he submits the proper starting point for you is one of three years’ imprisonment.34    He submits that this should apply even though the classification of pseudoephedrine has changed since those cases were decided.

[102]   I do not accept that submission.  By reclassifying pseudoephedrine as a class

B drug, Parliament sent a message that it intends dealing in this drug to be viewed as a more serious offence.   This, of course, is reflected in the maximum penalties

32     R v Yang HC Auckland CRI-2009-004-18467, 9 February 2010; R v Wang, above n 16; Tilialo- Staples v Police [2013] NZHC 1255.

33     Wallace, above n 15, at [32].

34     R v Yin [2008] NZCA 257; R v Hsu HC Auckland CRI-2010-092-12758; R v Li HC Auckland

CRI-2009-004-27952, 22 June 2010.

available for dealing in the various classes of drugs.   There are no particular aggravating  or  mitigating  features  of  your  offending.    You  were  a  drug  dealer looking for financial gain; no more and no less than that.

[103]  I accept the Crown’s submission that the proper starting point for your offending  is  four  years’ imprisonment.    I  now  turn  to  consider  your  personal circumstances.

Personal circumstances

[104]   Mr Fetu, you are 33 years old.  You are one of six children, born in Tonga, but you were adopted by family members and moved permanently to Auckland when you were about eight.  Both your adoptive parents died when you were in your pre- teen years, and after that you lived with your grandparents and reconnected with your biological family.  Prior to your remand into custody you were living with your partner of three years and her three children; you say you play an active role in parenting the children.  You report having been self-employed as a personal trainer for about three years.  You are a member of the Head Hunters gang and consider their influence in your life to be a positive one – you say the offending for which you are being sentenced today is not related to the gang.   In fact, despite your having been convicted by a jury, you maintain that you are innocent of any wrongdoing.  I agree with the jury’s verdicts and I want to go further and say that you may consider yourself fortunate not to have been found guilty of more significant dealing.  But I make it clear that I sentence you solely on the basis of the two counts on which you have been convicted.

[105]   You are assessed as posing a medium risk of harm to others and having a medium likelihood of reoffending.  You have amassed 25 criminal convictions since

1998, including violence, drugs, dishonesty and non-compliance offences.  Your last drug convictions were received 15 years ago, however, and the Crown does not seek an uplift for your past offending.  I agree those offences should be disregarded.

[106]   The effective end sentence to be imposed on you, therefore, is one of four

years’ imprisonment.  Please sit down.

Justin Abel

Starting point

[107]   Mr Abel, would you please stand.  You have been found guilty of one charge of possessing pseudoephedrine for supply, despite the fact that you absconded while on bail and that you did not attend at any time during the trial.  Mr Leary, who was formerly counsel for you, assisted the Court by doing what he could to represent your interests.

[108]   Having heard all of the evidence against you, I am satisfied that the jury's verdict was right, and I notice from the probation report that you dispute only the amount of the drugs involved.   Well, it is your fault you were not here to run a defence of that kind and I am satisfied that the Crown's evidence is correct on that point.

[109]   The charge arose out of the events of 1 November 2012.  At about 2.30 pm

Mr Davoren  met  you  and  Mr Wise  in  a  car  park  in  Manukau  and  handed  you

4.4 kilograms, or 20 sets, of ContacNT in exchange for a large quantity of cash

$160,000.    This  exchange  had  been  arranged  earlier  between  Mr Davoren  and Mr Wise.  Police then followed you and Mr Wise to a street in Mt Wellington and when they searched your vehicle, they found a rucksack containing the drugs.  The ContacNT that you possessed contained approximately 1.775 kilograms of pseudoephedrine.

[110]   The  Crown  submits  that  a  starting  point  of  four  years’ imprisonment  is appropriate for this offending also.   Mr Kayes suggests three years would suffice. He says that the cases relied upon by the Crown justify describing your offending as “at the very low end of culpability”.35     In Tilialo-Staples, on appeal the offender received a starting point of four years’ imprisonment for a quantity of pseudoephedrine more than 12 times that involved in your case.  Mr Kayes says that

there was neither premeditation nor planning on your part – and your involvement

was limited to the day of the offending.  You were a “link in the chain of offending but not of critical importance”.

35     R v Wang, above n 16; Tilialo-Staples v Police, above n 32; R v Yang, above n 32.

[111]   The case referred to by Mr Kayes did involve a much higher quantity of pseudoephedrine and that offender was involved in planning the pickup and delivery of the portable air compressor containing pseudoephedrine.  However, although he knew something illegal was going on, he had no knowledge of the type of drugs in the compressor or the quantity.   I do not think the same cannot be said of you, Mr Abel. Although Mr Wise had the contact and made the arrangements, you carried the money around with you all morning with full knowledge of what you were engaged in; that greatly increases your culpability.  For that reason, I adopt the same starting point as in Tilialo-Staples of four years’ imprisonment.

Personal circumstances

[112]   Mr Abel, you are 36 years old.  You grew up as an only child, raised by your mother and grandparents; you do not have a relationship with your father.  Before your recent remand into custody you were living at your grandfather’s house subject to bail conditions.   You appear to have fallen into a cycle of being in and out of prison.  For the past 15 years, you have been on the sickness benefit for alcohol and drug dependency issues.   Prior to your remand into custody, you were assessed as having  a  very  harmful  pattern  of  methamphetamine  abuse.    You  also  describe yourself as a “pathological gambler”.   You have attended various treatment programmes over the years but you report having being clean of methamphetamine for two  years until  a  relapse,  brought  on  by the news  that  your  grandfather is terminally ill.

[113]   You are a member of the Head Hunters.  You credit gang life with keeping

you “safe and clean”.  But you have a history of criminal offending dating back to

1996, including convictions for violence, drugs, driving and dishonesty offences. Your current offending is linked to your increased dependency on methamphetamine and your risk of reoffending is assessed as high.  You are also assessed as posing a medium risk of harm to others, with that risk increasing if your drug issues are not addressed.

[114]   The Crown does not seek an uplift for your previous convictions as those that are relevant are dated.   Mr Kayes submits that  I might be able to make some reduction of your sentence to reflect your expressed commitment to rehabilitation.  I

have read your letter in which you state your intention to kick your drug habit, and I see you have taken steps towards that already, and that is commendable.  But as I have stated in this judgment, in cases involving commercial drug dealing, because of the overwhelming importance of deterrence the personal circumstances of the offender do not carry great weight.  In the circumstances, I decline to reduce your sentence further.

[115]   Your effective end sentence is four years’ imprisonment.  Please sit down.

Christopher Wise

Starting point

[116]   Mr Wise, at the trial of those being sentenced today, you were convicted of one charge of possessing pseudoephedrine for supply arising out of the transaction involving Mr Abel.  I will not go into the details I have already explained them.

[117]   But you are also for sentence today on a raft of unrelated offences which you committed between March and July this year while on bail. These offences were:

(a)       five counts of burglary, which carries a maximum penalty of 10 years’

imprisonment;

(b)five counts of receiving, which carries a maximum penalty of one year or seven years’ imprisonment (depending on the value of the property);

(c)      two  counts  of  being  unlawfully  on  a  property,  which  carries  a maximum penalty of two months’ imprisonment or a $2000 fine;

(d)      one count of possession of ammunition, which carries a maximum

penalty of four years’ imprisonment or a $5000 fine.

[118]   Before sentencing you I must deal with two technical points.   There is a charging document on your file suggesting that you were also charged with one count of unlawfully converting a motor vehicle under s 226(1) of the Crimes Act

1961.  As I understand it, the presence of this charging document in the papers is an error, and so to dispose of it I formally dismiss that charge.

[119]   Mr Gibson also presented submissions on the basis that he understood your

2014   offending   included   one   count   of   possessing   methamphetamine,   but   I understand this charge has already been withdrawn by leave of the Court and I want to make it clear I am not sentencing you on that charge today.

[120]   I now turn to the appropriate sentences to be imposed and I will address, first, the drug offending in 2012.

The 2012 offending

[121]   As with Mr Abel, the Crown submits that a starting point of four years’ imprisonment is appropriate for the offending.   It then submits that that should be uplifted to reflect the fact that the offending was committed while you were on bail. Because you have been convicted of the same charge arising out of the same circumstances as Mr Abel and because I consider that this was very much a joint enterprise between you, I have decided I will adopt the same starting point of four years’ imprisonment.  But you lied on oath in the witness box and I consider an uplift is  necessary to  reflect  the  extra  need  for  deterrence  because  of  your  failure  to acknowledge your responsibility for this offending and for your lengthy criminal history.   I will come to that in a moment, but the starting point for the pseudoephedrine dealing is four years.

The 2014 offending

[122]   I turn to the 2014 offending to which you pleaded guilty in the District Court. You went on something of a burglary spree and I need to explain for the record the facts of those cases.

(a)      At 7am on 21 March 2014, you were on the property of the Baptist Tabernacle Church on Queen St in Auckland.  You entered a rear door of the church and gained access into one of the rooms, triggering an alarm.  You then walked to the car park of a neighbouring property. The building there is commercial, retail and residential.  You entered this building through a roller door and made your way to ground level via a lift, where you unsuccessfully attempted to pry open an internal door using a tool.

(b)      In the evening on 18 May 2014, you entered an apartment building on

Hobson Street.   You accessed level 2 via the stairs and then forced

open the door of an apartment, which also operates as a business, from which you seized two laptops, two sets of keys, a pair of prescription glasses, a large quantity of cash and a safe containing gold sovereigns.

(c)      Sometime between 8pm on 27 May and 9am on 28 May 2014, you entered Sylvia Park Mall through the roof, gaining access to three stores via the crawl space.  You took $140 from the till in Nail Boutique, $2,000 from the till in Texan Art School and an unknown sum of money from Mac Boutique.

(d)Sometime during the day on 16 June 2014, you climbed onto the balcony of an Epsom home and forced entry to the study.  You took from the house handbags, watches, electronics, shoes, jewellery, clothes and cash. This was all valuable property.

(e)      At approximately 8.15pm on 22 June 2014, you entered a commercial building on Nelson Street.  You and an associate forced the front door and have taken two sets of car keys, a laptop worth $1,800 and four GPS units valued at $180 each.  You then used the car keys to take two vehicles worth $26,000.  The total value of the items you stole was $54,520.

(f)      Between 4.30 and 5pm on 6 July 2014, you entered a hotel on Great North Road in Grey Lynn.   You were fleeing from members of the public who had recognised you from the TV show Police 10/7.  You entered a room inside the hotel and took items of clothing, worth about $100, in an attempt to disguise yourself.

(g)On 24 June 2014, the Police executed a search warrant at a house where you had been temporarily residing.  They found various items that had been reported stolen in the burglaries discussed above, as well as items from other burglaries.  This gave rise to the receiving charges. The details follow.

(h)On 3 June 2014, the Loaded retail store was the subject of a burglary, with a large amount of Loaded-branded clothing stolen.   Several Loaded T-shirts were discovered among your possessions (valued at

$500 to $1000).

(i)On 4 June 2014, the premises of Substance Clothing was burgled, with a large amount of clothing, sunglasses and bags taken.  Some of these items were found among your possessions (valued at $1020).

(j)       On  10  June  2014,  Country  Road  was  the  subject  of  a  burglary.

Various items that were taken in this burglary were found among your possessions (valued at $340).

(k)Between 11 and 12 June 2014, Noel Leeming was the subject of a burglary, with various electronic items taken.  Police found a Samsung camera among your possessions that was taken from the store (valued at $547).

(l)Between 11 and 12 June 2014, Citizen Watches was the subject of a burglary.  Two of the stolen watches were found among your property (valued at $1500).

(m)Also discovered that day in the shed at the rear of the house, were seven shotgun rounds. You have never held a firearms licence.

[123]   Mr Gibson submits a global starting point of seven to eight years for all offending is appropriate.

[124]   I have had regard to comparable cases36 in order to determine the appropriate starting point for the offending which was the subject of the District Court charges,

bearing in mind that an unusual feature of sentencing for burglary charges is that

36     R v Nguyen CA110/01, 2 July 2001; Pahu v R [2011] NZCA 269; R v Lowe CA62/05, 4 July

2005; R v Rohloff CA193/03, 24 September 2003; Senior v Police (2000) 18 CRNZ 340 (HC);
Peters v R [2014] NZHC 1158.

sometimes the offender’s prior convictions are taken into account in setting the

starting point.

[125]   Mr Gibson  submits  that  your  modus  operandi  involves  the  targeting  of commercial premises,  meaning the aggravating factor of breaking into domestic dwellings is not present, but two of the five instances of burglary for which you are now being sentenced were of residential properties (the Hobson Street apartments and the Epsom home), and one was a hotel room, which is more analogous to a dwelling house than a commercial property.   Mr Gibson rightly acknowledges that aggravating features of your offending are a degree of sophistication and planning in your actions, your previous burglary and receiving convictions, and the fact that you were offending while on bail.

[126]   Taking into account these factors and the relevant cases I have considered, Mr Wise,  I have  decided  an  appropriate  starting  point  for  your  five  charges  of burglary would be four years’ imprisonment on each but to be served concurrently. Your offending was in fact not as sophisticated nor as extensive as the offending in some of the other cases I have considered.   But it did involve repeat instances of burglary over a short period of time, some of residential premises, where there was premeditation and planning, and you took items of substantial value.

[127]   I must now uplift the burglary sentences to reflect the principle of totality, in that you are also for sentence on five charges of receiving, two charges of unlawfully being on property and one charge of possession of ammunition.    Taking a broad view, I consider that this other offending warrants a 12-month increase to your starting point.

[128]   That would mean that your starting point adjusted for the whole of the 2014 offending  is  five  years’ imprisonment.    With  your  starting  point  of  four  years’ imprisonment on the drug offending, this gives a global starting point of nine years’ imprisonment.

[129]   I now turn to your personal circumstances to see whether there is anything that suggests that this sentence should be uplifted or decreased, before assessing the sentence on the basis of the totality principle.

Personal circumstances

[130]   Mr Wise, you are 36 years old.  You are unemployed and currently without a fixed abode but your parents live in Piha and they are said to be a positive support in your life.   Factors contributing to your offending are your drug use and antisocial associates – you say most of your recent bout of criminal activity occurred after you were evicted from your last property, urgently needed a place to stay and ended up reconnecting with old acquaintances, which led to your relapsing into drug use.  You report that your offending is motivated solely by the need to fund your methamphetamine addiction. You do appear to express some regret and remorse but, as I have said, you gave false evidence and I do not consider you to have genuinely accepted responsibility for your drug offending.  You are assessed as being at a high risk  of  reoffending,  particularly  in  light  of  the  recent  activity  committed  while already awaiting trial. The risk of harm you pose to others is assessed as medium.

[131]   You have a substantial criminal history dating back to 1993.  Relevant to the appropriate sentences for the 2014 offending is the fact that you have more than

30 previous convictions for burglary (as well as a number for receiving).  This is a serious aggravating factor, and I uplift your sentence by 18 months to take account of it, taking your total sentence for the 2014 offending to six years six months’ imprisonment.

[132]   However, Mr Gibson has pointed to the fact that in respect of this offending, you entered early guilty pleas.  You are entitled to a 25 per cent discount, which in your case is a reduction of 18 months so it off-sets the uplift I have just referred to.37

This brings the overall sentence back down to five years’ imprisonment.

[133]   As for your 2012 drug offending, the Crown points out at the time of this offending  you  were  subject  to  a  24-hour  curfew  for  a  burglary  committed  on

37     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

5 January 2012  (for  which  you  were  sentenced  to  two  weeks’ imprisonment  in

November 2012). That would justify an uplift to your sentence by three months.

[134] That gives an end sentence of something of the order of nine years’ imprisonment, if not more.  But I need to check your sentence against the principle of totality.  I need to hold out some prospect to you, Mr Wise, that you might actually reform yourself.   If I impose another long period of imprisonment the prospect of your reform is reduced because you will have a sense of hopelessness and I want to discourage you from feeling that way.  You have the ability to get things right.  So I am going to extend to you some lenience by reducing your sentence overall on a totality basis to one of eight years’ imprisonment.

[135]   You may sit down.

[136]   In a moment I am going to formally impose the sentences which I have referred  to.    But  before  I  do  that,  I  just  want  to  say  something  to  you  about Mr Davoren’s absence.  It would be a mistake for you to think that he has escaped punishment.  Mr Davoren will be found. And when he is found he will be brought to full account in this Court for the offending for which he is responsible.   He is unquestionably the most serious of the offenders in  your group and he will be punished accordingly.

Final sentences

[137]   Would you all please stand.

[138]   Henry Afakasi, on the charges of manufacturing methamphetamine on which you were convicted you are sentenced on each count to 14 years’ imprisonment, to be served concurrently, with a minimum period of imprisonment of seven years. On the count of producing pseudoephedrine you are sentenced to a concurrent sentence of five years’ imprisonment; for possessing methamphetamine for supply, you are sentenced concurrently to four years’ imprisonment; for supplying pseudoephedrine, on each count you are sentenced to four years’ imprisonment concurrent; for possessing pseudoephedrine for supply, on  each count four  years’ imprisonment

concurrent;  and  for  participating  in  an  organised  criminal  group,  five  years’

imprisonment concurrent.

[139]   Kainui (Ben) Kaukasi, on the counts of manufacturing methamphetamine you are sentenced concurrently to 10 years nine months’ imprisonment, with a minimum period of imprisonment of five years four months; for participating in an organised criminal group you are sentenced concurrently to four years’ imprisonment.

[140] Filimaea Sililoto, on the charges of supplying or possessing for supply pseudoephedrine you are sentenced to seven years six months’ imprisonment with a minimum period of imprisonment of 50 per cent, which is three years nine months’ imprisonment; for producing pseudoephedrine you are sentenced concurrently to five years’ imprisonment; for manufacturing methamphetamine you are sentenced concurrently to four years’ imprisonment; for participating in an organised criminal group you are sentenced to four years’ imprisonment.

[141]   Jordan Ioane, on the charge of possessing methamphetamine for supply you are sentenced to three years six months’ imprisonment; for possessing pseudoephedrine for supply, to a concurrent sentence of two years’ imprisonment; for supplying pseudoephedrine, a concurrent sentence of four years’ imprisonment; and for participating in an organised criminal group to one year’s imprisonment.

[142]   That  means,  Mr Afakasi,  the  effective  end  sentence  is  one  of  14  years’

imprisonment, seven years minimum.

[143]   Mr Kaukasi,  the  effective  end  sentence  is  one  of  10  years  nine  months’

imprisonment, five years four months minimum.

[144]   Mr Sililoto, the effective end sentence is one of seven years six months’

imprisonment, with a minimum of three years nine months.

[145]   Jordon Ioane, the effective end sentence is one of three years six months’

imprisonment.

[146]   Now  Mr Tobia,  I  sentence  you  to  eight  months’ home  detention  on  the following conditions:

(a)      You are to reside at Apartment B406, 130 Anzac Avenue, Takapuna, for the duration of the period of home detention.

(b)You are to comply with the requirements of electronic monitoring as directed by the probation officer.

(c)      You are to abstain from the possession and/or consumption of alcohol and illicit drugs throughout the entire period of home detention.

(d)      You are to go straight to your home from here.

(e)      You will be granted work release to attend your business premises on such terms as the probation officer may approve.

[147]   Folau  Polaulu,  you  are  sentenced  to  10  months’ home  detention  on  the following conditions:

(a)      You are to travel directly from Court to 49 Tunis Road, Panmure, Auckland, and there you are to await the arrival of the probation officer.

(b)You are to reside at 49 Tunis Road, Panmure, for the duration of the home detention.

(c)      You are to be assessed for a departmental rehabilitative-focused programme and if found suitable, you will attend and complete that programme as directed by the probation officer.

(d)You  are  to  participate  in  an  assessment  and  complete  to  the satisfaction of your probation officer any assessments and any treatment programmes directed by the probation officer.

(e)      You are not to associate with any person or persons as directed in writing by the probation officer.

(f)      You  are  not  to  consume  or  be  in  possession  of  alcohol  or  non- prescription drugs for the duration of home detention.

[148]   Sione Laungaue, you are sentenced to four months’ home detention on the following conditions:

(a)       Upon   your   release   from   Court   you   are   to   travel   directly  to

20 Janese Place, Manurewa, and to await the arrival of the probation officer and security officer.

(b)You are to reside at 20 Janese Place, Manurewa, for the duration of the sentence.

(c)      You are not to possess or consume alcohol and/or illicit drugs for the duration of home detention.

(d)You are to be assessed by a departmental psychologist and, if found suitable, to complete counselling sessions as required.

(e)      You are to be assessed for and, if found suitable, to complete any rehabilitative programme or counselling as directed by and to the satisfaction of the probation officer and the programme provider.

[149]   John Fetu, on each of the counts of possessing pseudoephedrine for supply you are sentenced to concurrent terms of four years’ imprisonment, meaning that is the total effective end sentence.

[150]   Justin Abel, you are sentenced to four years’ imprisonment for possession of pseudoephedrine for supply.

[151]   Christopher  Wise,  you  are  sentenced  to  four  years’  imprisonment  for possessing pseudoephedrine for supply; and on each of the burglary counts you are sentenced  to  four  years’ imprisonment.   Those  burglary terms  are to  be served concurrently with each other but cumulatively upon the four years for possessing pseudoephedrine for supply.   That means that you are to serve a total cumulative

sentence of eight years’ imprisonment.   I also impose concurrent sentences on the counts of receiving of 12 months’ imprisonment, on being unlawfully on a property one month’s imprisonment; and for possession of ammunition two months’ imprisonment.  As I say, those terms are to be concurrent with each and the other sentences, meaning that the total end sentence you will serve is one of eight years’ imprisonment.

[152]   Madam Registrar has reminded me that at the time of the entry of the jury’s verdicts I may not have formally discharged you on all the counts on which you were found not guilty, and I do that now just for the record.

[153]   You may all stand down.

………………………………………

Toogood J