R v Clausen - [2020] NZHC 3257

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-3382

[2020] NZHC 3257

THE QUEEN

v

CONNOR MICHAEL TAMATI CLAUSEN

Hearing: 9 December 2020

Appearances:

E Smith and E Palsenbarg for Crown S Lance for Defendant

Judgment:

9 December 2020

SENTENCING REMARKS OF LANG J

Solicitors:
Crown Solicitor, Auckland

R v CLAUSEN [2020] NZHC 3257 [9 December 2020]

[1] Mr Clausen, you appear for sentence today having been found guilty by a jury on a charge of conspiracy to supply a Class B controlled drug, namely, pseudoephedrine.1 In addition, you pleaded guilty prior to your trial to charges of being in unlawful possession of a pistol,2 and a representative charge of being in unlawful possession of firearms and ammunition.3 You therefore fall to be sentenced on a combination of the evidence that was heard at the trial at which I presided, together with two summaries of fact prepared for the firearms charges.

The facts

[2] I begin by setting out the facts in relation to the most serious charge, which is that of conspiring to supply pseudoephedrine. At the trial the evidence relating to your involvement in the events giving rise to this charge was extremely limited. However, the jury heard reasonably extensive evidence about the background leading up to the events in which you were involved.

[3]The charge was laid as a result of an incident that occurred on the afternoon of

18 September 2018. That incident had its genesis in events that began at approximately midnight on 16 September 2018. At that time Mr Samuel Vaisevuraki arrived from Australia. He went to an address in Karaka from the airport and the following morning met Mr Pasilika Naufahu. The two men spent some time in each other’s company. Mr Vaisevuraki then left in his vehicle and drove around the South Auckland area. Later in the afternoon he picked up a man known as Mr He Sha. The two men were then under surveillance as they drove around South Auckland for several hours. Eventually Mr Vaisevuraki dropped Mr Sha off, and returned to his home address.

[4] On the afternoon of the following day Mr Vaisevuraki was again mobile in his vehicle and again picked Mr Sha up. By this stage the police had been able to obtain a warrant permitting them to install a listening device in Mr Vaisevuraki’s vehicle. The police were therefore able to listen to conversations that occurred within the

1      Misuse of Drugs Act 1975, s 6(1)(c) and (22A)(b): Maximum penalty ten years imprisonment.
2      Arms Act 1983, s 50(1)(a): Maximum penalty three years imprisonment and/or a $4,000 fine.
3      Arms Act 1983, s 45(1): Maximum penalty four years imprisonment and/or a $5,000 fine.

vehicle as it travelled around Auckland. They also had mobile surveillance in place so they could follow the van as it drove around.

[5] The van eventually stopped at a commercial or industrial area in Takanini. Intercepted communications from within the vehicle…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clausen

Details

AGLC: R v Clausen [2020] NZHC 3257
Case: [2020] NZHC 3257
Decision Date: 9 December 2020

CaseChat Overview and Summary

Connor Michael Tamati Clausen was sentenced on three charges: conspiracy to supply a Class B controlled drug, namely, pseudoephedrine; being in unlawful possession of a pistol; and being in unlawful possession of firearms and ammunition. The court had to determine the appropriate starting points for each charge, taking into account the defendant's culpability, the nature of the offences, and the principles of totality. The court also considered aggravating and mitigating factors, including the defendant's previous convictions, his guilty pleas, and his conduct while on bail.

The court found that the defendant's role in the conspiracy was that of a courier or runner, entrusted with a large amount of money and responsible for ensuring the person for whom he was acting received what they were expecting in return for the money. The court determined that a starting point of two years six months imprisonment was appropriate for the conspiracy charge. For the firearms charges, the court considered the totality principle and selected starting points of six months and one year two months imprisonment, respectively. The court then applied mitigating factors, including the defendant's early guilty plea and his conduct while on bail, resulting in an overall starting point of four years imprisonment.

After applying all relevant factors, the court sentenced the defendant to two years four months imprisonment for the conspiracy charge, one year four months imprisonment for the firearms and ammunition charge (to be served cumulatively), and seven months imprisonment for the pistol charge (to be served concurrently). This resulted in a total effective sentence of three years eight months imprisonment.

Orders