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R v Cullen

R v Cullen

Case [2019] NZHC 2088 21 August 2019

Criminal Liability

Sentencing

Culpability

Minimum Period of Imprisonment

Parity

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2016-029-652

[2019] NZHC 2088

THE QUEEN

v

STEVIE NORUA CULLEN SELAIMA FAKAOSILEA

Hearing: 21 August 2019

Appearances:

R B Annandale for the Crown

A J Maxwell-Scott and N Mani for Defendant Cullen M N Pecotic for Defendant Fakaosilea

Sentence:

21 August 2019

SENTENCING REMARKS OF GORDON J

Solicitors: Crown Solicitor, Whangarei
Counsel: A Maxwell-Scott, Barrister, Auckland
F Iggulden, Barrister, Auckland M Pecotic, Barrister, Auckland

R v CULLEN & FAKAOSILEA [2019] NZHC 2088 [21 August 2019]

[1] Stevie Cullen and Selaima Fakaosilea, you both appear for sentencing on one charge of importing the Class A controlled drug methamphetamine1 and one charge of participation in an organised criminal group.2 A jury found you both guilty of those charges on 11 June 2019 after a six-week trial.

[2] The maximum penalty for importing a Class A controlled drug, such as methamphetamine, is life imprisonment. The maximum penalty for participation in an organised criminal group is 10 years’ imprisonment. A key issue for today is whether I should impose a sentence of life imprisonment.

[3]In sentencing you both, I shall follow a three-step approach:

(a)First, I will set a “preliminary starting point” based on the seriousness of your offending;

(b)Next, I will consider whether to adjust the starting point to reflect your particular role in the offending, your personal circumstances and taking into account parity with your co-offenders; and

(c)Third, I will consider whether it is necessary to impose a minimum period of imprisonment (MPI).

[4] In sentencing you, I must be guided by the purposes and principles of sentencing. In summary, I will have regard to the gravity of the offending including your culpability; the seriousness of these offences when compared to other types of offences; the need to ensure your sentences are consistent with other sentences for this sort of offending; and finally, the requirement to impose the least restrictive outcome appropriate in the circumstances.3

[5] The need to deter you and others from committing the same or similar offences is an important purpose in sentencing for drug-related offences. It has been described

1      Misuse of Drugs Act 1975, s 6(1)(a).
2      Crimes Act 1961, s 98A.
3      Sentencing Act 2002, s 8.

by the Court of Appeal as a “fundamental requirement”4 and a “primary sentencing objective”.5

[6] I must also have particular regard to the need to hold you both accountable for the harm your offending has caused to the community; the need to promote in you a sense of responsibility for, and acknowledgment of, that harm; the need to denounce the conduct in which you were involved; and the need to protect the community from your offending in future.6

[7] I must also ensure that your sentences are consistent with the sentences imposed by other Judges on your six co-offenders but adjusted to take into account your roles in the operation and thus your degree of culpability. Later in these sentencing remarks, I…

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 Cullen

Details

AGLC: R v Cullen [2019] NZHC 2088
Case: [2019] NZHC 2088
Decision Date: 21 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Stevie Cullen and Selaima Fakaosilea were sentenced for importing a Class A controlled drug, methamphetamine, and participating in an organised criminal group. The court had to determine the appropriate sentence, considering the nature of the crime, the roles of the defendants, and their personal circumstances. The court established a preliminary starting point for sentencing, based on the seriousness of the crime and the roles of the defendants. It then adjusted the starting point to account for the defendants' roles, personal circumstances, and parity with co-offenders. The court also considered imposing a minimum period of imprisonment (MPI) to ensure accountability, denunciation, and deterrence.

For Stevie Cullen, the court determined that his culpability was similar to that of his co-offenders, and it set a preliminary starting point of life imprisonment. However, after considering Cullen's personal circumstances and the modest discount for mitigating factors, the court set a starting point of 30 years' imprisonment. The court then imposed a sentence of 27 years' imprisonment on the importing charge, with a minimum period of imprisonment of nine years. On the charge of participating in an organised criminal group, the court imposed a concurrent sentence of five years' imprisonment.

For Selaima Fakaosilea, the court also set a preliminary starting point of life imprisonment, but after considering her personal circumstances, it determined that a sentence of life imprisonment would be inappropriate. The court set a starting point of 28 years' imprisonment on the importing charge and adjusted it upwards to reflect the totality of her offending, resulting in a starting point of 29 years' imprisonment. After considering mitigating factors, the court set a sentence of 25 years' imprisonment on the importing charge. On the charge of participating in an organised criminal group, the court imposed a concurrent sentence of seven years' imprisonment.

The court imposed a minimum period of imprisonment of seven years for Selaima Fakaosilea, considering the principles of accountability, denunciation, and deterrence. The final sentences for both defendants were determined by taking into account their roles, personal circumstances, and the need to impose an appropriate sentence that reflects the seriousness of their offending.

Orders