R v Fakaosilea
[2022] NZHC 3207
•1 December 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2020-004-9587
[2022] NZHC 3207
THE KING v
SEIANA FAKAOSILEA RICHARD PELIKANI DIAMOND KATOA RHAKIM MATAIA
Hearing: 1 December 2022 Appearances:
R McCoubrey for the Crown
J Rhodes and K Tuialii for Mr Fakaosilea S McColgan for Mr Pelikani
D Stevens and S Norrie for Mr Katoa J Lucas for Mr Mataia
Date:
1 December 2022
SENTENCING NOTES OF CAMPBELL J
R v FAKAOSILEA AND OTHERS [2022] NZHC 3207 [1 December 2022]
Introduction
[1] Mr Fakaosilea, Mr Pelikani, Mr Katoa, and Mr Mataia, you appear for sentence this morning for serious drug dealing offences.
[2] Mr Fakaosilea, you pleaded guilty to two charges of possession of a Class A controlled drug for supply,1 and four charges of supplying a Class A controlled drug.2 You were found guilty at trial of two charges of conspiracy to import methamphetamine,3 and a further charge of possession of methamphetamine for supply.4
[3] Mr Pelikani, you pleaded guilty to possession of a Class A controlled drug for supply.5 You were found guilty at trial of a charge of conspiracy to import methamphetamine.6
[4] Mr Katoa, you pleaded guilty to three charges of supplying methamphetamine.7
[5] Finally, Mr Mataia, you pleaded guilty to three charges of supplying methamphetamine,8 two charges of unlawful possession of a firearm,9 and two charges of unlawful possession of ammunition.10
[6] My job today, on behalf of the community, is to impose a sentence on each of you for those offences.
1 Misuse of Drugs Act 1975, ss 6(1)(f) and 2(a). Maximum penalty: life imprisonment.
2 Sections 6(1)(c) and 2(a). Maximum penalty: life imprisonment. Three of these charges related to methamphetamine. The Crown and Mr Fakaosilea are in dispute whether the remaining charge related to methamphetamine or cocaine. For reasons I will explain later in the judgment, the distinction is not consequential for sentencing purposes.
3 Sections 6(1)(a) & 2A. Maximum penalty: 14 years’ imprisonment.
4 Sections 6(1)(f) and 2(a). Maximum penalty: life imprisonment.
5 Sections 6(1)(f) and 2(a). Maximum penalty: life imprisonment.
6 Sections 6(1)(a) & 2A. Maximum penalty: 14 years’ imprisonment.
7 Sections 6(1)(c) and 2(a). Maximum penalty: life imprisonment.
8 Sections 6(1)(c) and 2(a). Maximum penalty: life imprisonment.
9 Arms Act 1983, s 45(1). Maximum penalty: four years’ imprisonment.
10 Section 45(1). Maximum penalty: four years’ imprisonment.
Offending
[7] A summary of facts was presented to the Court when you pleaded guilty to those charges. You accepted that summary of facts, subject to some disputes, which I resolved in a later disputed facts judgment.11 I will sentence you on the basis of those facts, together with any inferences I can draw from them.12 And, as the trial judge at Mr Fakaosilea and Mr Pelikani’s trial, I am entitled to make factual findings based on the evidence in respect of their offending, if consistent with the jury’s verdicts.13
[8]I will summarise your offending now.
[9] In 2020, the Police National Organised Crime Group began an investigation into a drug syndicate involved in the importation and commercial scale supply of various controlled drugs around New Zealand.
[10] On 9 March 2020, Police intercepted a conversation between Mr Fakaosilea and a co-defendant, Jie Huang, in which they discussed an importation of methamphetamine from Fiji to New Zealand. They also agreed to import a further 600 kg of methamphetamine from South Africa. Mr Fakaosilea told Mr Huang he would bring Mr Pelikani over to Mr Huang’s house to discuss the South African importation. The next day, Mr Fakaosilea picked up Mr Pelikani from his home. They drove to Mr Huang’s house. There, the three discussed the South African importation.
[11] Further intercepted communications from March 2020 showed that as well as the planned methamphetamine importations, Mr Huang was supplying Mr Pelikani and Mr Fakaosilea with methamphetamine. Between 1 January 2019 and 16 March 2020, Mr Huang supplied Mr Fakaosilea with 10 ounces of methamphetamine on at least four separate occasions. The total amount of methamphetamine Mr Fakaosilea possessed for supply was therefore at least 40 ounces.
11 R v Fakaosilea [2022] NZHC 2984.
12 R v R [2019] NZCA 135 at [33]; R v Kinghorn [2014] NZCA 168 at [20] and [31]; Pokai v R
[2014] NZCA 356 at [30]–[36]; and R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494.
Sentencing Act 2002, s 24(1)(a); and Edwardson v R [2017] NZCA 618 at [105]–[107].
[12] Mr Fakaosilea acquired five units of a controlled drug on 11 March 2020, which he passed on to Mr Pelikani. The quantity and type of that drug was disputed. In my disputed facts judgment, I said I would sentence Mr Fakaosilea and Mr Pelikani on the basis that they were in possession of five ounces of cocaine.14
[13] Sometime during the morning of 15 March 2020, Mr Mataia and Mr Katoa, at Mr Fakaosilea’s direction, travelled to Hamilton airport with an unknown commercial quantity of methamphetamine.15 They flew to Christchurch, where they met one of their co-defendants, Luke Mathers, a member of the Rebels Motorcycle Club. They supplied Mr Mathers with the methamphetamine. This was the first Christchurch drug run.
[14] On 20 March 2020, Mr Mataia flew from Auckland to Christchurch. Mr Katoa, and a co-defendant, Samuel Halaholo, flew from Hamilton to Christchurch the next morning with an unknown commercial quantity of methamphetamine.16 Mr Mataia collected Mr Katoa and Mr Halaholo from the airport. Mr Mataia and Mr Katoa later supplied Mr Mathers with the methamphetamine. This was the second Christchurch drug run, and it was again at Mr Fakaosilea’s direction.
[15] On 15 April 2020, Mr Fakaosilea supplied a small amount of a Class A controlled drug to Brodie Collin-Haskins. Mr Fakaosilea has said the drug was cocaine; the Crown says it was methamphetamine. That dispute remains unresolved. The Crown concedes the resolution of that question will not, in any event, affect Mr Fakaosilea’s sentence. I agree with that.
[16] Another Christchurch drug run took place in August 2020. Mr Mataia, at Mr Fakaosilea’s direction, rented a car from Auckland airport. Mr Mataia and Mr Katoa, along with co-defendant Elizabeth Bolea, travelled in the car from Auckland to Christchurch. Police executed a covert search on the car while it was on the Interislander ferry between Wellington and Picton. Officers located two clear
14 R v Fakaosilea [2022] NZHC 2984 at [40].
15 At [53].
16 I sentenced Mr Halaholo on the basis that the quantity of methamphetamine fell within a range around the middle of band two of the applicable tariff decision, Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. See R v Halaholo [2022] NZHC 3031 at [15].
plastic containers containing methamphetamine. In my disputed facts judgment, I said I was satisfied that the containers held at least 500 g of methamphetamine.17
[17] After arriving in Christchurch, Mr Mataia and Mr Katoa travelled to 10 Thackers Quay, where they met Mr Mathers and gave the methamphetamine to him. They were later stopped and arrested by Police.
[18] Police executed search warrants at Mr Mataia and Mr Katoa’s home addresses. At Mr Mataia’s address, Police located two loaded pistols, $10,000 in cash, and items consistent with drug dealing, including digital scales, plastic snap-lock bags and multiple Ciphr cell phones.
Approach to sentencing
[19] The Sentencing Act 2002 sets out the purposes and principles of sentencing that I have to follow. Here, relevant purposes include holding you accountable for the harm that your offending has done to the community, promoting in you a sense of responsibility for that harm, denouncing your conduct, deterring you and others from committing similar offending, and assisting in your rehabilitation.18
[20] The principles include the need to consider the gravity of your offending and your degree of culpability, the seriousness of these offences and the general desirability for consistency in sentencing. I must also impose the least restrictive outcome that is appropriate in the circumstances.19
[21] Determining the appropriate sentences involves, in this case, three steps. First, I must determine terms of imprisonment as the “starting points” for your sentences, which will be based on the seriousness of the offending for which you have been convicted. Secondly, I will consider your personal circumstances, including the appropriate allowance for your guilty pleas.20 This will produce your end sentences.
17 At [63].
18 Sentencing Act, s 7(1).
19 Section 8.
20 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].
Finally, for Mr Fakaosilea and Mr Pelikani, I will determine whether to impose a minimum period of imprisonment (also known as an MPI).
Starting points
Fakaosilea
[22] Mr Fakaosilea, I will begin with you. At the time of your offending you were the acting National Commander of the Comanchero Motorcycle Club. For sentencing purposes, I will take your established methamphetamine offending as the lead offending, before applying an upward adjustment to reflect the other charges of which you were convicted.
[23] A Court of Appeal case called Zhang is the guideline decision on methamphetamine offending.21 The Court there set out five sentencing bands based on the quantity of methamphetamine involved in the offending.22
[24] The Crown submitted that your offending involved at least 1.633 kg of methamphetamine. Your counsel, Mr Rhodes, disagreed. He said the only inference I can draw is that the methamphetamine you obtained from Mr Huang was the same methamphetamine supplied in the March and August 2020 Christchurch drug runs. He submitted that accumulating the various quantities of methamphetamine underlying the various charges of which you were convicted, as he said the Crown has done, risks significantly overstating the overall seriousness of your offending. The total amount of methamphetamine for setting bands, he said, is therefore around 1.1 kg.
[25] I do not accept Mr Rhodes’ submission. By 16 March 2020, you had obtained at least 40 ounces of methamphetamine from Mr Huang. That is about 1.133 kg. In that month, you supplied unknown commercial quantities of methamphetamine to Christchurch on two occasions. For the purposes of assessing the quantum of methamphetamine involved in your offending, I accept that I should not add the two unknown commercial quantities supplied in March 2020 to the 1.133 kg you
21 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
22 At [125].
obtained from Mr Huang. That would be double counting, as it is at least a reasonable possibility that the March supplies derived from the methamphetamine you obtained from Mr Huang. But I consider it is appropriate to include the 500 g that was supplied to Christchurch in August 2020. That’s because I am sure that that drug run, occurring almost five months later, did not derive from the 40 ounces you obtained from Mr Huang.
[26] I therefore consider that your offending involved at least 1.633 kg of methamphetamine. It therefore falls within band 4 of Zhang, indicating a starting point of between eight years’ and sixteen years’ imprisonment. Your quantity is just approaching the upper quartile of that band.
[27] Where an offender falls within a particular band primarily depends on the role the offender played. The Court in Zhang described three categories of role: lesser, significant and leading.23 An offender with a lesser role may be one who performs a limited function under direction; is involved through naivety, exploitation, intimidation or coercion; is paid in drugs to feed their own addiction; and has no influence on or understanding of the organisation. A significant role may involve an operational or management function and the direction of others; an expectation of commercial profit and a financial motivation; and some awareness of the scale of the organisation. And a leading role may involve directing or organising buying and selling on a commercial scale; the exercise of influence over others in a chain; close links to the original source; the expectation of substantial financial gain; the use of business as cover; and the abuse of a position of trust or responsibility.
[28] The Crown submitted that yours was a leading role and that a starting point at the top of band 4 is warranted. The Crown therefore submitted that I should set the starting point for your methamphetamine offending in the range of 15 years’ to 16 years’ imprisonment.24 Mr Rhodes submitted that the Crown overstated your role and that you were on the cusp of significant and leading roles.
23 At [126].
24 The Crown here referred me to Wellington v R [2020] NZCA 277; Chai v R [2020] NZCA 202; and Tang v R [2021] NZCA 266.
[29] As the wholesale supplier to Mr Mathers in Christchurch, you organised the buying and selling of methamphetamine on a commercial scale. You obtained methamphetamine from Mr Huang on a number of occasions. You directed various subordinates in the drug syndicate, including Mr Katoa and Mr Mataia. In that sense, it is accurate to say that you were the head of the syndicate. It is an irresistible inference, from the duration and frequency of, and quantities involved in, the offending, that you expected to profit substantially from the drug enterprise. In my view, all these factors point to you having a leading role. However, I am not sure that you had close links to the original source of the methamphetamine that you possessed and supplied. You had a leadership role, but it was not quite the highest that the courts come across in dealing with commercial drug syndicates.
[30] Given the quantity of the methamphetamine involved, and your leadership role, I consider an appropriate starting point for your methamphetamine offending is 14 years’ imprisonment.
[31] There must then be an uplift to reflect the two conspiracy charges of which you were found guilty. The Crown said the conspiracy charges, standing alone, would warrant a sentence in the region of 12 years’ imprisonment. Taking into account totality considerations, the Crown submitted I should apply uplifts of six years for the conspiracy offending. Mr Rhodes, by contrast, said an uplift of only two years was necessary to reflect your conspiracy charges. He said yours was a conspiracy in its very early stages, and that no concrete steps were ever taken to make it a reality. He referred me to a case called Naupoto,25 in which a starting point of four years’ imprisonment was imposed for a conspiracy to import 400 kg of methamphetamine. In that case the defendant had been duped by others. The methamphetamine that he was scheming to import never existed.
[32] I consider that the Naupoto case is different to yours. The Court of Appeal has explained that in cases like Naupoto substantial discounts from the maximum penalty can be made to reflect the improbability of the planned importation ever occurring.26
25 R v Naupoto [2012] NZHC 3138.
26 Gao v R [2018] NZCA 69 at[14].
Yours is not such a case. There is nothing to suggest that the two imports could not occur or were improbable.
[33] Mr Rhodes is on stronger ground in submitting that, in your case, there was nothing more than a conspiracy, by which I mean the formation of an agreement and an intention to carry it out. There is no evidence of any steps taken in furtherance of the conspiracy. Further, while the agreement discussed things such as quantities and price, there was almost no discussion of the roles that each of the participants was to play. In light of these features, but taking into account that there were two conspiracies and that one involved 600 kg of methamphetamine, I consider a starting point of eight years’ imprisonment would be justified for these offences on a standalone basis, and that an uplift of four years is appropriate.
[34] Finally, there is the cocaine charge to which you pleaded guilty. The Crown says this would attract a standalone sentence in the range of four years’ to five years’ imprisonment. The Crown submitted I should apply an uplift of two years for the cocaine offending.
[35] I consider that uplift would be unduly stern. Mr Rhodes makes the valid point that had this substance been methamphetamine it would have only pushed your offending slightly further up Zhang’s band 4. I therefore consider that an uplift of only six months is warranted.
[36] Overall, then, I set a global starting point of 18 years and six months’ imprisonment.
Pelikani
[37] Mr Pelikani, you jointly possessed five ounces of cocaine for supply with Mr Fakaosilea, and you conspired to import 600 kg of methamphetamine into New Zealand.
[38] The Crown submitted I should take the conspiracy charge as the lead offence for sentencing purposes, with an uplift to reflect your cocaine offending. It said that the amount of methamphetamine involved in your offending would ordinarily fit into
the highest end of band five of Zhang, attracting a starting point of ten years’ imprisonment to life imprisonment. But it acknowledged that conspiring to import methamphetamine carries a lower maximum penalty than possession or supply charges do, being capped at 14 years’ imprisonment.
[39] The Crown also said you played a leading role in the syndicate. You were not a subordinate of Mr Fakaosilea, the Crown says, but instead a business partner. As with Mr Fakaosilea, the Crown said I should set a starting point near the maximum penalty. The Crown said a starting point of 12 years’ imprisonment would be appropriate,27 and that this starting point should be uplifted by two years to reflect your cocaine offending.28 The Crown’s position, then, is that I should set a global starting point in the region of 13 years’ imprisonment to 14 years’ imprisonment.
[40] Your counsel, Mr McColgan, submitted I should set a global starting point of five years and nine months’ imprisonment, comprising no more than four years’ imprisonment for the conspiracy charge and an uplift of 21 months for your cocaine offending.29 He said your conspiracy barely advanced past the initial stages.30 He submitted there is insufficient evidence that you played a leading role in the syndicate, and that it is unsafe to assume, based on your close association with Mr Fakaosilea, that you operated within a similar sphere of influence. That being so, he submitted I should sentence you on the basis that your conspiracy never got off the ground and that your role in the syndicate is unknown.
[41] For the reasons I have just given in relation to Mr Fakaosilea, I consider there is some force in Mr McColgan’s submissions on the conspiracy charge. For Mr Fakaosilea, I assumed a starting point of eight years’ imprisonment. A lower starting point is appropriate for you, Mr Pelikani. You were party to only one conspiracy (albeit involving 600 kg) and you were brought into that conspiracy after
27 In support of this submission, the Crown cited Banaba v R [2016] NZCA 122; R v Uputaua [2017] NZHC 1921; and Gao v R [2018] NZCA 69.
28 The Crown here cited Cavallo v R [2022] NZCA 276; R v Logan [2017] NZHC 994; and R v Bhikoo [2017] NZHC 3204.
29 Mr McColgan relied on R v Te Rure [2007] NZCA 305; R v Hall [2022] NZHC 2822; and R v Naupoto [2012] NZHC 3138.
30 Mr McColgan cited as relevant comparator cases on conspiracy R v Cullen HC Christchurch CRI- 2005-009-5165, 31 March 2006; R v Apostolakis (1997) 14 CRNZ 492 (CA); and R v Kiwi [2019] NZHC 3194.
it had been formed by Mr Fakaosilea and Mr Huang. For that reason, I consider your responsibility is slightly lower than theirs. I therefore adopt an initial starting point of six years’ imprisonment.
[42] As for your cocaine offending, the Crown submits that this would attract a sentence of four years’ imprisonment on a standing alone basis, and that an uplift of two years is warranted. Mr McColgan is not far from that. He says three and half years’ imprisonment on a standalone basis and an uplift of 21 months.
[43] I consider a standalone sentence of four years’ imprisonment would be warranted. However, I consider that both proposed uplifts would be too stern. Looking at your offending in its totality, I consider an uplift of 18 months is appropriate, with a global starting point, therefore, of seven years and six months’ imprisonment.
Katoa
[44] Next, Mr Katoa. As I have already said, you supplied methamphetamine three times. The first two supplies were of an unknown commercial quantity; the third was of at least 500 g.
[45] The Crown submitted that the amounts involved put your offending into band 4 of Zhang, attracting a starting point sentence of between eight years’ imprisonment and sixteen years’ imprisonment.31
[46] As to your role, the Crown submitted you were a significant player in the syndicate. You were actively involved in the transportation of methamphetamine to Christchurch for on-supply. Your involvement extended over a number of months and you were aware of its scale. As with Mr Fakaosilea and Mr Pelikani, the Crown submitted that a starting point sentence at the bottom of the applicable band is therefore not available to you. It said a starting point sentence of nine years’ imprisonment would be appropriate in your case.32
31 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
32 The Crown referred me to three comparator cases: Clark v R [2020] NZCA 641; Cullen v R [2022] NZCA 308; and R v Chanthawong [2022] NZHC 1623.
[47] Your counsel, Mr Stevens, submitted that the application of the sentencing bands in Zhang requires flexibility and discretion. He said you performed a limited function in the syndicate under Mr Fakaosilea’s direction. You were essentially a courier, with no influence over those above you in the hierarchy. And you did not involve or direct other participants. Referring to my sentencing of your co-defendant Samuel Halaholo, Mr Stevens said your role in the organisation falls on the cusp of “lesser” and “significant”. And, referring to my sentencing of your co-defendant Lemeki Namoa, he said a starting point well below the bottom of the applicable band is available. On those bases, Mr Stevens contended for a starting point in the region of six and half years’ imprisonment to seven years’ imprisonment.33
[48] Mr Katoa, the quantity of methamphetamine you supplied places you within band four of Zhang. Your case differs in important ways from those of Mr Halaholo and Mr Namoa. Your role was more pronounced than theirs. Mr Halaholo participated in one Christchurch drug run and did not actually supply the drugs. Mr Namoa had a limited role in possessing drugs. You participated in three Christchurch drug runs and did supply. You were a repeat player. I can infer from this that you were aware of the scale of the operation, and that you engaged in it for your personal financial advantage.
[49] For those reasons, I consider the role you played in the syndicate was at the lower end of significant. Mr Katoa, taking into account your role, and that the quantity was in the lower quartile of band 4, I set a starting point for your sentence of eight years’ imprisonment.
Mataia
[50] Finally, Mr Mataia. Your counsel, Mr Lucas, said you did not have a significant role in the operation, and that your offending falls in between bands two and three of Zhang. He said a starting point of seven years’ imprisonment was appropriate in your case.
33 Mr Stevens said this starting point would be consistent with the Court of Appeal’s decision in R v Philip [2022] NZCA 128.
[51] It should be clear from what I have already said about Mr Katoa, whose methamphetamine offending was much the same as yours, that I do not accept those submissions. Those earlier remarks also apply to you. But there are some additional features of your offending that I must account for in setting the starting point for your sentence. I consider you had a greater role in the offending than Mr Katoa. You involved others in your offending — your partner, Elizabeth Bolea. A substantial sum of cash was found at your address. There were items such as digital scales and Ciphr cell phones also found there. These factors indicate a greater role and so justify a slightly higher starting point than Mr Katoa’s for your methamphetamine offending. A starting point of eight years and six months’ imprisonment is appropriate for that offending.
[52] I must uplift that starting point to reflect that you have also been convicted of firearms offending. The Crown directed me to appellate authority stating that uplifts of between 12 and 18 months’ imprisonment are appropriate where drug dealers have been found with firearms in their possession.34 The Crown contends for 12 months here. Mr Lucas accepts that is appropriate. I agree.
[53] I therefore set a global starting point for your sentence of nine years and six months’ imprisonment.
Personal circumstances
[54] I now turn to your personal circumstances and any uplifts or allowances to your notional sentences that those circumstances require.
Uplifts
[55] The only uplift for which the Crown contends is in respect of Mr Fakaosilea. It says that because Mr Fakaosilea’s offending took place while he was subject to bail, I should impose an uplift.
[56] Mr Fakaosilea, Mr Rhodes said you were found not guilty of the charges for which you were on bail at the time of your present offending. He submitted this
34 Perez v R [2015] NZCA 267 at [51]; and Joyce v R [2020] NZCA 124 at [24].
suggests you should not have been on bail in the first place. In those circumstances, he said, there is minimal justification for an uplift. He cited a case, Fangupo v R, in support.35 But that case concerned a defendant who allegedly offended while on trial in the High Court. That is not the same situation as where an offender commits an offence while on bail.
[57] Mr Fakaosilea, I am satisfied that an uplift is warranted for individual deterrence,36 and to recognise that your offending while on bail displayed a disregard for court processes.37 But the uplift should be relatively small.38
[58] I will impose an uplift of five per cent to reflect that your offending took place while you were on bail.
Personal backgrounds
[59]I am now going to say a little about each of your personal backgrounds.
[60] Mr Fakaosilea, I have been provided with two reports on your background. You were born in Australia to Tongan parents. Your father abandoned the family soon after you were born. That’s going to be a common theme today. You were one of the youngest of seven siblings. From a young age you were exposed repeatedly to family violence. To a substantial extent you were raised by your older siblings, as for some years your mother spent six months each year absent while working in another city. Your oldest brother was a particular influence on you, essentially your role model and father figure as you were growing up. He was a very poor role model. He was frequently in and out of prison. He introduced you to drugs at a young age. When you were expelled from a school at age 13, he encouraged you into gangs and criminality rather than finding another school. You have been a heavy drug user for most of the years since then, with cocaine being your preferred drug.
35 Fangupo v R [2020] NZCA 484 at [57].
36 Thomas v R [2020] NZCA 257 at [19].
37 Clunie v R [2013] NZCA 110 at [22].
38 Thomas v R [2020] NZCA 257 at [20].
[61] Your brother was deported to New Zealand in 2016. You were 16 years old at the time. You decided to follow him here. Once in New Zealand, you became involved with the Comancheros. You joined the gang in 2018 and began climbing its ranks. This morning you’ve given me a detailed letter of remorse. You blame only yourself for your offending and for the situation in which you now find yourself. I acknowledge that.
[62] Mr Pelikani, I have a report on your background. You grew up in South Auckland. Your father was an alcoholic. He regularly gave you beatings in your youth. He was also violent towards your mother. Your parents separated when you were in intermediate school, and you went to stay with your grandparents. But that was not a safe environment for you either, and after a few months you moved again
— this time to live with an uncle and his family. After about a year at your uncle’s home, you again moved to stay with another uncle. And then you ended up back with your grandparents, remaining there until you were about 18 years old.
[63] While you were at your grandparents’ house, your older cousin returned from the United States. Your cousin, who was a few years older than you, had been heavily involved in gangs. It was not long before you fell in with gangs, too. You did not last in your schooling. You were eventually expelled. You effectively lived on the streets. At one time, you were placed in a boy’s home.
[64] Your first interactions with Police were when you were 12, and they became regular occurrences after that. From that young age you were also drinking regularly, smoking marijuana and experimenting with MDMA and LSD.
[65] You first went to prison when you were 19 years old. When you were released, you immediately fell back into taking drugs and alcohol. You were involved in a gang fight and were charged with assault to injure and assault of a Police officer. You went to prison again at 21. You described it as feeling like a second home. After you were released from prison for the second time, you picked up a serious methamphetamine habit.
[66] You say that you are seeking to put your old life behind you. You have been married for just a few years, and you want to build a better life with your wife. You have engaged with rehabilitative opportunities when you were on bail, completing both residential and outpatient programmes through NZBASS. You also have given me a letter this morning. It shows a genuine desire to improve your life, Mr Pelikani.
[67] Mr Katoa, I have been provided with a report on your background as well. I have also been given a large number of references from your partner, various friends and family members, and from prospective employers. And you have written me a letter in which you take responsibility for your offending and show insight into the harms it has caused.
[68] Mr Katoa, you grew up mostly without your father. Your family suffered serious economic deprivation. In your childhood, you witnessed and experienced domestic violence at home.
[69] You completed your schooling but found it difficult to maintain employment afterwards. Without a stable job or strong connection to home, you began to be guided more and more by peers who exerted a negative influence on you. You eventually participated with them in an aggravated robbery, for which you were jailed. It was in jail that you were first introduced to drugs and began thinking about selling them.
[70] You eventually established an affiliation with the Comancheros, which you felt provided a way to reconnect with your Tongan roots. You were drawn into the gang lifestyle, and the money you earned from it fed into a developing gambling habit.
[71] In your letter to me, you say you take full responsibility for your offending and that you understand its seriousness. You say you understand the impact drugs have on the end user and the community. You say you are embarrassed and ashamed of your actions, and that you are deeply remorseful for what you have done. You say you are looking to move forward in your life.
[72] Mr Mataia, I also have a report on your background. You had a dysfunctional upbringing. Your father abandoned you at an early age, though in later life you re-
engaged with him. Your mother became caught up in a cycle of domestic violence from various partners, which you observed. You moved around from place to place and from school to school. You experienced poverty throughout your childhood. Your desire to make money became a primary motivator of your later offending.
[73] You and your mother moved to Sydney in 2008, when you were 13 years old. Fighting was a regular part of life at the school you attended. You eventually made friends with a group of “street kids” and dropped out of school when you were 15 years old. You carried out robberies with your new friends. The robberies led to a stay in prison and eventually to your deportation back to New Zealand. You arrived in Christchurch in 2018 with no money and few connections. Eventually, seeking to regain a sense of connection and brotherhood, you moved to Auckland and joined the Comancheros.
[74] Since your arrest, and while on EM bail, you have been parenting a young daughter with your partner. I have received and read several letters filed in your support. They speak to your helpfulness, your commitment to your young family, and your contribution to community groups in which you are involved.
[75] I have spent some time going through your backgrounds because an important part of the sentencing process is to adjust the starting point so that the end sentence takes into account the sorts of circumstances that I have just been discussing. Those personal circumstances can mean, for example, that your moral culpability or responsibility for your offending or your prospects for rehabilitation are different from others who may be sentenced. The Sentencing Act requires judges to make adjustments for those sorts of matters. Sometimes the adjustments are upwards, sometimes they are downwards. In each of your cases, your personal circumstances justify some decreases to the starting point.
Mr Fakaosilea
[76] Mr Fakaosilea, you had a seriously dysfunctional upbringing. Your much older brother stepped into the void left by your absent father and by your mother’s need to be away for work to support the family. From a very young age, your brother led you down a path of drugs and crime. I am satisfied that his influence, and your poor
upbringing generally, continued to contribute to the choices that you made to offend. This lessens your moral culpability for that offending. I consider I should make an allowance of 15 per cent against the starting point to reflect this.
[77] Also, you were 20 years old at the time of your offending. Mr Rhodes said that your relative youth warrants a 10 per cent credit. I consider that to be unduly generous. A youth credit is generally justified by the impaired decision-making abilities of younger offenders and their better prospects for rehabilitation. As to the first, in arriving at a 15 per cent credit for your upbringing, part of my reasoning is that, on account of your age, you were still suffering from the influences of your older brother. As to the second, while you have plenty of time ahead of you for rehabilitation, as yet you have shown no concrete steps towards taking that path. I do hope that changes soon Mr Fakaosilea. Given these matters, while I still consider there should be some credit for your youth, it should be only five per cent.
Mr Pelikani
[78] Mr Pelikani, you also had a seriously deprived upbringing. You were not given the start to life that most New Zealanders experience and deserve. I am satisfied that this contributed to the path and to the decisions that led to your current offending. However, you have had opportunities in the past to leave that path. When you were sentenced at age 21 you said you intended to go straight. You chose not to. I accept that with your upbringing going straight is easier said than done. But your moral culpability is, for this reason, not diminished by your upbringing as much as is Mr Fakaosilea’s. I allow a 10 per cent credit.
[79] Mr Pelikani, the culpability of offenders may sometimes be reduced by addiction issues.39 Mr McColgan asks me to take this into account in sentencing you. The material to which I have already referred describes your drug addiction as serious and long-standing. I am satisfied that your addiction exists,40 and that it may have diminished your capacity to make rational choices.41
39 Zhang v R [2019] NZCA 507; [2019] 3 NZLR 658 at [144].
40 Paikea v Police [2014] NZHC 2609 at [36]–[37].
41 Smith v R [2020] NZCA 221 at [20].
[80] But it is a different question whether your addiction was causative of your offending.42 The causative link is likely to be absent where the offending is commercial in nature.43 On balance, I am not persuaded that your addiction causally contributed to your offending. Your offending was commercial. You are not someone who offended for the promise of reward in drugs, with little other financial gain.44
[81] Accordingly, I decline to make a discrete credit to reflect that you were drug- addicted at the time of your offending. Having said that, your addiction is relevant to whether you should be allowed a credit to recognise your prospects for rehabilitation. You have successfully engaged in several intensive rehabilitation programmes since 2021, including by taking on leadership roles in your programmes and by mentoring others with addiction problems. I am satisfied that you have good prospects for rehabilitation, and I will allow you a credit of five per cent to recognise that.
Mr Katoa
[82] Mr Katoa, you also experienced an upbringing characterised by an absent father and poverty. I consider you are in a similar position to Mr Pelikani, in that your upbringing has continued to contribute to your offending, despite some opportunities to leave a path of crime. I allow a 10 per cent credit for this.
[83] I consider that you show very good prospects for rehabilitation. You have completed an eight-week drug and alcohol abuse course. The letters of support refer to the steps you have taken since being arrested for this offending to turn your life around. They also express their support for you to do this. Your letter to me shows some insight into the causes of your offending and its effect on the community. I make a 10 per cent allowance for these matters.
42 Zhang v R [2019] NZCA 507; [2019] 3 NZLR 658 at [147].
43 Glassie v R [2022] NZCA 556 at [52].
44 Smith v R [2020] NZCA 221 at [20].
Mr Mataia
[84] Mr Mataia, as with your co-offenders, I recognise that your upbringing was seriously dysfunctional. This clearly contributed to your offending as a youth and then to your deportation to New Zealand, where you had no money and few connections. I consider your position is much the same as Mr Pelikani and Mr Katoa, and I allow 10 per cent for the way in which your upbringing has contributed to your offending.
[85] Like Mr Katoa, I consider that you now show very good prospects for rehabilitation. Becoming a father seems to have been a turning point for you. Your letters of support speak to this. I allow 10 per cent for these prospects.
Guilty plea allowances
[86] Having dealt with your personal backgrounds, I now address the credits to which each of you is entitled for your guilty pleas. Mr Katoa and Mr Mataia, I allow each of you a 15 per cent credit from your respective starting points, recognising you pleaded guilty on the first day of your scheduled trial.45 That is the approach I have taken with most of your co-defendants.46
[87] Mr Fakaosilea and Mr Pelikani, the position is different in your cases. You pleaded guilty at the same time as Mr Katoa and Mr Mataia. But a guilty plea credit can attach only to the charges to which you pleaded guilty.47 So I will apply the credit to the notional starting points I would have set for the charges to which you pleaded guilty.48
[88] Mr Fakaosilea, for those charges, I would have been sentencing you for offending involving the possession of 30 ounces of methamphetamine, possession of
45 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75]–[76]. Compare Kelly v R [2019] NZCA 275 at [38] (five per cent discount for a guilty plea on the second-to-last working day before trial was held to be in range); Hernandez v R [2018] NZCA 309 at [23] (15 per cent discount for a plea entered the day before trial); and Solicitor-General v Hutchison [2018] NZCA 168, [2018] 3 NZLR 420 at [42] (maximum discount of 15 per cent should have been made for guilty plea entered close to the scheduled trial date).
46 See, for example, R v Tofa-Tulisi [2022] NZHC 284 at [17]; R v Mafileo [2022] NZHC 2481 at [22]–[23]; and R v Halaholo [2022] NZHC 3031 at [38].
47 Agar v R [2021] NZCA 350 at [30]–[37].
48 I consider the notional starting points, rather than the uplifts, to be the appropriate guide for the guilty plea credit.
five ounces of cocaine, the supply of at least 500 g of methamphetamine (and two additional commercial quantities), and the supply of an unknown amount of an unknown Class A drug. Following the approach I took earlier, I would have set a starting point of about 14 years’ imprisonment for that offending. I consider a 15 per cent credit is appropriate to give to your guilty pleas to those charges. A 15 per cent credit from the starting point of 14 years amounts to 25 months.
[89] Mr Pelikani, I have heard further details this morning to the background of your guilty plea on the charge of possession of Class A drugs for supply. This particular charge, as it was made clear to me, was only laid three weeks approximately before the start of trial. You pleaded to that charge on the day the trial was scheduled to begin. In those circumstances I consider a slightly higher credit than Mr Fakaosilea’s is appropriate, and I consider 20 per cent is appropriate for you. Had I to sentence you only on the charge of possessing five ounces of cocaine for supply, I would have set a starting point of four years’ imprisonment.49 A 20 per cent credit from that starting point amounts to ten months.
Credit for time spent on bail
[90] I must also take into account that three of you have been on electronically monitored (EM) bail for periods of time.50
[91] There is no fixed formula to be applied. Much turns on the relative restrictiveness of the bail conditions and your compliance with them.51
[92] Mr Pelikani, you were on EM bail from 29 January 2021 to 11 August 2022. You spent the first five months subject to a 24-hour curfew at a rehabilitation facility. I allow two and half months for that period. You then spent four and a half months subject to a 24-hour curfew at your home, but with several exceptions each week for exercise. I allow one and a half months for that less restricted period. Finally, you had a further nine months during which you had exceptions both for work and for exercise. As became apparent at the end of your trial, the work exception was very
49 See Zhang v R [2019] NZCA 507; [2019] 3 NZLR 65; and Cavallo v R [2022] NZCA 276.
50 Sentencing Act, ss 9(2)(h) and (3A).
51 Section 9(3A).
flexible. I allow only one month credit for that final nine-month period. In total, I allow a credit of five months.
[93] Mr Katoa, you were granted EM bail on 11 June 2021 and remained on that bail until your convictions in mid-July 2022. For the first four months you had a 24- hour curfew. For the remaining nine months the curfew was relaxed so that you were able to exercise daily between 12 pm and 4 pm. There is no record of non-compliance. I consider a total credit of five months should be given.
[94] Mr Mataia, by my calculations you were on EM bail subject to a 24-hour curfew for two periods totalling about 18 months. I allow a nine-month credit for those periods. Since early April this year, a period of eight months, your curfew has been from 9 pm to 7 am. For that less restrictive period I allow a further credit of two months. So your total credit for time on EM bail is 11 months.
Another matter
[95] There is one final matter for Mr Fakaosilea and Mr Pelikani, which was raised with me yesterday by a joint memorandum. Having considered that, I allow each of you a further credit of six months.52
End sentences
[96] Mr Fakaosilea, I take a starting point of 18 years and six months’ imprisonment. I impose an uplift of five per cent to reflect that you offended while on bail. I then apply credits of 15 per cent for your personal background, five per cent for your youth at the time of offending, 25 months for your guilty plea and a further six months for the matter raised yesterday. This gives an end sentence of 13 years and two months’ imprisonment.
[97] Mr Pelikani, I take a starting point of seven years and six months’ imprisonment. I apply credits of 10 per cent for your personal background, five per cent for your rehabilitative prospects, ten months for your guilty plea, five months for
52 I have recorded my reasons in a separate minute, which I have directed is not to be accessed without leave of a Judge.
the time you spent on EM bail and a further six months for the matter raised yesterday. This gives an end sentence of four years and 11 months’ imprisonment.
[98] Mr Katoa, I take a starting point of eight years’ imprisonment. I apply credits of 10 per cent for your personal background, 10 per cent for your prospects for rehabilitation, 15 per cent for your guilty pleas, and five months for the time you spent on EM bail. This gives an end sentence of four years and nine months’ imprisonment.
[99] Mr Mataia, I take a starting point of nine years and six months’ imprisonment. I apply credits of 10 per cent for your personal background, 10 per cent for your prospects for rehabilitation, 15 per cent for your guilty pleas, and 11 months for the time you spent on EM bail. This gives an end sentence of five years and three months’ imprisonment.
Minimum periods of imprisonment
[100] Mr Fakaosilea and Mr Pelikani, in both of your cases the Crown contended for minimum periods of imprisonment of at least 40 per cent of your sentences. It said deterrence, denunciation and accountability purposes of sentencing come to the fore in cases involving significant commercial dealing.
[101] An MPI must not be imposed as a matter of routine or in a mechanistic way.53 In each of your cases I consider an MPI is unnecessary. I acknowledge that your offending involved significant commercial quantities of methamphetamine. But you are both relatively young and you have prospects of rehabilitation. And you are in any case to serve significant periods of imprisonment even without the imposition of an MPI. The default period suffices to hold you accountable, denounce your conduct and deter you and others from similar offending.
Result
[102]Could you all please stand.
53 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169].
[103] Mr Fakaosilea, for each of your convictions on three charges of possession of a Class A controlled drug for supply and on four charges of supplying a Class A controlled drug I sentence you to 13 years and two months’ imprisonment. On each of your convictions on two charges of conspiracy to import methamphetamine, I sentence you to eight years’ imprisonment. All these sentences are to be served concurrently.
[104] Mr Pelikani, for your conviction on a charge of conspiracy to import methamphetamine, I sentence you to four years and 8 months’ imprisonment. For your conviction on a charge of possession of a Class A controlled drug for supply, I sentence you to four years imprisonment. These sentences are to be served concurrently.
[105] Mr Katoa, for each of your convictions on three charges of supplying methamphetamine, I sentence you to four years and nine months’ imprisonment. These sentences are to be served concurrently.
[106] Mr Mataia, for each of your convictions on three charges of supplying methamphetamine, I sentence you to five years and three months’ imprisonment. For each of your convictions on two charges of unlawful possession of a firearm and two charges of unlawful possession of ammunition, I sentence you to two years’ imprisonment. These sentences are to be served concurrently.
[107]Please stand down.
Campbell J
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