R v Fakaosilea - [2018] NZHC 3362

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CRI-2016-029-000652

[2018] NZHC 3362

THE QUEEN

v

ULAKAI FAKAOSILEA JEREMIAH IUSITINI

Hearing: 17 December 2018

Appearances:

Richard Annandale and Trelise Needham for the Crown Maria Pecotic for Ulakai Fakaosilea

David Niven for Jeremiah Iusitini

Judgment:

17 December 2018

SENTENCING NOTES OF MOORE J

R v FAKAOSILEA & ANOR [2018] NZHC 3362 [17 December 2018]

Introduction

[1] Ulakai Fakaosilea and Jeremiah Iusitini, you appear for sentencing on charges of importing methamphetamine,1 and participation in an organised criminal group.2 You both pleaded guilty to those charges on 12 July 2018 in this Court.

[2] As you will know, the maximum penalty for importing a Class A drug such as methamphetamine is life imprisonment. Whether I should impose that sentence is a central question I must answer today.

[3] In sentencing you both, and as part of answering that question, I shall follow these three steps:

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

(b)next, I shall adjust this starting point to reflect your particular role in the offending, and your personal circumstances, before considering what discount is available for your pleas of guilty; and

(c)finally, I shall step back and consider whether the end sentence I have reached appropriately reflects the totality of your offending, and whether it is necessary to impose a minimum period of imprisonment (“MPI”).

[4] In sentencing you, I am guided by the purposes and principles of sentencing. I have regard to the gravity of the offending and your culpability, the seriousness of these offences when compared to others, the need to ensure the sentences are consistent with other sentences for this sort of offending, the particular circumstances, your backgrounds and the requirement to impose the least restrictive outcome appropriate in the circumstances.

1 Misuse of Drugs Act 1975, s 6(1)(a) and (2).
2 Crimes Act 1961, s 98A.

[5] Unsurprisingly the need to deter others from committing the same or similar offences is said to be an important purpose in sentencing for drug-related offences. Indeed, as the Court of Appeal has observed, it is a “fundamental requirement” and a “primary sentencing objective”.3

[6] Plainly, your offending requires a stern sentencing response. Methamphetamine is an appalling drug. Its addictive powers are well-known and the ravages and consequences of the harm it wrecks causes ripples into every corner of our society. The Courts have a duty to do all they can to dissuade the peddlers of this poison. And when they can, it is the Courts’ task to signal its abhorrence of this pernicious and ugly trade by imposing hefty deterrent sentences. That said, there have been some recent comments based on academic research suggesting there is a certain futility in imposing ever-increasing sentencing levels as a deterrent.4 That may be so, but it seems to me, at least for those who are tempted to engage in this business, they should have no room for…

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.

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Details

Case: [2018] NZHC 3362
Decision Date: 17 December 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Fakaosilea and Iusitini involves the sentencing of Ulakai Fakaosilea and Jeremiah Iusitini for importing methamphetamine and participating in an organised criminal group. Both defendants pleaded guilty, and the court is tasked with determining appropriate sentences, considering factors such as the gravity of the offence, the defendants' roles in the operation, their personal circumstances, and the need for deterrence. The court sets a preliminary starting point based on the seriousness of the offending, which, given the large quantity of methamphetamine involved, leads to a starting point of life imprisonment for both defendants. This starting point is adjusted to reflect the defendants' specific roles and personal circumstances. Fakaosilea's role, though significant, is deemed slightly less culpable than that of some co-offenders, leading to a reduced starting point of 29 years. A discount for his guilty plea and personal factors results in a final sentence of 22 years and nine months, with an additional eight years and nine months minimum period of imprisonment. Iusitini's culpability is found to be on par with other co-offenders, leading to a starting point of 32 years, adjusted for his guilty plea to 25 years and seven months, with a ten-year minimum period of imprisonment. Both defendants receive concurrent sentences for participating in an organised criminal group.

Orders