R v Fisiihoi - [2014] NZHC 3048

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-225 [2014] NZHC 3048

THE QUEEN

v

KEVIN FISIIHOI

Hearing: 27 November 2014

Appearances:

Mr McCaughan for the Crown
Mr Goodwin for the Defendant

Date:

27 November 2014

SENTENCING NOTES OF THOMAS J

Solicitors:
Meredith Connell, Auckland.

Counsel:
M E Goodwin, Auckland.

R v FISIIHOI [2014] NZHC 3048 [27 November 2014]

Introduction

[1] Mr Fisiihoi you appear for sentence having been convicted on 23 September

2014 for drug-related offending following a jury trial in Auckland.

[2] You were found guilty of one charge of manufacturing the Class A drug methamphetamine and one charge of possessing methamphetamine for supply. In respect of both charges the maximum penalty is life imprisonment. You were also found guilty of one charge of conspiracy to manufacture methamphetamine, the maximum penalty being 14 years’ imprisonment. Part way through the trial you entered a guilty plea to one charge of producing pseudoephedrine, the maximum penalty being 14 years’ imprisonment.

Facts

[3] The facts of the possession charge are that at around 8 pm on 21 September

2011 you were at a North Shore address with some associates. Police spoke to you and you were taken to the Police station on an unrelated matter. You were found to be carrying a camera bag down your shorts which contained eight separate zip lock bags. These bags contained a total of 6.3 grams of methamphetamine.

[4] The facts relating to the production of pseudoephedrine charge are that between 29 November and 1 December 2011 you were involved in producing the drug at an address in Glendene, tenanted by your associate Mr Bate. You were present when some of the relevant chemical processes were taking place. In other words, you were one of the “cooks”. In the early evening on 1 December 2011 there was an explosion at the address. You were present at the time. The Crown says that chemicals and equipment found at the address indicated that you and your associates were ultimately aiming to manufacture methamphetamine. You deny that was the ultimate goal and submit that some of the key ingredients for the manufacture of methamphetamine were missing. In any event, you were charged and pleaded guilty to producing pseudoephedrine and that is the charge for sentence today.

[5] Text messages showed that on 7 December 2011 you and two associates, Mr Davoren and Mr Afakasi, were involved in manufacturing methamphetamine. Again, your role was to act as one of the “cooks”. Mr Afakasi has been sentenced on the basis that 56 grams of methamphetamine were manufactured on this occasion. That figure was based on a text message which Mr Davoren sent to Mr Afakasi on 7
December. Mr Afakasi did not dispute this amount and neither do you. I therefore propose to sentence you on the basis that 56 grams of methamphetamine were manufactured.

[6] Finally, the facts in relation to the conspiracy charge are that on 13 December

2011 you agreed with Mr Davoren to manufacture methamphetamine.…

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: [2014] NZHC 3048
Decision Date: 27 November 2014

CaseChat Overview and Summary

The case of R v Fisiihoi involved sentencing for drug-related offences. The defendant, Kevin Fisiihoi, was convicted of manufacturing methamphetamine, possessing methamphetamine for supply, conspiracy to manufacture methamphetamine, and producing pseudoephedrine. The legal issues in the case involved determining an appropriate sentence that reflected the seriousness of the offences, the defendant's culpability, and any mitigating factors. The Crown argued for a starting point of ten years' imprisonment, adjusted for totality to seven years, while the defence submitted a starting point of nine to ten years, adjusted to six or seven years.

The court considered the purposes and principles of sentencing, including holding the defendant accountable, denouncing the conduct, and promoting rehabilitation. The court noted the aggravating factors of the offending, such as the damage caused by an explosion during the production of pseudoephedrine. The court also considered mitigating factors, such as the defendant's guilty plea to one charge, his difficult personal circumstances, and his expressions of remorse. The court concluded that a sentence of five years and eight months' imprisonment was appropriate, with discounts for the guilty plea and personal circumstances.

The court sentenced the defendant to five years and eight months' imprisonment, with sentences for each offence to be served cumulatively. The court acknowledged the significant hardship the defendant would face in being unable to care for his daughter with cerebral palsy during his period of imprisonment, and recognised the positive steps the defendant had taken in undertaking drug counselling and caring for his daughter. The court also noted the low likelihood of the defendant reoffending and his high levels of motivation for rehabilitation.

Orders