R v Fisiihoi
[2014] NZHC 3048
•27 November 2014
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 DefendantDate:
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. There is no evidence that any methamphetamine actually was produced on that occasion.
Personal circumstances
[7] You have six previous convictions but they are for minor, unrelated offending.
[8] I have had the benefit of reading your pre-sentence report. Your parents separated when you were young and you left school at age 15 after your girlfriend became pregnant. You are no longer in that relationship but you regularly see your son. I understand he is now in the care of your mother. You worked for five years as a fork lift operator. You then undertook teacher training and adult education. You attended Bible College and then left after three years because you wished to be a youth worker rather than a teacher. You entered into a new relationship and you had a daughter who was born with cerebral palsy. Your partner felt unable to care for her after some time and so, just prior to being remanded in custody, you were the full- time carer for your daughter. Your mother is now caring for her also.
[9] These are your first convictions for drug related offending and represent a considerable escalation in the seriousness of your offending. You said you became involved in drugs in 2009 in order to make money. You did not consider the risks involved or the effects on others but you accept that, once you became involved in drugs, your life started going downhill. The report writer considers that you do not
seek to justify your involvement or blame others but at the interview you emphasised that you were not actually involved so much as helping to provide the ingredients.
[10] You have attended a Community Alcohol and Drug Services counselling programme. I have seen a certificate in connection with that. You report that you have not used illicit drugs since your arrest. The report writer considers you have taken the counselling to heart and understand the possible disastrous effects of drugs. You are assessed as strongly motivated not to relapse and this motivation is encouraged by your desire to care for your daughter and to be a valued member of society. Your likelihood of reoffending is assessed as low, based on your comparatively minor prior offending, a positive attitude, a stable home life and a supportive family, a number of whom are here to support you today. A sentence of imprisonment is recommended as that is inevitable given the seriousness of the offending.
[11] I have also taken into account the letters of support from your family and others. I have read and carefully considered the letter from your mother and she gives a great deal of background into your upbringing, noting that you became a father at 15 and left school. She then talks about how, when your relationship with your son’s mother fell apart, you were devastated, unable to focus and then made the wrong decisions. She emphasises that your children are your priority now. She has given you 100 per cent of her support and I note that the result of this offending means your mother has had to give up her job as a clinical scheduling administrator for the Auckland City Hospital, a job she has held for almost 20 years, so she can look after your children. She says you may have made some wrong choices in life but you are a good and loving father.
[12] I have read a character reference from the mother of your daughter’s mother. She says that the mistakes you have made have been life changing. She has witnessed your having little direction in life and now she describes you as a man with a purpose, trying to improve the life of others. She says you could quite easily have walked away from your responsibilities as a father but you chose to accept the challenge full on. That is, the challenge of looking after your daughter with cerebral palsy. She discusses the impact on your daughter of your being in prison and says
that, prior to your remand in custody, your daughter had been flourishing when in your care.
[13] I have seen a letter from the brother of your daughter’s mother. He says that you are the only constant positive foundation in her life giving her nurturing, love and stability. He has worked with a Ministry of Health programme aiming to reduce the harm of drugs and says that you have supported him with youth programmes and sport in the community on a volunteer basis.
[14] There is a letter from the mother of your son. She says that since you have
been remanded in custody your son’s behaviour has deteriorated significantly.
[15] I have seen the certificate of participation in a parenting programme. There is a letter from you to which I will refer a little later.
Principles and purposes of sentencing
[16] In sentencing you, Mr Fisiihoi, I must take into account a number of purposes and principles as set out in the Sentencing Act 2002. The sentence must hold you accountable for the harm that you have done to the community by your offending. Your manufacture and supply has brought methamphetamine into the Auckland area causing harm to the wider community. The sentence must promote in you a sense of responsibility for, and acknowledgement of, that harm; it must denounce your conduct; and deter you and other persons from committing such offending. The sentence should also assist in your rehabilitation and reintegration.
[17] In taking into account the principles of sentencing, I have considered the gravity of the offending and your culpability and the need for the sentence not to be disproportionately severe.
Submissions
Crown’s submissions
[18] The Crown submits that the aggravating features of your offending are the
damage done to Mr Bates’ unit in the explosion and that your offences were closely
connected in time. In the Crown’s submission, I should impose starting points of two years on the charge of possession of methamphetamine for supply, three and half years for producing pseudoephedrine, four years for manufacturing methamphetamine and six months’ imprisonment for conspiring to manufacture methamphetamine. This would result in a starting point of ten years’ imprisonment and, when adjusted for totality, seven years’ imprisonment.
[19] The Crown says this would reflect that the 6.3 grams of methamphetamine was packaged into eight different bags ready for sale; you were involved in producing pseudoephedrine only two months later which caused danger and damage; and only a week later you were involved in manufacturing methamphetamine.
[20] The Crown does not seek an uplift for your prior convictions.
[21] The Crown acknowledges that you are entitled to a discount for your guilty plea to the pseudoephedrine charge but, because you only pleaded guilty to one of four charges, it says the discount should be five per cent only. The Crown submits you should receive a very modest discount only for the fact you have a daughter with cerebral palsy for whom you care and who will be left without a parent to care for her if you go to prison.
[22] Mr McCaughan points out that, had you taken responsibility and pleaded guilty at an early stage, then you would have been entitled to a considerable discount.
Defendant’s submissions
[23] Your counsel, Mr Goodwin, accepts the aggravating factors identified by the Crown. He does not dispute the Crown’s suggested starting points for the possession for supply of methamphetamine and production of pseudoephedrine charges. He submits that a three to six month starting point on the conspiracy charge is appropriate. On the charge of manufacturing methamphetamine, he submits that a starting point of three to four years should be imposed.
[24] Mr Goodwin’s proposed starting point overall is nine to 10 years’ imprisonment adjusted to between six or seven years’ imprisonment on a totality basis.
[25] He emphasises that, in contrast to others involved, you received no apparent significant financial benefit and it appears that your reward took the form of drugs.
[26] Mr Goodwin accepts that a total discount of five per cent for your guilty plea is appropriate and that you should receive a six month discount for your difficult personal circumstances in relation to the care of your young daughter.
[27] I now come to fix the sentence. I will follow the approach established by the Court of Appeal in several well-known cases.1 In brief, it involves considering the circumstances and seriousness of your offending and setting what is known as the starting point with the aid of any guideline decisions and other comparable cases. I need then to consider whether there are any mitigating features relevant to you personally which might reduce that starting point.
[28] The tariff decision in connection with methamphetamine is the Court of Appeal decision in R v Fatu.2 By placing your offending within the bands of R v Fatu I reflect the scale of your offending and your individual culpability. Any sentence I impose should also be in line with sentences imposed on others whose offending was of a similar kind.
[29] The suggested approach from the Crown is that I should reach a starting point for each offence individually and impose them cumulatively. The Crown submitted this would be appropriate because there is no clear “lead offence” as your culpability in each is relatively similar and the offences were largely separate and unconnected. There is no dispute with that approach from the defence. That is the approach I will follow.
[30] Manufacture of methamphetamine has a maximum penalty of life imprisonment. Manufacture is more serious than supply of methamphetamine. The
1 R v Taueki [2005] 3 NZLR 372 (CA) and R v Clifford [2012] 1 NZLR 23 (CA).
2 R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410 (CA).
Court of Appeal in Fatu noted that methamphetamine manufacture will almost always involve significant commerciality because the associated difficulties, expense and risks make it inherently unlikely that such an operation would be set up to produce drugs for purely personal consumption.3
[31] In this case there was one commercial manufacture of methamphetamine on one occasion, producing 56 grams of methamphetamine. Accordingly, it is appropriate to take a starting point at the bottom of band two of Fatu. I adopt a starting point of four years’ imprisonment.
[32] The other offence with a maximum penalty of life imprisonment is possession of methamphetamine for the purpose of supply. You were found with 6.3 grams of methamphetamine in eight separate bags ready for supply. In R v Rawiri the police found $14,000 in cash and six grams of methamphetamine in several “point” bags in the offender's bedroom.4 A starting point of three years’ imprisonment for possession for supply was taken.
[33] In R v Hill the Court of Appeal upheld a starting point of three years and six months’ imprisonment for possession for supply of 6.3 grams of methamphetamine (97 empty snap lock bags were also found in the defendant’s room).5 The Court noted the sentence was at the upper end of the range. In R v Wilson the Court took a starting point of three years’ imprisonment where 10 grams of methamphetamine and just over $1,000 cash was found.6
[34] Taking into account those cases, in the circumstances of your offending, noting in particular that no cash or other paraphernalia connected with supply was found in your possession, I consider the possession of methamphetamine for supply charge warrants a starting point of two years’ imprisonment.
[35] I turn now to the charge of producing pseudoephedrine. I note that this offending is based on the same facts for which your associate, Mr Bate, received a
3 At [42].
4 R v Rawiri HC Hamilton CRI-2009-070-3601, 14 May 2009.
5 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [18].
6 R v Wilson HC Auckland CRI-2008-090-7272, 5 December 2008.
starting point of two and a half years for permitting his premises to be used for the manufacture of methamphetamine.7 As already referred to, you deny you were in the process of manufacturing methamphetamine and the charge for sentence is producing pseudoephedrine.
[36] In R v Van Praagh the prisoner pleaded guilty to one charge of manufacturing pseudoephedrine and one charge of possession of pseudoephedrine for supply.8
Around 160 millilitres of pseudoephedrine was located, along with other items connected with the production of pseudoephedrine and an admission from the prisoner that he was in the process of manufacturing methamphetamine. A starting point of three years’ imprisonment was adopted.
[37] In R v Shortcliffe the prisoner pleaded guilty to one charge of producing precursors and one charge of possession of equipment capable of producing precursors, along with possession of a good deal of equipment and a quantity of pseudoephedrine.9 Also found was $4,000 in cash. The pseudoephedrine located was sufficient to make only 3.5 grams of methamphetamine. The Court adopted a starting point of two years’ imprisonment.
[38] In R v Blythe the Court imposed a sentence for producing pseudoephedrine when the offender had in his garage all the chemicals necessary to extract pseudoephedrine.10 A starting point of two years and six months was taken.
[39] In my view a starting point of three years’ imprisonment is appropriate for this offending. This takes into account the level of commerciality evidently involved, the fact you were more culpable than Mr Bate and the damage caused in the manufacture of the pseudoephedrine in this case.
[40] Finally, in respect of the charge of conspiracy to supply methamphetamine, I
take a starting point of four months’ imprisonment. In setting this starting point I
take into account that you were not a ringleader in the offending and you do not
7 R v Bate [2014] NZHC 237.
8 R v Van Praagh HC New Plymouth CRI-2005-443-19, 8 February 2006.
9 R v Shortcliffe HC Auckland CRI-2004-092-9992, 15 April 2005.
10 R v Blythe HC Hamilton CRI-2005-079-7181, 3 August 2006
appear to have benefited financially to a significant degree in contrast for example to
Mr Afakasi.
[41] Adding up these starting points leads to a global starting point of nine years and four months’ imprisonment. That must be adjusted to reflect your overall culpability. I consider that a starting point of six years and six months’ imprisonment fairly reflects the scale of your offending overall.
[42] I will now consider factors personal to you which may require an uplift or discount from this starting point.
[43] You have asked for a discount to reflect the hardship you will suffer in being unable to care for your daughter who has cerebral palsy and who will be without the support of either parent during your period of imprisonment.
[44] I acknowledge that generally speaking in drug offending the personal features of the offender are subordinated to goals of deterrence in sentencing.11 However, the Supreme Court in the case of Jarden indicated that a small discount is appropriate where an offender has suffered a significant loss or hardship.12 While you have not, as in that case, suffered the death of a close family member, I recognise that spending the next several years in prison unable to care for your disabled daughter is a significant hardship which may make the length of the imprisonment sentence disproportionately severe.13 I also recognise the positive comments in the letters of support and report of the probation officer regarding the low likelihood of you reoffending and your high levels of motivation for rehabilitation. At this point I refer to the letter you have written to the Court and I thank you for that. That expresses significant remorse. It confirms, as already discussed, that you had distanced yourself from your associates approximately 12 months, you say, prior to your arrest. The Crown acknowledges that you had distanced yourself at least by February 2012. You were arrested in October 2012. I accept that in the circumstances it would have
been a difficult exercise to extract yourself from those associates. I acknowledge the
11 Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
12 At [15] and R v McGee [2014] NZHC 849 at [27] where discounts of six months on sentences for kidnapping were given to both defendants on the basis of the recent death of their baby son.
13 Sentencing Act 2002, s 8(h).
positive steps you have taken in undertaking drug counselling and in taking sole care of your daughter. Those steps add weight to your expressions of remorse. Of course, had you pleaded guilty to all the offences, you would have been entitled to a significant discount.
[45] But, given all the factors to which I have just referred, I will allow a discount of six months which reduces the starting point to six years’ imprisonment.
[46] I deduct the agreed discount of five per cent for your guilty plea, the discount being at that level given you pleaded guilty to one of the four offences only.
[47] That results in an end sentence of five years and eight months’ imprisonment.
Result
[48] Mr Fisiihoi, please stand.
[49] I sentence you to five years and eight months’ imprisonment, comprising of
sentences as follows :
(a) on the charge of manufacturing methamphetamine two years and four
months’ imprisonment;
(b)on the charge of possession of methamphetamine for the purposes of supply one year and two months’ imprisonment;
(c) on the charge of production of pseudoephedrine two years’
imprisonment; and
(d) on the charge of conspiring to manufacture methamphetamine two
months’ imprisonment.
[50] Those sentences are to be served cumulatively.
Thomas J
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