JUDGMENT OF THE COURT

A        The Solicitor-General’s application for leave to appeal is granted.
B        The convictions on counts 4 and 5 are quashed on the ground that those counts in the indictment were nullities.
C        The appeal is allowed.
D        The sentence passed on count 1 (possession of methamphetamine for supply) is quashed.
E        In substitution therefor, a sentence of five years’ imprisonment is passed, to be served concurrently with the sentences imposed on count 2 (possession of weapons) and count 3 (possession of a precursor substance), which are unchanged.

REASONS OF THE COURT
(Given by Chambers J)
A Solicitor-General appeal against sentence takes an unexpected turn
[1]       Delia Fonotia was a drug dealer. On 9 October 2005, she was arrested at Auckland’s Sky City Casino for possession of a counterfeit banknote. While being processed at the Auckland Central Police Station following her arrest, she was searched. Police found in her handbag almost 40 g of methamphetamine, a large amount of cash, a “tick list”, and other drug paraphernalia.
[2]       The police then obtained a search warrant for her car. They found in the boot a loaded shotgun. Ms Fonotia told the police she had the shotgun in the car for protection from drug dealers.
[3]       Police then obtained a search warrant for her home. Police found in Ms Fonotia’s bedroom more methamphetamine, pseudoephedrine-based medicines, other drug-related paraphernalia, including digital weighing scales, glass “P” pipes, numerous point bags, and gas burners, and yet another “tick list”. The police also came across a loaded Beretta pistol and a tubular stun gun.
[4]       In the kitchen police found a black aerosol can labelled “Blizzard Spray”. This is commonly known as “mace” and is a restricted weapon under the Arms Act 1983. Ms Fonotia did not hold a current firearms licence and had no lawful authority to be in possession of any firearm, ammunition, or restricted weapon.
[5]       The police charged Ms Fonotia with an array of offences. She applied for bail, which was granted.
[6]       On 27 April 2006, Ms Fonotia, while on bail, was apprehended by police and searched pursuant to the Misuse of Drugs Act 1975. Police found in her handbag 2 g of methamphetamine, cannabis, $27,000 cash, and drugs paraphernalia. Police then executed a search at her home. More drugs were found. Additional charges were laid with respect to this offending.
[7]       Apparently negotiations then took place between a lawyer in the Auckland Crown Solicitor’s office and Mr Comesky, Ms Fonotia’s lawyer. Those negotiations resulted in an amended indictment of five counts, to all of which Ms Fonotia pleaded guilty on 22 August 2006. We shall return to the details of the amended indictment…

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 Fonotia

Details

AGLC: R v Fonotia [2007] NZCA 188
Case: [2007] NZCA 188
Decision Date: 10 May 2007

CaseChat Overview and Summary

In R v Fonotia, the New Zealand Court of Appeal addressed an appeal by the Solicitor-General against the sentence imposed on Delia Fonotia, who had been convicted of various drug and weapons-related offences. The appeal raised several issues, including whether certain counts of the indictment were nullities and what should be done about the sentence for the remaining offences. The Court found that counts 4 and 5 were nullities as they did not disclose criminal offences known to law, as they failed to specify the class of controlled drugs involved in the alleged supply. The Court quashed the convictions on these counts and re-evaluated the sentence for the remaining offences. The Court considered the totality of the offending, which included possession of methamphetamine for supply, possession of weapons, and possession of precursor substances for manufacturing methamphetamine. The Court concluded that the original sentence of four and a half years’ imprisonment was inadequate and varied it to five years’ imprisonment, to be served concurrently with the sentences on the other counts.

The Court of Appeal's decision highlights the importance of specificity in criminal charges, particularly in drug-related offences, where the class of drug involved is a crucial element. The Court also emphasised the need to ensure that sentences reflect the totality of the offending and appropriately account for aggravating and mitigating factors. The decision demonstrates the Court's commitment to upholding the principles of denunciation, deterrence, and accountability while also considering the impact of imprisonment on the offender's family.

Orders