R v Fonotia - [2012] NZHC 159

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF JF.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000047 [2012] NZHC 159

THE QUEEN

v

DELIA FONOTIA

Hearing: 1 March 2012

Counsel: B D Tantrum & M Williams for Crown
R M Mansfield for Prisoner

Judgment: 1 March 2012

SENTENCE OF KEANE J

Solicitors:
Crown Solicitor, Auckland

R V DELIA FONOTIA HC AK CRI 2011-404-000047 [1 March 2012]

[1] Delia Fonotia you appear for sentence for 18 offences against the Misuse of Drugs Act 1975. You twice possessed the class A controlled drug methamphetamine for supply, first between 2 - 24 October 2009 and then on 15 February 2010. You made 15 sales of the class C controlled drug pseudoephedrine between 30 September
- 17 November 2009. Finally, you possessed, on 15 February 2010 cannabis for the purpose of sale or supply.

[2] In entering those pleas you put in issue the quantities of methamphetamine you possessed in the October 2009 offending for the purpose of sale, or indeed sold, and whether in the second instance of possession in February 2010 you were merely a courier. I resolved those issues at a disputed facts hearing. You are to be sentenced on the basis of my decision.

Context

[3] In 2009 the police began to intercept your telephone conversations. A pattern soon emerged. Though you dealt with a number of people, principally you purchased pseudoephedrine in bulk from Phap Ly and Huang Nguyen, and you sold it, principally, to Warren Filer and Steven Mehrtens, from whom you purchased methamphetamine you used yourself and in which you traded.

[4] The first offence for which you are for sentence, possession of methamphetamine for supply between 2 - 24 October 2009, encompasses three separate transactions. On the Crown's case at trial, and on sentence, you sold to 'Les' one and a half ounces of methamphetamine on 3 October and a further ounce on 8
October. You sold Nesia Gaffar half an ounce on 23 October.

[5] You admit those transactions but at the disputed facts hearing you contended that they were not in whole or half ounce amounts. They were in whole or half grams. I found that the Crown could not, on the evidence, prove beyond reasonable doubt that you were in these three instances an ounce dealer. I held that you were dealing in grams and that in October 2009 you possessed in all three grams, not, as the Crown contended, 85 grams.

[6] Your second possession of methamphetamine for supply offence, on 15

February 2010, rests on the methamphetamine found in your possession on that date when the police stopped you and your alleged co-offender, JF, under s 317 of the Crimes Act 1961 at Maramarua. You had been seen by the police an hour or so earlier that day at Mr Filer's Whangamata depot.

[7] The statement of facts on which you entered your plea in the District Court narrated that in a nine kilogram gas bottle…

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: [2012] NZHC 159
Decision Date: 1 March 2012

CaseChat Overview and Summary

Delia Fonotia was sentenced for 18 drug-related offences under the Misuse of Drugs Act 1975, including possession and supply of methamphetamine and pseudoephedrine, as well as possession of cannabis for supply. The court was required to determine the appropriate sentence for these offences, considering the quantities involved, the offender's role in the drug trade, and the totality principle. The court held that Fonotia possessed no more than 34.56 grams of methamphetamine, and sentenced her primarily as a pseudoephedrine dealer. The starting point for the pseudoephedrine offences was set at seven years imprisonment, reduced to five years and seven months after applying the totality principle and a 20% discount for her early guilty plea. For the methamphetamine and cannabis offences, concurrent sentences of three years and six months, and two years respectively, were imposed. The court did not impose a minimum term of imprisonment, encouraging Fonotia to gather her life together and seek rehabilitation through a residential program such as Odyssey House.

The court's decision was based on the principle of holding Fonotia accountable for the harm caused by her actions, promoting a sense of responsibility, and deterring her and others from engaging in similar conduct. The court also considered the offender's background, including her difficult childhood, loss of loved ones, and gambling addiction. While these factors were acknowledged, the court emphasised that drug offending of this magnitude required a focus on denunciation and deterrence, with personal circumstances playing a limited role in sentencing. The court also took into account the totality principle, which required consideration of Fonotia's previous sentence and the time she had already served while on remand for the current offences.

Orders