R v Fonotia

[2012] NZHC 219

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF CO-ACCUSED JF.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000047 [2012] NZHC 219

THE QUEEN

v

DELIA FONOTIA

Hearing:         2 February 2012

Counsel:         R M Mansfield for Prisoner

M Williams for Crown

Judgment:      2 February 2012

JUDGMENT OF KEANE J [re disputed facts on sentence]

Solicitors:

Crown Solicitor, Auckland

R V DELIA FONOTIA HC AK CRI 2011-404-000047 [2 February 2012]

[1]      Delia Fonotia is for sentence with her co-offenders, who in contrast to her went to trial, on her pleas of guilty to 18 offences against the Misuse of Drugs Act

1975.

[2]      On 16 February 2010, on her second appearance in the District Court, Ms Fonotia pleaded to two offences on 15 February 2010, shared possession with JF of the class A controlled drug methamphetamine, and of the class C controlled drug, cannabis, for the purpose of sale or supply. She was remanded to this Court for sentence.

[3]      On 9 November 2011, in the week before she was about to go to trial with her co-offenders on the 16 counts in the indictment relating to her, she pleaded guilty to all of them: to possessing methamphetamine for the purpose of supply between 2 -

24 October 2009, and to selling the class C controlled drug, pseudoephedrine, 15 times between 30 September - 17 November 2009.

[4]     In issue on sentence is a contested matter of fact: the quantity of methamphetamine in Ms Fonotia's possession for the purpose of supply; and it arises most  acutely  as  to  the  October  2009  offence  in  which  the  Crown  alleges  she possessed three ounces of methamphetamine and she admits to three grams.

[5]      The  contest  is  less  acute  as  to  the  February  2010  offence  where  ESR certificates confirm that the larger of two plastic packets contained 27.5 grams of methamphetamine and the smaller, 4.06 grams. But there another issue of fact arises. Ms Fonotia says she was not in possession in her own right for supply. She was only acting as a courier.

[6]      At the conclusion of the disputed facts hearing on 2 February 2012, I said that I would sentence Ms Fonotia as to the October 2009 possession offence as if she were a gram, rather an ounce, dealer. As to the February 2010 offence, I said, that I would sentence her on the certified quantities, as to which there was then no issue, on the basis she was in possession for supply and not merely a courier. I now give my reasons.

Principles applying

[7]      At the disputed fact hearing no issue was taken as to the governing principles, those set out in s 24 of the Sentencing Act 2002, the first of which is, as I confirmed with counsel, that I might, as a matter of discretion, accept as proved 'any facts agreed on by the prosecutor and the offender' but that I was obliged to accept as proved 'all facts, express or implied, that are essential to a plea of guilty'.[1]

[1] Sentencing Act 2002 s 24(1).

[8]      No issue was taken at the hearing either as to the significance of the dispute concerning the quantity of methamphetamine Ms Fonotia   possessed in the two instances.  However  that  dispute  was  resolved,  counsel  accepted,  Ms  Fonotia remained for sentence within band two R v Fatu,[2]  which encompasses supply of commercial quantities between 5g - 250g. The outcome would, they agreed, clearly affect where she might lie within that band.

[2] R v Fatu [2006] 2 NZLR 72.

[9]      The consequence was, as I said to counsel and they accepted, that because the quantity the Crown alleged Ms Fonotia possessed for supply was greater than Ms Fonotia admitted to  the Crown must prove the quantity it  contends for beyond reasonable doubt as an 'aggravating fact' that 'justifies a greater penalty ... than might

otherwise be appropriate'.[3]

[3] Section 24(3).

[10]     The Crown, I said also, was obliged to discharge the burden resting on it by adducing evidence at the hearing itself. It was not ordinarily able to have recourse to evidence given at the trial of a co-offender.[4] However, as counsel told me, there was no issue as to the admissibility of the telephone conversations or texts in evidence at the trial of Ms Fonotia's co-offenders, as they would have been admissible against her also had she not pleaded.

[4] Hall on Sentencing Lexis Nexis SA24.6.

[11]     They agreed also that the expert opinion evidence given at trial by Detective

Sergeant Howard as to the quantities in which drugs are traded, the prices paid and the code terms used, was equally admissible.

[12]     Whether, as to the February 2010 offence, Ms Fonotia possessed for supply herself, or merely as a courier, as I said to counsel, stood differently. Ms Fonotia might be fixed with possession for supply as a result of her plea.[5] But if she was not she had still to prove her lesser purpose as a 'mitigating fact' that 'justifies a lesser penalty ... than might otherwise be appropriate for the offence'.[6]

[5] Sentencing Act 2002 s 24(1)(b).

[6] Section 24(3).

October 2009 offence

[13]  The count in the indictment alleging that Ms Fonotia possessed methamphetamine for supply between 2 October - 24 October 2009, to which she pleaded, contains these particulars which are disputed as to amount:

1.        Sale  to  'Les'  of  one  and  a  half  ounces  of  methamphetamine  (3

October 2009).

2.        Sale to 'Les' of one ounce of methamphetamine (8 October 2009).

3.        Sale  to  Nesia  Gaffar  of  half  an  ounce  of  methamphetamine  (23

October 2009).

[14]     The facts on which the Crown relies as to that offence, as expressed in the particulars, are set out in paragraphs 48 - 51 of the Crown's statement of facts and these too are disputed.

On 3 October 2009 an associate of Ms Fonotia ('Les') sent her a text asking if he could come and see her. Ms Fonotia called him and asked if he was wanting  a  'half  or  whole'.  These  are  common  phrases  used  by  drug distributors and manufacturers when referring to methamphetamine and in this case is in reference to a 'half' ounce or a complete 'whole' ounce of methamphetamine.

They met at Ms Fonotia's home address where she supplied him with one and a half ounces of methamphetamine.

On 8 October 2009 an associate of Ms Fonotia's by the name of 'Les' contacted her to say he was on his way to see her. They arranged to meet near 'where they normally meet'. Ms Fonotia asked him what he wanted to do and this time he replied 'one whole one'. By this 'Les' was referring to one complete ounce of methamphetamine, which Ms Fonotia supplied to him.

On  23  October  2009  an  associate  (Nesia  Gaffar)  contacted  Ms  Fonotia saying she had someone looking for half an ounce of methamphetamine. Ms Fonotia confirmed that she had the product and the associate subsequently

went   over   to   Ms   Fonotia's   address   where   she   was   supplied   the methamphetamine by Ms Fonotia.

Fonotia affidavit

[15]     In her affidavit for the purpose of this dispute, Ms Fonotia explains that she was then a user of methamphetamine herself. She smoked perhaps half a gram of methamphetamine a day. To feed her habit she purchased methamphetamine from her co-offender Steven Mehrtens - one ounce every three or four weeks and sometimes in excess of an ounce each month.

[16]     Mr Mehrtens charged her, she says, $12,000 for the first ounce and $14,000 per ounce for any part of a second ounce. So she found herself spending $12,000 -

$16,000 each month and she was then, she says, only earning $2,000  a month dealing in Contac NT. To cover her debt, she says, she sold methamphetamine to friends for $600 - $700 a gram. By selling half of each ounce she purchased, some

14 - 15 grams, she recovered some $9,000 - $10,500.

[17]     Ms Fonotia says that she retained what she earned until Mr Mehrtens told her he was short of money to pay for Contac NT and needed her to pay off some of her debt. She then gave him whatever amount he needed. But because he refused to sell her another ounce on tick until she had paid for the last ounce, she had to continue selling.

[18]     This, she says, is what she was doing when she supplied her associates 'Les' and Ms Nesia Gaffar in the three October 2009 transactions. She accepts that there may be a generic code that a 'whole' or a 'half' refers to ounces but as between her friends and herself that always referred to whole or half grams. She adhered to this account when cross-examined.

Crown response

[19]     As well as contending that Ms Fonotia was an ounce and not a gram dealer in the three transactions in October 2009, in which she spoke about 'ones' or 'halves', terms which according to the opinion evidence of Detective Sergeant Howard equate

in methamphetamine sales with half or whole ounces not half or whole grams, the

Crown also relies on other conversations.

[20]     One is a conversation between Mr Filer and Ms Fonotia on 24 November

2009, when Mr Filer said he had to get rid of some 'big ones' and Ms Fonotia showed interest in '2' and then 'another couple'. The Crown relies as well on texts from texts from Ms Fonotia to Rose Tell and Rose's brother James on 4 November 2009.

[21]     She asked Rose Tell 'hey u want any oranges $12'. Immediately after she asked James 'Hi m8 delia here do u nd any oranges'. Detective Sergeant Howard did not give evidence as to the coded meaning of 'orange' but the Crown's case is that this was another instance of a $12,000 ounce transaction.

[22]     The Crown also put its case negatively. If Ms Fonotia, as she says, was not dealing in ounces but grams and was selling at least 14 - 15 grams a month, why is there not evidence of this? The intercepted telephone calls and texts concerning methamphetamine sales are confined, the Crown says, quite literally, to these few conversations.

Conclusions

[23]     There is no issue that the October references to 'ones' and 'halves' could as a matter of common code refer to ounces and half ounces when methamphetamine is sold.

[24]     The evidence is also clear, and undisputed, that Ms Fonotia made at least one ounce methamphetamine purchases from Mr Filer and Mr Mehrtens when she sold them pseudoephedrine. The Filer - Fonotia exchange in November 2009 suggesting a four ounce transaction potentially, might also carry the inference that she was an ounce dealer herself.

[25]     Ms Fonotia's account, that she sold half ounces in gram amounts to finance her own habit, is also thrown into question by the absence of intercepted transactions beyond the few that have been in issue in evidence. But that is as much as one can

say. There is nothing to contradict her assertion, when cross-examined, that she sold grams and half grams through others and that she sold face to face, and thus that the interceptions are an incomplete record.

[26]     The critical code word in the November transactions 'orange' was not the subject of expert opinion evidence, and though the defence responsibly conceded could  be  code  for  an  ounce  of  methamphetamine,  I  also  cannot  exclude  the possibility that it was used in this instance, as Ms Fonotia says, to refer to pseudoephedrine. It is close to orange in colour.

[27]     It also tells against the Crown case that this was an ounce transaction that Ms Fonotia was prepared to sell for '12'. Twelve thousand dollars was the lowest price at which she could purchase an ounce of methamphetamine. There would have been no profit in it for her. Finally, the Crown's case must rest on the three October 2009 transactions themselves and they are a slender bases for inference.

[28]     The 'Les' transactions  on  3  and  8  October rely on  a series  of texts  and telephone calls on each day, all of which were silent as to the quantity except for two brief references. The Gaffer transaction is inconsistent with an ounce transaction and plausibly consistent with a gram transaction.

[29]     On 3 October, the first of the three transactions, in the final and critical telephone conversation there was this brief exchange:

Fonotia:         half or whole?

Les:               Um probably one and a half. Fonotia:      I hope the money's right? Les:       Yep I'll just get it, get it now.

Fonotia:         Well get it, and then text, and then I'll text where we are.

Yep.

[30]     The  exchanges  on  8  October  2009  rested  finally  on  an  equally  brief exchange:

Fonotia:         Okay then what did you want to do?

Les:               Ahh one whole one. Fonotia:       Yeah okay, bye.

Les:               Okay then seeya.

[31]     As to the final transaction on 23 October, the sequence of texts is clear. Ms Gaffer wanted a 'half' for her friend, she asked what she had to bring, and Ms Fonotia told her to bring '35'. Ms Fonotia said in evidence that by that she meant

$350 and that is consistent with Detective Sergeant Howard's evidence as to the price of a gram, which lies anywhere between $600 - $1,000. Ms Fonotia could have been selling it at $700 a gram and $350 for a half gram.

[32]     In the result there is no basis on which I can be satisfied beyond reasonable doubt that anything more than grams or half grams were traded during October; and Ms Fonotia is to be sentenced on the basis that in October 2009 she had in her possession for supply three, not 85, grams of methamphetamine.

February 2010 offending

[33]     As to the 15 February 2009 offending, the statement of facts on the basis of which Ms Fonotia pleaded in the District Court on, Manukau, on 10 March 2010 rested on this largely undisputed narrative:

At about 7.25pm on 15 February 2010, Fonotia was the passenger of a silver

Ford Mondeo station wagon, registration EWA 715.

This vehicle was being driven by the defendant JF.

Police stopped the vehicle on State Highway 2 just west of the Maramarua golf course.

The vehicle was stopped pursuant to s 317A Crimes Act 1961 in order to arrest Fonotia on the authority of the recall warrant. (A warrant issued on 16

December 2009 authorising her arrest on an interim recall order made by the

New Zealand Parole Board requiring Ms Fonotia to complete a five year sentence for earlier possession of methamphetamine).

Section 18(2) and (3) Misuse of Drugs Act 1975 was also invoked, and the vehicle was searched.

Hidden within a false bottom of a 9 kilogram gas bottle were the following items:

Folded up newspaper, dated 5th February 2010.    Various items of material/clothing.

Plastic  snaplock  bag  containing  30  grams  of  a  white  crystalline substance.

Small plastic snaplock bag containing 8 grams of white crystalline substance.

Large 'Glad' snaplock bag containing 34 grams of cannabis plant material.

Small  plastic  snaplock bag containing small  amount  of  cannabis plant material and two cannabis cigarettes.

Uniden brand scanner.

Approximately  $50,000  of  New  Zealand  currency  in  varying denominations.

[34]     The Judge who took the pleas noted that the summary was accepted except as to the quantities. It is now undisputed, as I have said, that the 30 gram snaplock bag contained 27.5 grams of methamphetamine, that the eight gram bag contained 4.06 grams, that the 34 gram bag of cannabis contained 28.6 grams, and that the lesser bag containing the cigarettes and residue contained a further 0.9 of a gram.

Issues

[35]     The issue rather, as to which Ms Fonotia carries the onus, is whether, though she was deemed to be in possession for the purpose of supply, that was in the perhaps lesser sense that she was a courier. Also whether as a courier she was likely to receive a lesser award, $2,000, and not a larger reward.

[36]     There has to be a question what significance this has if, as s 24(1) requires, she is deemed to have admitted all the facts essential to her offence, including as it would appear, an intent to supply herself. But assuming, as I do, that she can assert she played a lesser part as a courier, she has still to establish that potentially exculpatory fact to the balance of probabilities.

Fonotia evidence

[37]     Ms Fonotia's evidence was that she took JF with her to Whangamata to deliver pseudoephedrine and to collect methamphetamine and cash to purchase more pseudoephedrine. She did so only because JF knew of a cheaper source of pseudoephedrine than Mr Ly and Mr Nguyen.

[38]    Ms Fonotia admits that the larger bag of methamphetamine was in her possession. She denies that it belonged to her. She was acting as a courier for a former associate, an associate of JF. She was to receive $2,000, an amount greater than she normally got  for supplying pseudoephedrine. As  to  the second  bag of methamphetamine, she says that it was for her personal use and not for supply.

[39]     Ms Fonotia's evidence also is that JF shared possession of the contents of the nine kilogram gas bottle. Indeed, she appeared to say that even though she notionally possessed the methamphetamine, at least the larger quantity, it was more in his possession than hers.

Conclusions

[40]     JF's actual part will be the subject of evidence at his trial and I express no opinion about his actual culpability, or lack of it. For the present I need only confirm that the evidence as I find it to be requires me to sentence Ms Fonotia, consistent with her plea, for possession for supply of all the methamphetamine and cannabis in the nine kilogram gas bottle.

[41]     There is no evidence to corroborate Ms Fonotia's account that she was in this instance secondary to JF and, at most, a courier for some undisclosed principal. All the evidence of which I am aware places Ms Fonotia in a constant relationship with her four co-offenders. Until she was arrested on 15 February 2010 Ms Fonotia was their broker and a dealer in methamphetamine and cannabis in her own right.

[42]     It can hardly be an accident, it seems to me, that the very afternoon on which

Ms Fonotia was apprehended, she had not long left Mr Filer's yard at which Mr

Mehrtens was then staying, and was carrying significant quantities of methamphetamine and cash. This is the only instance, of which I am aware, in which JF ever figured. She is to be sentenced on the basis that she was in the most complete possession.

Outcome

[43]     It is for these reasons that on the day of the disputed facts hearing I held that Ms Fonotia is to be sentenced as to the October possession offence as a methamphetamine dealer, dealing in grams not ounces, but in the most complete

possession for supply when apprehended on 15 February 2009.

P.J. Keane J

Solicitors: