R v Fonua
[2020] NZHC 3107
•24 November 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
2019-004-3382
[2020] NZHC 3107
THE QUEEN v
JAROME RAYMOND FONUA
Hearing: 24 November 2020 Appearances:
E J Smith for Crown
R M Mansfield and H Smith for Defendant
Judgment:
24 November 2020
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Auckland
R v FONUA [2020] NZHC 3107 [24 November 2020]
[1] Mr Fonua, you appear for sentence today having pleaded guilty to charges of participating in an organised criminal group,1 money laundering2 and being in possession of a Class A controlled drug namely methamphetamine.3 The maximum penalties for those charges are sentences of ten years, seven years and six months imprisonment respectively.
Background
[2] The charges were laid as a result of your activities between November 2017 and 11 April 2019. During that period the police became involved in a complex operation monitoring members and associates of the Comancheros motorcycle organisation. At the time of your offending you were the Secretary of that organisation.
[3] You returned from Australia, where you had been living up until that point, in November 2017. Unlike many other members and associates of the Comancheros you were not deported from Australia. You are an Australian citizen, having been born in that country. You married a citizen of this country and you returned to New Zealand as a result of her desire to return to be close to members of her family here.
[4] Within a relatively short period after your return, however, you became an active member of the Comancheros. You were the Secretary of the organisation by mid-2018 and I consider that has significance for reasons I shall shortly outline.
[5] The offending took place as a result of the fact that members and associates of the Comancheros became involved in a large-scale money laundering operation during 2018 and 2019. This involved primarily the banking of significant quantities of cash into the trust account of a solicitor, Mr Andrew Simpson. The deposits were made in sums of less than $10,000 so they would not attract the attention of the authorities. Your involvement in this came in two ways. First, you handed the sum of $60,000 in cash to a Mr Donald Vuisevuraki in August 2018. He then banked that sum in deposits of less than $10,000 into Mr Simpson’s trust account. The funds were subsequently
1 Crimes Act 1961, s 98A.
2 Crimes Act 1961, s 243(2).
3 Misuse of Drugs Act 1975, ss 7(1)(a) and (2)(a).
used to assist the President of the Comancheros, Mr Pasilika Naufahu, to acquire a house for himself and his family in Bucklands Beach.
[6] Secondly, you received the benefit of the sum of approximately $239,000 in August 2018. You did so by receiving a Range Rover motor vehicle purchased for that sum. The purchase price had been deposited into Mr Simpson’s trust account by Mr Vuisevuraki and others recruited by him. The evidence that I heard at the trial of your co-defendants makes it clear that a concerted effort was made to deposit these funds so you could acquire this luxury vehicle.
[7] In entering your pleas you acknowledge you were aware that the funds came from criminal activity, most probably in the form of drug offending. This applies not only to the money laundering charge, which relates to the acquisition of the Range Rover motor vehicle, but also to the charge of participating in an organised criminal group. It is quite clear both from the summary of facts and the evidence that I heard at the trial that members and associates of the Comancheros came into large sums of cash during the period between May 2017 and April 2019. That cash must have come from criminal activity because none of the persons charged with this offending held down steady jobs or other means of obtaining the income legitimately.
[8] Your counsel has suggested that some of the money may have come from other sources, but I did not see any other possible legitimate source from which the cash could have come. During the period leading up to the point at which you obtained the motor vehicle the sum of approximately $1.3 million had been banked into Mr Simpson’s trust account. The fact that you received a benefit worth approximately
$240,000 means you received the benefit of nearly one-fifth of that sum. This is a significant proportion of the funds that were laundered and obtained before that time from criminal activity.
[9] Your counsel makes the point that there is no evidence you were involved in the offending that produced the funds that were the subject of the money laundering charge and that were utilised for the purposes of other members in the group. I accept that this is so because the evidence at trial made it clear that members of the group took careful steps to distance themselves from such things as drug dealing activity. I
heard evidence about one transaction that ultimately did not come to fruition. It is clear from that evidence, however, that the persons who were involved used encrypted cellphones and met in places where their conversations could not be intercepted. The actual transaction was to be carried out by persons removed in location from those who organised it. Nevertheless, several factors persuade me that you knew throughout this period that the group was receiving funds derived from drug-related activity.
[10] First, the fact that you were the Secretary of the Comancheros organisation means you were obviously a senior and trusted member of the inner circle responsible for the governance of the organisation and, more importantly for present purposes, the activities that generated the cash realised through the drug-related activities. Secondly, the photographs that were produced at trial show the closeness of the inner cadre who were responsible for the activities of the organisation. Thirdly, you were clearly trusted with cash, as is evidenced by the fact that you provided the sum of $60,000 towards the purchase of Mr Naufahu’s property. The fact that you were involved in cash-related activities is demonstrated not only by that transaction but also by the fact that, when the police searched your address at the termination of the operation, they found a money counting machine. Few persons would need a money counting machine for legitimate activities, particularly when they were not holding down a steady job that created large quantities of cash. Fourthly, the fact that you received a high value luxury motor vehicle from the laundered funds makes it clear you were a person of some considerable seniority and influence within the organisation.
[11] All of these factors persuade me that, although you may not have had knowledge of individual money laundering transactions or drug dealing activity, nevertheless you had a broad knowledge of what was happening. In particular, you knew that the group was receiving large quantities of cash from drug-related activity and was then laundering those funds through Mr Simpson’s trust account with the assistance of people like Mr Donald Vuisevuraki.
[12] I accept Mr Mansfield’s submission, however, that you were not the instigator or orchestrator of these activities. Mr Simpson’s services were also clearly known to Mr Vuisevuraki and his half brother Samuel Vaisevuraki before Mr Naufahu was ever introduced to him. I also accept that Mr Naufahu was the person who received the
principal benefit of the activities of the group. I accept that Mr Tyson Daniels, who was the Vice-President of the organisation, was also ahead of you in the governance of the group’s activities. Nevertheless, I see you as an important player in this group and one who had full knowledge of the group’s activities.
Starting point
[13] The first stage of the sentencing process is to set a starting point to encompass your offending. I take the lead charge in this context to be that of participating in an organised criminal group. The money laundering charge really reflects one aspect of the group’s activities and simply demonstrates your role and status within the organisation.
[14] Mr Daniels was sentenced prior to the commencement of the trial involving your other co-defendants.4 The Judge who sentenced him took a starting point of six years imprisonment. He was charged with participating in an organised criminal group and also nine faced money laundering charges. I accept that his seniority in the organisation was greater than that of yours and that his participation and role in the organisation’s activities was also greater. Nevertheless, I see the material benefits that you received as not falling far behind those that he received.
[15] I have been referred by both the Crown and your counsel to other money laundering cases.5 Those provide some assistance, but in my view the problem with them is that they dealt only with the money laundering aspect of the offenders’ activities. They do not encompass the wider aspect of your participation in this group over a significant period.
[16] I take the view that the best guide in the present case is the starting point adopted in relation to Mr Daniels. Your counsel suggests your role was significantly different and that it warrants a starting point of no greater than three to three and a half years imprisonment. The Crown contends your offending is not greatly less serious than that of Mr Daniels and that a starting point of at least four and a half to five and
4 R v Daniels [2020] NZHC 275.
5 Zhang v R [2010] NZCA 481; R v Le [2018] NZHC 2199 at [16]; R v Chase [2018] NZHC 1022
at [41]; R v Sinamu HC Auckland CRI-2008-004-453, 16 December 2010.
a half years imprisonment is warranted. Having regard to the factors I have identified I fix a starting point of five years imprisonment for the lead charge of participating in an organised criminal group. That also encompasses your culpability in relation to the charge of money laundering.
[17] This leaves the remaining charge, which is that of possession of methamphetamine. This charge arises as a result of the search of your address on 31 May 2019. This was after you had already been arrested at the termination of the operation on 11 April 2019. On that occasion the police had found not only the money counting machine, but also 20.5 grams of a cutting agent commonly used in relation to the packaging of methamphetamine as well as also electronic scales and $12,835 in cash. When the police searched your home address again on 31 May 2019, they found another set of electronic scales that contained traces of methamphetamine, an encrypted communication device and 5.9 grams of methamphetamine.
[18] You were originally charged with being in possession of this methamphetamine for the purpose of supply. Shortly before the entry of your guilty plea the Crown reduced the charge to one of simple possession. You then entered a guilty plea immediately. I consider this warrants a discrete uplift because it is entirely separate from the other offending. It also occurred following your arrest on the other charges. Taking that fact into account I select a starting point on this charge of three months imprisonment. That sentence would be cumulative on the sentence imposed on the lead charge of participating in an organised criminal group.
Aggravating factors
[19] You have previous convictions in New Zealand and Australia. The Crown accepts, however, that none of these is relevant for present purposes. There is therefore no uplift to the starting point to reflect previous convictions.
Mitigating factors
[20] In terms of mitigating factors, the only one for which I propose to provide you a credit is that of your guilty pleas. In relation to the charges of participating in an organised criminal group and money laundering these came at a very late stage
because they were entered just two weeks before your trial was scheduled to start. The guilty plea entered in relation to the charge of being in possession of methamphetamine was obviously entered at a very early stage because it was entered as soon as the charge was reduced to one of possession simpliciter.
[21] The Crown submits that the lateness of your pleas justifies a discount of just five per cent. Your counsel submits the savings to the State in not having to prepare for a trial against you and your acknowledgement of responsibility mean that a discount of around 15 per cent is appropriate. I take the view that, although the plea was late, it nevertheless resulted in some saving to trial time although much of the evidence of your involvement needed necessarily to be canvassed at trial. I propose to apply a discount of eight months, or around 13 per cent, to reflect your guilty plea on those charges. I reduce the sentence on the charge of being in possession of methamphetamine by one month to reflect your guilty plea.
[22] The Crown has also suggested that two breaches of bail ought to be factored into your sentence in some way. These occurred after you were released on ordinary bail and then breached a condition prohibiting you from having direct or indirect contact with your co-defendants and members of the Comancheros organisation. You also absconded for a period of approximately one week whilst you were subsequently subject to a grant of electronically monitored bail. I take the view that these matters have already been taken into account by the fact that you were remanded in custody for a considerable period prior to trial. It was also open to the Crown to lay separate charges alleging that you breached your bail conditions if it had wished to do so. I do not consider it is an appropriate basis on which to increase your sentence.
Sentence
[23] On the charge of participating in an organised criminal group you are sentenced to four years four months imprisonment. On the charge of money laundering you are sentenced to three years imprisonment. Those sentences are to be served concurrently. On the charge of being in possession of methamphetamine you are sentenced to two months imprisonment. That sentence is to be served cumulatively on the sentence imposed on the charge of participating in an organised criminal group.
[24]Stand down.
Lang J
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