R v Fonua - [2020] NZHC 3107

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…

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 Fonua

Details

AGLC: R v Fonua [2020] NZHC 3107
Case: [2020] NZHC 3107
Decision Date: 24 November 2020

CaseChat Overview and Summary

The defendant, Jarome Raymond Fonua, was sentenced following a guilty plea to charges of participating in an organised criminal group, money laundering and possession of a Class A controlled drug, methamphetamine. The court was required to determine an appropriate sentence for the defendant, taking into account the nature and circumstances of the offending, as well as any mitigating and aggravating factors. The court found that the defendant was a senior and trusted member of the Comancheros motorcycle organisation, and was aware that the group was receiving large quantities of cash from drug-related activity and laundering those funds. The court also found that the defendant had received significant material benefits from the group's activities, including a luxury motor vehicle.

The court determined a starting point of five years imprisonment for the charge of participating in an organised criminal group, and a starting point of three months imprisonment for the charge of possession of methamphetamine. The court applied a discount of eight months to the sentence for the lead charge, and one month to the sentence for the possession charge, to reflect the defendant's guilty pleas. The court did not consider the defendant's previous convictions or breaches of bail to be relevant aggravating factors. The court ultimately sentenced the defendant to four years and four months imprisonment for participating in an organised criminal group, three years imprisonment for money laundering (to be served concurrently), and two months imprisonment for possession of methamphetamine (to be served cumulatively).

The court ordered that the sentences for participating in an organised criminal group and money laundering be served concurrently, and the sentence for possession of methamphetamine be served cumulatively on the sentence for participating in an organised criminal group. The defendant was also ordered to pay a fine of $5,000.

Orders