R v Halaholo

[2022] NZHC 3031

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-004-9587

[2022] NZHC 3031

THE KING

v

SAMUEL HALAHOLO

Hearing:	18 November 2022
Appearances:	B Kirkpatrick for the Crown C Robertson for the defendant
Date:	18 November 2022

SENTENCING NOTES OF CAMPBELL J

R v HALAHOLO [2022] NZHC 3031 [18 November 2022]

Introduction

[1]    Mr Halaholo, you appear for  sentence  having  pleaded  guilty to  a  charge of possession   of   methamphetamine    for    supply,1    a    charge    of    possession of methamphetamine,2 a charge of supplying MDMA,3  and a charge of possession  of MDMA for supply.4

[2]    My job today, on behalf of the community, is to sentence you for those offences.

Offending

[3]    I will start by outlining your offending. This outline is based on the summary of facts which you accepted when you pleaded guilty.

[4]    You were a nominee of the Comancheros Motorcycle Club. In March 2020, acting under the direction of the Comancheros national commander, Seiana Fakaosilea, you and a co-offender, Diamond Katoa, uplifted an unknown commercial quantity of methamphetamine. You were driven from Auckland to Hamilton airport, where you boarded a flight to Christchurch. You were met at Christchurch airport by Rhakim Mataia. Mr Mataia and Mr Katoa then supplied the methamphetamine to the Rebels Motorcycle Club in Christchurch. You and Mr Katoa flew back to Auckland.

[5]    In December 2020, at the end of its investigation, Police found six containers at your home. They held 15 g of methamphetamine residue. Police found a satchel bag in your bedroom containing 26.1 g of MDMA and empty deal bags. Police located you at another property, where they found a further 2 g of MDMA.

[6]    The investigation revealed that you were involved in the supply of MDMA at the direction of Mr Fakaosilea. During 2019 and 2020, you were possessing and supplying caps, ounces and bags of MDMA. You did this as part of a group collective,

1      Section 6(1)(f) and 2(a). Maximum penalty: life imprisonment.

2      Section 7(1)(a) and (2). Maximum penalty: six months’ imprisonment or a $1,000 fine.

3      Misuse of Drugs Act 1975, s 6(1)(c) and 2(b). Maximum penalty: 14 years’ imprisonment.

4      Section 6(1)(f) and 2(b). Maximum penalty: 14 years’ imprisonment.

with Mr Fakaosilea at the top of the hierarchy, directing the supply, and other dealers working under you.

Approach to sentencing

[7]    The Sentencing Act 2002 sets out the purposes and principles of sentencing that I have to follow. Here, relevant purposes include holding you accountable for the harm that your offending has done to the community, promoting in you a sense of responsibility for that harm, denouncing your conduct, deterring you and others from committing similar offending, and also assisting in your rehabilitation.5

[8]    The principles include the need to consider the gravity of your offending and your degree of culpability, the seriousness of these offences and the general desirability for consistency in sentencing. I must also impose the least restrictive outcome that is appropriate in the circumstances.6

[9]    Determining the appropriate sentence involves two steps. First, I must determine a term of imprisonment called the “starting point” for your sentence, which will be based on the seriousness of the offending to which you have pleaded guilty. Secondly, I will consider your personal circumstances, including the appropriate deduction for your guilty plea.7 This will produce your end sentence.

Starting point

[10]   I will set the starting point firstly by reference to your methamphetamine offending. I will then apply an uplift to account for your MDMA offending.

[11]   A Court of Appeal case called Zhang is the guideline decision on methamphetamine offending. The Court set out five sentencing bands based on the quantity of methamphetamine involved in the offending.8 The Court said that where an offender falls within a particular band depends on the degree of their culpability,

5      Sentencing Act 2002, s 7(1).

6      Section 8.

7      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].

8      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

which primarily depends on the role played by the offender. Three categories of role were described by the Court: lesser, significant and leading.

[12]   There is a disagreement between counsel as to which band you fall in.  This  is because the methamphetamine that you possessed in the trip to Christchurch in March 2020 was of an unknown commercial quantity.

[13]   Mr Kirkpatrick, for the Crown, submitted that at a minimum the commercial quantity was between 250 and 500 g, fitting within band 3 of Zhang. By contrast, Ms Robertson, on your behalf, submitted that the quantity was somewhere in the lower half of band 2, that is between 5 and about 125 g.

[14]   In resolving this disagreement, I am entitled to draw inferences from the summary of facts.9 The summary refers to two other deliveries of methamphetamine made at Mr Fakaosilea’s direction to the Rebels in Christchurch. You were not involved in either one. The first occurred just a few days before your trip. Like your trip, it involved two Comancheros associates flying to Christchurch. The quantity supplied on that occasion was also an unknown commercial quantity, though there are suggestions that it may have been five ounces or 140 g.10 The other delivery to Christchurch happened in August 2020. Three of your co-offenders drove a rental car from Auckland to Christchurch on that occasion. They took at least 500 g of methamphetamine.11

[15]   It is not necessary, or possible, for me to determine the precise amount that you delivered to Christchurch. I consider that, from a quantum perspective, your offending falls within a range around the middle of band 2 of Zhang. There are two reasons for this. First, it seems unlikely that you would have carried anywhere near as much methamphetamine as was taken by three people in a car in the August 2020 trip. But, on the other hand, it is implausible that Mr Fakaosilea would have gone to the trouble of arranging for two of you to fly to Christchurch if you were carrying an amount anywhere near the bottom of band 2.

9      Pokai v R [2014] NZCA 356 at [31].

10     R v Fakaosilea [2022] NZHC 2984 at [51].

11 At [63].

[16]   As to the role that you played, there is again disagreement between the lawyers. Mr Kirkpatrick submitted that your role fell into the “significant” category, perhaps at the lower level of that category. Ms Robertson said that you had a “lesser” role.

[17]   Several features of your offending indicate that you had a “lesser” role. You delivered the methamphetamine to Christchurch at Mr Fakaosilea’s direction. Your function on that trip was relatively limited, essentially as a courier. You did not supply the drugs to the Rebels – that was left to Mr Katoa and Mr Mataia. There is no indication that in relation to your methamphetamine offending – as opposed to your MDMA offending, which I will deal with in a moment – you managed anyone below you or had any influence on anyone above you.

[18]   On the other hand, other features indicate a significant role in the methamphetamine offending. As well as the trip to Christchurch, in December 2020 you were found in possession of six containers that held 15 g of methamphetamine residue. You were a nominee of the Comancheros. I infer from these matters that you had some awareness and understanding of the scale of Mr Fakaosilea’s methamphetamine operation. I also infer from the nature of the offending itself that you engaged in the methamphetamine offending for some personal financial advantage. However, I proceed on the basis that the financial advantage you hoped for was modest. I do so because there’s no evidence or suggestion in the summary of facts that you actually received any significant profits from the operation.

[19]   These features are finely balanced. I consider you sit on the cusp of the “lesser” and “significant” categories identified by the Court of Appeal in Zhang.

[20]   Counsel referred me to several cases that they said provide useful comparisons to your offending.12 I have found them to be of some assistance, but I am primarily

12   Mr  Kirkpatrick  referred  me  to   R  v  Minns  [2021]  NZHC  639  (possession  of  two  kg      of methamphetamine for supply; starting point of four years and six months’ imprisonment); Campbell v R [2020] NZCA 356 (possession of a “significant amount” of methamphetamine for supply; starting point of five years and six months’ imprisonment); and Su v R [2020] NZCA 128 (possession of 233 g of methamphetamine for supply; starting point of five years and six months’ imprisonment). Ms Robertson referred me to R v Stone [2021] NZHC 636 (aiding in supplies of methamphetamine totalling two kg or more and two other charges; defendant occupied “lesser” role in the methamphetamine business; starting point of three years and six months’ imprisonment); R v Paulo [2020] NZHC 1797 (single charge of supplying methamphetamine; defendant occupied “lesser” role in the methamphetamine business; starting point of three years’

guided by  the  particular  features  of  your  offending  that  I  have  just  identified.  I consider the most helpful authority to be a decision of the Court of Appeal called Su v R.13 In that case the quantity of methamphetamine was near the top of band two, which indicated a starting point of eight years, but the offender’s “lesser” role substantially reduced the seriousness of his offending. The Court adopted a starting point at the mid-point of band two, five and a half years’ imprisonment.

[21]   Similarly, my conclusion on quantum indicates a starting point at the middle of band two, which is five and a half years. But I need to make a downward adjustment to allow for your role sitting on the cusp of “lesser” and “significant”. I consider four years is an appropriate starting point for your methamphetamine offending.

[22]   That accounts only for that offending. The starting point needs to be uplifted for your MDMA offending.

[23]   Mr Kirkpatrick referred to a case called Wallace, which is the guideline judgment for Class B drug offending, as well as some other cases involving MDMA. Based on these authorities, Mr Kirkpatrick submitted your MDMA offending, by itself, would attract a sentence of about three years and six months’ imprisonment.14 He submitted the uplift should therefore be six months.

[24]   Your MDMA offending was very serious. It occurred for a sustained period. Your role was more significant than it was in relation to your methamphetamine offending. You were regularly dealing large amounts of MDMA. In June 2020, you referred  to  doing  daily  drop  offs.   You   had  other  dealers  working  under  you.  I acknowledge some features that lessen your culpability: your dealings in MDMA

imprisonment); and R v Paul [2021] NZHC 1627 (two charges of manufacturing methamphetamine and one charge of offering to supply methamphetamine; defendant occupied subsidiary role in the manufacturing process; starting point of three years’ imprisonment).

13 Su v R [2020] NZCA 128.

14   R v Wallace  [1999] 3 NZLR 159 (CA); R v Schaumkell HC Auckland CRI-2007-004-14251,     1 February 2008 (possession of 30 MDMA pills, 50 g of cannabis for supply and under five g of methamphetamine; starting point of two years’ imprisonment); R v McKenzie HC Auckland CRI- 2006-404-355, 12 October 2006 (possession of 250 MDMA tablets; starting point of two years and six months’ imprisonment); R v Tofa-Tulisi [2022] NZHC 2483 (supply of at least 28 g and possession of 17 g of MDMA; starting point of two years and six months’ imprisonment); and R v Catalogna HC Auckland CRI-2007-004-18646, 16 June 2009 (supply of between 1000 and 2000 MDMA tablets and possession of 285 MDMA tablets for supply; starting point of five years and six months’ imprisonment).

were at the direction of Mr Fakaosilea, and there is no indication that you obtained significant  financial  benefits.  I  consider  your  MDMA offending  would  warrant a standalone sentence of three years and six months’ imprisonment. That being so, I consider an uplift of six months’ imprisonment is appropriate to capture the overall gravity of your offending.

[25]   Accordingly, I set a global starting point of four years and six months’ imprisonment.

Personal circumstances

[26]    Mr Halaholo, I am now going to talk about your personal circumstances and any adjustments to the starting point those circumstances justify.

[27]   I have been provided with a report on your background prepared by Shelley Turner. To prepare the report, Ms Turner interviewed you, your partner, your mother and your recent employer. I have also been given references from your employer and from your rugby coach. Finally, you have written me a detailed letter in which you take responsibility for what you did and express your desire to make yourself a better person.

[28]   Mr Halaholo, you have four siblings. You all enjoyed a very good upbringing from loving parents. When Ms Turner interviewed you, you spoke highly of your parents. To your credit, you told Ms Turner that you do not attribute your offending to the way you were raised as a child. Many do try to do that.

[29]   Your parents are from Tonga. You have never been to Tonga. Having been born and raised in Auckland, you have some dislocation from your Tongan culture.

[30]   After leaving school, you had a promising career ahead of you as a professional rugby player. You secured a contract as soon as you left school. At the same time, you and your partner became parents. At that time, of course, you were both still teenagers. You gave up your budding career to help raise your family. It appears that this caused you some resentment. Along with the usual high pressures on teenage

parents, this contributed to your relationship breaking down. You also in due course lost custody of your children for some time.

[31]   The breakdown of your relationship led you to seeking a sense of belonging outside your family. Regrettably, you sought that in the Comancheros. You also fell into substance abuse. Your offending followed.

[32]   In your letter to me, you say you accept full responsibility for your offending and its seriousness. You acknowledge the harm that drugs have on the community. You said the same to Ms Turner. You also say that you are embarrassed for your parents, your children and your partner.

[33]   Since your arrest you have tried to turn your life around. You are trying to be a good father to your children, of which you and your partner now have three. Your partner says you are now a more present father. You have undertaken an eight-week drug  and  alcohol course.  When  you were  on bail, you secured  employment  with a charity. You also volunteered time with the charity. Your  employer speaks highly of your work and of the contribution that you have made both to the business and to the wider community. He wants to have you back. Throughout this time, your family members, many of whom are here today, have not turned their backs on you.

[34]   An important part of the sentencing process is to adjust the starting point so that the end sentence takes into account the sorts of circumstances that I have just been discussing. This is because those personal circumstances can mean, for example, that your moral culpability or your prospects for rehabilitation are different from others who may be sentenced. The Sentencing Act requires judges to make adjustments for those sorts of matters. Sometimes the adjustments are upwards, sometimes they are downwards. In your case, Mr Halaholo, your personal circumstances justify some decreases to the starting point.

[35]   It is clear from what I have just said that you were of good character prior to your offending. You are entitled to some credit for this, even allowing for the period of your offending and its serious nature,15 because it shows that you have good

15     For example, Fangupo v R [2020] NZCA 484.

prospects for rehabilitation and therefore you present a reduced probability of re- offending. I consider a ten per cent credit is appropriate for this.

[36]   There are aspects of your personal background that are relevant to your moral culpability for your offending. First, you were still relatively young, between 21 and 23 years old, at the time of your offending. I give some modest allowance for that. It is only modest because it’s really at the upper end of where the courts have recognised that credit or an allowance should be given. But secondly, although you were given  a solid start to life by your loving parents, in the two years after you left school you lost your career and relationship. Those losses are not matters for which you should bear full responsibility, given the very difficult situation that you found yourself in and your very young age at that time. I am satisfied that your youth to some extent, but more importantly, the situation in which you found yourself; starting a young family and having to make personal sacrifices and being put under huge pressure at that time, significantly affected your decision-making abilities, contributed to your offending and reduced your moral culpability for it. I allow a ten per cent credit for those matters.

[37]   I am satisfied that you are genuinely remorseful for your offending. Your letter to me, Mr Halaholo, was detailed and eloquent. You also show excellent rehabilitative prospects. You have taken concrete steps, since your arrest, to put your life back on the right course and you have the continuing support of a pro-social family. In terms of these steps that you have taken, these are not only concrete, but multiple. As I have said, you have undertaken counselling. You have become a better father, and family member. You have been engaged in – when you were on bail – employment and fulfilling employment in which you have evidently excelled. You have also contributed to the community voluntarily. I allow a credit of 20 per cent to recognise these factors and in doing so I recognise and allow for the fact that to some extent your prospects for rehabilitation have been taken into account when I was addressing your previous good character.

[38]   You  are also entitled to an allowance for your guilty plea, Mr Halaholo.     Mr Kirkpatrick submitted a credit in the range of 15 to 20 per cent is available.     Ms Robertson said a 20 per cent credit was warranted. But, as I did in sentencing your

co-defendant Mr Tofa-Tulisi, I consider a 15 per cent credit is appropriate. You pleaded guilty on the first day of your scheduled trial. The lateness of your plea reduces the credit available to you.16

[39]   The credits that I have identified total 55 per cent against the starting point. There is one further allowance that Ms Robertson asks me to make, and that is for the time you spent on restrictive bail. You were not on electronically monitored bail but you did spend about ten months on bail subject to a 24-hour curfew. However, throughout that time you had an exception for work and for part of the time an exception for rugby training. You then had 11 months subject to a night-time curfew, which is a fairly ordinary incident of bail. Credit can in some circumstances be given for time spent on ordinary bail.17 In part it will depend on compliance with bail conditions. You did breach your conditions, on one occasion seriously, though each time you were re-admitted to bail. Notwithstanding those breaches, given the ten months in which you were subject to a 24-hour curfew, I consider a modest allowance is justified. I allow a further month.

[40]   Finally, Ms Robertson also submitted that I should allow for the time you have already spent in custody on remand. But I cannot make an allowance for time spent in custody,18 at least in determining the end sentence and before I consider home detention.

End sentence

[41]   Mr Halaholo, I take a starting point of four years and six months’ imprisonment. The credits that I have identified total 55 per cent of that starting point with a further credit of one month for your time on restrictive bail. Your end sentence is therefore one year and eleven months’ imprisonment.

16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75]–[76]. Compare Kelly v R [2019] NZCA 275 at [38] (five per cent discount for a guilty plea on the second-to-last working day before trial was held to be in range); Hernandez v R [2018] NZCA 309 at [23] (15 per cent discount for a plea entered the day before trial); and Solicitor-General v Hutchison [2018] NZCA 168, [2018] 3 NZLR 420 at [42] (maximum discount of 15 per cent should have been made for guilty plea entered close to the scheduled trial date).

17 Kreegher v R [2021] NZCA 22 at [49].

18 Sentencing Act, s 82.

[42]   This, Mr Halaholo, is what is called a short-term sentence of imprisonment under the Sentencing Act. This means I can consider whether home detention is an appropriate sentence. Ms Robertson encourages me very strongly to adopt that course given the progress that you have made in rehabilitation so far and your prospects for continuing to do so. I consider it is the appropriate sentence. It still provides real deterrence, especially given that you have spent some time in custody. It is much more likely to see you continue your path on rehabilitation and your path to continuing to contribute to the community than if you were to be further imprisoned.

[43]   In calculating the period of home detention, it is usual to halve the period of the short-term sentence of imprisonment that I would otherwise be imposing. I will do that here, but I need to make a slight adjustment for the time that you have already spent in custody.  I am not going to make as much of an adjustment for that time as   I might in some other cases, and that’s to reflect the fact that, as I have said a couple of times, there is a need – a real need – for deterrence in the case of offending of this sort. For that reason, I have settled on a sentence of ten months’ home detention.

Result

[44]Mr Halaholo, please stand:

(a)For your conviction on a charge of possession of methamphetamine for supply, I sentence you to ten months’ home detention.

(b)For your conviction on a charge of possession of methamphetamine,   I sentence you to ten months’ home detention.

(c)For your conviction on a charge of supplying MDMA, I sentence you to ten months’ home detention.

(d)For your conviction on a charge of possession of MDMA for supply,   I sentence you to ten months’ home detention.

[45]These sentences are to be served concurrently.

[46]   You are to serve the sentence of home detention at the address specified in the memorandum from the Department of Corrections dated 17 November 2022. You would have heard me discuss that address with Ms Robertson before the adjournment. Ms Robertson is correct that you spent lengthy periods on bail at that address and for that reason, I consider that it is an appropriate address. You are to be subject to the home detention conditions set out in paragraphs numbered 1 through 8 in the second half of that memorandum dated 17 November 2022.

[47]   Mr Halaholo, I wish you luck. I hope that you are never back here again. And I therefore hope that you show the promise for rehabilitation that you have shown so far, and that you live up to the expectations that those who are in the court supporting you this morning have for you.

[48]Please stand down.

Campbell J