R v Iuvale
[2024] NZHC 3446
•15 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-004-7913
[2024] NZHC 3446
THE KING v
NIGEL IUVALE TUNGANE MANUEL
Hearing: 15 November 2024 Counsel:
T A Veikune for Crown
M J Taylor-Cyphers and O Hintze for Defendant Iuvale Defendant Manuel in Person
N S Leader as standby counsel for Defendant ManuelSentenced:
15 November 2024
SENTENCING NOTES OF WILKINSON-SMITH J
Solicitors/Counsel:
Meredith Connell, Auckland. M J Taylor-Cyphers, Auckland. N S Leader, Auckland.
Copy to Mr Manuel.
R v IUVALE AND ANOR [2024] NZHC 3446 [15 November 2024]
Introduction [1]
The offending[4]
Operation Selena[4]
Operation Schrute[27]
The principles and purpose of sentencing [32]
Mr Iuvale[43]
Personal mitigating factors[63]
Minimum period of imprisonment[77]
End sentence[80]
Mr Manuel[83]
Personal mitigating factors[95]
Minimum period of imprisonment[101]
End sentence[105]
Introduction
[1] Mr Iuvale and Mr Manuel, you appear for sentence today having each been found guilty following a recent jury trial.
[2] Mr Manuel, you were found guilty of two charges of importing methamphetamine for supply,1 and one charge of conspiracy to import methamphetamine for supply.2
1 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a). Maximum penalty: life imprisonment.
2 Section 6(2A). Maximum penalty: 14 years’ imprisonment.
[3] Mr Iuvale, you were found guilty of one charge possession of methamphetamine for supply,3 and one charge of conspiracy to import methamphetamine for supply,4 and you will also be sentenced today for charges relating to a similar methamphetamine operation for which you were found guilty by a jury in the District Court. In the District Court you were found guilty of one charge of possession of methamphetamine for supply.5
The offending
Operation Selena
[4] In June 2021, the New Zealand Police commenced a joint investigation with the New Zealand Customs service (Operation Selena). Operation Selena arose after previous joint investigations identified a number of syndicates involved in the importation of drugs, mostly methamphetamine, including two syndicates operating out of Auckland International Airport (the Airport).
[5] Operation Selena involved methamphetamine imported into New Zealand, primarily from Malaysia, aboard aircrafts terminating at the Airport. Corrupt baggage handlers would then remove the methamphetamine from the aircrafts and the Airport, bypassing security and customs processes, so that the methamphetamine could be distributed.
[6] Mr Iuvale, you are said to be a leader in this operation — coordinating and arranging the importations through your contacts at the Airport. A key contact was Matangi Piukana who worked for Air New Zealand as a Service Delivery Leader.
[7] Mr Manuel, you played a role lower down in the hierarchy of the syndicate as a baggage handler at the Airport. You conveyed information about the flights to other members of the syndicate and I find that you did provide airside assistance to an extent — although I do not necessarily find that you had to physically handle the boxes to do that.
3 Section 6(1)(f) and (2)(a). Maximum penalty: life imprisonment.
4 Section 6(2A). Maximum penalty: 14 years’ imprisonment.
5 Section 6(1)(f) and (2)(a). Maximum penalty: life imprisonment.
[8] You were each charged alongside multiple co-offenders. Most of those co‑offenders pleaded guilty to their involvement in the offending and have already been sentenced by this court. As I have said in the other sentencing hearings there are parity considerations that have been made more complex by the resolutions reached in respect of the co-offenders. I am mindful of the actual criminality underlying the charges and I have tried to maintain parity so far as possible given the different roles and different charges faced by the various offenders.
[9] During February 2021, the syndicate tested the intended method of importation, arranging for a “test bag” that did not contain methamphetamine with a bag tag reading “TEST/BAG TEST” to be transported to the Airport on a flight from the United States of America. This test was arranged via the encrypted messaging platform Wickr by a person using the account “L1nkag3”. Photographs and messages sent from this account resulted in the account being attributed to you Mr Iuvale. This was not disputed at trial. I find that relevant to the sentencing because it is apparent from the text messaging related to that test run, that you, Mr Iuvale, were directing others including Mr Piukana. Although that test did not relate to Malaysian Airlines, it related to efforts to test the method of importation that would eventually be used to import drugs through Malaysia and the United States. It is instructive as to your role and your place in the hierarchy.
[10] On 9 June 2021, three boxes containing methamphetamine were imported into New Zealand aboard flight MH145 from Malaysia. Mr Manuel, you were rostered to MH145 that day. You were not rostered to assist with offloading but were rather rostered to assist with bathrooms. There was evidence heard at trial regarding the flexibility of these rosters. In finding you guilty of importing methamphetamine on this date, the jury accepted that you assisted with the importation.
[11] Mr Manuel, at 12.16 pm, you received a call from Mr Piukana whilst at the Airport. This call followed a series of messages between Mr Piukana and another co‑offender, Martin Pritchard, relating to the importation aboard MH145. You received a further call from Mr Piukana at 12.20 pm. Flight MH145 landed at the Airport at 1.37 pm. Three minutes later you received a further call from Mr Piukana. Mr Piukana then messaged Mr Pritchard “Now uso”.
[12] The methamphetamine was then offloaded from the aircraft and distributed by members of the syndicate. The obvious inference is that you were communicating with Mr Piukana to tell him when it was a good time to come and collect the methamphetamine and Mr Piukana was then telling Mr Pritchard that it was time to go and get it.
[13] You described making sure none of the innocent baggage handlers became suspicious, although I note your standby counsel’s submissions that your comment about that is capable of different interpretations. I find that what you said to the police is most consistent with you saying that you were there to ensure the bags could be removed without attracting suspicion. Your role was important because you were employed by Menzies Aviation which was the company responsible for Malaysian Airlines arrivals. Your co‑offenders worked for Air New Zealand. Boxes from Malaysian Airlines were loaded into an Air New Zealand van. I consider that this would have been impossible without the assistance of Menzies staff. The importance of your involvement is reflected in the fact that on the last occasion the intended import appears to have been arranged for a time when you were back at work after two weeks absence.
[14] On 12 July 2021, a bag containing at least 10 kilograms of methamphetamine was removed from an aircraft that had arrived at the Airport from Los Angeles. The bag was then passed to other members of the syndicate, under the direction of Mr Piukana.
[15] Mr Iuvale, you directed the transfer and delivery of the drugs from that import between co‑offenders after they had been removed from the Airport. Via Threema you instructed your co-offender, Rhys Tualevao to deliver the drugs to another co‑offender, Ralph Vuletic.
[16] Mr Iuvale, in August 2021 you were arrested in respect of Operation Schrute. That involved the importation of methamphetamine via the Ports of Auckland rather than the Airport. You were found guilty following a jury trial in the District Court for one charge of possession of methamphetamine. You were found not guilty of importing methamphetamine but the District Court Judge who heard your trial found
in a disputed facts decision that you were involved as an organiser and were well aware of how the drugs had come to be in New Zealand. Comparisons were drawn at trial between your direction of Mr Vuletic in Operation Schrute and L1nk3d’s direction of Mr Vuletic in Operation Selena. Mr Vuletic played a similar role in both operations collecting, transporting and storing the drugs. The operations were closely connected in time and the jury must have found that Mr Vuletic acted at your behest on both occasions.
[17] On 31 July 2021, three boxes containing methamphetamine were imported into New Zealand aboard flight MH145 from Malysia.
[18] Mr Manuel, you were rostered to work at the Airport that day. Whilst not rostered to flight MH145 the Menzies roster showed that you were working on a Fiji Airways aircraft at the time. The Fiji Airways aircraft was adjacent on the tarmac to MH145 at the relevant time; and evidence was heard at trial regarding the flexibility of the rosters. Prior to the arrival of MH145, you had several calls with Mr Piukana, who was not working at the Airport that day and who then made several calls to Mr Pritchard.
[19] CCTV footage showed a person placing boxes from the aircraft on the tarmac to be collected and placed in an Air New Zealand van. After the arrival of the aircraft, Mr Pritchard drove from the domestic side of the Airport in a van to MH145 where he collected those boxes. He then departed the Airport via “Checkpoint Charlie” and drove to the “Park and Ride” area outside of the Airport where he placed the boxes in his personal vehicle before returning the van.
[20] In your police interview, you described an occasion when you were present, and three boxes were offloaded and placed directly into a waiting Air New Zealand van. Video footage of an identical event relating to one of the importations was played to the jury. You admitted receiving payment in the region of $20,000 to $50,000 which you described as “free money”.
[21] The inference the jury inevitably drew from the communications between you and Mr Piukana and your admissions in the police video interview is that you assisted
with the importation of a commercial quantity of methamphetamine on the occasions charged. There was a flurry of communication with Mr Piukana on the dates of the charges and very little communication outside those dates. I consider that the evidence against you was in fact overwhelming.
[22] The conspiracy charges of which you were each found guilty, Mr Iuvale and Mr Manuel, relate to the period between 20 to 26 October 2021. On 22 October 2021, three boxes containing methamphetamine were loaded onto flight MH145 from Malaysia bound for the Airport. These boxes were discovered and seized by the Malaysian authorities.
[23]I find that you were instrumental in that planned importation, Mr Iuvale. On
10 October 2021, whilst on electronically monitored (EM) bail for the Operation Schrute offending, you meet with Mr Piukana at a Gilmours supermarket where you spent approximately 40 minutes together. Shortly after leaving the supermarket together, Mr Piukana called you, Mr Manuel, and began making arrangements. Two days later Mr Piukana arranged for his sister to bring a substantial amount of cash to him before visiting your house later that day, Mr Manuel. You and Mr Piukana continued to communicate about the importation, Mr Manuel, until 23 October when Mr Piukana told you, Mr Manuel, to “stand down” and that the drugs had not made it on.
[24] Mr Iuvale, five days after the failed importation, you discussed it in a telephone call intercepted by the police. During the call you said that the problem came “from the Malaysian end” and referred to “gold tea”. The methamphetamine intercepted in Malaysia was packaged in green and gold tea packaging.
[25] In terms of the hierarchy, I find Mr Iuvale, that you were directing Mr Piukana, who was in turn directing Mr Manuel.
[26] Mr Manuel, as mentioned above, you were in contact with Mr Piukana in the days before the anticipated importation. On 10 October 2021, after the Gilmours trip, Mr Piukana called you asking when you would next be working. You told him that you would be working in two weeks’ time and arranged to catch up the following day.
The importation was then arranged for almost exactly two weeks later. On 19 October 2021, Mr Piukana called you to say that “Saturday’s a green light”. On 23 October 2021, the morning before MH145 was expected to arrive, you messaged Mr Piukana “Kuz. 82. Across from gate 2”. Mr Piukana then messaged you “Cancel call me when your free”. In a subsequent phone call, he told you that the methamphetamine did not make it on.
Operation Schrute
[27] Operation Schrute related to you, Mr Iuvale. It involved the importation of commercial quantities of methamphetamine via the Ports of Auckland from Tonga.
[28] Sometime in July 2021, 29.7 kilograms of methamphetamine was concealed in a shipping container of frozen produce in Tonga within two black duffel bags. The importation had been arranged by Ronnie Kivalu under the guise of a legitimate business importing cassava, taro and kava powder. The methamphetamine was intercepted by Customs and a controlled delivery was arranged. Recording devices were placed in the duffel bags.
[29] The container was then examined by the Ministry of Primary Industries on 9 August 2021, a customs officer disguised as a ministry officer was present for the examination. One of your co-offenders, Nooroa Rairi, was observed shuffling the sack containing the duffle bags to ensure it avoided inspection. Mr Rairi was then observed placing the sack containing the bags into his car and travelling to his home address. You were observed arriving at Mr Rairi’s house within moments of him arriving home. You then arranged for Mr Vuletic to store the methamphetamine overnight and to bring it to Mr Kivalu’s house the next morning. Voice identification evidence confirmed your presence when the bags were transferred from Mr Rairi’s possession to Mr Vuletic’s. The tracking of the bags showed them being taken and left at a storage unit overnight.
[30] On 10 August 2021, Mr Vuletic retrieved the bags from the storage unit and took them Mr Kivalu’s address. You and your twin brother, Tony Iuvale, arrived at the address mere seconds after Mr Vuletic, seemingly waiting for his arrival. The operation was terminated 10 minutes later. You, your twin brother, and Mr Kivalu ran
from the garage where the partly unpacked duffle bags were located. Disposable gloves, electronic scales, and a large amount of zip lock bags were located in the garage along with the methamphetamine.
[31] Following a disputed facts hearing, the District Court Trial Judge concluded that you “intended to possess the 29.7 kilograms and [were] a central player in the possession of the 29.7 kilograms of methamphetamine.”6
The principles and purpose of sentencing
[32] In sentencing each of you, I must have regard to the purposes and principles in the Sentencing Act 2002. Those I consider particularly relevant in each of your circumstances are:7
(a)Accountability for harm done to the community — the introduction of commercial quantities of methamphetamine has been recognised to have a corrosive effect on communities.8 The significant commercial quantities of methamphetamine imported by the syndicate would no doubt cause significant harm to the community.
(b)To promote in each of you a sense of responsibility for that harm.
(c)To denounce the conduct each of you were involved in.
(d)To deter others from committing the same offence. There must be a deterrent element to your sentence to disincentivise others from causing similar harm.
[33] Non-addiction driven commercial drug dealing, also known as instrumental offending, is typically motivated by financial gain, and offenders have weighed up the
6 R v Iuvale [2024] NZDC 9642 at [25].
7 Sentencing Act 2002, s 7(1).
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [38].
benefits and risks of their involvement. The financial benefits of this offending can be substantial and tempting. Both of you were financially motivated.
[34] I must impose the least restrictive sentence on each of you in your circumstances and will consider the prospect of rehabilitation for each of you.
[35] In imposing your sentence, I must take into account your personal, family, whānau, community and cultural background;9 and I acknowledge the presence of many of your supporters here today. I must also impose the least restrictive sentence that is appropriate in the circumstances and consider any personal circumstances that would render the means of dealing with your offending disproportionately severe.10
[36] Determining the appropriate sentences involves first identifying the “starting point”. I have regard to the guideline judgment Zhang v R,11 as updated by the Supreme Court in Berkland v R.12 In Zhang the Court of Appeal identified five bands of offending. That is based on the quantity of drugs involved because quantity is a reasonable proxy for the social harm done by the drug and the illicit gains for making, importing and selling it.13 But I say that the exact quantum is somewhat moot because the highest band, band 5, applies to offending where the quantity of methamphetamine exceeds two kilograms, and states that an appropriate starting point will range from 10 years’ imprisonment to life imprisonment. By any calculation your offending involved much, much more than two kilograms.
[37] Following a disputed facts hearing, I determined that the syndicates’ overall operation via the Airport involved at least 100 kilograms of methamphetamine.14 Your situation is not quite the same as your co-offenders who were the subject of the disputed facts hearing — that is because you went to trial and so the evidence of quantum is different from the evidence that was presented at the disputed facts hearing. It is undisputable that for each of you, the offending significantly exceeds the band 5 threshold of two kilograms which provides for a starting point in excess of 10 years’
9 Sentencing Act 2002, s 8(i).
10 Section 8(g) and (h).
11 Zhang v R, above n Error! Bookmark not defined..
12 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
13 Zhang v R, above n Error! Bookmark not defined., at [103].
14 R v Pritchard [2024] NZHC 3090 at [75].
imprisonment. But I remind myself that you must each be sentenced only on the charges and in respect of the quantum so far as it can be identified that relates to offending proved against you.
[38] Zhang emphasised that whilst quantity is a valuable metric for assessing culpability it is not the only relevant factor.15 The role played by the offender is an important factor for determining culpability.16 The profiles established in Zhang categorised offenders’ roles as being either: lessor, significant, or leading and were adjusted in Berkland.17
[39] Leaders are those that direct, organise, buy and sell on a commercial scale. They have substantial links to, and influence upon, others in the operation. They have close links to the original source and an expectation of substantial financial gain. Those who played a significant role undertake a management function under the direction of a leader and an operational function. They are motivated solely or primarily by financial advantage; have actual or expected financial advantage; and some awareness and understanding of the scale of the operation.
[40] Those that play a lesser role perform a limited function under direction; are engaged by pressure, coercion or intimidation; become involved through naivety or exploitation; are solely or primarily motivated by their own addiction; receive little or no actual financial gain; may be paid in drugs to feed their own addition or in cash that is significantly disproportionate to the quantity of drugs involved or the level of risk; have no influence on those above in a chain; and little, if any awareness of the scale of operation.
[41] I have listened to your counsel quoting from the decision of Justice Ellen France in Berkland about the efficacy of lengthy sentences and the observation that if a sentence of 22 years, for example, is not a deterrent it is hard to see that a sentence of 28 years would be.18 I agree entirely.
15 Zhang v R, above n Error! Bookmark not defined., at [104].
16 At [118].
17 At [126]; and Berkland v R, above n Error! Bookmark not defined., at [71].
18 Zhang v R, above n Error! Bookmark not defined., at [215].
[42]I now turn to consider the appropriate sentence for you, Mr Iuvale.
Mr Iuvale
[43] The Crown submits that you played a leading role in the offending and proposes an overall starting point for the charges of possession of methamphetamine for supply of 22 years’ imprisonment. The Crown then propose an uplift to that starting point of three years for the conspiracy charge, resulting in an adjusted starting point of 25 years’ imprisonment.
[44] Ms Taylor-Cyphers on your behalf, does not accept that you played a leading role in all of the offending and says that a starting point of 18 years’ imprisonment would be appropriate. Ms Taylor-Cyphers submits that an uplift of 18 months would be sufficient to acknowledge the conspiracy charge, proposing an adjusted starting point of 19 years and six months’ imprisonment.
[45]I have considered the following cases:
(a)R v Vea:19 A starting point of 20 years’ imprisonment was imposed for three charges of importing methamphetamine.20 The total quantum of methamphetamine related to these importations was 47.7 kilograms.21 The Judge considered Mr Vea’s abuse of his position as a Customs broker as an aggravating feature of his offending. The Judge determined that Mr Vea played an ongoing role in monitoring and facilitating the importation of methamphetamine and his role was more than a “catcher”. It was accepted by the Crown that there was no evidence that Mr Vea directed or lead the import. The Judge inferred that the financial gain would have been considerable.
(b)R v Rairi:22For offending related to Operation Schrute, and your co‑offender, Mr Iuvale, a starting point of 17 year’s imprisonment was
19 R v Vea [2019] NZHC 3422.
20 At [56].
21 At [36].
22 R v Rairi [2023] NZDC 23202.
imposed for two charges of importing methamphetamine.23 The total quantum of methamphetamine imported was 36.7 kilograms. The Judge found that Mr Rairi’s role was at the “top of lesser or at the bottom of significant”.24 Mr Rairi was more than a catcher as he used his knowledge of the freight forwarding company where he was an employee to ensure that the methamphetamine was undetected.
(c)R v Vuletic:25 Another of your co-offenders, Mr Iuvale. A starting point of 15 years’ imprisonment was imposed for the lead charge of importing almost 30 kilograms of methamphetamine.26 You are for sentence for possessing that same methamphetamine for supply. Your role was above Mr Vuletic because you directed him.
(d)Fangupo v R:27 Where on appeal a starting point of 19 years’ imprisonment was quashed and replaced with a starting point of 17 years’ imprisonment for eight charges of importing methamphetamine.28 The total quantum of methamphetamine imported was slightly over 20 kilograms. The Court of Appeal said that the Sentencing Judge was entitled to conclude that Mr Fangupo played a leading role in the enterprise, concluding that he could be described as having played a moderately leading role. The Court, after a review of recent cases, determined that Mr Fangupo’s circumstances warranted the lower starting point.
[46] I must consider the quantum in respect of the charges you actually faced Mr Iuvale:
(a)12 July 2021 — 10 kilograms that was actually imported.
23 At [33].
24 At [27].
25 R v Vuletic [2024] NZHC 562.
26 At [31].
27 Fangupo v R [2020] NZCA 484.
28 At [50].
(b)August 2021 (Operation Schrute) — 29.7 kilograms was imported. You are charged with possession for supply of that methamphetamine, not with importation.
(c)October 2021 — conspiracy to import a commercial quantity said by the Crown to be 200 kilograms.
[47] The conspiracy to import was charged as relating to a “large commercial quantity” of methamphetamine. The planned importation was intercepted in Malaysia.
[48] The Crown relies on the photos of the gold tea packages in Malaysia produced in the photobook by consent, Detective Inspector Foster’s statement, and the air waybill showing the weight of the consignment was 204 kilograms. The Crown submits that the conspiracy involved 200 kilograms of methamphetamine. Ms Taylor‑Cyphers submits that the air waybill is unhelpful, particularly as there is no evidence to as to the weight of the other items in the packages.
[49] It is pointed out on your behalf that there was no evidence as to testing of the drugs from the Malaysian authorities. The photographs show a police press conference in Malaysia with the contents of the five intercepted boxes laid out. The contents are a very large number of green and gold packets. You referenced gold tea in the later intercepted conversation. Similar gold tea packages each containing one kilogram of methamphetamine were located in your co-offender, Mr Vuletic’s, storage locker but that methamphetamine was located prior to the intended October import.
[50] It is clear that the admissible evidence at trial reveals that the five intercepted boxes contained tightly packed packages, which I infer all contained methamphetamine. I consider that the bulk of the 200 kilogram weight of the boxes intercepted would have been methamphetamine but, in the end, whether I take an arbitrary weight of at least 100 kilograms or whether I find, as is most likely looking at the photographs, each box contained 30 to 40 kilograms of methamphetamine giving an overall weight of up to 200 kilograms, is not determinative. It was a large
commercial amount intended to be imported by corrupting trusted staff employed at New Zealand’s largest airport.
[51] Unlike your co-offenders who played lesser roles such as the baggage handlers, I consider you, Mr Iuvale, knew perfectly well what quantity of methamphetamine was expected to arrive in October 2021 and I intend to sentence on the basis that it was in the 100 to 200 kilogram range. I cannot be more exact than that.
[52] I approach the starting point on the basis that the amount of methamphetamine that you have been proven to have possessed for supply is about 40 kilograms being the 29.7 kilograms in Operation Schrute and the 10 kilograms in July in Operation Selena.
[53] The remaining quantum is significant, but it relates to a conspiracy to import which, although close to completion, did not actually result in methamphetamine arriving in New Zealand. I am careful to discount any potential involvement in imports that you were not charged with. The starting point must, however, reflect your role in the offending.
[54] The defence submits that in regard to the 10 kilograms possessed in July, your role could be regarded as at the lower end of significant; and that with regard to the conspiracy and Operation Schrute charges your role could be regarded as lesser.
[55] I have had regard to your role across all of your offending rather than attempting to distinguish between your role for each charge. The offending was broken up into different sets of offending only because of the way it was charged. In reality, it was an ongoing course of conduct by you to deal in methamphetamine imported through the use of corrupt border staff, with you initially directing a test run in February 2021. You were very much a major player in significant commercial drug dealing. You continued to offend even after arrest. You were the brains and the driver behind your offending and that of others involved in the syndicate you headed. It was apparent to me that you are a very intelligent man, Mr Iuvale. You could have offered a lot more to society than you have.
[56] Your position in the hierarchy is established by your communications with co‑offenders, and your ability to instruct and direct them. I do not accept the Crown’s submission that there was no one above you in the operation. It is submitted today that in this particular operation you were the kingpin, but I simply do not have enough evidence to be sure of that. The way in which this matter came to police attention suggests that there was a hierarchy above you to some extent — but I consider that you were connected to the very top of the operation and you were an organiser.
[57] Your influence over those beneath you is apparent in both Operation Schrute and Operation Selena. In Operation Schrute you controlled and directed the actions of Mr Rairi and Mr Vuletic. In Operation Selena, you directed Mr Piukana and Mr Tualevao. Your communications around the time of the failed importation show that you were aware it had been intercepted before the police in New Zealand were and suggest that you were making enquiries into what had gone wrong.
[58] The quantity of methamphetamine involved places your offending well into the upper end of band 5. Considering the criminal sophistication and scale of the syndicate, and your leading role I have no option but to impose a significant starting point.
[59] The method of importation through the Airport was particularly concerning. The use of corrupt baggage handlers is a serious aggravating factor. The corruption of men who had no previous convictions, who were employed and in trusted roles at the border is aggravating. The damage to New Zealand’s international reputation is aggravating. New Zealand has long enjoyed a reputation for a low level of corruption. You have damaged that — you have tempted Air New Zealand staff and Mr Manuel, a Menzies Aviation staff member, to essentially take bribes to breach the security of the border. It is a terrible precedent, and it has the potential to cause all sorts of harm if our border is not secure because the people employed at airports and seaports are able to be corrupted in this way. Over the last two days I have sentenced a parade of men, many of them who have not before been sentenced to imprisonment and I have not enjoyed that experience. I consider that the corruption that led them into custody can be laid in part at your door.
[60] There are a variety of approaches that could be taken to the structure of this sentence. I could take the possession for supply charges as the lead offending and uplift for the conspiracy. I could take the Operation Selena charges as the lead offending and uplift for the 29.7 kilograms imported via the Ports of Auckland. Whichever structure I take I reach a similar starting point.
[61] I have decided to approach the sentencing by identifying the least restrictive global starting point available for a leadership role in the possession of 40 kilograms of methamphetamine for supply and a conspiracy to import a further commercial amount of methamphetamine of between 100 and 200 kilograms; and allowing for the element of corruption which I have just spoken about.
[62] I consider that a starting point of 23 years’ imprisonment is the lowest I can possibly reach considering the totality of the offending, your role, the comparative sentencing cases, and the level of corruption.
Personal mitigating factors
[63] Ms Taylor-Cyphers seeks reductions acknowledging: your health; factors raised in your s 27 report; what she refers to as previous good character and rehabilitation; the impact your incarceration would have upon your children; and your time spent on restrictive bail.
[64] There is no guilty plea discount available as you took both matters to trial and you continue to maintain your innocence, as is your right.
[65] You refused to participate in a pre-sentence report for this sentencing. In lieu of that report, I refer to one created earlier for Operation Schrute. That earlier report states that you have taken no responsibility for your offending and have no remorse. The report assesses you at high risk of reoffending and a high risk of harm to the community.
[66] I have been provided with a report prepared in accordance with s 27 of the Sentencing Act. I have reviewed the report, which sheds light on the relationship between your offending and factors raised in the report including your cultural
background, upbringing, health, and addiction issues. You are of Samoan descent, with your parents moving to New Zealand before you were born. The report records that you feel isolated from you family and ancestry in Samoa. Growing up the Mormon church was a significant influence in your life. Your childhood household was described as “running on old school morals” and you were physically disciplined at home and at school. The report discusses issues with your father and how as a result growing up felt like “walking on eggshells”.
[67] Your drug use commenced when you began consuming alcohol and using cigarettes between the ages of 10 and 11. As a teenager you graduated to using stronger substances including cannabis and methamphetamine. As a young adult you relied on loans from loan sharks to support your addiction. You later developed addictions to steroids and cocaine. Your methamphetamine use ceased at the age of 23 when you developed vision problems — which you believed to be the result of the methamphetamine use.
[68] These vision problems and migraines, however, appear to be linked to an inoperable brain tumour. You were diagnosed with that at 23 years old. Your diagnosis has been described as “wait and see” and your health requires regular monitoring. You have been living with this condition for several years. You are the father to three children. Your medical condition is described as stable at present.
[69] Ms Taylor-Cyphers submits that reduction of 15 per cent is warranted to address the factors raised in your s 27 report.
[70] A further reduction of between 10 to 15 per cent is sought to reflect that your health will make your sentence for this offending disproportionately severe. Whether such a discount is appropriate, and the amount of a discount is a matter of fact and turns on the particular circumstances of each case.29 Discounts for ill health have ranged from 14 to 33 per cent, depending on the severity of the health conditions.30
29 M (CA91/2012) v R [2013] NZCA 325 at [54].
30 Hastie v R [2011] NZCA 498 at [40].
[71] I have to consider credits and where they land in terms of the end sentence that you will serve, bearing in mind parity. I apply a 15 per cent discount for the matters raised in the s 27 report and for the health issues you face. Since you were 23 you have not had addiction issues and, although the s 27 report reveals matters that caused you problems in your childhood, there is not a strong causative link with commercial drug offending of this scale. It seems to me that you were mainly motivated by the prospect of considerable financial gain.
[72] You have no previous criminal history, but you do have gang connections with the King Cobras gang. You are described as a senior patched member. Ms Taylor‑Cyphers submits that a 20 per cent reduction should be granted to reflect your previous good character, service to the community and rehabilitative efforts. A lack of previous convictions is often an indicator of a pro-social attitude and acknowledges that the offending may be out of character. As a senior patched member of the King Cobras gang, I do not regard the lack of previous convictions as establishing good character and justifying a significant discount.
[73] You have three children, ranging in ages from 13 to under one-year-old. There is no doubt they will be affected by your incarceration. Your counsel seeks a discrete discount of five per cent to reflect the impact your incarceration will have upon your children, and I am prepared to grant that. I observed you during the trial when your children were in the court room, and I can see that they are a positive influence on you.
[74] Ms Taylor-Cyphers, seeks a reduction of 12 months in acknowledgement of the almost two years that you spent on bail. The problem with that is that on the evidence, you offended again after your Operation Schrute arrest. Essentially you were released on bail, and you continued almost immediately to organise a further importation of methamphetamine.
[75] I recognise both the effect of your incarceration upon your children and your lack of previous convictions to a limited extent by applying no uplift for the quick recidivism and offending on bail although it would usually attract an uplift.
[76] From the starting point of 23 years’ imprisonment, I apply credits of 20 per cent which brings the end sentence close to 18 years’ imprisonment. When I stand back and look at it, I regard the end sentence of 18 years’ imprisonment, as the least restrictive I can impose. I consider the effect of your offending on the community, the level of corruption involved, your leadership role, and the need to consider parity with co-offenders including Mr Vuletic, Mr Pritchard and Mr Matangi Piukana — who is yet to be sentenced.
Minimum period of imprisonment
[77] The Crown seeks a minimum period of imprisonment (MPI) of 50 per cent. That is provided for under s 86 of the Sentencing Act. An MPI must not be imposed as a matter of routine or in a mechanistic way.
[78] Your counsel submits that an MPI is not required to meet the purposes and principles of sentencing.
[79] Generally, the imposition of an MPI is reserved for cases such as this which involve significant commercial drug dealing. I accept the Crown’s submission that an MPI would achieve the purposes of denouncing your conduct and deterring similar conduct in the future. Given the large-scale commercial operation, the substantial quantities of methamphetamine, and your leading role across importation operations which led to you possessing methamphetamine for supply, I consider it appropriate to impose an MPI of nine years’ imprisonment, which is 50 per cent.
End sentence
[80]Mr Iuvale please stand.
[81]You are sentenced to 18 years’ imprisonment.
[82] You will be required to serve a minimum period of nine years’ imprisonment before you can be considered for parole.
Mr Manuel
[83] Mr Manuel, the Crown submits that you played a significant role in the operation and that a starting point of 22 years’ imprisonment is appropriate. Your standby counsel, Mr Leader, submits that the Crown’s proposed starting point is excessive and does not reflect the lesser role you played in this operation. I will say at the outset that I agree with Mr Leader on that.
[84] Your role was much lower than that of Mr Iuvale. You were a baggage handler, not an organiser or a leader.
[85] The Crown submits that you played a role best described as at the lower end of significant. Mr Leader says that your role was similar to that of Kimela Piukana, who was a messenger in the operation, passing messages between Mr Iuvale and his brother, Mr Piukana. I do not accept that. I think your role is much more significant than Mr Kimela Piukana’s and in any event the charges you faced are quite different being charges of importing and conspiracy to import, with a maximum sentence for the importing charges of life imprisonment.
[86] I accept that you had little influence over others in the hierarchy of the operation. However, your role was crucial. Your assistance around the timing of flights and the location of aircraft was key for the importations to be successful. The timings needed to be precise to not draw attention to the syndicate’s activities. It is quite clear to me that you indicated via Mr Piukana to Mr Pritchard when he should drive the van over to collect the drugs on at least one occasion. Your abuse of your position as an employee at the Airport is an aggravating factor. This method of commercial importation through the Airport would not have been successful if you, and others in similar positions of trust, had not disregarded that trust for financial gain.
[87] But your sentencing does raise parity issues. By parity, I mean comparison with others charged in the same offending. There were multiple co-defendants involved in this offending. Most pleaded guilty just before trial to amended charges. The sentence sought by the Crown was very different depending upon the resolution reached — but the problem is that the underlying criminality is not that different.
[88]The co-defendants have been sentenced as follows:
(a)Mr Kimela Piukana: Two years and three months’ starting point on a charge of participating in an organised criminal group. Mr Kimela Piukana was a baggage handler who helped by passing messages.
(b)Mr Samson: Three years and six months’ starting point. Mr Samson assisted in receiving methamphetamine once removed from the Airport. The amount was 10 kilograms. He also pleaded guilty to participating in an organised criminal group which carries a maximum of 10 years’ imprisonment.
(c)Mr Toroma: A baggage handler employed by Air New Zealand who was involved in assisting with importations and the October conspiracy but pleaded guilty to participating in an organised criminal group. His role was less crucial than yours; he faced fewer and less serious charges and in terms of actual importation, it was accepted that the importation he was willing to be involved in did not proceed. The starting point was four years’ imprisonment.
(d)Mr Pritchard: An Air New Zealand employed baggage handler who pleaded guilty to three charges of importing methamphetamine. I assess his role as more involved than yours. He was in between you and Matangi Piukana, who has not yet been sentenced. The starting point for Mr Pritchard was 20 years’ imprisonment.
(e)Mr Tualevao: He was responsible for supplying the methamphetamine at the direction of Mr Iuvale on one occasion. That was in respect of the 10 kilograms. The starting point was 11 years’ imprisonment.
[89] Based only on the charges you were found guilty of, the Crown starting point is correct. Importation of hundreds of kilograms of methamphetamine can easily
attract a starting point of 22 years’ imprisonment. But to sentence in that way would be to ignore the justice of your situation compared with your co-defendants.
[90] I consider your role to have been much more influential that of Mr Kimela Piukana. You were not just passing information between members of the syndicate but were sourcing and providing information to a person above you in the chain. Further, unlike Mr Kimela Piukana I find that you did assist with the actual importation when the planes landed. As the only Menzies employee charged in the operation your role and airside assistance were pivotal. Your actions were clearly financially motivated, and you were compensated significantly for your assistance.
[91] I consider your role to fall within the higher end of lesser to the lower end of significant. Comparing your role with your co-offenders, I consider that you fall below Mr Pritchard but above Mr Toroma. Like both of those co-defendants the breach of trust involved and the corruption of using your position to assist in the importation of drugs is seriously aggravating.
[92] I consider that the quantum involved was in the hundreds rather than tens of kilograms, but I accept that you were not in a position to know precisely what the quantum was. But you must have known it was a lot because you were paid $20,000 and up to $50,000 for your assistance.
[93] As discussed in relation to Mr Iuvale, the conspiracy to import was charged as relating to a “large commercial quantity” of methamphetamine, but I consider that unlike Mr Iuvale, you were not in a position to know with any specificity how much was involved.
[94] Considering all of the factors and weighing the quantum with your lesser role and the need to consider parity with the co-defendants, I consider that a starting point of 15 years’ imprisonment is the least restrictive I can impose.
Personal mitigating factors
[95] Your pre-sentence report records that you wish to maintain your innocence and that you dispute the jury’s verdicts. The report assesses you as high risk of harm to
the community. I take that advice cautiously. You have no previous convictions. I think you were tempted into this offending by the easy money on offer. That is corruption but it does not make you at high risk to the community generally.
[96] Your lack of previous convictions means that a discount for previous good character is available. You have no gang connections and you have never been in trouble before. I allow 10 per cent.
[97] You and your partner have three children together. The report records that they are between the ages of five and 10-years-old. I can take into account the effect of your incarceration upon your children, and in your case, I think that the justice of the situation means that I should do so. I allow 10 per cent to reflect the effect of your incarceration upon your children.
[98] From the starting point of 15 years’ imprisonment, I apply a credit of 20 per cent.
[99]That brings me to an end sentence of 12 years’ imprisonment.
[100] You spent time on restrictive bail, and I am told that you were on a 24-hour curfew for 12 months. For that I can allow a further six months. That results in an end sentence of 11 years and six months’ imprisonment.
Minimum period of imprisonment
[101] The Crown seeks an MPI of 40 per cent. Mr Leader says that your role in this syndicate was such that an MPI is not warranted.
[102] The imposition of an MPI is provided for under s 86 of the Sentencing Act. It must not be imposed, as I have said, as a matter of routine or in a mechanistic way.
[103] Generally, the imposition of an MPI is reserved for cases which involve significant commercial drug dealing. The Crown submits that an MPI would achieve the purposes of denouncing your conduct and deterring you and others from committing the same or similar offence in the future. Mr Leader submits that the
sentence of imprisonment is a sufficient deterrent and will sufficiently denounce your conduct.
[104] There is quite a lot to be balanced in considering an MPI. On the one hand, there is a real need to significantly deter the kind of corruption that is evidenced in this case. On the other hand, people like you that have never before been in trouble and who are tempted and corrupted into this offending are likely to be deterred by the imposition of such significant sentences of imprisonment. Weighing those imbalances, I agree that the sentence is sufficient. Given your role I do not think that an MPI is warranted.
End sentence
[105]Mr Manuel please stand.
[106] You are sentenced to 11 years and six months’ imprisonment. There is no minimum period of imprisonment.
[107]Stand down.
Wilkinson-Smith J
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