R v Kelemete
[2025] NZHC 2539
•2 September 2025
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2023-004-008430
[2025] NZHC 2539
THE KING v
IEREMUS CONSTANTINO SUA KELEMETE
Hearing: 2 September 2025 Appearances:
M Tutton-Harris and A Thompson for the Crown D Nairn on behalf of T Clee for the Defendant
Judgment:
2 September 2025
SENTENCING NOTES OF POWELL J
R v IEREMUS CONSTANTINO SUA KELEMETE [2025] NZHC 2539 [2 September 2025]
[1] Ieremus Sua Kelemete, you appear for sentence today having pleaded guilty to a single charge of burglary.1
[2] The burglary to which you have pleaded guilty was a serious one. It involved a group of three people driving from Auckland to Tauranga where, after casing the target premises, two of those present cut a hole in the perimeter fence and entered the Port of Tauranga. They were seeking to retrieve 26 kilograms of cocaine from a particular container located in the secure area of the Port. The third member, the driver, waited next to the hole in the fence. All three were apprehended within a short period without having retrieved the cocaine.
[3] You were not present at the burglary. You were liable as a party pursuant to s 66 of the Crimes Act 1961 with the exact legal basis for your liability not spelled out in the documents before me.2 There is no dispute that your involvement in the burglary was limited to arranging the driver at some point prior to the burglary. There is, however, no evidence you were told what the driver was required for other than your admission, contained in the summary of facts, that the “job means something illegal when [you arrange the] driver for a job”.
Approach to sentencing
[4] I turn now to the approach I must take in sentencing you today. I note first I must take account of the general purposes and principles of sentencing as set out in the Sentencing Act 2002.
[5] In particular, the sentence I impose is intended to hold you accountable for your role in the offending, to denounce and deter your conduct, and to assist in your rehabilitation and reintegration into the community.
1 Crimes Act 1961, ss 231(1)(a) and 66. Maximum penalty: 10 years’ imprisonment. A charge of importing cocaine, Misuse of Drugs Act 1975, s 6(1)(a) and 6(2)(a) and Crimes Act 1961, s 66 was withdrawn by the Crown at commencement of the sentencing.
2 The charge as a party was particularised only under s 66 without specifying whether subsection
(1) or (2) applied. The Supreme Court in Ahsin has made it clear that a person charged under s 66(1) must know “both the physical and mental elements of the essential facts of the offence to be committed by the principal offender”. Mere knowledge that “something illegal” is intended by the principal party will not be enough. Likewise, it is not evident from the summary of facts that there was a “common intention” as subsection (2) requires. See Ashin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [83] and [87].
[6] As to principles of sentencing, I note, in particular, I must take into account the gravity of your offending and your degree of culpability, the need for consistency with sentences for similar offending, and the need to impose the least restrictive sentence appropriate in the circumstances.3
[7] Setting a sentence involves two principal steps. First, I must indicate what, we call a starting point, offending of this type attracts. This involves an assessment of the aggravating and mitigating factors of your offending, that is the matters that make it more or less serious, and a comparison with the starting points set out in comparable cases. Second, I will take account of any factors personal to you to determine whether the starting point should be increased or decreased before determining the appropriate sentence.
Starting point
[8] The maximum sentence for burglary is 10 years’ imprisonment. There is no guideline case for burglary because the circumstances of a burglary can vary greatly.
[9] As you will be aware, there is a wide divergence in this case between counsel as to the appropriate starting point. Ms Tutton-Harris, on behalf of the Crown, has submitted that the starting point should be two years and six months in prison, whereas on your behalf, Mr Nairn has submitted a starting point of approximately eight months’ imprisonment is appropriate.
[10] In submitting the higher figure, Ms Tutton-Harris pointed to the “planning, premeditation and sophistication” of the offending, and its potential harm to the community.
[11] Ms Tutton-Harris noted that you arranged a driver a day in advance of the burglary, and that this represented planning and premeditation. She also pointed to the travel undertaken to facilitate the offending, the fact that the co-offenders came prepared with tools, had organised a getaway driver, and were targeting a specific container.
3 Sentencing Act 2002, s 8(1)(a), (e) and (g).
[12] She submits that the starting point should be raised to reflect the potential harm that could have resulted from you supporting people to commit crimes in the community.
[13] Ms Tutton-Harris does, however, accept that because the burglary was of a commercial premises at night, and there was no entry into buildings, this type of burglary lacks many of the aggravating factors that a home invasion, or even entry into a commercial building, may present.
[14] Conversely Mr Nairn submitted that the main case that was referred to by the Crown, which involved a pharmacy being burgled for drugs, was much more serious.4 In his submission, your involvement was both “distinct and minimal” relative to that, and he submitted that the sophistication and planning undertaken by other people should not be attributable to you.
[15] While Mr Nairn accepted that the level of harm that would have been caused by the importation of cocaine can be considered as an aggravating factor, his submission is that this needs to be balanced with your limited knowledge of the plans, and the fact that you had no continuing involvement in the offending. As a result, he submitted that the starting point of eight months’ imprisonment was appropriate.
Discussion — starting point
[16] Having considered the submissions, other than the degree of premeditation suggested by arranging the driver in advance, I find there is nothing to suggest you had any knowledge of any of the aggravating factors relied on by the Crown at sentencing. It is indeed difficult to see that the offending could in any way be described as sophisticated. On the contrary, it appears from the summary of facts to being bewilderingly naïve, inept and incompetent. For example, it is apparent that the act of casing of the Port attracted the attention of Port Security, the driver remained parked by the hole in the fence cut by the co-offenders, and there is no indication that the two co-offenders who entered the Port had any idea where the single container containing the cocaine was located.
4 Lenihan v R [2020] NZHC 2543.
[17] It was not surprising that the three co-offenders were arrested within a very short time of the entry into the Port.
[18] Be that as it may, what is important for the purposes of sentencing you today is that there is nothing in the summary of facts to suggest you knew anything at all about those details. While you have pleaded guilty to a serious charge, it is clear you were only peripherally involved. As a result, your culpability is at the lowest possible level. Given this position, the starting point advocated for by the Crown cannot be justified and I fix the starting point at 10 months’ imprisonment.
Personal factors
[19]I now turn to consider the factors personal to you.
[20] Although you did not plead guilty at the first possible opportunity, both lawyers agree that you should be entitled to the full 25 per cent discount because there were issues with the disclosing of all the evidence to you.
[21] Both counsel have also noted that you were 25 years old at the time of the offending and had no criminal record. Both also submit you have positive rehabilitative prospects and are strongly supported by your employer. In the circumstances, both considered an allowance of 10 per cent is warranted to recognise your positive rehabilitation prospects.
Discussion — personal factors
[22] Having considered the history of the proceeding, I accept that the full allowance of 25 per cent for your guilty plea is appropriate.
[23] With regard to the other factors identified, I consider that the allowance proposed should be greater, as I discussed with counsel. I agree with counsel that there appear to be elements of impulsivity due to youth and the strong support from your employer, evidenced by the letter from your manager that was placed before the Court, makes it clear that your rehabilitation prospects are very good. But I consider that the 10 per cent allowance proposed does not adequately take into account your previous
good character and I consider, and as Ms Tutton-Harris accepted, an additional five per cent allowance should be made for your previous good character. Overall, therefore, a total allowance of 15 per cent is appropriate for those personal factors.
[24] Applying these allowances results in a notional end sentence of six months’ imprisonment.
Sentence options
[25] Turning to the options for the sentence, I note that the PAC report explored the possibility of an electronically monitored sentence with you. You have since provided a suitable address in Auckland, and the Crown indicated it did not oppose a sentence of home detention if you were in range.
[26]Mr Nairn, on the other hand, submitted that community work in the region of
100 to 150 hours, together with supervision, would be sufficient to hold you accountable and denounce your offending, and this sentence would be the least restrictive outcome,5 and would allow you to continue working with all the benefits to ensuring you complete your rehabilitation.
Discussion — sentence options
[27] My conclusion on the notional sentence means that both home detention and community detention are options in this case as also, and as accepted by Ms Tutton- Harris, a sentence of community work and supervision. Having considered the various options, I conclude that given the limited nature of your offending, coupled with the demonstrable progress you have shown in terms of rehabilitation through working with your employer, I do not consider that a sentence that involves electronic monitoring is necessary in your case. On the contrary, I consider it is in the interests of the community that your rehabilitation continues through continuing to work for your employer and it is important that this is not put at risk, even through the imposition of home or community detention.
5 Section 8(1)(g).
[28] Although, having discussed the issue with counsel, the evidence before me is unclear as to whether you would lose your employment if sentenced to either home detention or community detention, it is clear that your job involves work at different locations around the North Island and is not easily reconciled with an electronically- monitored sentence. As a result, I agree with Mr Nairn that the purposes and principles of the Sentencing Act, to which I have referred previously, can be met by a substantial sentence of community work together with a period of supervision.
[29] I consider that the supervision is necessary in addition to the community work in order to keep an overall view of your rehabilitation progress, particularly in the event that your present employment was to come to an end for any reason.
Sentence
[30]Mr Sua Kelemete, please stand.
[31] On the charge of burglary, I sentence you to 150 hours community work, and 12 months’ supervision. It will be clear to you that you are being given a real chance to turn your life around following this charge and the subsequent sentence. Make sure you make the most of your opportunity.
[32]You may stand down.
Powell J
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