R v Namoa
[2022] NZHC 3025
•18 November 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2020-004-9587
[2022] NZHC 3025
THE KING v
LEMEKI NAMOA
Hearing: 18 November 2022 Appearances:
B Kirkpatrick for the Crown
T Cooper KC for the defendant
Date:
18 November 2022
SENTENCING NOTES OF CAMPBELL J
R v NAMOA [2022] NZHC 3025 [18 November 2022]
Introduction
[1] Mr Namoa, you appear for sentence having pleaded guilty to a charge of possession of methamphetamine for supply,1 and a charge of possession of methamphetamine.2
[2] My job today, on behalf of the community, is to impose a sentence on 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 an associate of the Comancheros Motorcycle Club. In early 2020 you were dealing drugs at the behest of Seiana Fakaosilea, who was the national commander of the Comancheros. On 15 January 2020, you and an associate arranged by text message to meet and break down a kilogram of methamphetamine into halves. You discussed the packaging method and location at which to do this. You went to the location and were in joint possession of that kilogram of methamphetamine for the purpose of supply. Your actions were under the direction of Mr Fakaosilea and others higher in the drug syndicate.
[5] In December 2020, Police searched the home of one of your associates. They located six plastic containers, holding 15 g of methamphetamine residue. The containers had previously been bound with brown tape. Your fingerprints were on the tape.
[6] Police also searched your home. They found almost $20,000 cash in your possession.
1 Misuse of Drugs Act 1975, s 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.
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 assisting in your rehabilitation.3
[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.4
[9] Determining the appropriate sentence involves two steps. First, I must determine a term of imprisonment as what is 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 allowance for your guilty plea.5 This will produce your end sentence.
Starting point
[10] A Court of Appeal case called Zhang is the guideline decision on methamphetamine offending.6 The Court set out five sentencing bands based on the quantity of methamphetamine involved in the offending.7 The Court said that where an offender falls within a particular band primarily depends on the role played by the offender. The Court described three categories of role: lesser, significant and leading.8
[11] An offender with a lesser role may be one who performs a limited function under direction; is involved through naivety, exploitation, intimidation or coercion; is paid in drugs to feed their own addiction; and has no influence on or understanding of the organisation. A significant role may involve an operational or management
3 Sentencing Act 2002, s 7(1).
4 Section 8.
5 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].
6 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
7 At [125].
8 At [126].
function and the direction of others; an expectation of commercial profit and a financial motivation; and some awareness of the scale of the organisation.
[12] Mr Kirkpatrick, for the Crown, and your counsel, Ms Cooper KC, said your role was in the lesser category. I consider this assessment is accurate. You were acting under the directions of Mr Fakaosilea. Your offending in January 2020 was limited in function. You were in joint possession of a small quantity in December 2020, but I cannot draw any inference that you had any greater function in respect of it than possession. You were not directing others in the operation. I cannot infer, from the summary of facts, that you had anything more than a limited awareness of the scale of the syndicate’s operations. All these factors point to a lesser role. On termination of the Police investigation you were found with almost $20,000 in cash. I infer from this, and from the nature of the offending, that you were motivated in part by financial gain. This increases your culpability, but I still regard you as being in the lesser category.
[13] You possessed just over one kg of methamphetamine in total. Your offending fell well into band 4 of Zhang, which covers amounts from 500 g to two kgs. Zhang indicates a starting point range of that band in the range of eight years’ to 16 years’ imprisonment.9
[14] In Zhang, the Court of Appeal said that a starting point at the bottom of each range was generally only available to offenders whose role is lesser in degree, and where quantities are at the lower end of the relevant range.10 However, the Court did not exclude the possibility of a case involving “minimal participation” which might attract a starting point even below the bottom of each range.11 In a later case, Pratap,12 the Court of Appeal affirmed that access to a lower starting point is appropriate only where the offender’s role is lesser and the quantity is at the lower end of the relevant range.
9 At [125].
10 At [123].
11 At [123].
12 Pratap v R [2021] NZCA 308 at [17].
[15] The quantity of methamphetamine that you possessed was twice the lower end of band 4. This suggests a starting point, even allowing for your lesser role, of something above eight years’ imprisonment.
[16] Notwithstanding this, both Mr Kirkpatrick and Ms Cooper said that the appropriate starting point should be much lower than that. Mr Kirkpatrick said four to five years’ imprisonment. Ms Cooper said four to four and a half years.
[17] Ms Cooper reminded me, correctly, that guideline judgments require flexibility and discretion in their application.13 She referred me to several cases which she said support her submission that I should adopt a starting point that is half that otherwise indicated by band 4 of Zhang. Some of the cases were referred to also by Mr Kirkpatrick. I am referring there, Mr Namoa, to their written submissions, they have not referred to those cases this morning.
[18] Three of those cases, called Stone, Minns, and Hayman, concerned the same drug dealing operation. I consider that those cases do not assist Ms Cooper’s submission that I should adopt a starting point half that indicated by Zhang. The Court did not refer to the passages from Zhang to which I have just referred, and each offender was motivated by addiction and was paid with drugs. Those factors, which are not present in your case, minimised the offenders’ culpability.14
[19] Ms Cooper noted that in Zhang itself, the defendant Ms Phillips accompanied her husband “out of a sense of loyalty” as he supplied six kg of methamphetamine. This placed her in band 5, attracting a starting point of at least 10 years’ imprisonment. The Court of Appeal upheld a starting point of five years’ imprisonment, based on her
13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [120].
14 R v Stone [2021] NZHC 636 at [31]; R v Minns [2021] NZHC 638 at [35]; and R v Hayman [2021] NZHC 642 at [32] and [38]. In Stone and Minns, the offenders played a minor role in the supply of two kg of methamphetamine, by driving or accompanying more senior members of their organisations as those senior members supplied the drug. Both offenders were motivated by addiction, were paid with drugs, and had no influence on the organisation that directed them. The Court adopted starting points of 3.5 years’ imprisonment and 4.5 years’ imprisonment respectively. In Hayman, the offender helped transport five shipments of methamphetamine totalling eight kg. The offender was driven by addiction and paid in drugs. The Court found that her limited participation, particularly her being driven by addiction and being paid in drugs, justified a starting point of six years.
limited role.15 However, the Court did not give a ringing endorsement of that starting point. They described it as generous and noted that the Crown had not challenged the sentence.16
[20] Ms Cooper also relied on the sentencing of Mr Finau in a case called Fangupo. Mr Finau helped import 5.1 kgs of methamphetamine by providing addresses to which the drugs were to be sent. He was in band 5 of Zhang. Downs J adopted a starting point of eight years, below band 5, on the basis that the offender’s role was minor and the case exceptional.17
[21] In Singh v R, the Court of Appeal dealt with a co-offender of Mr Finau’s. Mr Singh had allowed his home address to be used to receive 4.45 kg of methamphetamine.18 The Court said his role was much the same as Mr Finau’s. The Court said Downs J’s adoption of a starting point of eight years for Mr Finau was an appropriate use of the discretion in Zhang. The Court adopted the same starting point for Mr Singh.19
[22] I accept that the Court of Appeal’s decision in Singh supports the proposition that a starting point below that indicated can be adopted in exceptional cases, even when the quantity involved is well above the lower limit for that band.20 I proceed on that basis, even though that approach does not sit easily with what the Court said in Zhang and Pratap.
[23] I now come back to your situation Mr Namoa. Yours is not a case like Minns or Stone or Hayman, in which the offenders were driven by addiction and paid in drugs. On the other hand, I consider your role similar to that of Mr Finau and Mr Singh, each of whom had minor roles but received some financial benefits. In those cases, further, the court adopted starting points well below the bottom of the range in situations where the quantities involved were many times the bottom of the
15 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [217]–[218].
16 At [217]–[218].
17 R v Fangupo [2019] NZHC 2896 at [30]–[31].
18 Singh v R [2020] NZCA 211.
19 At [19]–[20].
20 I record that Ms Cooper also relied on Campbell v R [2020] NZCA 356. In that case, however, there was no movement between bands, as Ms Campbell was sentenced on the basis that she did not know the quantity of the drugs involved.
band. In light of the Court of Appeal’s decision in Singh, I will adopt a starting point for you of five years’ imprisonment.
Personal circumstances
[24] Mr Namoa, that’s enough talking about other cases, I am now going to talk about your personal circumstances and any adjustments to the starting point those circumstances require.
[25] I have been provided with a report on your background prepared by Shelley Turner. To prepare the report, Ms Turner interviewed you and your aunt, who at one time was your caregiver. I have also received an extraordinary number of references from former teachers, mentors and coaches. Finally, you have written me a letter in which you take responsibility for what you did and express your desire to make yourself a better person, or perhaps to return to the person you were a few years ago.
[26] You are a Tongan, born in New Zealand. Your early childhood was impoverished. Your parents worked long hours to make ends meet. While in primary school, as a result of this, you were essentially brought up by your grandmother, who lived with you. You were very close to her. She died in a tragic accident when you were starting secondary school. This was and remains deeply traumatic for you. It also further increased the poverty of your family. At this point you moved to live with your aunt.
[27] Despite those difficulties, at that age you showed great promise, so much so that you were funded by a benefactor to attend Sacred Heart College. At that College you flourished. You were an outstanding athlete and academic. You were elected Head Boy and were captain of the First XV. You excelled as a leader and was a role model for other boys, particularly Pacifica boys. You provided service to the school as well as to the local community.
[28] Your success was accompanied by high expectations, and a feeling of obligation to support your wider family. After finishing school, you initially met those expectations and obligations. You were a semi-professional rugby player in the Auckland Blues Development Squad. But your contract was not renewed for the 2020
season. As a result, you felt you were failing to meet the high expectations and obligations on you and failing to support your wider family. You began reconnecting with old friends and cousins. Some were associated with the Comancheros. Your offending followed.
[29] In your letter to me, you express deep regret for the poor choices you made. You ask to be given the chance to contribute again to your community. Your referees say that you have expressed to them the same remorse and intentions for the future. They have described this eloquently and they have no doubt you are genuine. I also accept that your remorse is genuine and that you have no desire ever to be back here again.
[30] Since your arrest you have tried to turn your life around, or as I said earlier, back to what it was before, Mr Namoa. You have been studying at university and your referees say that you have been contributing to the community. You have gained insight into your offending, and the terrible effects of methamphetamine on individuals, families and the community, by attending several drug and alcohol addiction sessions.
[31] An important part of the sentencing process is to adjust the starting point that I identified earlier, so that the end sentence takes into account your personal circumstances. 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 mean an increase to the starting point, sometimes a decrease. In your case, Mr Namoa, your personal circumstances justify some decreases.
Youth and rehabilitative prospects and previous good character
[32] You were 19 and 20 years old at the time of your offending. You described falling in with the wrong people at a difficult time in your life, and naïvely agreeing to do as they asked without thinking about the consequences. This assessment is
supported by some of the letters from your referees. It also matches the rationale for youth discounts that has been recognised by the Court of Appeal.21
[33] Ms Cooper submitted that your youth also contributes to your rehabilitative prospects. She noted you are a gifted student and sportsman. The references I have received all insist your offending was way out of character. You are now close to finishing a degree with the aim of serving your community and helping youth from backgrounds like your own.
[34] Ms Cooper submitted a credit of 25 per cent is warranted to reflect these factors. I agree. Your youth diminishes, to a modest extent, your moral culpability for your decisions. I say modest because you were at the upper end of the age range where the Court of Appeal has said that youth allowances should be made. Of more significance are your excellent prospects for rehabilitation. You are genuinely remorseful. You have gained insight into your offending and you’ve taken steps to address its causes. You are turning your life back on to a firm path. You have the support of your family. Your referees have expressed their commitment in their letters to support you. Not only that, I’m sure that many of them have turned up this morning, as have your family, to support you.
Previous good character
[35] Ms Cooper submitted you should receive a discrete credit for previous good character, on the basis the courts have recognised, for first offenders, a fall from grace is punishment in itself.22 Ms Cooper says that as a consequence of your offending your professional rugby career is effectively over and you appeared on the front page of the New Zealand Herald. The article in question contrasted your offending with your status as head boy of your high school and your rugby career. Ms Cooper said these factors should be recognised with an additional 10 per cent credit.
21 Diaz v R [2021] NZCA 426 at [37], citing Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]–[92] .
22 R v Findlay [2007] NZCA 553 at [91]. Previous good character can also justify a credit on the basis that it signifies prospects for rehabilitation. Ms Cooper did not seek an allowance on that basis, as she sough a credit for rehabilitation in conjunction with a discount for youth.
[36] I consider that would be excessively generous. You had already lost a semi- professional contract before your offending began. In my view, what you have lost is the chance – a real chance, I accept – of being able to make your way back to the professional ranks. Ms Cooper has told me this morning that that pathway appears to be closed. That is not something that I can fully predict. As I say, I nonetheless accept that your chances of returning to those ranks have diminished. However, an impediment to a chosen career is a common consequence of conviction, and in my view, your circumstances do not warrant any credit. And a rugby career is no different from any other, Mr Namoa. However, I do accept that you have suffered a public fall from grace that few offenders experience, and which is likely to continue. I allow five per cent for that.
Personal background
[37] Ms Cooper submitted I should make an allowance for your impoverished upbringing and for the way in which you were so readily exposed to the influence of gangs in your community.
[38] I described your upbringing a few minutes ago. I accept that it was impoverished in its early stages, and that one consequence was that, as an adolescent, you were exposed to gang culture. But I consider this made only a modest contribution to your decisions to offend. You received funding to support you through college. You excelled there. You then started a career as a rugby player. In her report, Ms Turner describes how you then became seduced by the fast-paced lifestyle that then opened up for you. It was at this time that you started associating again with some childhood friends, some of whom were connected to gangs. These choices of yours – some of which happened before your rugby contract was not renewed – led to your offending. I accept that those choices partly reflected that you did not enjoy a childhood that most New Zealanders are able to experience. But you are primarily responsible for those choices, Mr Namoa. I make only a modest adjustment, five per cent, to allow for your background.
Guilty plea
[39] The final adjustment I must make is for your guilty plea. The Crown said that you should receive a full 25 per cent credit for this. At first sight this appears generous, as you pleaded guilty on 18 July 2022, the first day of your scheduled trial. For one of your co-offenders, I have allowed only a 15 per cent credit for a guilty plea at the same time.
[40] However, as I have discussed with the lawyers this morning, your position is unusual. Until about three weeks before trial, you faced very different charges, none involving methamphetamine. Once the methamphetamine charges were brought, you pleaded guilty to them promptly. In these unusual circumstances, I am satisfied your guilty pleas were early and you are entitled to a credit of 25 per cent.
End sentence
[41] Mr Namoa, having taken a starting point of five years’ imprisonment. I have identified credits that total 60 per cent of that starting point. That takes me to an end sentence of two years’ imprisonment. This is what is known as a short-term sentence of imprisonment. Under the Sentencing Act, it means that I can consider the possibility of home detention. The Crown, it seems to me supports such a sentence. In your case, Mr Namoa, I am also satisfied that it is the appropriate sentence, primarily for the reasons that I outlined when describing the prospects that you have for rehabilitation and the support that others have expressed they will provide you in the community. Home detention is a serious sentence that provides real deterrence.
[42] In calculating the period of home detention, it is usual to halve the sentence of imprisonment that would otherwise be imposed. That’s what I will be doing here. And so the period of home detention will be 12 months.
Result
[43]Mr Namoa, please stand.
[44] For your conviction on the charge of possession of methamphetamine for supply, I sentence you to 12 months’ home detention.
[45] For your conviction on the charge of possession of methamphetamine, I sentence you to 12 months’ home detention.
[46]These sentences are to be served concurrently.
[47] You are to serve your home detention sentence at the address specified in the pre-sentence report dated 17 August 2022 and subject to the conditions specified on page six of that report.
[48] Mr Namoa, I do hope that you live up to the promise that you have shown, and that your family and supporters continue to show their support that they have exhibited in their letters and other statements that I have relied upon today.
[49]Please stand down.
Campbell J
12
0