R v Naufahu
[2021] NZHC 1065
•13 May 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-004-3382
[2021] NZHC 1065
THE QUEEN v
VETEKINA NAUFAHU
Hearing: 13 May 2021 Appearances:
E J Smith for Crown
R M Mansfield for Defendant
Judgment:
13 May 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Auckland
R v V NAUFAHU [2021] NZHC 1065 [13 May 2021]
[1] Mr Naufahu, you appear for sentence having pleaded guilty to charges of participating in an organised criminal group,1 money laundering2 and being in possession of the Class B controlled drug MDMA (ecstasy).3
Facts
[2] You pleaded guilty on the basis of an agreed summary of facts. This records that in early 2018 the police commenced an investigation into the importation and supply of controlled drugs and associated money laundering. Central to the investigation were the activities of your younger brother, Mr Pasilika Naufahu, who was at all material times the President of the Comanchero Motorcycle Club in New Zealand. You were also a founder member of that organisation in New Zealand after having been a member of it in Sydney. You followed your brother to New Zealand after he was deported from Australia.
[3] The police investigation uncovered a sophisticated money laundering operation that utilised the services of a solicitor, Mr Andrew Simpson. Mr Simpson provided advice to your brother and other members of the organised criminal group as to how they could deposit large quantities of cash into his trust account without attracting the attention of the authorities. This involved multiple deposits of cash into Mr Simpson’s trust account in sums of less than $10,000. The cash was derived from unlawful criminal activity, most likely the sale of controlled drugs. Through this means a total sum of approximately $1.2 million in cash was deposited into Mr Simpson’s trust account and was then disbursed in different ways to or for the benefit of members of the organised criminal group. The Crown accepts there is no evidence you were directly or indirectly involved in the deposits of cash into Mr Simpson’s trust account.
[4] Mr Simpson also set up trusts for you and your brother. He then transferred funds that had been deposited into his trust account into bank accounts opened by the two trusts. This enabled you to receive the sum of $70,000 that you put towards the purchase of a luxury motor vehicle for the sum of $218,000. You therefore received
1 Crimes Act 1961, s 98A. The maximum penalty is 10 years imprisonment.
2 Section 243(2). The maximum penalty is seven years imprisonment.
3 Misuse of Drugs Act 1975, ss 7(1)(a) and 2(b). The maximum penalty is 3 months imprisonment.
the direct benefit of some of the funds derived from the activities of the organised criminal group. In addition, when the police searched your home in April 2019 they found the sum of $45,500 in cash. This, too, clearly came from the money laundering activities of the group.
[5] At the same time the police found 1,812 milligrams of powder and ten pink tablets, all of which contained MDMA. This led to the charge of being in possession of a Class B controlled drug.
Starting point
[6] The first step in the sentencing process is to set a starting point that reflects the overall culpability of your offending.
[7] The Crown accepts your offending is less culpable than that of your co- defendants, Messrs Jerome Fonua and Tyson Daniels, who faced similar charges to you. They were significantly higher in the Comanchero organisation than you and therefore derived significantly greater financial benefits from the activities of the organised criminal group. The Judge who sentenced Mr Daniels adopted a starting point of six years imprisonment on charges of participating in an organised criminal group and money laundering.4 I sentenced Mr Fonua and adopted a starting point in his case of five years imprisonment on those charges.5
[8] Having regard to your lesser involvement, the Crown suggests the starting point in your case should be between three years and three years six months imprisonment on the charges of participating in an organised criminal group and money laundering. It suggests a modest uplift to reflect the charge of being in possession of MDMA.
[9] Your counsel points out the overall culpability of your offending is considerably less than that of Messrs Fonua and Daniels. Mr Mansfield submits the appropriate range of starting point is between 12 and 18 months imprisonment. He says no uplift is required to reflect the charge of being in possession of MDMA.
4 R v Daniels [2020] NZHC 275 at [29].
5 R v Fonua [2020] NZHC 3107 at [16].
[10] I accept that your offending resulted in you deriving significantly less direct financial benefit than was the case for Mr Fonua and Mr Daniels. In total, you received the sum of $115,500. This comprised the funds Mr Simpson deposited into your trust’s bank account together with the cash found at your home in April 2019. As Mr Mansfield points out, this is less than half the value of the benefits Mr Fonua received. However, I do not consider your culpability is to be assessed solely by the direct financial benefit you received from the activities of the group. You have always been extremely close to your brother and through that, and also through your status as a foundation member of the Comanchero organisation, I have no doubt you had full knowledge of the activities of the organised criminal group. I am also satisfied beyond reasonable doubt, you shared fully in its aims and objectives. Taking these factors into account, I consider a starting point of two years six months imprisonment is appropriate to reflect your culpability on the charges of participating in an organised criminal group and money laundering.
[11] I do not accept Mr Mansfield’s submission that no uplift is required to reflect the charge of being in possession of MDMA. Although it is relatively low-level offending of its type it was nevertheless a discrete and different type of offending to that captured by the other charges. I therefore add an uplift of one month to reflect that charge. This brings the sentence to one of two seven months imprisonment.
Aggravating factors
[12] You have a number of previous convictions in New Zealand but these are at a low level and are different in type to the present offending. You have convictions for more serious offending in Australia, but they are also in type from the present charges. I therefore accept the submission made by both counsel that no uplift is required to reflect your previous convictions.
Mitigating factors
[13] I have the benefit not only of the pre-sentence report but also a detailed report prepared by Doctor James Cavney, a forensic psychiatrist. This sets out your family background and, in particular, the difficulties that appear to have arisen because your father was an illegal immigrant to New Zealand. Your family moved to Australia when
you were just three years of age. You then lived in poverty for a considerable period after moving to that country. You also lived within a very stern family environment in which your father used physical violence as a preferred means of responding to any transgressions by his children. Notwithstanding these unhappy features of your family life you did not leave school until you were 18 years of age. You and your brother then held down a series of jobs, with one often finding the other employment.
[14] You became involved with the Comanchero organisation in Sydney in 2009 after your brother formed an allegiance to it whilst serving a sentence of imprisonment. The report suggests you saw involvement in the gang as a means of providing for yourself and your family financially rather than as a means of forming meaningful friendships with others as is often the case.
[15] Dr Cavney concludes you felt an obligation to support your parents and family financially and sought to be a source of pride to them to mitigate any conscious or unconscious sense of shame at being impoverished immigrants. Dr Cavney says your attempts to earn money within accepted social and cultural norms proved to be insufficient. This led you to enjoy the financial benefits that the Comanchero organisation offered. When you moved to New Zealand you followed your brother’s lead in becoming a member of the New Zealand chapter of the Comancheros at its inception.
[16] I accept that the factors identified in Dr Cavney’s report are likely to have played some role in your willingness to join the Comanchero organisation and this in turn led directly to the present offending. I am prepared to allow a discount of three months to reflect these factors.
[17] I do not, however, accept you should receive a further discount to reflect the fact that you were required to return to New Zealand against your will and suffered materially as a result. Unlike your brother, you were not deported from Australia. You chose to return to New Zealand to show loyalty to, and to support, your brother. Your wife also wished to return to New Zealand because she had family ties here. This decision was always going to present difficulties for you and so it has proved.
Ultimately, however, you chose to return here voluntarily when it was open to you to remain in Australia.
[18] You are, however, entitled to a discount to reflect your guilty pleas even though you entered these just two weeks before your trial was due to commence. I propose to apply a discount of four months, or approximately 13 per cent, to reflect this factor. This level of discount is in line with that afforded to Mr Fonua, who pleaded guilty to the charges against him at the same time as you entered your pleas.
Sentence
[19] On the charge of participating in an organised criminal group and money laundering you are sentenced to two years imprisonment. Those sentences are to be served concurrently with each other. On the charge of being in possession of a Class B controlled drug for supply, you are sentenced to imprisonment for one month. That sentence is to be served concurrently with the other two sentences. This means you are sentenced to an effective term of two years imprisonment.
[20]Stand down.
Lang J