R v Naufahu - [2021] NZHC 1065

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Naufahu

Details

AGLC: R v Naufahu [2021] NZHC 1065
Case: [2021] NZHC 1065
Decision Date: 13 May 2021

CaseChat Overview and Summary

In the case of R v Naufahu, the defendant, Vetekina Naufahu, appeared before the High Court of New Zealand in Auckland for sentencing after pleading guilty to charges of participating in an organised criminal group, money laundering, and possession of the Class B controlled drug MDMA (ecstasy). The defendant was a member of the Comanchero Motorcycle Club in New Zealand, which was involved in a sophisticated money laundering operation facilitated by a solicitor. The court accepted that while the defendant was not directly involved in the money laundering, he was aware of and supported the group's criminal activities.

The legal issues before the court involved determining an appropriate starting point and sentence for the defendant, considering his level of culpability, the nature of his involvement in the criminal activities, and mitigating factors such as his background and guilty pleas. The court had to balance the defendant's lesser involvement compared to other group members against the seriousness of the crimes committed.

In its reasoning, the court established a starting point of two years and six months imprisonment for the charges of participating in an organised criminal group and money laundering, with an additional month added for the possession of MDMA. The court found that the defendant's culpability was lower than that of other members due to his lesser direct financial benefit but acknowledged his full knowledge and support of the group's criminal aims. Mitigating factors, such as the defendant's background and guilty pleas, resulted in a discount of four months. Ultimately, the court sentenced the defendant to two years imprisonment for participating in an organised criminal group and money laundering, and one month for possession of MDMA, to be served concurrently, resulting in an effective term of two years imprisonment.

Orders