R v Piukana
[2024] NZHC 3428
•14 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 3428
THE KING v
SANLOLAN PIUKANA SITALEKI MAKA
TOKOFA PAULO TOROMA MAIRIAU SAILOR PAPATAUTURU SAMSON
Hearing: 14 November 2024 Counsel:
R A van Boheemen for Crown M A Edgar for Defendant Maka
V J Feyen for Defendant Piukana
S Tait on behalf of J M Hudson for Defendant Toroma B J Meyer for Defendant Samson
Sentenced:
14 November 2024
SENTENCING NOTES OF WILKINSON-SMITH J
Solicitors:
Meredith Connell, Auckland. M A Edgar, Auckland.
V J Feyen, Auckland.
J M Hudson, Auckland. B J Meyer, Auckland.
R v PIUKANA AND ORS [2024] NZHC 3428 [14 November 2024]
Introduction [1]
The offending[4]
The principles and purpose of sentencing[33]
Sentences[37]
Ms Piukana and Mr Maka — starting points[37]
Ms Piukana — personal factors and end sentence[47]
Mr Maka — personal factors and end sentence[57]
Mr Samson and Mr Toroma[68]
Mr Samson — sentence[83]
Mr Toroma —sentence[99]
Addendum[116]
Introduction
[1] Ms Piukana, Mr Maka, Mr Samson, and Mr Toroma, you appear for sentence today for your roles in the commercial importation of methamphetamine into New Zealand.
[2] Ms Piukana and Mr Maka, you each pleaded guilty to one representative charge of receiving property valued over $1,000.1
1 Crimes Act 1961, s 246 and 247(a). Maximum penalty: seven years’ imprisonment.
[3] Mr Samson and Mr Toroma, you each pleaded guilty to one charge of participation in an organised criminal group.2
The offending
[4] When entering your guilty pleas, you each accepted a summary of facts. I have had regard to the specific facts that you each accepted in considering the sentence to be imposed.
[5] 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).
[6] One of these syndicates was directed by Nigel Iuvale — a patched member of the King Cobra gang and a co-offender in this offending.
[7] Throughout 2021, Matangi Piukana, a close associate of Mr Iuvale who worked for Air New Zealand as a Service Delivery Leader at the domestic terminal of the Airport, received instructions from Mr Iuvale via encrypted messaging apps and face-to-face meetings relating to the importation of methamphetamine on board Malaysian Airlines flight MH145 and Air New Zealand flight NZ5. In his role at Air New Zealand Mr Piukana was responsible for assigning baggage handlers to particular flights and for unloading baggage when the crew was short staffed. By virtue of his employment, he had airside access to international flights arriving at the Airport.
[8] On multiple occasions Mr Piukana organised a crew of baggage handlers to remove shipments of methamphetamine from recently arrived aircraft. These drugs were subsequently driven off Airport grounds and on‑supplied to other members of the syndicate.
2 Section 98A. Maximum penalty: 10 years’ imprisonment.
[9] Malaysian Airlines flight MH145 was serviced by Menzies Aviation (Menzies). Mr Piukana instructed a Menzies employee, Mr Manuel, to retrieve consignments of methamphetamine from MH145 flights. Mr Manuel then facilitated the handover of the importations to other members of the syndicate via the Airport security checkpoint — Checkpoint Charlie.
[10] Mr Samson, you were directed by Mr Piukana to assist driving the methamphetamine importations away from the Airport. You contributed to the activities of the syndicate by being available as a courier to help distribute the drugs following importations.
[11] Mr Toroma, in 2021 you were directed by Mr Piukana, who is your cousin, to assist in a courier role. You initially contributed to the activities of the syndicate as a courier at the Airport. However, after commencing work for Air New Zealand as a baggage handler in mid-2021 you assisted Mr Piukana in the organisation of meetings in furtherance of planned imports and were available to be rostered to divert drug imports from aircraft when they arrived.
[12] In April 2021, after the drugs arrived and were removed from the Airport you, Mr Toroma, offered assistance in furthering distribution of the drugs to third parties. You were in communication with Mr Piukana who kept you informed of the status of planned importations. On 30 April 2021, you and Mr Piukana planned to meet at his address until Mr Piukana advised you that he was running late and that the meeting was cancelled because there was a big problem, and that he would update you tomorrow. Mr Piukana had been meeting other members of the syndicate.
[13] Sometime in 2021, Mr Iuvale arranged for the importation of a commercial quantity of methamphetamine to arrive in New Zealand via MH145 on either 18 or 19 May 2021. Your cousin arranged for a crew to assist in facilitating the unloading and receiving of the methamphetamine from the aircraft once it landed and the placing of the methamphetamine into a van, removing it from the Airport. That crew included you, Mr Toroma, and you, Mr Samson.
[14] Mr Samson, on 15 May 2021 at 11.04 pm, Mr Piukana messaged you advising that there would be “big coin” on Tuesday when the importation arrived. Two days later, on 17 May 2021, Mr Piukana attempted to contact you and Mr Toroma — both calls went unanswered. Mr Piukana then messaged both of you to inform you that you had “missed a collect” and would need to wait for the next time.
[15] Mr Toroma, on 17 May 2021 at 9.49 pm, your partner messaged you “please be careful tomorrow morning okay. I know we need this money but it’s not worth the trouble”. On 18 May 2021 at 5.26 am, you were waiting outside the Airport to receive the planned import. You were advised that it was cancelled and postponed until the next day. On 20 May 2021, you discussed the delay with another member of the syndicate. Mr Samson, you were also advised of the cancellation and further delay.
[16] Mr Samson and Mr Toroma, on 11 June 2021, you were both photographed at Mr Piukana’s house holding a large sum of cash.
[17] In July 2021, Mr Iuvale and Mr Piukana organised a shipment of methamphetamine agreed for the purpose of sentencing to be at least 10 kilograms from Los Angeles, United States.
[18] On 12 July 2021 at approximately 5.44 am, flight NZ5 arrived at the Airport. The methamphetamine was retrieved from the aircraft. At 5.51 am, you, Mr Samson, received a call from Mr Piukana confirming that the importation had arrived. At
6.07 am, you were contacted by a member of the syndicate who said that they had possession of the bag and wanted to know where to drop it. At 6.11 am, whilst you were at the Airport you received two more calls from this co-offender who arranged for you to receive the imported methamphetamine. At 6.34 am, Mr Piukana called you in furtherance of the plan to distribute the methamphetamine, which was subsequently delivered for storage and on-supplying.
[19] In October 2021, a large import of commercial quantities of methamphetamine was organised from Malaysia. Mr Toroma, at this time you were working for Air New Zealand and assisted Mr Piukana in planning this importation.
[20] On 10 October 2021 at approximately 1.15 pm, Mr Piukana called you, Mr Toroma, to request that you take him to see Mr Iuvale. You picked Mr Piukana up from his house and took him to a Gilmours Supermarket to meet Mr Iuvale. The pair met at the Mount Roskill store at 2.15 pm. You waited in the car throughout the 45‑minute meeting during which, the Crown case is that Mr Iuvale outlined the plan for the importation. The meeting concluded at 3 pm and Mr Piukana returned to your vehicle.
[21] At 3.03 pm, Mr Piukana, called another co-defendant, Mr Manuel, to discuss Mr Manuel’s work schedule. Mr Manuel was off work for the next two weeks, and he agreed to meet with Mr Piukana the next day. On 19 October 2021, Mr Piukana arranged a meeting at his home address to plan and make arrangements for an upcoming importation. Mr Toroma, you were directed by Mr Piukana to attend that meeting after he inquired whether you had read an Instagram message and further directed you to organise for Mr Samson to attend the meeting.
[22] At 12.03 pm, Mr Piukana called Mr Manuel confirming the import for 23 October 2021 that would arrive on MH145. Mr Manuel confirmed that MH145 would usually arrive between 1 to 2 pm. Mr Toroma and Mr Samson, and other members of the crew, then arrived at Mr Piukana’s address to discuss the planned importation and your roles.
[23] On 22 October 2021 at approximately 11.30 pm, three boxes of methamphetamine were driven into Kuala Lumpur International Airport. I note that the summary of facts says three boxes, the Airport waybill says five boxes and I proceed on the basis that it is immaterial for the purpose of your sentencing. The boxes were destined for flight MH145 to Auckland with the consignee listed as PB Technology, 587 Great South Road, Manukau, Auckland. The Malaysian police were made aware of the boxes and examined them before they were loaded onto flight MH145. Photographs attached to the summary of facts show tightly packed packages in tea packaging.
[24] The syndicate that you were involved with was unaware of the seizure of the drugs by Malaysian authorities and continued to plan for the importation.
[25] On the morning of 23 October 2021, members of the syndicate arrived at the Airport to commence their shifts, unaware that Malaysian police had intercepted the planned importation. At 6.42 am, Mr Manuel messaged Mr Piukana further details about flight MH145 saying “Kuz. 82. Across from gate 2”. This provided Mr Piukana the location to retrieve the methamphetamine later that day. At 10.31 am, Mr Piukana advised Mr Manuel that the importation was cancelled messaging him “Cancel call me when your free”. Four minutes later, Mr Piukana informed Mr Manuel that the methamphetamine was not loaded at Kuala Lumpur and did not make it onto the aircraft.
[26] Mr Samson, at 1.52 pm, Mr Piukana contacted you to confirm that you were aware of the cancellation.
[27] Mr Toroma, on 24 October 2021, you made a number of internet searches including: “Malaysia airlines flight 17”, “Malaysia airlines flight 240” and “Malaysia airlines flight radar”. On 4 November 2021, you searched “latest drug news in Malaysia”.
[28] Ms Piukana, Mr Matangi Piukana is your brother. Your younger brother Kimela Piukana has already been sentenced for his role in this offending. You appear for sentence alongside your husband, Mr Maka.
[29] Between 1 October and 18 November 2021, Ms Piukana and Mr Maka, you stored a large amount of cash at your home address on behalf of Mr Matangi Piukana. This cash was the proceeds of the above-described offending. On several occasions, Mr Piukana directed you to deliver tens of thousands of dollars cash to him.
[30] On 18 November 2021, following the termination of Operation Selena police executed a search warrant at your home address. Police located in your bedroom:
$6,320 cash in two bundles on the floor; a blue Puma sports bag in the wardrobe containing $304,230 in cash comprised of $50 and $20 notes bundled into $10,000 lots fixed with rubber bands, an unopened black air pistol delivered one day prior by Mr Piukana; and passports belonging to each of you and Ms Piukana your wallet
containing $4,360 cash. In another bedroom, police located a further $2,000 cash in an adult male jacket in the wardrobe.
[31] In total police located $316,910 in cash at your home. This was the proceeds of the methamphetamine importation operation.
[32] Ms Piukana, when questioned by police you denied storing the cash for your brother.
The principles and purpose of sentencing
[33] 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:3
(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.4 The significant commercial quantities of methamphetamine imported, and intended to be imported by the syndicate, would no doubt cause significant harm to the community. I also consider that the way in which this importation occurred with the use of corrupt baggage handlers including those employed by New Zealand’s national airline, damages New Zealand’s reputation.
(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.
3 Sentencing Act 2002, s 7(1).
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [38].
[34] Non-addiction driven commercial drug dealing, also known as instrumental offending, is typically motivated by financial gain, and offenders have weighed up the benefits and risks of their involvement. The financial benefits of this offending can be substantial and tempting. Each of you appears to have been financially motivated. I must also impose the least restrictive sentence in each of your circumstances and I will consider the prospect of rehabilitation for each of you. Rehabilitation serves to not only improve your personal circumstances but further reduces the risks of reoffending.
[35] In imposing your sentence, I must take into account your personal, family, whānau, community and cultural background.5 I must impose the least restrictive sentence that is appropriate in the circumstances and I must consider any personal circumstances that would render the means of dealing with your offending disproportionately severe.6
[36] In determining the appropriate sentence, I must identify the “starting point” for each of your sentences. The starting point is determined by the seriousness of your offending. I will then consider each of your personal circumstances, including the appropriate reductions for each of your guilty pleas.
Sentences
Ms Piukana and Mr Maka — starting points
[37] The Crown submits that a starting point of three years’ imprisonment is appropriate for each of you.
[38] Ms Piukana, your counsel submits that a starting point of two years and six months’ to two years and nine months’ imprisonment is appropriate. I have also had cases cited to me which could take the starting point slightly lower.
[39]I have considered the following authorities:
5 Sentencing Act 2002, s 8(i).
6 Section 8(g) and (h).
(a)Fraser v R:7 on appeal a starting point of three years’ imprisonment was held to be in range for seven charges of receiving (over $1,000) and two theft charges for theft of a motor vehicle.8 Ms Fraser’s offending occurred over a four-month period and involved a significant degree of planning and deception.9
(b)Le-Noel v R:10 on appeal a starting point of three years’ imprisonment was considered justified for five charges of receiving (over $1,000), one charge of theft and one charge of obstruction.11 In reaching this starting point the Judge considered the value of the goods stolen, being more than $300,000, and the 12-month duration of the offending.
(c)R v Henry:12 A sentence indication in which a starting point in the range of two and a half years to three years’ imprisonment was considered suitable for charges of obtaining a document and money laundering.13 The offending related to the storage of approximately $300,000 cash — the proceeds of a methamphetamine drug ring. The Judge considered the seriousness of the drug ring contrasted with Ms Henry’s minor involvement and her lack of apparent personal financial gain. The offending was considered to be unsophisticated.
(d)Wang v R:14 On appeal a starting point of three years’ imprisonment was considered in range, for three charges of money laundering.15 The Judge considered the sum involved in the offending (more than $300,000), the integral role Mr Wang played
7 Fraser v R [2019] NZHC 3298.
8 At [27].
9 At [27].
10 Le-Noel v New Zealand Police [2015] NZHC 1850.
11 At [17].
12 R v Henry [2015] NZHC 1306. The Crown referred to this case, analogising the maximum penalty for money laundering with the maximum penalty for receiving over $1,000.
13 At [19].
14 Wang v R [2021] NZHC 445.
15 At [29].
in the operation, that he knew the cash came from criminal offending, and the personal commercial benefit he received from the offending.
[40] I have also considered the cases of R v Khan16 and R v Williams17 provided by counsel for Mr Maka.
[41] I consider the level of commerciality and your involvement in a significant drug importation syndicate as aggravating features of your offending. Whilst the exact financial benefit you received from your role in this offending is unclear, the large bundles of cash located at your home address, and in one of your wallets, indicates that you were involved in this offending for commercial gain.
[42] Given the significant amount of cash located at your home, it is clear to me that you were aware that the syndicate was operating on a significant scale and that the cash came from an illegitimate source. You must have been aware of Mr Piukana’s employment with Air New Zealand. I accept that you had a limited role in the syndicate’s offending and were not directly involved with the importation of methamphetamine but the role each of you played was important to the syndicate’s operation.
[43] There is no tariff judgment for receiving. When assessing culpability regard should be had to the “value of the goods, the duration of the offending, the number of charges, the existence of a commercial element and the closeness of the relationship between the burglar and the receiver.”18 That is a quote from a case which reflects that many cases relate to property offending. Your situation is different in that it relates to serious drug offending.
[44] What elevates the seriousness of your offending is the significant commercial element of the drug operation. You were contributors to a criminally sophisticated syndicate responsible for importing a large quantity of methamphetamine into
16 R v Khan [2018] NZHC 3065.
17 R v Williams [2018] NZHC 2731.
18 Stephens v R [2023] NZCA 663 at [11] citing Allen v Police HC Christchurch CRI-2009-409-113 at [22].
New Zealand. When you became aware that your family member was involved in this you did not dissuade him, rather you joined him. I proceed on the basis that the overall operation involved at least 100 kilograms of methamphetamine and I have no doubt that estimate is conservative. The significance of this cannot be understated. Your familial relationship with a number of other members of the syndicate, and the manner in which the cash was located indicates to me that you were both aware that the cash was derived from serious criminal offending. Each of you has effectively accepted this in comments made to a pre-sentence report writer.
[45] Financial motivation was a key factor of your offending. Together you have a large family. Ms Piukana, you are a stay-at-home mother of eight. Mr Maka, you are employed as a truck driver and your family is reliant on your income. Ms Piukana, your pre-sentence report noted that at the time of your offending Mr Maka had lost his employment. You, Mr Maka, said that this was not quite right. You lost your employment afterwards. I do, however, regard the offending as clearly financially motivated as well as motivated by family pressure and encouragement from your brother, Ms Piukana.
[46] Considering the aggravating factors of your offending, a starting point of three years’ imprisonment is the least restrictive and most appropriate starting point. I consider that your role in assisting in commercial drug offending could have attracted a higher starting point. The reality is that those who choose to be involved in the importation of commercial amounts of methamphetamine can expect a strict response from the Court. That is because personal circumstances have to be weighed against the need for deterrence. This offending is tempting. You were tempted and that same temptation will happen to others.
Ms Piukana — personal factors and end sentence
[47] Your pre-sentence report assessed you as at the lowest risk of harm and re‑offending and said that you presented with a low level of entitlement with no criminogenic needs. As I have said, you and Mr Maka have eight children together. All of these children are under the age of 16. The majority of your adult life has been dedicated to being a stay-at-home mother for your children.
[48] I consider that credit is warranted to recognise your previous good character and lack of conviction history. The pre-sentence report writer regarded you as forthcoming and said that you felt shame and regret for allowing yourself to be complicit in your family’s offending. I consider a 10 per cent reduction is appropriate to recognise this previous good character. The report writer had a very favourable view of you. I consider that what you said to the report writer however minimised your involvement. On occasions your brother asked you to deliver large amounts of cash — tens of thousands of dollars — and you did so. That is acknowledged in the summary of facts.
[49] I accept that you would not have become involved in criminal offending but for the encouragement of your family. This was something that you were drawn into and not something that you sought out.
[50] In terms of guilty plea discount, your counsel seeks 25 per cent. You were charged in November 2021. While your pleas came close to trial in 2024, the resolution was first proposed by your counsel in November 2023. The Crown says a 15 per cent discount is appropriate. I accept there was a delay while disclosure was explored — however the offer to plead did not come until two years after arrest. I apply a 20 per cent guilty plea discount.
[51] That level of credit would lead to an end sentence of just over 25 months’ imprisonment. There is another factor that I must consider and which I consider is best dealt with after the other credits are applied because it affects not only length of sentence but type of sentence. There is a tendency now to treat sentencing as a mathematical exercise with uplifts and discounts, but in the end, it is a matter of judgement.
[52] You are the primary caregiver of eight children, many of them young. Any sentence you serve will have an impact on them particularly as their father is also being sentenced on the same charges. If you and your husband are imprisoned your children will be deprived of both caregivers. Rather than simply apply a discount to the length of the sentence to reflect the impact on your children, I am going to adjust the nature
of the sentence so that you can serve the sentence at home and remain available to care for your children. That is possible because of your previous good character.
[53] To reflect that, I reduce the end sentence by six weeks to a sentence of 24 months’ imprisonment. That permits consideration of an electronically monitored (EM) sentence. You are a good candidate for an EM sentence. It is primarily because of the impact upon your children that I intend to commute your sentence to home detention.
[54] The pre-sentence report suggests a sentence of community detention because of the difficulty in completing home detention and meeting the needs of your eight children. I accept it will be difficult, but I do not consider that community detention is sufficient to reflect your involvement in a significant commercial drug dealing operation involving hundreds of thousands of dollars. I consider that you were well aware of what your brother was doing, you became involved, at least partly, for financial gain, you moved money at his behest, and you were aware that your brother’s role at the Airport was a crucial part of the operation.
[55] Despite the practical difficulty of a home detention sentence, I consider that is the least restrictive sentence I can possibly impose. It will be difficult, but it will at least leave your children with their mother in the home. It is a better outcome for them than a full-time custodial sentence and it is the only realistic outcome other than imprisonment for involvement in a drug operation of this scale.
[56] I cannot impose that sentence at this time, because I do not have a pre-sentence report that confirms that the sentence is available at the address you are now at. What I propose to do is defer imposition of that sentence and leave you remanded on bail for you to be brought back before the Court as soon as the report is available.
Mr Maka — personal factors and end sentence
[57] Your pre-sentence report assesses your risk of re-offending as low, given the period of 15 years between this offending and your last court appearance. The writer considers the prospect of financial gain was the primary contributing factor to your
offending. I consider that your relationship was also a motivating factor with the encouragement from your brother-in-law and your wife.
[58] You and Ms Piukana have been married for 17 years and share eight children together. The report notes that you are from a tight knit family that is totally immersed in Tongan culture.
[59] I consider that your guilty plea should attract the same credit as your wife’s guilty plea and for the same reasons, namely 20 per cent.
[60] I cannot apply a discount for good character in the usual way — you have previous convictions. The last of these was in 2009 and since then you have apparently left your offending behaviour behind — until you became involved in the current offending. I accept that you were under financial strain but that can never justify commercial drug offending. Your previous convictions also do not justify an uplift because they are now at least 15 years ago.
[61] I accept that you are remorseful, and you did not seek to minimise your actions when you spoke to the PAC report writer. I also accept that your sentence will impact your children. I am going to take a slightly different approach and apply a 10 per cent discount for remorse and for the effect of your sentence upon your children. I regard your statement to the PAC report writer in a more favourable light than the statements of your wife. I do not think you sought to minimise it in quite the same way. You are the sole bread winner, and your children will be affected by any sentence I impose on you.
[62] From a starting point of three years’ imprisonment, I deduct a total of 30 per cent for your guilty plea and for remorse and effect on children. That leaves an end sentence of two years and six weeks’ imprisonment.
[63] That is just over two years’ imprisonment but at a level when I am willing to apply an additional credit and consider home detention. I do not favour a mathematical approach to sentencing. It struck me when reviewing your criminal history that your offending stopped abruptly with your marriage. You turned your life around. That is
not easy, and many people do not manage it. I have also read your children’s letters and the affection they have for you is obvious. Your efforts in staying out of trouble coupled with the short duration of the offending and the fact that the evidence suggests that the catalyst for the offending was your wife’s brother, persuades me that I should reduce your sentence by a further six weeks to reach a short sentence of imprisonment.
[64] I do not yet have confirmation that your address is suitable for home detention. I note the conditions suggested include not to have contact with co-offenders. Your wife is a co-offender and will serve her sentence at the same address if the address is suitable. I do not regard that as inappropriate in the circumstances of this case. You and your wife were not the instigators of this offending. You were, I consider, induced into it by your wife’s brother.
[65] I am willing to reduce your sentence to a sentence of two years’ imprisonment. Providing that the address is confirmed as suitable, it will be commuted to home detention, and you and Ms Piukana may serve that at the same address for the sake of your children.
[66] Mr Maka, I hope you will never again be in Court for sentencing, and I hope that you will help your children to understand that at the heart of all of this is drugs. What has happened to you and your wife is just part of the damage the drug trade does. The reason you have escaped imprisonment is because 15 years ago you made a change and did not continue offending. The other reason you have escaped imprisonment is because I take seriously the impact of imprisonment upon your children. I do not think it is in the interests of justice for them to visit you in prison and for prison to become normalised for them. In that respect I have regard to the case of Phillip v R.19 I very much hope, Mr Maka and Ms Piukana, that you will work to ensure that your children never find themselves in the position that you are now in.
[67] I make the same order as I did in respect of Ms Piukana. You will remain on bail, Mr Maka, to come back before the Court for sentence to be imposed once the home detention report is available. I hope that will be tomorrow. In the meantime,
19 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
you will remain on bail on your existing conditions but with a variation as to the address.
Mr Samson and Mr Toroma
[68] There is considerable dispute over the appropriate starting point for your offending in the submissions filed.
[69] I have to say I do not think the submissions for any party have identified the appropriate starting point for the particular factors that relate to your offending. I make no criticism of counsel; it reflects that this situation involves a level of corruption that is not usual in New Zealand is not a feature of other cases involving participation in an organised criminal group.
[70] The starting points suggested range between two years and six months’, and three years and six months’ imprisonment.
[71] I have considered the following cases which were cited but as I have said I do not think they are entirely on point. This drug importation operation involves an additional and unprecedented element of corruption:
(a)R v Tali:20 a starting point of two and a half years’ imprisonment was considered appropriate for charges of participating in an organised group, offering to supply methamphetamine and supplying methamphetamine.21 Mr Tali’s offending related to the supply of 20 kilograms of methamphetamine in Northland. Mr Tali was described as a ‘runner’ passing messages between members of the group who assisted with smaller tasks at the request of a more senior group member.22 Mr Tali had a very minor role in the group; was at the bottom of the group’s hierarchy, having joined through association with one of the co-offenders rather than the gang itself; was involved in the group for a limited period; was unlikely to have
20 R v Tali [2022] NZHC 2181.
21 At [17].
22 At [7].
financially benefited from his participation; and did not appear to have made any independent decisions.23
(b)R v Edmands:24 a starting point of three years’ imprisonment was considered appropriate for one charge of participation in an organised criminal group and one charge of failing to carry out obligations relating to a computer search.25 Mr Edmands’ offending related to the supply of methamphetamine, cocaine and MDMA. Mr Edmands was described as a “catcher” who collected and delivered sealed packages. He was aware that the packages contained considerable sums of cash for forwarding on behalf of the syndicate leader. Mr Edmands, on one occasion, received an international package of drugs at his address. The Judge considered the scale of drugs supplied by the syndicate and Mr Edmands’ awareness of the syndicate’s criminal activities.26
[72] I also have regard to R v Piukana,27 and the cases cited within it. Earlier this year, I adopted a starting point of two years and three months’ imprisonment to reflect Mr Kimela Piukana’s involvement in this same syndicate. This starting point for one charge of participation in an organised criminal group reflected the scale and nature of the syndicate and Mr Kimela Piukana’s role in the syndicate as a messenger who had been corrupted himself by his older brother.
[73] The syndicate you were involved in imported and intended to import commercial quantities of methamphetamine. I consider that the amount involved over the entire operation exceeds 100 kilograms, but I accept that you did not necessarily know the exact scale and you were not involved with all importations. Further, I accept that most of your involvement was intended involvement which did not eventuate with the exception of 10 kilograms, Mr Samson, which you collected and delivered. You supplied 10 kilograms of methamphetamine into the community.
23 At [15].
24 R v Edmands [2022] NZHC 256.
25 At [19].
26 At [19].
27 R v Piukana [2024] NZHC 2311. See cases discussed at [41].
[74] As I have emphasised, the use of corrupt airport baggage handlers to breach the border is a serious aggravating factor. That does not apply to you Mr Samson except that you were aware that is what was happening, and you helped.
[75] I must consider the syndicate’s commercially motivated offending, the length of time the syndicate operated for, and the scale and sophistication of the syndicate as aggravating factors of the offending. You were both involved with the syndicate for several months and assisted with several planned importations, and you, Mr Samson, as I have said, delivered a successful import.
[76] I consider that for each of you, the offending was commercially motivated. Not only did you discuss the financial gain that would result from your activities, but you posed and took pictures with large amounts of cash. Whilst I accept that the pictured spoils may not have been your own, I consider the photo as also establishing that you knew of the possibility for such financial gain; and you were accordingly motivated to participate by the prospect of financial gain.
[77] Mr Meyer submits that you, Mr Samson, were merely a cog at the lower end of the chain and that your role in the syndicate was limited. I accept that your role was lesser, but you were integral, and you did deliver actual drugs.
[78] Mr Tait as agent for Mr Hudson submits that your offending, Mr Toroma, was only moderately more serious than that of Mr Kimela Piukana, describing you as a “lackey” and says the more involved offenders kept you at arm’s reach.
[79] I consider, that for both of you, your offending was more serious than Mr Kimela Piukana’s. Your roles were more varied. Each of you assisted with the planning of the October 2021 import and were prepared to act as couriers for other imports. Mr Samson actually handled and delivered methamphetamine. That places you further up the hierarchy of the syndicate than Mr Kimela Piukana and indicates a greater level of culpability.
[80] For both of you the culpability of your offending is greater than that in the case of Tali, where a starting point of two and a half years was taken given the sheer
difference in size of the operations and the quantum of drugs involved — even apart from the breach of trust which is significant for you, Mr Toroma, because you were an employee of Air New Zealand and you used your position to facilitate the importation of drugs.
[81] I am also cognisant of the need to consider parity. Ms Piukana and Mr Maka were charged with a different charge and that leads to different sentencing considerations and outcome but in the end all of you were assisting the same operation and your role, Mr Samson, and Mr Toroma, was more closely involved with the actual drugs and with facilitating the importation of those drugs. Without the willingness of people at the Airport to be involved this would not have been able to happen. Mr Maka and Ms Piukana in contrast dealt only with the money.
[82] Participation in a criminal group carries a maximum sentence of 10 years’ imprisonment. The underlying criminality that you were facilitating was the importation of commercial quantities of methamphetamine. You resolved your charges on the basis that the Crown would not pursue charges of being a party to importation, but the underlying criminality is exactly that.
Mr Samson — sentence
[83]Mr Samson, I will deal with your sentencing first.
[84] You were not an employee of Air New Zealand and the element of breach of trust is not present to the same extent, but I have no doubt that you knew that Mr Piukana and Mr Toroma were using their employment at Air New Zealand to facilitate the importation of drugs.
[85] You were involved over a period of months and clearly for financial gain. You were willing to collect and transport methamphetamine. Your role was considerably more serious than the role accepted by Mr Kimela Piukana who only passed messages.
[86] I adopt a starting point in your case of three years and six months’ imprisonment for your offending. Your participation involved handling and delivering
10 kilograms of methamphetamine that you must have known had just been retrieved from an incoming flight; and you were willing to do so on other occasions.
[87] You pleaded guilty very shortly before the commencement of your scheduled jury trial. Your guilty pleas followed plea negotiations. You declined a sentence indication on charges which were more serious but, as I have said, reflected much the same behaviour as that which underlies the charge you pleaded guilty to.
[88] Your pleas were very late but did follow quickly upon the amendment of the charges you faced. I consider that a credit of 15 per cent is available. Your plea reduced the complexity of the jury trial that eventuated for your co-offenders, and it saved time.
[89] Mr Samson, your counsel seeks reductions for your youth and previous good character, your remorse and rehabilitative efforts, and for the time spent on restrictive bail. The Crown accepts that allowances for youth, previous good character, rehabilitation, and time on restrictive bail are appropriate.
[90] The pre-sentence report writer assessed your risk of further offending as medium and regarded your negative peer group, sense of entitlement, lack of problem‑solving skills, and substance misuse as factors contributing to your offending. You are one of six siblings and regard your family as your main source of support.
[91] You were 21 years old at the time of your offending. Youth is a mitigating factor in your offending. You have a limited criminal history having only previously appeared before the court for a drink driving matter. Your counsel and Crown counsel both submit that a 10 per cent reduction is appropriate to recognise your youth and your previous good character. I agree that a 10 per cent reduction for youth and previous good character is appropriate.
[92] Mr Meyer submits that a nominal credit is warranted to reflect your remorse and rehabilitative efforts. The Crown disputes that a credit is warranted for your remorse but accepts that a nominal credit is available to recognise your rehabilitative efforts. The pre-sentence report records that you said you “knew nothing” about the
offending in the summary of facts and that you pleaded guilty on the advice of your lawyer. I do not believe that Mr Samson. I think that you must have known what was happening, but I accept that you were, and are, young and that you no doubt were scared of admitting what you had done to the pre-sentence report writer. I do not consider a reduction for remorse appropriate. Reductions for remorse should be reserved for cases where an offender is genuinely remorseful for their offending and the harm that their offending has done. I do not see evidence of that sort of genuine remorse, although you no doubt very much now regret your involvement.
[93] The pre-sentence report records that you had been using methamphetamine and cannabis at the time of your offending. The Crown acknowledges that you have taken a number of rehabilitative pro-social steps since being charged for this offending. That includes voluntarily enrolling in a programme to address your drug use, no longer using methamphetamine and cannabis, and obtaining full-time employment as a traffic controller. These efforts are to be commended. I award a nominal discount of three per cent to reflect your rehabilitative efforts.
[94] Mr Meyer submits that a credit of 15 per cent is appropriate to reflect the time spent on restrictive bail. The Crown submits that a credit of no more than five per cent is appropriate. Any credit for time on restrictive bail is contingent on the restrictiveness of the bail, the length of time spent on that bail, and the offender’s level of compliance.28 You spent just over a year on bail subject to a curfew, which was altered during your time on bail to permit you work. In acknowledgement of your compliance the curfew was removed in November 2022. I regard a credit of near 15 per cent as excessive in the circumstances given the flexibility of the curfew permitting you to extend your work hours, and that you have spent more time on unrestricted bail than restricted bail. However, I accept credit is warranted and set that credit at five per cent.
[95] That brings me to an overall credit of 33 per cent. Applying that to the starting point of three years and six months, the end sentence is a sentence of two years and four months’ imprisonment. I have considered whether that could be reduced further
28 Tuarae v R [2023] NZCA 229 at [26].
to permit a sentence of home detention to be considered and I have come to the conclusion that it cannot be and the reason for that is the serious underlying commercial drug offending. Unfortunately, your needs have to take second place to the need to deter this sort of offending in the community.
[96]Mr Samson, please stand.
[97]You are sentenced to two years and four months’ imprisonment.
[98]I make orders for the forfeiture of the following items:
(a)one gram of methamphetamine;
(b)scales and calculator; and
(c) $6,050.00 cash.
Mr Toroma —sentence
[99] Mr Toroma, you were a baggage handler and were trusted in that role. You abused that position of trust and there is a level of corruption that must be recognised, and which is lacking in the cases cited as precedents. You were willing to use your position to assist in significant commercial importations of methamphetamine. The assistance intended to be provided by you as a baggage handler is significant. Without baggage handlers’ involvement, the importations would not have been possible. That distinguishes your culpability from the cases where the defendant was a catcher or runner. In those cases, the identity of the catcher was not crucial to the operation. You and your fellow baggage handlers were crucial.
[100] Your role in this operation was more serious than that of Mr Maka and Ms Piukana. I do regard it as more serious than Mr Samson’s because although Mr Samson did actually courier 10 kilograms of methamphetamine, your employment with Air New Zealand means that your offending is such a breach of trust.
[101] I consider the appropriate starting point for your offending is four years’ imprisonment. That reflects the scale of the operation and your role in it, particularly your willingness to be corrupted and to use your position to assist others to breach New Zealand’s borders and avoid customs inspections of packages entering New Zealand. I consider there is an overwhelming need to deter those who work at our borders from becoming complicit in this sort of offending.
[102] If airport staff are willing to be involved in this way, there is a huge variety of potential harm that could result. I am aware that starting point is more than the Crown seeks but I consider that the element of corruption and the need to deter such corruption, which is so unusual in New Zealand and so damaging to New Zealand’s reputation, has been overlooked.
[103] Mr Toroma, your counsel has sought reductions for your youth, remorse, your time spent on restrictive bail, and the impact that a sentence of imprisonment would have on you. The Crown dispute the availability of a reduction for remorse.
[104] The pre-sentence report writer regards your friends and associates and your drug use as having contributed to your offending. You and your partner have a young daughter together and your partner has a young son from an earlier relationship. You have been described by those who spoke to the report writer as hard-working, caring, and a good person. I have heard what your father-in-law has had to say, and it is really tragic you find yourself in this position. I accept you were corrupted into it by the prospect of large financial reward but there is a potential for others in these trusted positions at the border to be similarly corrupted and that must be deterred.
[105] You pleaded guilty also on the eve of trial and following plea negotiations. I apply a guilty plea credit of 15 per cent.
[106] The Crown submits that a reduction of five per cent would be sufficient to acknowledge your youth and previous good character. Mr Tait submits that a reduction of 15 per cent would be appropriate, stating that a five per cent reduction would be inadequate. You were 23 years old at the time of your offending. This places you closer to the upper limits of circumstances where reductions for youth are warranted,
but nevertheless your youth remains a mitigating factor. You have previously appeared before the court for multiple driving offences that seemingly arose from one incident in 2020. I consider that a reduction of 10 per cent is available to recognise your youth and previous good character.
[107] The Crown submits that no reduction for remorse is available. Mr Tait submits that a modest reduction is available. The pre-sentence report records that you dispute the summary of facts and that you did not realise that you were in a syndicate importing controlled drugs. The report records that you said that you only pleaded guilty at the advice of your counsel. I have read the letter you have written. I think that any remorse you now express is really more related to the situation you find yourself in. I doubt you appreciate the harm that methamphetamine really does in the community. I do not consider a discrete reduction for remorse appropriate.
[108] Mr Tait notes the time that you were on restrictive bail. That was for just under one month. As stated above, any credit for time on restrictive bail is contingent on the restrictiveness of the bail, the length of time spent on that bail, and the offender’s level of compliance.29 I do not consider in the circumstances that it is appropriate to grant a reduction for this relatively short time spent on restrictive bail.
[109] On your behalf it is submitted that a sentence of home detention would be sufficiently punitive to mark your offending whilst avoiding the inevitably damaging consequences of imposing a term of imprisonment upon a young man.30
[110] Sentencing is always a balancing exercise. There is a need to impose the least restrictive sentence available but when deciding where that sits — I must balance the competing interest of deterrence and denunciation with your rehabilitation.
[111] You became involved in a large-scale commercial methamphetamine dealing syndicate. You did so for financial gain. Your willingness to be involved damaged your community in that you were willing to introduce methamphetamine into it. As a baggage handler, you were trusted by passengers and by your employer. You were
29 Tuarae v R [2023] NZCA 229 at [26].
30 Referring to Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405.
employed by New Zealand’s national air carrier. You endangered New Zealand’s good reputation by your willingness to use your employment to offend in this way. Your needs I am afraid must bow to the community’s right to expect a deterrent sentence for such offending.
[112] From a starting point of four years’ imprisonment, I apply an overall credit of 25 per cent, being 15 per cent for guilty plea and 10 per cent for youth and previous good character. That brings me to an end sentence of three years’ imprisonment. Standing back and looking at your culpability, I regard that as the least restrictive sentence available by some margin. In fact, I regard it as lenient given your willingness to be involved in a significant drug importation syndicate while employed by Air New Zealand.
[113]Please stand Mr Toroma.
[114]Mr Toroma, you are sentenced to three years’ imprisonment.
[115]Stand down.
Addendum
[116] Mr Maka, you are sentenced to 12 months’ home detention to be served at the address of [redacted]. The special conditions will apply as set out in the report:
(a)you are to attend an assessment for a departmental program as directed by a probation officer;
(b)to attend and complete any counselling treatment or program as recommended by the assessment as directed by and to the satisfaction of a probation officer;
(c)you are not to communicate in any way or associate with your co‑offenders, with the exception of Ms Piukana, without the prior written approval of a probation officer — that does include Mr Kimela Piukana and Mr Matangi Piukana;
(d)not to undertake any paid or unpaid type employment, voluntary work or training without prior written approval of a probation officer;
(e)to reside at [redacted] and not to move to any new residential address without the prior written approval of a probation officer;
(f)today you to travel directly to [redacted] and await the arrival of a field officer from the monitoring company;
(g)you may also be subject to 12 months’ post detention conditions.
[117] Ms Piukana, you are also sentenced to 12 months’ home detention on the same terms that I have just read out, with the exception that you may have contact with Mr Maka without prior approval, but you will need prior approval for contact with either of your brothers.
[118] The same above-mentioned conditions apply, and you are also to travel directly to [redacted] and await the arrival of a field officer from the monitoring company, 12-month post detention conditions may apply.
Wilkinson-Smith J
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