R v Pritchard
[2024] NZHC 3435
•15 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 3435
THE KING v
MARTIN JULIAN PRITCHARD RHYS ALEFA TUALEVAO
Hearing: 15 November 2024 Appearances:
R A van Boheemen for Crown
S T L Teppett for Defendants Pritchard and Tualevao
Sentenced:
15 November 2024
SENTENCING NOTES OF WILKINSON-SMITH J
Solicitors/counsel:
Meredith Connel, Auckland. S T L Teppett, Auckland.
R v PRITCHARD AND ANOR [2024] NZHC 3435 [15 November 2024]
Introduction [1]
The offending[4]
The principles and purpose of sentencing[33]
Approach to methamphetamine sentencing[41]
Mr Pritchard[47]
Starting point[47]
Personal mitigating circumstances[58]
Minimum period of imprisonment[68]
End sentence[71]
Mr Tualevao[74]
Starting point[75]
Weapons and cannabis offending[84]
Personal circumstances[94]
End sentence[104]
Introduction
[1] Mr Pritchard and Mr Tualevao, you appear for sentence today for your roles in the commercial importation of methamphetamine into New Zealand.
[2] Mr Pritchard, you pleaded guilty to three charges of importing methamphetamine.1
1 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a). Maximum penalty: life imprisonment.
[3] Mr Tualevao, you pleaded guilty to one charge possession of methamphetamine for supply,2 one charge of supplying methamphetamine,3 one charge of supplying cannabis,4 one charge of unlawful possession of a prohibited firearm,5 one charge of unlawful possession of a prohibited magazine,6 and one charge of unlawful possession of explosives.7
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 operation 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] One of your co-offenders, Matangikolo Piukana, was a friend of Mr Iuvale. Mr Piukana would receive instructions relating to the importation. You and Mr Piukana both worked for Air New Zealand. You worked at the international terminal of the Airport and had access to the international tarmac, and you were able to collect drug imports organised by Mr Iuvale. You had that role at the Airport, Mr Pritchard, for nine years and you were a trusted employee.
[8] Throughout 2021, Mr Piukana received instructions from Mr Iuvale relating to the importation of methamphetamine on board Malaysian Airlines flight MH145 and
2 Section 6(1)(f) and (2)(a). Maximum penalty: life imprisonment.
3 Section 6(1)(c) and 2(a). Maximum penalty: life imprisonment.
4 Section 6(1)(e) and (2)(c). Maximum penalty: eight years’ imprisonment.
5 Arms Act 1983, s 50A. Maximum penalty: five years’ imprisonment.
6 Section 50B. Maximum penalty: two years’ imprisonment.
7 Section 45(1). Maximum penalty: four years’ imprisonment or $5,000 fine.
Air New Zealand flight NZ5. Mr Piukana worked at the domestic terminal of the Airport and was responsible for assigning baggage handling staff to particular flights. On multiple occasions in 2021, at the direction of Mr Iuvale, Mr Piukana organised a crew of baggage handlers to physically remove shipments of methamphetamine from recently arrived aircraft. Mr Pritchard, you were a member of this crew. The drugs were subsequently driven off Airport grounds and on‑supplied to other members of the syndicate at the direction of Mr Iuvale.
[9] The proceeds of the syndicate’s operation were stored in the form of large amounts of cash at Mr Piukana’s sister and brother-in-law’s home address.
[10] Sometime in 2021, Mr Iuvale organised the importation of a commercial quantity of methamphetamine from Kuala Lumpur, Malaysia. Mr Piukana arranged for members of the syndicate to offload the consignment once it landed at the Airport. On 8 June 2021, Mr Pritchard, you confirmed with Mr Piukana that you were ready to assist with the upcoming importation and requested information about it.
[11] On 8 June 2021, three boxes containing methamphetamine were loaded onto Malaysian Airlines flight MH145 headed for Auckland. The consignee of the boxes was named as “PB Technology, 587 Great South Road, Manukau, Auckland”.
[12]Mr Pritchard, you arrived for your shift at the Airport early on 9 June 2021. At
11.54 am, Mr Piukana messaged you confirming that the methamphetamine was aboard the incoming flight. At 12.05 am, the importation was confirmed. Mr Piukana, who was not rostered to work that day, informed you that he would come into the Airport to assist.
[13] Mr Pritchard, at 12.13 pm you messaged Mr Piukana about your payment. Mr Piukana confirmed that you would receive cash on delivery of the methamphetamine. Shortly after midday you made two short calls to another co‑offender, Tungane Manuel. You then advised Mr Piukana that the flight was going to arrive at 1.25 pm.
[14] Shortly after midday, Mr Pritchard, you made two short calls to Mr Manuel. Between 1.13 pm and 1.35 pm, you and Mr Piukana exchanged messages relaying your current locations at the Airport.
[15] Flight MH145 landed at 1.37 pm. The boxes containing the methamphetamine were then offloaded and distributed by members of the syndicate.
[16] Sometime in June 2021, Mr Iuvale organised an importation of methamphetamine from Los Angeles, United States.
[17] On 4 July 2021, Mr Pritchard, you and Mr Piukana messaged each other about an upcoming importation. Mr Piukana confirmed with you that the date of the importation had changed and that it would likely occur on 6 or 7 July 2021. You exchanged similar messages on 10 July 2021 when Mr Piukana informed you that the importation was now scheduled for 12 July. On 11 July 2021, Mr Piukana messaged you confirming that the importation was occurring the following day.
[18] In the early hours of the morning on 12 July 2021, you, Mr Pritchard, and Mr Piukana arrived at the Airport. Air New Zealand flight NZ5 arrived at 5.44 am.
[19] Mr Pritchard, you retrieved a bag from the aircraft containing at least 10 kilograms of methamphetamine. You messaged Mr Piukana confirming possession of the methamphetamine and you asked him where to drop it. You then called another co-offender, Mairau Samson, several times to arrange the handover of the methamphetamine. You messaged Mr Samson when you were in the agreed handover location.
[20] Mr Tualevao, on 20 July 2021 a search warrant was executed at your home address. Analysis of your cell phone seized in the search revealed a series of messages on the encrypted messaging app “Threema” relating to that 12 July importation. Following the importation, the methamphetamine was delivered to you for storage and, on Mr Iuvale’s direction, on-supplying.
[21] On the morning of 12 July 2021, Mr Tualevao, you messaged Mr Iuvale and his brother via Threema about the methamphetamine importation. You continued to communicate via Threema throughout the day, sending Mr Iuvale an image of 10 vacuum sealed packages of methamphetamine at his request.
[22] At 1.57 pm, you were advised that Mr Iuvale’s brother, Tony Iuvale, would visit your address to test one kilogram of the methamphetamine. At 2.34 pm, Mr Iuvale directed you to supply at least one kilogram of the methamphetamine to an associate — which you did. At 4.58 pm, Mr Iuvale then instructed you to deliver at least one kilogram of methamphetamine to another co-offender, Ralph Vuletic. Mr Iuvale described Mr Vuletic as his “right hand”; you exchanged the methamphetamine with Mr Vuletic at Deborah Place, opposite Mr Iuvale’s parent’s house and confirmed this with Mr Iuvale at 5.20 pm. You were then advised by Mr Iuvale that an identical drop would occur in one hours’ time. This second drop/exchange occurred at 7.46 pm.
[23] Later that night, you told Mr Tony Iuvale that buyers would purchase large amounts of methamphetamine the next day. You continued to supply the remaining methamphetamine as directed by the Iuvale brothers.
[24] On 30 July 2021, three boxes of methamphetamine were loaded onto MH145 destined for Auckland. The consignee was “B Smart Living Carringbah Shop 3 153 Denmand Ave Carringbah N Zealand NZ.” Mr Piukana directed that the importation would occur at the Airport.
[25] Mr Pritchard, on 31 July 2021 at 5.36 am, you arrived at the “Park and Ride” area close the Airport in your own vehicle shortly before arriving at the Airport for your 6.00 am to 1.00 pm shift at the domestic terminal.
[26]Flight MH145 from Malaysia arrived at the Airport at 1.50 pm.
[27] At approximately 1.47 pm, Mr Pritchard, you drove an Air New Zealand van from the domestic side of the Airport to the international side. At 2.04 pm. you approached the aircraft in the van and parked by the rear cargo hold. While there you
loaded the three boxes of methamphetamine into the van. At 2.10 pm, you departed the Airport with the methamphetamine and drove it to the “Park and Ride” area. There you transported the methamphetamine boxes into your personal vehicle. You then returned the Air New Zealand van before leaving the Airport in your personal vehicle.
[28] The quantum of methamphetamine involved in the overall offending by the syndicate I conservatively determined to be at least 100 kilograms.8 This was a significant and commercially motivated operation.
[29] Mr Pritchard, $129,538.50 in cash was located at your house following a police search on 17 November 2021.
[30] Mr Tualevao, the search warrant carried out at your address not only revealed your involvement in the syndicate but also gave rise to a number of other charges.
[31] During the search warrant, police located four firearm bags on a shelf in your garage containing the following prohibited firearms: two AK-74 fully automatic assault rifles; a 7.62 semi-automatic rifle; and a .308 calibre semi-automatic rifle fitted with a suppressor and Leupold scope. Apart from the fact that the weapons were prohibited you have never held a firearms licence. Police located the following prohibited magazines: two AK-74 magazines with 30 round capacity; two
7.62 magazines with 30 round capacity; a 5.56 magazine with 30 round capacity; two
5.56 magazines with 15 round capacity; and two 5.56 magazines with 20 round capacity. Also located were the following unlawful explosives/ammunition: 582 5.45- millimetre cartridges with Tracer tip projectiles; 166 (7.62 x 39) calibre cartridges; five (7.62 x 54) calibre cartridges; one .223 calibre cartridge; and 44 .22 calibre cartridges.
[32] Further information recovered from your cell phone identified that you were involved in the commercial supply of cannabis between 1 December 2020 and November 2021.
8 R v Pritchard [2024] NZHC 3090 at [75].
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:9
(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.10 The significant commercial quantities of methamphetamine imported by the syndicate would no doubt cause significant harm to the community.
(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.
[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. This applies particularly to you, Mr Pritchard. The financial benefits of this offending can be substantial and tempting. You appear to have been financially motivated. Mr Tualevao, I accept that your financial motivation was one factor, but it was very much alongside addiction issues.
[35] I must impose the least restrictive sentence in each of your circumstances and will consider the prospect of rehabilitation for each of you, however, this consideration will be in light of your various levels of financial motivation. Rehabilitation serves to not only improve each of your personal circumstances but further reduces the risks of reoffending.
9 Sentencing Act 2002, s 7(1).
10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [38].
[36] In imposing your sentence, I must take into account your personal, family, whānau, community and cultural background.11 I must impose the least restrictive sentence that is appropriate in the circumstances. I must consider any personal circumstances that would render the means of dealing with your offending disproportionately severe.12
[37] I am concerned in this case with parity issues because there are numerous co‑offenders and the way that this matter has progressed means that some of them have had charges reduced to charges of participating in an unlawful criminal group that has resulted in a much-reduced starting point for offending which bears considerable similarity — particularly to your offending Mr Tualevao. I am aware of parity issues, and it does affect the sentence which it might not otherwise do.
[38] Determining the appropriate sentences involves first identifying the “starting point” for each of your sentences. The starting point is determined by the seriousness of your offending. In your case Mr Tualevao, I will then consider the appropriate uplift to account for your weapons offending — that will produce an adjusted starting point.
[39] I will then consider each of your personal circumstances, including the appropriate reductions for guilty pleas and other factors.
[40] When I consider appropriate reductions and credits, I do not consider that it is simply a case of mathematically adding credits one upon the other, I must consider the overall level of the credit to be applied and make sure that is not either excessive or inadequate.
Approach to methamphetamine sentencing
[41] I have regard to the guideline judgment Zhang v R,13 as updated by the Supreme Court in Berkland v R.14
11 Sentencing Act 2002, s 8(i).
12 Section 8(g) and (h).
13 Zhang v R, above n 10.
14 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
[42] In Zhang the Court of Appeal identified five bands of offending based on the quantity of drugs involved in the offending. This is because quantity is a reasonable proxy for the social harm done by the drug and the illicit gains for making, importing and selling it.15 Band 5 applies to offending where the quantity of methamphetamine exceeds two kilograms. You need to think about that. The top band is to do with two kilograms. The amount of methamphetamine involved in your offending exceeds the top band by some margin, any way we look at it. Band 5 states that an appropriate starting point will range from 10 years’ imprisonment to life imprisonment.
[43] Following a disputed facts hearing, I determined that the syndicate’s importations involved at least 100 kilograms of methamphetamine.16 It is undisputable that for each of you, the offending significantly exceeds the band 5 threshold and warrants a starting point in excess of 10 years’ imprisonment.
[44] Zhang emphasised that whilst quantity is a valuable metric for assessing culpability it is not the only relevant factor.17 The role played by the offender is an important factor for determining culpability.18 The profiles established in Zhang categorised offenders as being either: lessor, significant, or leading and were adjusted in Berkland.19
[45] Leaders are those that direct, organise, buy and sell on a commercial scale. They have substantial links to, and influence upon, others in the operation. They have close links to the original source and an expectation of substantial financial gain. Those who played a significant role may have undertaken a management function under the direction of a leader or an operational function. They were motivated solely or primarily by financial advantage; had actual or expected financial advantage; and some awareness and understanding of the scale of the operation. Those that played a lesser role are those that performed a limited function under direction; were engaged by pressure, coercion or intimidation; who became involved through naivety or exploitation; are solely or primarily motivated by their own addiction; receive little or
15 Zhang v R, above n 10, at [103].
16 R v Pritchard, above n 8, at [75].
17 Zhang v R, above n 10, at [104].
18 At [118].
19 At [126]; and Berkland v R, above n 14, at [71].
no actual financial gain; may be paid in drugs to feed their own addition or in cash that is significantly disproportionate to the quantity of drugs involved or the level of risk; have no influence on those above in a chain; and little, if any awareness of the scale of operation.
[46] I now turn to sentence you each individually and I will begin with you, Mr Pritchard.
Mr Pritchard
Starting point
[47] The Crown submits that you played a significant role in the operation and that a starting point of 23 years’ imprisonment is appropriate.
[48] Your counsel submits that a starting point of between 18 and 20 years’ imprisonment is appropriate in written submissions and urges me towards the bottom of that level.
[49]I have considered the following authorities:
(a)Yu v R:20 a starting point of 22 years’ imprisonment was applied for one charge of importing 110 kilograms of methamphetamine.21 Mr Yu imported the drugs via a shipping container that concealed methamphetamine and pistols. He had been entrusted with arrangements related to the delivery and storage of the methamphetamine. The Court of Appeal found his role to be “at the lower end of significant”.22
(b)Cheung v R:23 a starting point of 25 years’ imprisonment was applied for one charge of importing 176 kilograms of methamphetamine.24
20 Yu v R [2022] NZCA 382.
21 At [26].
22 At [26].
23 Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259.
24 At [63] and [64].
Mr Cheung’s role was to assist in the importation and extract the methamphetamine from shipping containers. The Court held that his role was significant noting that he handled the drugs and could not claim that he was unaware of the quantity. Mr Cheung’s objective was to make money. The Court declined to grant an extension of time for Mr Cheung to appeal the starting point considering that the starting point was in the upper end of the range available under R v Fatu and further noting that Zhang did not reduce starting points for those that played a significant role in large scale commercial drug dealing.
[50] The Crown submits that your role was significant as you undertook an operational role, sitting beneath Mr Piukana in the hierarchy and played a “hands on” role.
[51] In one sense it could be said that you were a courier simply delivering drugs — however that ignores your unique position as an Air New Zealand employee. I accept that you were not an organiser. You were one of the baggage handlers instructed to physically remove methamphetamine from the aircraft.
[52] I accept the Crown’s submission that your role was crucial to the success of the syndicate; you had airside access to the tarmac, and you were able to retrieve the consignments of methamphetamine undetected. The success of the importations via the Airport was contingent upon baggage handlers, like yourself, abusing a position of trust. The significant amount of cash, approximately $130,000, located at your address demonstrates actual substantial financial gain from the offending and indicates that you were aware of the scale of the operation.
[53] As I have said, the main aggravating feature of your offending is the abuse of your position as an Air New Zealand employee. The exact quantity of methamphetamine handled by you cannot be determined. I take the position most favourable to you. You must have been aware of the general scale of the operation. You were certainly aware of the corruption of baggage handlers. I consider the starting point must reflect the gross breach of trust involved and the danger to the security of the border and to New Zealand’s international reputation. The corruption of staff
working the New Zealand border must be deterred. New Zealand has long enjoyed a reputation for having a very low level of corruption and I consider that your actions damaged that reputation.
[54] I distinguish your role from the roles of Mr Piukana and Mr Iuvale. I see you as further down in the hierarchy. I also acknowledge that the exact quantity of methamphetamine cannot be determined although I am satisfied that the syndicate of which you were part imported or planned to import in excess of 100 kilograms of methamphetamine. In being willing to use your position at Air New Zealand to remove boxes from inspection you cannot complain that you didn’t know how much was involved. You were willing to accept the reward no questions asked, and you must take the operation as you found it. That is the risk you took.
[55] Becoming involved in commercial importation of methamphetamine carries serious and inevitable consequences. The maximum sentence is life imprisonment. I do not think that a lengthy period in custody will do you any good at all. Indeed, I think the experience of being caught and arrested has probably already deterred you personally from being involved in anything like this again.
[56] But the purpose of sentencing is not only to deter or punish you. Criminal offending does not only involve defendants and the victims; it involves society in general. One purpose of sentencing in this case is to send a message that commercial importation of methamphetamine might seem like easy money — but the price if you are caught is many years in custody. This sentencing, unfortunately, is not only about you. It is about society’s response to offending of this nature. The amount of money involved is so tempting — for something that you can tell yourself is so small — just deliver some boxes. Because it is so easy and so lucrative the Court’s response has to be very clear. It is not worth it.
[57] However, I am concerned about parity, particularly with Mr Samson and I am concerned to take the least restrictive starting point that I can. Were it not for the parity issues with some of the co-offenders, who have had their sentences for broadly similar behaviour significantly reduced because of resolution decisions, I would be nearer the
Crown’s starting point. As it is, I think the least restrictive starting point I can adopt is 20 years’ imprisonment.
Personal mitigating circumstances
[58] Your pre-sentence report assesses your risk of harm as high and considers offending related attitudes and anti-social peers as factors contributing to your offending. You told the report writer that at the time of your offending that you were in a new relationship and were struggling financially. You could not see a way out of your financial situation. The report records that you have a close family unit comprising of your wife, your daughter from a previous relationship, and two children from your wife’s previous relationship.
[59] I take the assessment of your risk of harm as high with caution because you have not previously offended, and I think that the assessment is heavily influenced by the nature and significance of the operation you were involved in.
[60] Your counsel seeks a 20 per cent credit for guilty plea, a credit of 15 per cent for matters raised in the cultural report which I have read, 10 per cent for previous good character, five per cent for remorse and six months for time spent on a 24-hour curfew.
[61] The Crown accepts that you are entitled to a guilty plea credit in the vicinity of 10 per cent and today accepts that it might be slightly higher. You pleaded guilty very shortly before the commencement of a significant jury trial. I acknowledge that there were adjustments made to the charges, but you could have pleaded guilty to some charges earlier. I consider that a credit of 15 per cent is available to recognise that you took responsibility for your offending, and you saved the state the time and expense of a trial. Your plea was very late even allowing for the complexity and volume of disclosure. I acknowledge that the resolution reached included a change to the charges but that was to your benefit. In the scale of this operation, it does not really reflect a large change in your culpability.
[62] The Crown accepts that you are entitled a discount for your previous good character in the region of 10 per cent. I agree. At the time of your offending, you had
no previous convictions. It is an absolute tragedy that so many men who have never previously been in trouble have been tempted and corrupted into this offending and now find themselves in custody.
[63] The Crown, in written submissions, submits it is not appropriate to grant you a reduction for remorse. You expressed remorse to the report writer, saying that you were “really naïve” and just doing what you were told. You had earlier told the report writer that you were unaware of the contents of the packages. It is inconceivable to me that you were unaware of the contents of the packages. You must have known they contained drugs. You carried them. There were multiple boxes on two of the occasions. You were paid large amounts of money. I think your remorse largely reflects the situation you now find yourself in rather than any real concern about the effect of methamphetamine because if you were really concerned you would not have done it.
[64] I agree that your childhood experience and exposure to drugs by the adults in your life normalised drug offending and made you more susceptible to being involved in this offending when the opportunity presented itself.
[65] In terms of the credits for remorse and for the factors in the cultural report, I am concerned not to give credit to an extent that takes the sentence below where it must be in light of the starting point I have taken. I apply a further credit of 10 per cent to reflect that you were disadvantaged compared to others and that was a factor in your offending. I do not apply any discrete credit for remorse.
[66]The overall credit for personal mitigating factors is 35 per cent.
[67] I am going to address the issue of minimum period of imprisonment (MPI) although to do so I will need to indicate where the end sentence is. From a starting point of 20 years’ imprisonment, I deduct 35 per cent for the factors I have set out. I then reduce the sentence by six months to reflect the time on restrictive bail. The end sentence is 12 and half years’ imprisonment.
Minimum period of imprisonment
[68] Mr Pritchard, in your case the Crown seeks an MPI of 50 per cent. This is provided for under s 86 of the Sentencing Act. An MPI must not be imposed as a matter of routine or in a mechanistic way. It is important to remember the purpose of an MPI and I have to ask if the period which you would serve would be insufficient for the purposes of denunciation and deterrence.
[69] This is your first sentence of imprisonment. I think that the purpose of general deterrence is met by the length of the sentence. I do not think that an MPI is necessary for either deterring you personally from further offending or any considerations of protection of the public. I am also concerned about parity with co-offenders and because of the way in which this case has developed.
[70]I decline to impose an MPI.
End sentence
[71]Mr Pritchard, please stand.
[72] You are sentenced to 12 years and 6 months’ imprisonment. No minimum period of imprisonment is imposed.
[73]Stand down.
Mr Tualevao
[74] Mr Tualevao, I will approach your sentence in much the same way that you have observed me sentence Mr Pritchard. I will start by determining a starting point that reflects your methamphetamine offending. That starting point will then be uplifted to recognise your weapons and cannabis offending. That will result in an adjusted starting point. I will then consider any mitigating factors that are personal to you. Last, I will consider any aggravating factors that are personal to you.
Starting point
[75] The Crown submits that you played a significant role in the offending and that a starting point of 12 years’ imprisonment is appropriate.
[76] Mr Teppett, on your behalf, submits that a starting point of no more than 10 and a half years’ imprisonment is appropriate. Your charges relate to a total of 10 kilograms of methamphetamine. This squarely places you within band 5.
[77]I have considered a number of authorities:
(a)R v Cutler:25 a starting point of 12 years’ imprisonment was adopted for four charges of possession of methamphetamine and one charge of supplying methamphetamine.26 The total quantity of methamphetamine was 10.2 kilograms. The Judge in that case considered that Mr Cutler’s role was more than limited, performing more than a logistical function, and regarded him as an “important distributor of a significant quantity of methamphetamine” placing him the lower end of the significant category.
(b)Kim v R:27 a starting point of 14 years’ imprisonment was upheld on appeal for possession of at least 15 kilograms of methamphetamine and MDMA for sale.28 Mr Kim was involved in a large-scale drug syndicate that imported and distributed methamphetamine, cocaine and MDMA. Mr Kim was viewed as a “middleman” or “storeman” who distributed large amounts of drugs in exchange for equally large amounts of cash. The Court said that Mr Kim was within the “middle to lower end of the significant range”, noting that he carried out operational functions, was financially motivated and had an awareness of the scale of the operation.
25 R v Cutler [2019] NZHC 2737.
26 At [48].
27 Kim v R [2023] NZCA 332.
28 At [30].
(c)R v Gillet:29 a starting point of 13 years’ imprisonment was adopted for importing 8.1 kilograms of methamphetamine.30 The Judge considered that Mr Gillett’s role was significant and was categorised as a “middleman”. Mr Gillet had no authority over others in the organised criminal group and there was no evidence that he had been financially compensated but the Judge considered that he must have received something for his involvement.
(d)R v Vuletic:31 a starting point of 15 years’ imprisonment was imposed for the lead charge of importing almost 30 kilograms of methamphetamine.32
[78] I have also had regard and listened carefully to what your counsel has said about the other cases referred to.
[79] The Crown submits that your role falls into the middle of the significant category. Mr Teppett accepts that you had an operational role in the offending but says your role left you exposed to the authorities.
[80] I agree with the Crown’s proposed categorisation. You exercised an operational function — you suppled methamphetamine to buyers when instructed. I consider that your communications with Mr Iuvale demonstrate that you had a good appreciation of the scale of the operation, at least the part of it you were involved in. Your acknowledgement of payment to police upon your arrest supports the inference that you were financially motivated to some extent, but I also accept that you had addition issues and likely one of your motivations was feeding your own addiction.
[81] I do not consider your role to be leading. It is clear that you were operating under the direction of those above you in the hierarchy. You took instructions from Mr Iuvale, who you were in regular and consistent communication with. Given Mr Iuvale’s leading role in the operation, I consider that you had insight into the scale
29 R v Gillet [2024] NZHC 1221.
30 At [39].
31 R v Vuletic [2024] NZHC 562.
32 At [31].
of the operation. I consider this places you squarely within the significant category. The amount of methamphetamine involved is well in excess of the two kilograms which places an offender in band 5. You were supplying methamphetamine to buyers in kilogram lots, and you were in possession of 10 kilograms. You were actively distributing the methamphetamine in the community.
[82] I am, however, concerned about parity. Mr Samson was the person who delivered the 10 kilograms between Mr Pritchard and yourself. He had his charges reduced to a charge of participation in an organised criminal group. That carries a much lower starting point of 10 years’ imprisonment. The charges that you face carry a maximum penalty of life imprisonment. Your role too was more involved. You were far more engaged with those higher up the hierarchy and you were engaged in on supplying to various buyers and much more responsible for the eventual distribution of the methamphetamine in the community.
[83] Nevertheless, I am concerned that the end result between you and Mr Samson is going to be very different and I am concerned to temper that. Were it not for that, I would adopt a starting point of 12 years’ imprisonment, but I reduce that to 11 years’ imprisonment.
Weapons and cannabis offending
[84] The Crown submits that cumulatively your weapons and cannabis offending warrants an uplift of two and a half years’ imprisonment. Mr Teppett submits that a total uplift in the vicinity of 18 months’ imprisonment would be appropriate.
[85] I am most concerned about the type of weapons you had. The charges of unlawful possession of prohibited firearms, magazine, and ammunition relate to a very significant number of prohibited magazines, ammunition and to firearms that were automatic and semi-automatic. I do not know if you fully appreciate the amount of harm that sort of weapon could do if it got into the hands of someone willing to use it. A lot of people would die in a very short space of time and that is why those weapons are prohibited. The prohibited items, and the quantity in your possession, have the potential to cause such serious danger and harm to the community.
[86] Mr Teppett, states that because none of the firearms were loaded it can be inferred that you were storing them on instructions rather than using them for protection for any drug dealing enterprise. I do not accept that submission. You were in what could be called a public facing role. You possessed and delivered large quantities of methamphetamine. You were a potential target for people who might take that off you. I consider it obvious that you personally would have seen a need for protection, but in any event, I consider that anybody who has automatic and semi- automatic weapons, and the ammunition and magazines to use them, can expect a strict response from the Court.
[87] The Court of Appeal has indicated that uplifts of 12 to 18 months are appropriate for firearms offending associated with drug dealing.33 In R v Fonotia, an uplift of 15 months was applied to account for three firearms that were located in a search of Ms Fonotia’s property.34 In To’a v R, an uplift of 12 months was upheld for charges resulting from police locating a loaded revolver, 10 rounds of shotgun ammunition, and 32 rounds of blank ammunition.35 You see the difference though — 10 rounds of shotgun ammunition as opposed to semi-automatic and automatic weapons and magazines. In and of itself, possession of such volumes of prohibited and dangerous items is serious — regardless of the link to the drugs. It is criminal offending warranting the imposition of not insignificant sentences of imprisonment. I consider the manner in which the items were found, being contained within what are effectively ammunition grab bags, to be an aggravating feature of this offending.
[88] As the Crown says and as I have stressed, you had two fully automatic rifles and two semi-automatic rifles. You had enough prohibited magazines to shoot well over 100 rounds and you also had the ammunition to fill those magazines. There is also the prevalence of gun violence in Auckland recently which requires deterrence. It is young men like you who are the victims of that quite often. This offending is more serious than simply firearms associated with drug dealing. The firearms
33 Mills v R [2016] NZCA 245 at [18] citing R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at
[41] and Haggie v R [2011] NZCA 221 at [23].
34 R v Fonotia, above n 33, at [41].
35 To’a v R [2020] NZCA 187 at [19].
themselves are prohibited in type. They are incredibly dangerous. You did not just have a firearm — you had what could be described as a small arsenal.
[89] Taking into account this aggravating feature and the sheer quantity of items, I consider that an uplift of two years is appropriate for the firearms and associated items.
[90] I now turn to consider the appropriate uplift for your cannabis offending. The quantum of cannabis you supplied is unknown. The Crown submits that it can be inferred that the amount was not insignificant as there was an apparent element of commerciality. I note the extended period of time the activity occurred within. The Crown contends that this cannabis offending falls within category 2 or 3 as identified in R v Terewi and warrants an uplift of six months’ imprisonment.36 R v Terewi is now an old case and I have to say drug offending in New Zealand has moved on a long way since that case. Mr Teppett submits that this offending warrants an uplift of no more than three months and I agree.
[91] The summary of facts to which you pleaded states that you were involved in the commercial supply of cannabis, but I think that an uplift of three months is sufficient in light of the other sentence which will be imposed.
[92] This results in an overall uplift of two years and three months’ imprisonment and the adjusted starting point is 13 years and three months’ imprisonment.
[93] I consider that this adjusted starting point reflects the seriousness of your offending tempered with parity considerations for you co-offenders. It is not out of all proportion to the gravity of your offending — it could certainly have been higher but for those parity concerns. It reflects not only the serious drug dealing but the quantity and nature of the weapons you had.
36 R v Terewi [1999] 3 NZLR 62 (CA) at [4].
Personal circumstances
[94] Mr Teppett seeks reductions to reflect: your cultural background and addiction issues; your medical conditions; previous good character; youth; remorse; guilty plea; and time spent on restrictive bail.
[95] The Crown acknowledges that you are entitled to reductions for youth and guilty plea.
[96] Your pre-sentence report assesses you as a moderate risk of reoffending and at a moderate risk of harm to others given your possession of firearms and ammunition. You told the report writer that you became involved in the offending because you were a drug addict and unable to pass a drug test and get a job to earn money. You said that you were motivated to improve your family’s finances for the benefit of your young son. As an addict, you must be very well aware of the damage that drugs have done to your own life, and yet you became involved in passing on that damage to others.
[97] The Crown accepts that you are entitled to a guilty plea in the vicinity of 10 per cent. Mr Teppett contends that a reduction of at least 20 per cent should be awarded. You pleaded guilty essentially on the eve of your scheduled jury trial, but I accept that there were significant disclosure issues, and you were entitled to see the disclosure before making considerable decisions.
[98] I am prepared to give you a credit of 15 per cent to recognise that you took responsibility for your offending, and you saved the state the time and expense of a trial. I am well aware of the evidence against you and the Crown case was, in the end, very strong.
[99] Mr Teppett submits that a reduction of 15 per cent should be granted to acknowledge your youth and previous good character. The Crown acknowledges that you are entitled to a reduction acknowledging your youth at the time of your offending. You were 22 years old at the time of your offending. Youth is a mitigating factor in your offending. You have no criminal history — this offending appears to be your first encounter with the Court system. I consider a reduction of 15 per cent to be appropriate to reflect your youth and previous good character.
[100] A discrete reduction of five per cent is sought to acknowledge your remorse for your offending. You told the pre-sentence report writer that you were embarrassed and disappointed by your actions. I see the support you have in Court today and I accept that you are embarrassed and disappointed. It is clear to me that you have let a lot of people down who support you. You have also obtained an alcohol and drug report which states that you are “highly cognisant of the damage methamphetamine and guns cause our communities and spoke at length of the harm methamphetamine has especially on families and children.” However, as I have often observed, reductions for remorse should be reserved for cases where an offender is genuinely remorseful of their offending and the harm that their offending has done, not merely remorseful because of the situation that they find themselves in. When I look at the many and varied credits sought, I need to consider whether your remorse is at a level that justifies a discrete credit and I do not think that it is.
[101] I have read the cultural report provided and I acknowledge addiction issues and the difficulties you faced in childhood. I also acknowledge the health issues that will likely make incarceration more difficult. I apply a further credit of 10 per cent to acknowledge those factors.
[102] Mr Teppett seeks a reduction of at least 12 months to recognise the time you spent on electronically monitored (EM) bail. You spent about two years on EM bail subject to a curfew. Such a reduction is provided for in the Sentencing Act and should reflect time spent on bail subject to an EM condition.37 Reductions for the time range between 30 and 50 per cent spent on EM bail.38 I consider it appropriate to grant a 12‑month reduction to account for your time spent on EM bail.
[103] That means that from a starting point of 13 years and three months’ imprisonment, I give a credit of 40 per cent and reach an end sentence of seven years and six months’ imprisonment.39 I reduce that by 12 months to reflect your time on restrictive bail conditions.
37 Sentencing Act 2002, s 9(2)(h).
38 Paora v R [2021] NZCA 559.
39 The 40 per cent discount leads to a sentence a few months longer than seven years and six months, but for reasons of parity particularly with Mr Samson who delivered the same methamphetamine to Mr Tualevao, I regard seven and a half years as the appropriate sentence.
End sentence
[104]Mr Tualevao, please stand.
[105]You are sentenced to six years and six months’ imprisonment.
[106] I order the destruction of the drugs, firearms, ammunition and magazines located upon the search of Mr Tualevao’s property.
[107]I order the forfeiture of $3,000 located upon your arrest.
[108]Stand down.
Wilkinson-Smith J
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