R v Tali
[2022] NZHC 2181
•30 August 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2021-008-2754
[2022] NZHC 2181
THE QUEEN v
LEVI EVAN TALI
Date of hearing: 30 August 2022 Appearances:
M Smith and N Jamieson for the Crown A Hill for the Defendant
Date of Minute:
30 August 2022
SENTENCING NOTES OF POWELL J
R v TALI [2022] NZHC 2181 [30 August 2022]
[1]Levi Tali, you come up for sentence today on the following charges:
(a)Supplying methamphetamine;1
(b)Offering to supply methamphetamine;2 and
(c)Participating in an organised criminal group.3
[2] For the purposes of this sentencing, I rely on the summary of facts provided by Police, which your counsel Mr Hill has confirmed that you have accepted.
The offending
[3] In March 2021, Police commenced an investigation targeting individuals involved in the regular supply of illegal drugs to the Northland community. The investigation began after a number of illegal drug importations destined for Northland addresses were intercepted and, for a period spanning from March 2020 to November 2021, Police looked at the offending committed by a group of persons linked either through family contacts or their association with the Headhunters Motorcycle Gang.
[4] To get a regular supply of drugs into the Northland community, the group would either import methamphetamine, manufacture it themselves in Northland or buy drug products wholesale and sell them at a higher price. The primary drug involved in this offending was methamphetamine.
[5] There is no doubt that the group’s operations were significant. It was a significant commercial enterprise. New Zealand Customs identified some 23 instances of drug importation associated with the group. Generally, the drugs were sent to addresses linked to a member of the group, with false names and phone numbers used. The total amount of methamphetamine identified across these importations was some 20 kilograms, with a street value of around $5,000,000. While you are not alleged to have been involved with the details of the importation and do
1 Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty life imprisonment.
3 Crimes Act 1961, s 98A. Maximum penalty 10 years’ imprisonment.
not face any charges in relation to that, it does provide some insight into the scale of the operation that you were involved in.
[6] As I have noted, the group also undertook activity to manufacture methamphetamine on several occasions and ultimately some 2.5 kilograms was produced, with more being prevented by a lack of iodine. It appears that your role in respect of that offending was as a “runner”, liaising between members of the group in more senior roles and taking “stuff” between houses and people.
[7] A key part of the group’s enterprise was the ongoing acquisition and supply of methamphetamine, where your role was to uplift and move drugs and money at the direction of the leader of the group, Kauri Kerr. You also completed other tasks at the direction of senior group members, including buying small plastic containers commonly used to sell ounces of methamphetamine, meeting other group members for short periods of time to pass on messages, and were present at an address in Ruakaka where other senior members of the group had possession of a semi-automatic rifle. It is for all of these activities that you have been charged with participating in an organised criminal group.
[8] The two methamphetamine charges that you personally face were disclosed by intercepted communications on 9 October 2021. On that date you texted an unidentified number and offered to supply half a gram of methamphetamine. That same day, you texted a different number and organised to supply a “laugh”, which is a common reference to half a gram of methamphetamine. The text messages reveal the unknown number texted you again a short time later asking you to come outside, where the exchange of money and methamphetamine appears to have occurred.
Approach to sentencing
[9] Calculating the appropriate sentence for you is a two-stage process.4 First, I must fix what is called the starting point that this type of offending would attract. This involves identifying the aggravating and mitigating features of your offending, that is the matters that make your offending more or less serious, to arrive at an appropriate
4 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
term of imprisonment. I must also consider whether the starting point should be adjusted for the totality of the offending so that the overall offending is proportionate to the term of imprisonment. I must then at the second stage take into account any of your personal circumstances that are relevant, including your guilty pleas. I must determine whether the starting point should be adjusted through uplifts or discounts as a result of those personal circumstances to reach an end sentence.
[10] In sentencing you today, I must have regard to the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act. The primary purposes of sentencing in this case are to hold you accountable for the harm that you have done,5 to denounce the conduct that you have been involved in,6 and to deter you and importantly others from committing similar offences in the future.7 In particular, the Court of Appeal has recently reaffirmed the importance of deterrence in the type of commercial drug dealing present here, noting in particular the “enormous profitability” of the methamphetamine trade.8
[11] I must further consider the gravity of your offending and your degree of culpability, that is your responsibility for your offending and for the seriousness of that offending. In addition, and importantly, your sentence must be consistent with other similar cases and I must impose the least restrictive sentence appropriate in the circumstances. After I have determined the end sentence, I will then consider the availability of home detention.
Setting the starting point
[12] As I have noted the first step in sentencing you today is setting a starting point for the sentence to be imposed. As you have heard, the lawyers are not in dispute that the lead charge is your participation in an organised criminal group with the two methamphetamine charges, standing to be considered in terms of that wider participation.
5 Sentencing Act 2002, s 7(1)(a).
6 Section 7(1)(e).
7 Section 7(1)(f).
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [90].
[13] There is no guideline case for the offence of participating in an organised criminal group, but I have been referred to a number of cases to assist me in setting a starting point for this offending. Your role within the organisation must be considered in order to determine your own responsibility, however the Court of Appeal has said that each group member must have a degree of responsibility for the wider scale of the offending,9 as that is the very purpose for the charge of participating in an organised criminal group. As Mr Hill said this morning, if those in charge of the groups undertaking these sorts of crimes did not have supporters at every level they could not function, hence the charge.
[14] The Crown’s initial submission on the appropriate starting point for your offending was between three years and nine months’ imprisonment and four years and three months’ imprisonment. As you have heard this morning the Crown’s position has changed and Mr Smith has made submissions indicating that the Crown’s position is now much closer to that submitted by Mr Hill on your behalf. Having considered the case law I agree with Mr Hill that the initial starting point taken by the Crown was too high and did not reflect your level of offending. While I agree that the harm and premeditation associated with your offending in terms of your participation in the group were aggravating features, in the cases referred to by the Crown the offenders clearly fulfilled a much higher and more responsible position within their respective criminal groups and often obtained far more significant financial benefit for their involvement than you did in this case.10
9 Paku v R [2011] NZCA 269 at [12].
10 R v Fonua [2020] NZHC 3107. In this case, Mr Fonua was the secretary of the criminal organisation involved in the offending, which involved him handling large sums of money which he knew came from criminal activities, therefore greatly increasing his overall culpability and involvement in the offending. Importantly, Mr Fonua received large amounts of money from the offending, to the value of $239,000. The starting point for the lead charge of participating in an organised criminal group, which incorporated the money laundering charge, was five years’ imprisonment. Mr Tali did not have anywhere near this level of responsibility, and it is clear that he did not profit financially in the same way, therefore his starting point should be significantly lower.
R v Naufahu [2021] NZHC 1065. In this case, involving the same offending as in R v Fonua, Mr Naufahu pleaded guilty to money laundering and possession of MDMA alongside the charge of participating in an organised criminal group. It was accepted that Mr Naufahu’s position in the group’s hierarchy was near the bottom, however he received financial benefits totalling $115,000 for his involvement. A starting point of two and half years’ imprisonment was set, with an uplift of one month for the MDMA charge.
Edmands v R [2022] NZHC 246. Mr Edmands’ role in a drug syndicate was as a “catcher”, where he collected and delivered sealed packages domestically, aware that they contained considerable sums of cash which would be forwarded onto the leader of the group. In return for this work, Mr Edmands received methamphetamine for his own use in values up to an ounce as well as
[15] On the contrary it is clear from the summary of facts that you had a very minor role within this particular criminal group. It appears you became involved in the group through contact with one of your co-defendants at your rugby league and fight club rather than through any gang association. The summary of facts makes it clear that you sat at the bottom – the very bottom – of the hierarchy of this particular group, and you were only involved for a limited period, between August and November 2021. You, alongside three of your co-defendants, were described as being general ‘gophers’ for the leader of the enterprise. It is unlikely that you received any financial benefit let alone substantial profits for your activities, and as Mr Hill has submitted you made no independent decisions on your own and did not appear to possess any particular level of responsibility within the group. Instead, it appears you simply performed menial tasks for more senior group members for that limited period of time. This included the activities that lead to the two methamphetamine charges, and as the Crown has acknowledged, there is no suggestion that those charges warrant a separate uplift.
[16] Taking these various matters together, I agree with Mr Hill’s submission that the case R v Green11 is the most similar to your offending. As with Ms Green, you were not involved with the actual manufacture (or importation) of methamphetamine and your involvement was related to day-to-day tasks completed at the direction of a more senior member of the group. As with you, the Crown was unable to point to any real benefit gained through the offending, which Lang J recognised lowers the culpability of the offending.12 A starting point of two and a half years was adopted in that case, and Mr Hill submitted that a starting point in this region would also be appropriate for your offending.
relatively modest sums of cash. His involvement lasted for around 10 months. A starting point of three years imprisonment was considered appropriate given the sheer scale of offending. While Mr Tali’s role is somewhat similar to this, he was involved for a shorter period of time and his offending involved lesser scales of cash.
11 R v Green [2016] NZHC 770. In this case, large quantities of methamphetamine were manufactured in Northland, where Ms Green was responsible for holding large amounts of cash which were proceeds of methamphetamine sales. Furthermore, she assisted her partner and co- defendant to supply small amounts of methamphetamine to an associate and assisted her partner in using some of the methamphetamine proceeds to buy jewellery. Lang J addressed the submission that Ms Green became involved through naivety, emphasising that it was clear that Ms Green knew exactly what she was involved in and was a willing participant.
12 At [14].
[17] After consideration of the various cases, which I will detail in the written version of these notes that I am giving today, and the submissions of counsel, I agree that a starting point of two and a half years’ imprisonment is appropriate for all of your offending.
Personal circumstances
[18] I now reach the second stage of the sentencing exercise; this involves determining whether the starting point I have adopted requires adjustment to reflect either aggravating or mitigating factors personal to you, including the discounts for your guilty pleas. It is well established that this Court has a wide discretion to increase or reduce the starting point for a number of different reasons.13 Likewise, in a case called Hessell, the Court upheld that a reduction of up to 25 per cent will be available for an early guilty plea.14
[19] Firstly, I address your criminal history. You do have a reasonably long list of prior convictions, with most of this offending being violence related. The fact that four of the five previous sentencing appearances have resulted in periods of imprisonment indicate the seriousness of your previous offending. However, I note that you have no history of drug related offending. Given the evidence before me, I am willing to accept Mr Hill’s submission that you are making an effort to leave your criminal offending behind, and that an uplift for your previous convictions is not appropriate.
[20] I have then considered whether you should be allowed a discrete discount for your remorse over and above that which is already implicit in your guilty plea.15 I note the Provision of Advice to the Court (“PAC”) report, which states that you did not offer any remorse or insight into your offending at that particular interview and appeared to be pre-occupied with minimising your role and the reasons for your involvement. However, it does not appear to have been recognised by the PAC report writer that you had already broken from the group before the Police moved in to arrest
13 Zhang v R, above n 8, at [134].
14 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
15 See Sentencing Act 2002, s 9(2)(f). A discount for remorse is available when the expressed remorse is genuine and goes beyond mere acceptance of responsibility through entering a guilty plea: Hessell v R [2010] NZSC 135 at [64].
the leadership and you had returned to the Bay of Plenty. Furthermore, when you were arrested for your involvement you immediately accepted full responsibility and on your own initiative were fully cooperative with the Police regarding your involvement in this offending as well as the involvement of your co-offenders which, as both counsel have noted, may leave you open to personal safety risks in the future. For these factors I am prepared to give you a discrete discount of 5 per cent for remorse over and above the guilty pleas.
[21] In addition, having read in particular the various letters of support that have been provided on your behalf, I am satisfied that there are a number of factors indicating that you have very real prospects of rehabilitation and these must be acknowledged. It is clear that since you moved back to the Bay of Plenty you have a very supportive partner and her family who want you to rehabilitate, are willing to help you do so and are working to ensure that you are not involved in any further criminal behaviour. Mr Hill has told me today you now have something very much to look forward to with the impending birth of another child. Hopefully that will be another indication that means you do not get drawn back into this sort of offending. Likewise, you have got a job and that is a very important thing. That occurred while you were on bail and you are now working in forestry and studying, as I understand it, for a professional forestry qualification. Your boss is aware of your criminal charges for which you are being sentenced today and he remains very supportive of you. He has offered you a long-term contract and a close level of oversight and support. Taking these various matters into consideration, I am willing to allow a further discount of 15 per cent for your prospects of rehabilitation.
[22] Finally in terms of discounts, it is accepted by the Crown that a full guilty plea discount of 25 per cent is available given that you pleaded guilty at the earliest possible stage.
[23] The total discounts when combined come to 45 per cent. Applying these to the starting point of two years and six months’ imprisonment gives an adjusted sentence of approximately 16 and a half months’ imprisonment.
Home detention
[24] This takes me then to the issue of home detention. As your sentence is now 16 and a half months’ imprisonment, it is what is known as a short sentence of imprisonment and home detention is therefore an option. As I discussed with counsel, I have received a memorandum prepared by the Department of Corrections that confirms the proposed address and its occupants, your partner and her family, are considered suitable for the purposes of home detention. You have already spent significant time on bail at that address without any safety concerns, and while there was one instance of non-compliance for a period of approximately two weeks, it is accepted that this was to attend your grandfather’s funeral arrangements. You subsequently took full responsibility for this breach even though it had not been discovered, you handed yourself in and were then released on bail to the same address where you have resided without further incident.
[25] Considering this and the circumstances of your offending, including the commitment that you have shown to rehabilitation that I have already discussed, I agree with Mr Hill that a sentence of home detention is appropriate and is the least restrictive outcome in the circumstances. Because in a short sentence offenders are released after serving half their sentence, it is customary to halve the end sentence if home detention is imposed.16 Halving the term of imprisonment that I have calculated means that your final sentence will be eight months’ home detention.
Sentence
[26]Mr Tali please stand.
[27] On the charge of participation in an organised criminal group you are sentenced to eight months’ home detention on the conditions set out in the PAC memorandum, together with a further condition permitting you to continue your employment as approved by the Department of Corrections.
16 See Burton v Police [2017] NZHC 664 at [29].
[28] On the charges of supplying methamphetamine and offering to supply methamphetamine you are sentenced to six month’s home detention on each charge with the charges to be served concurrently, which means your total sentence is eight months’ home detention.
[29]Mr Tali you may stand down.
Powell J
5