R v To'Ofohe
[2025] NZHC 1184
•15 May 2025
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF MR TO’OFOHE’S SISTER AS A CONNECTED PERSON PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011. SEE PARAGRAPH [85].
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-085-1188
[2025] NZHC 1184
THE KING
v
SUNIA MANO TO’OFOHE
Sentencing: 15 May 2025 Appearances:
T G Bain and L R van der Lem for Crown K I Jefferies for Defendant
Sentencing notes:
19 May 2025
SENTENCING NOTES OF GWYN J
Introduction
[1] Sunia Mano To’ofohe, you appear for sentence today, having been convicted by a jury of 14 charges in total:
(a)three charges of possession of methamphetamine for supply;1
1 Misuse of Drugs Act 1975, s 6(1)(f) and (c) and (2)(a); maximum penalty of life imprisonment.
R v TO’OFOHE [2025] NZHC 1184 [15 May 2025]
(b)one charge of possession of cocaine for supply;2
(c)two charges of possession of oxycodone for supply;3
(d)one charge of possession of LSD for supply;4
(e)one charge of possession of GBL for supply;5
(f)one charge of possession of cannabis for sale;6
(g)one charge of unlawful possession of a firearm;7
(h)one charge of unlawful possession of ammunition;8 and
(i)two charges of supplying methamphetamine.9
[2] In sentencing you today, I apply the Sentencing Act, which sets out the purposes and principles of sentencing. The particular purposes of sentencing I think are relevant to you are to hold you accountable for the harm you have done to the community through your offending; to denounce and deter the criminal conduct; and to protect the community.10
[3] Because sentencing is a public process it is important that I set out the detail of the offending you have been found guilty of. Then I will talk about your personal circumstances and summarise what the lawyers have said to me about how I should approach the sentencing. I will then calculate a sentence by adopting a two-step approach: first, I will set a starting point based on the offending. At that stage I will talk about an important case called Zhang v R, which is what we call a “guideline”
2 Section 6(1)(f) and (c) and (2)(a); maximum penalty of life imprisonment.
3 Section 6(1)(f) and (c) and (2)(b); maximum penalty of 14 years’ imprisonment.
4 Section 6(1)(f) and (c) and (2)(a); maximum penalty of life imprisonment.
5 Section 6(1)(f) and (c) and (2)(b); maximum penalty of 14 years’ imprisonment.
6 Section 6(1)(f) and (e) and (2)(c); maximum penalty of 8 years’ imprisonment.
7 Arms Act 1983, s 45(1)(b); maximum penalty of 4 years’ imprisonment, a fine of $5,000, or both.
8 Arms Act 1983, s 45(1)(b); maximum penalty of 4 years’ imprisonment, a fine of $5,000, or both.
9 Misuse of Drugs Act, s 6(1)(c) and (2)(a); maximum penalty of life imprisonment.
10 Sentencing Act 2002, s 7.
judgment for offences involving methamphetamine,11 and some other cases involving similar offending. Second, I will consider whether any uplifts (increases) or discounts should be applied to that starting point to reflect your personal aggravating and mitigating circumstances. Finally, I will consider whether to impose a minimum period of imprisonment.
[4] A written copy of what I am going to say will be provided to your lawyer. That may include some additional technical, legal detail.
The offending
[5] All fourteen charges result from Operation Elusive, a Police investigation into the supply of methamphetamine in the Wellington region between 2021 and 2023. You were the target of this investigation.
[6] The investigation was terminated on 23 May 2023. Police officers followed you as you drove south from Auckland to Wellington. At about 6.25 pm, they executed a search warrant on your Holden Commodore at a car wash in Levin. You admitted to the Police that there were drugs and money in your bag inside the vehicle. A search of the car and its contents revealed approximately 59.6 grams of methamphetamine, about 5.9 grams of cocaine, 23 pills of oxycodone, and $125,955.50 in cash, largely packed in $10,000 bundles.
[7] Later that evening, the Police searched your bedroom in the house where you were living in Lower Hutt. They located approximately 11.2 kilograms of methamphetamine, along with scales, tick lists, empty packaging and a currency counter. The Police estimated that 11 kilograms of methamphetamine could have supplied the Wellington region at the time for approximately 9.5 weeks.
[8]During the search of your bedroom the Police also found:
(a)26 tabs of lysergic acid diethylamide, commonly known as LSD;
11 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
(b)80 pills of oxycodone;
(c)about 466 millilitres of gamma-butyrolactone, commonly known as GBL;
(d)approximately 140 millilitres of 1,4-Butanediol, commonly known as 1-4B;
(e)approximately 200 grams of cannabis plant; and
(f)a total of $547,009.30 in cash.
[9] Police also found a Ruger rifle with 57 rounds of various calibre ammunition in your bedroom. This is what the unlawful possession of a firearm and of ammunition charges relate to. You have never held a firearms licence, and the rifle was stolen in a burglary from a Wellington address in 2017.
[10] The Police seized your cell phone and extracted data from it. The charges of supplying methamphetamine and one of the charges of possession of methamphetamine for supply arose from this data. The data showed:
(a)on 15 January 2023, you sent a Wickr Me message to a female customer, confirming that you had allegedly supplied her with eight ounces of methamphetamine over the preceding eight months;
(b)based on analysis of images on your phone, between 26 February 2023 and 24 May 2023, you supplied a total of 951 grams of methamphetamine from the bag marked “27” to other people; and
(c)based on analysis of images on your phone, you were in possession of at least 14.5 kilograms of methamphetamine during February 2023.
[11] There was some duplication in the methamphetamine particularised in Charge 4 and Charge 13, but the Crown has calculated the total amount of methamphetamine you possessed at some point and have been convicted of was about 24.1 kilograms.
Your counsel, Mr Jefferies, does not dispute this figure, and it is that amount for which I will sentence you.
Personal circumstances
[12] I have read the provision of advice to courts report (PAC report), prepared by the Department of Corrections, and a comprehensive alcohol and other drug report from Dr Gilbert and others (Gilbert report), both dated April 2025.
[13] I want to talk a little about what is in those reports. I acknowledge that much of the information in the reports is of a personal nature, but I need to discuss how it impacts on your sentence.
[14] Dr Gilbert’s report notes that you are of Tongan descent. You had significant family trauma in the course of your upbringing in Auckland. As an infant, you were taken back to Tonga to be adopted by an aunt, but became ill and returned to your parents. This early disruption deeply affected you.
[15] Your father was wrongfully arrested during the Dawn Raids and alcohol use was normalised within your childhood home. You and your sibling, who was also interviewed by the report writer,12 described your parents as loving and hardworking. But because they had to work long hours, they were often not home and had to rely on older family members living at home to help care for you and the other children. You described to Dr Gilbert the abuse you received from these other family members, and your witnessing of family violence.
[16] You had to frequently change schools, which disrupted your education and social development. You struggled academically and socially, often engaging in fights. You left school in Year 11 without qualifications. You began working for Displayworks. You also took on a second job as a bouncer at a nightclub, and continued working two jobs for 12 years. You sustained a head injury while working in 2006 and have had consistent headaches since then; you do not know if you have suffered brain damage.
12 At Mr Jefferies’ request I made an order suppressing your sibling’s name.
[17] You told the report writers you began using alcohol at age 15 and methamphetamine at age 20. Your use was intermittent until you separated from your wife and now 19-year-old daughter in 2010. A year later, you were diagnosed with a serious illness and underwent significant treatment for that, but did not tell your family you were unwell. You report your methamphetamine use becoming heavier after you completed your treatment.
[18] Shortly after, you moved to Wellington. You were employed as the Operations Manager for the new Displayworks office in Wellington. In 2018, that office burned down, creating additional stress for you as you had to work days and nights, frequently driving back and forth to Auckland. You described to Dr Gilbert not wanting to “fail again” and that you often worked more than 100 hours a week with very little sleep.
[19] You say that your substance use escalated significantly over time, and became a means of coping with unresolved trauma, loneliness, depression and anxiety. You reported heavy methamphetamine consumption, daily cigarette smoking, and gambling while under the influence. It is clear that you have dealt with a serious gambling problem, spending hundreds of thousands of dollars on online gambling.
[20] You are a patched member of the Comancheros Motorcycle Club (Comancheros) and describe relating to your peers’ experiences and feeling they were your only source of support.
[21] You quit your job and made plans to return to Auckland, but you were trapped in Hamilton during the COVID-19 lockdown in 2020. You returned to Wellington when travel resumed. You told the report writers you then worked as a truck driver for two years. You were diagnosed with a medical condition in 2022. You had your licences taken off you because of your diagnosis.
[22] You told the report writers that in the 12 months leading up to your arrest in May 2023, you felt depressed and started to self-isolate and use more methamphetamine again. You say that in this period, you were using one to two grams a day or more, and needed to find more than $2000 a week to pay for your addiction alone.
[23] You maintained to the PAC report writer that you feel you have been unjustly charged and convicted for the large amounts of drugs found in your possession, and that you were merely holding the drugs, money and gun for someone else. The report assesses you as not showing any genuine concern or empathy for the social impact your offending has had on the community.
[24] However, Dr Gilbert’s report says that you are now committed to remaining drug and alcohol-free, and not re-offending. You describe your mind as feeling “clear” now that you have stopped using methamphetamine. You say that you can more clearly see your behaviour following the recent birth of your twins, and that you did not feel the need to undertake addictive behaviour such as gambling or drugs while you were on bail because you were fully occupied caring for them. Indeed, it seems your children have given you a sense of purpose, and you have expressed a wish to work in a community role with youth who are facing challenges.
[25] Dr Gilbert and his team assess you as being in the “contemplation” stage of the Stages of Change recovery model – this means that you may not yet be ready to make change, but are open to accepting the need to do so. Dr Gilbert therefore thinks you may be in a good position to begin a recovery journey if you are motivated and can be properly supported.
Submissions
[26] I am now going to work through the process I described at the beginning – setting a starting sentence and then considering any increases to or discounts from that starting point. In doing so I will summarise what each of Mr Bain for the Crown, and Mr Jefferies on your behalf have said to me about how I should sentence you. You have heard the submissions made by them this morning. As well I have received detailed written submissions from them.
[27]As you will have heard, in summary, Mr Bain, counsel for the Crown, said:
(a)your role for the purposes of methamphetamine offending should be categorised as “leading”;
(b)your charges for other drugs should be treated as an aggravating factor of your methamphetamine offending;
(c)an appropriate global starting point would be in the region of 19–20 years’ imprisonment;
(d)I should not apply a discount for good character or addiction, but could apply a discount of five–10 per cent for personal factors; and
(e)I should impose a Minimum Period of Imprisonment (MPI) of 50 per cent of your end sentence.
[28]Your counsel, Mr Jefferies, submitted:
(a)your role should not be categorised as leading. He says in some ways it was “lesser”;
(b)no increase for the other drug charges is necessary;
(c)an appropriate global starting point would be about 16 years;
(d)I should apply a discount of 35 per cent for your personal factors, including good character and addiction; and
(e)I should not impose an MPI.
Starting point
[29] There is a significant case decided by the Court of Appeal, called Zhang, which provides judges like me with guidance on sentencing in methamphetamine-related cases. That case established five sentencing bands based on the quantity of drugs involved.13 Looking at quantity alone (24.1 kilograms) your offending falls clearly
13 Zhang v R, above n 11.
within the top band (band five), which is for amounts over two kilograms. The guide for offending of this scale is a sentence of between 10 years’ and life imprisonment.14
[30] As well as the quantity of the drugs involved, the other factor I have to consider is the role you played in the methamphetamine dealing operation. That also affects the calculation of the starting point.15 Counsel disagree widely on how to describe your role. In another important case called Berkland v R, the Supreme Court described three possible roles. What they mean by roles is what the offender actually did. The three roles are described as “lesser”, “significant” and “leading”.16
[31] The Crown submits that the role you played is squarely within the “leading” category. Mr Bain points to:
(a)The amount and variety of drugs and cash (in excess of $670,000), which he says suggests you were operating independently, particularly given your use of a money counter and tick lists, and that you photographed a “stocktake” of the drugs.
(b)Your role within the Comancheros, which the Crown describes as “relatively senior”. Detective Elliot Bartley has provided evidence which he says shows you were nominated to be one of three New Zealand Chapter representatives to fly to Spain for a planned Comancheros event. Mr Bain says that is not consistent with you being a person in a subservient role within the broader organisation.
(c)Your Wickr Me messages, which show that you were able to give away significant amounts of methamphetamine to a female customer without immediately demanding a return payment, which suggests that the drugs were yours to do with as you saw fit.
(d)Evidence of a “relatively sophisticated operation”, such as your use of encrypted applications like Snapchat and WickrMe to avoid detection,
14 At [125].
15 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [71].
16 At [71].
rather than corresponding over text, and your use of vehicles registered to associates and third parties to avoid Police detection and disguise your assets.
(e)The fact that you were benefiting personally from the sale of methamphetamine, as is made clear by what Mr Bain refers to as the “indications of significant realised wealth” found in your bedroom. The Crown points to large quantities of luxury goods, such as expensive shoes, bags, watches and gold rings, found in your bedroom, despite your unemployed status between October 2019 and 23 May 2023. A Police forensic accountant who has examined your financial history has calculated that during that time period you spent $386,966 on gambling. That report was unable to identify any legitimate source for those funds.
(f)Messages recovered from your phone between you and associates show that you were directing others. To take one example, you messaged an account with the username nottelling1388 “I give you gear to sell and all you seem to do is continue to spend the money.”
(g)The sheer scale of the methamphetamine and other drugs involved, which Mr Bain submits highlights an expectation of a “commercial profit” or “significant commercial gain”.
[32] Your counsel, Mr Jefferies, disagrees with the Crown. He submits that there is no evidence to suggest that you had a “leading” role. Mr Jefferies says that:
(a)You were in fact more of a courier and store-person, who collected drugs from Auckland and held the proceeds of the sales carried out by others, and that you were permitted free access to the drugs for personal use.
(b)Any sale to others as demonstrated by messages that were in evidence at trial was restricted to your girlfriends and other friends, and was not commercial drug dealing.
(c)Although you are a member of the Comancheros, there is no evidence that this was a gang drug dealing operation, so your membership does not add anything to your culpability. Mr Jefferies says that the disclosure presented to the defence following Operation Elusive did not identify any contact between you and any Comanchero member in relation to the procuring and/or supply of any illegal drugs.
(d)The money and drugs were found in your unlocked bedroom in a modest flatting situation, which does not suggest the sophisticated tradecraft the Crown alleges.
(e)Finally on this point Mr Jefferies says you did not have significant assets for your age and did not flaunt your wealth. For example, he says you collected the designer sneakers over many years, and that the “designer” bags are fakes.
[33] Mr Jefferies says that, rather than having a “leading” or even a “significant” role, you meet many of the factors in the “lesser” role category:
(a)You were not directing or organising the activity and there was no evidence of substantial influence on others in the chain.
(b)The financial gain was not all yours.
(c)There was no use of a business as cover.
(d)There was no evidence of abuse of a position of trust and responsibility.
[34] There is a big gap between the two lawyers’ assessment of your role. I must take into account what they have had to say and all the evidence and reach my own
view. Having done that, I consider that your role is appropriately categorised as being at the upper end of “significant”. I will set out how I have reached that conclusion.
[35] First, I do not accept your submission that you were merely holding the drugs for somebody else, and that any sale was to friends. That is inconsistent with the evidence at trial and with the jury’s verdicts. The commercial nature of the operation is shown by the quantity of drugs and money in your possession, the tick lists, the money counter and the scales.
[36] But, having said that, on the evidence that is before the Court we do not know the structure of this drug operation. We do not know whether you were buying the drugs in your own right and then on-selling them, or were part of a bigger operation. It is not possible for me to assess what links you had to, and influence on, others who might have been involved in the operation.
[37] I do not think your (undisputed) membership of the Comancheros adds anything to my assessment. As Mr Jefferies has submitted, there was no evidence before the Court that this was a gang drug dealing operation. Whether or not you were a “senior” member of the gang as the Crown suggests, does not really assist me in deciding whether you had a leading or significant role.
[38] I accept Mr Bain’s submission that the WickrMe messages suggest that you were able to give away significant amounts of methamphetamine without requiring immediate payment. That suggests you had a degree of autonomy. But that is consistent with you having either a leading or a significant role.
[39] I also agree with the Crown that the messages to others about giving them gear to sell, suggest you were able to direct others.
[40] I am not persuaded this was a particularly sophisticated operation as the Crown suggests. You were dealing from your bedroom, in a house you shared with flatmates. You did not retain a separate place to store the drugs; you did not use a business as some kind of cover for the operation. While you did use some encrypted apps, that is relatively common these days. What it does show is a level of care and caution. And
it was undoubtedly a large scale and well organised operation – you used several phones, employed tick lists, had a money counter and did regular “stocktakes”. It is also relevant that you were dealing in other controlled drugs – effectively providing a one-stop shop.
[41] It is clear from the Police forensic accountant’s evidence that you did get a substantial personal financial benefit from your dealing. That is illustrated by the
$386,966 you spent on online gambling during a period when you were unemployed. However, I would not describe the personal items found in your room – the designer sneakers, some bags, watches and gold rings – as indications of “significant realised wealth” as the Crown characterise it. There was no evidence that you acquired, for example, real estate or late model cars or motorcycles, or a significant amount of “bling”. You did not have a lavish lifestyle, which might be expected if you had a leading role.
[42] I think you do tick two features of a “leading” role – you were organising sales on a commercial scale and you had an expectation of substantial financial gain. But in other respects, I think your role is better described as a “significant” role. I conclude that your role was significant (at the upper end of that category) but not leading.
Methamphetamine – starting point
[43] I now turn to adopting an appropriate starting point for the sentence. It is helpful to look at other, similar cases to make sure that your sentence is not out of kilter with others. Ultimately though I have to assess all of the particular facts of your case and set a starting point on that basis.
[44] Counsel have referred me to a number of other cases involving methamphetamine offending which they think are helpful comparisons: Thompson, Smith, Fangupo and McMillan.17 The offenders in those cases each received starting points of 17–18 years’ imprisonment for their methamphetamine offending.
17 Thompson v R, part of Zhang v R, above n 11; Smith v R [2020] NZCA 221; Fangupo v R [2020] NZCA 484; and McMillan v R [2022] NZCA 128.
[45] The Crown say that your culpability is similar to that in Thompson, Smith and Fangupo. It also notes that the quantity of methamphetamine in your case is greater than in those cases. On that basis, Mr Bain has submitted that a starting point in the region of 19–20 years’ imprisonment is appropriate.
[46] Mr Jefferies says that the judgment in McMillan is a more useful guide as to the starting point imposed. He submits that, since Mr McMillan’s role was categorised as “leading” and yours is “significant”, the starting point should be less than in McMillan, and I should adopt a starting point of 16 years.
[47] I do not think McMillan is directly analogous. While, as Mr Jefferies submits, Mr McMillan was running quite a sophisticated operation, he was sentenced on the basis of a total of 10.37 kilograms of methamphetamine, less than half the amount in this case.
[48] Of the cases referred to me by counsel, I consider that Smith is the most similar. Mr Smith delivered approximately 15 kilograms of methamphetamine from Auckland to Wellington.18 He had significant autonomy, enabling the manufacturer and the wholesaler to be distanced from the dealing.19 His role was considered to be at the “upper end of significant” with all of the “significant” indicators being met and some of the indicators of a “leading” role.20 I assess your level of culpability as similar to his. Another similarity between Mr Smith’s offending and yours is that a gun and ammunition were also found at his house, for which he received a six month increase in sentence.21 I will come back to that shortly.
[49] In Mr Smith’s case the Court set a starting point of 17 years’ imprisonment. However, you have been convicted for a larger quantity of methamphetamine – nine kilograms higher. I consider that a starting point of between 17 years and six months’ and 18 years’ imprisonment for your methamphetamine offending would have been appropriate, if that was your only offending.
18 Smith v R at [1].
19 At [14].
20 At [14]–[15].
21 At [8] and [17].
Other drug offending
[50] You have also been convicted of offences in relation to cocaine, oxycodone, LSD, GBL, 1-4B and cannabis. The Crown submit that these offences are less serious than the methamphetamine offending, and the quantities involved reflect a small-scale commercial operation. Taken independently, each of these offences would likely be punishable by around two to five years’ imprisonment:
(a)Cocaine is also sentenced according to the bands in Zhang.22 Five point nine grams would clearly put you at the very lower end of Band Two, which is for quantities between five and 250 grams, and punishable by a starting point of between two and nine years’ imprisonment.
(b)An offender who dealt in “comparatively small numbers” of LSD has been considered in the case of Edwards to justify a starting point of four years’ imprisonment.23 The Crown submit that the quantity of LSD found at your home was of much lower quantity than in Edwards, so a starting point of around two years’ imprisonment would be appropriate.
(c)The Court of Appeal has said that for Class B controlled drug offending (which your charges for oxycodone, GBL and 1-4B are), “for smaller operations, but representing commercial dealing, starting points of up to 5 years are appropriate.”24
(d)Finally, small-scale cannabis offending with a commercial purpose ordinarily attracts a starting point of between two and four years, but that where the amount is very small, a lower starting point may be appropriate.25 In your case, the amount of cannabis found was 200 grams, much smaller than in most cases.
22 Cavallo v R [2022] NZCA 276.
23 R v Edwards [2009] NZCA 269 at [5] and [16].
24 R v Wallace and Christie [1999] 3 NZLR 159 (CA) at [30]–[32].
25 R v Terewi [1999] 3 NZLR 62 (CA) at [4]; Devereux v Police [2017] NZHC 167; and R v Williams [2021] NZHC 1368 at [14]. Note that there is no distinction between cannabis cultivation, dealing or possession for sale (R v Gray [2008] NZCA 224 at [7]–[12]).
[51] If I were imposing a separate sentence for each of the charges, those sentences would be two years’ imprisonment for the cocaine offending; two years’ imprisonment for the LSD; three years’ imprisonment for the Class B offending (oxycodone, GBL and 1-4B); and one year’s imprisonment for the cannabis offending.
[52] However, the Crown has suggested that, rather than fix a sentence for each of these charges, I could treat this other drug offending as an aggravating factor of your methamphetamine offending and reach a global starting point, for all the drug offending, adjusted for totality. That means I have to look at the offending as a whole and ensure that the total period of imprisonment is in proportion to the seriousness of the overall offending.
[53] Mr Jefferies disagrees that the other drug offending should be treated as an aggravating factor, because the quantities of drugs were small.
[54] However, as the Court of Appeal has said, “offenders who trade in all classes of drugs with the inherent risk in such trading that their customers will graduate from the less harmful to the more injurious drugs cannot expect the sympathy of the Court.”26
[55] I agree with the Crown that it is appropriate to take your other drug offending into account as an aggravating factor when setting a global starting point. I accordingly adopt a starting point of 18 years’ imprisonment for all of your drug offending.
Firearms offending
[56] Your firearms offending must also be taken into account. The Crown submit that this offending warrants an uplift of six months’ imprisonment. I think that is fair, and in accordance with Smith impose an uplift of six months to reflect society’s condemnation of the unlawful possession of such weapons.
26 R v Barker CA57/01, 30 July 2001, as cited in R v Edwards, above n 23, at [15].
Total starting point
[57] I accordingly adopt a total starting point of 18 years and six months’ imprisonment for all of your offending.
Personal aggravating and mitigating factors
[58] I turn now to the factors that are personal to you that might warrant either an uplift (increase) to the starting sentence, or a reduction.
Previous convictions
[59] First, I am required to take into account any previous convictions, to the extent they are relevant to this case.27 You have six previous convictions, and the only relevant one is for possession of methamphetamine from 2013. I agree with the Crown submission that it is not necessary to impose an uplift for this.
Previous good character
[60] Mr Jefferies has suggested some credit may be available for your previous good character. That is opposed by the Crown.
[61] Other cases on this question28 indicate that what is required for a discount is more than an absence of relevant convictions. For example, there should be some evidence of positive contributions made to society. There is not any evidence of that kind before the Court. In any event, you do have previous convictions. While they are of a different scale to the offending you are being sentenced for, they tend to suggest that the present offending was not an isolated lapse. I do not think a good character discount can be given.
Personal mitigating factors
[62] I must also take into account your personal, family, community, and cultural background.29 As I have already noted, you have had a difficult background, with
27 Sentencing Act, s 9(1)(j).
28 See, for example, R v Scott [2020] NZHC 68 at [85].
29 Sentencing Act, s 8(i).
family trauma, physical and psychological abuse, interrupted education, substance use, loneliness, addiction, depression and anxiety.30
Addiction
[63] The Crown submission is that I should not place any weight on your claims that you offended in order to fund your own addiction to methamphetamine. It says that a claim you are addicted to methamphetamine should be treated with scepticism, as the evidence for this is self-reported.
[64] The Crown also points to the volume of methamphetamine involved, which it says was of a scale “far in excess” of that which could be explained by a need to feed your addiction – enough for you to fund your personal consumption for 77 years. It submits that the evidence clearly demonstrates you were commercially dealing in methamphetamine.
[65] I accept that submission, but I am convinced by the material in the Gilbert report that you have had addiction issues with methamphetamine, although I am sceptical of the amounts you say you were consuming (up to $2,000 worth a week).
[66] It is clear from the Supreme Court decision in Berkland that, while independent evidence of addiction will likely be more powerful, I am not required to disregard self- reported addiction as here.31
[67] Nor is there any hard and fast rule that a discount for addiction should not be available when it is commercial scale offending.32
[68] I must therefore consider to what extent your addiction affected your choices to offend on a commercial scale. I do not believe your claim that your offending was entirely to feed your addiction. But I do consider it likely that your offending has in some ways been influenced by your addiction.
30 See above at [12]–[25].
31 Berkland, above n 15, at [129].
32 At [128].
[69]On that basis, I grant a five per cent discount to account for your addiction.
Other personal factors
[70] That leaves me to consider whether a discount should be given for your personal circumstances other than your addiction. As the Gilbert report notes there are a number of factors in your background – including the things I have already talked about – that are relevant to your offending and provide some explanation for how you have ended up where you are. Mr Jefferies submits that a discount of 35 per cent should be applied. The Crown say that a discount of five to 10 per cent would be appropriate to take account of what you have had to cope with in your background.
[71] Given I have already granted a separate five per cent discount for your addiction, I consider that a 10 per cent discount would be appropriate to account for your other personal circumstances.
EM bail
[72] You were on Electronically-Monitored (EM) bail from 20 June 2023 until your remand in custody following conviction on trial on 18 February 2025, a period of 609 days or just less than 20 months.33 Through that time, there are no recorded instances of you breaching your bail conditions.34 Although there is no exact formula to determine what credit a defendant should receive for time on EM bail, a credit for approximately half of that time can be given.35 On that basis, I am prepared to give you a credit of 10 months for the period you spent on EM bail.
End sentence
[73] So, I have adopted a starting sentence of 18 years for all your drug charges. To that I have added six months for the firearms offending.
33 Sentencing Act, s 9(2)(h).
34 Section 9(3A)(c).
35 See Keown v R [2010] NZCA 492 at [12]; Rangi v R [2014] NZCA 524 at [10]; and Parata v R
[2017] NZCA 48 at [12] and [15].
[74] I have then deducted a total of 15 percent for your personal factors, or two years and ten months, arriving at 15 years and eight months. From that I have deducted a further 10 months to take account of the time you have spent on EM bail. That results in an end sentence of 14 years and ten months’ imprisonment.
Minimum period of imprisonment
[75] Finally, I come to the issue of whether to impose a minimum period of imprisonment or “MPI”. Ordinarily a defendant who is sentenced to a term of imprisonment of more than two years will be eligible to apply for parole after they have served one-third of that sentence. However, the Court has power to order a defendant to serve a longer minimum period of imprisonment where the possibility of parole after the usual period would mean that the purposes of sentencing would not be adequately met.36 Generally speaking, an MPI may be expected in cases of recidivist or commercial methamphetamine dealing.37 The maximum MPI I can impose in your case is 10 years.38
[76] The Crown seeks an MPI of half of the end sentence imposed. It says that the very serious scale of your offending and the length of time over which it continued justify a departure from the ordinary parole entitlements, to hold you accountable for the harm caused by your offending, and to denounce, deter and punish your offending.
[77] Mr Jefferies submits that, given your age, absence of significant previous convictions, commitment to rehabilitation, and remote possibility of further offending, the imposition of an MPI would be inappropriate and unjust.
[78] The Court of Appeal in Zhang cautioned against imposing an MPI in a mechanistic and routine way to commercial drug dealing. The question is whether I think your offending deserves special condemnation, so that the period after which you would otherwise be eligible for parole is insufficient. While there is no doubt that this is very serious offending, I do not think there any any particular aggravating factors that set your case apart from other cases of the same type. Your case can be
36 Sentencing Act, s 86.
37 Chai v R [2020] NZCA 202 at [39].
38 Sentencing Act, s 86(4).
distinguished from McMillan, for example, where Mr McMillan had a persistent pattern of serious drug dealing.39
[79] The Gilbert report assesses you as in the “contemplation” stage of the Stages of Change recovery model, which means that you may be in a good position to begin a recovery journey if you are motivated and can be properly supported. While that does not mean you are “committed” to rehabilitation, it suggests that with the right support you may well be able to set yourself on a different path when you complete your sentence. I am also mindful of your young children who can potentially provide a different focus for your life in the way you say they have done while you have been on bail.
[80] For those reasons, I do not impose an MPI. It will be for the Parole Board to decide whether you should have parole at the appropriate point. That decision will largely depend on whether you can demonstrate to them that you are on the path to rehabilitation and a different life.
Result
[81]Sunia Mano To’ofohe, please stand.
[82] On three charges of possession of methamphetamine for supply, one charge of possession of cocaine for supply, two charges of possession of oxycodone for supply, one charge of possession of LSD for supply, one charge of possession of GBL for supply, one charge of possession of cannabis for sale, one charge of unlawful possession of a firearm, one charge of unlawful possession of ammunition and two charges of supplying methamphetamine, I sentence you to fourteen years and ten months’ imprisonment.
[83]On the Crown’s application, I order:
(a)the destruction of all controlled drugs seized; and
39 R v McMillan [2021] NZHC 2118 at [43].
(b)forfeiture of:
(i)the controlled drugs subject to the charges;40
(ii)the drug utensils connected with the offending;
(iii)the cell phones used in the offending; and
(iv)the firearm and ammunition the subjection of the charges.41
[84] I order that the name and identifying particulars of Mr To’ofohe’s sibling not be published.
Gwyn J
Solicitors:
Crown Law, Wellington for Crown
Jefferies Law, Wellington for Defendant
40 Misuse of Drugs Act, s 32.
41 Arms Act, s 69(1).
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