R v Tofa-Tulisi
[2022] NZHC 2483
•29 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2020-004-9587
[2022] NZHC 2483
THE KING v
JOSHUA TOFA-TULISI
Hearing: 29 September 2022 Appearances:
B Kirkpatrick for the Crown
J Kovacevich for Mr Tofa-Tulisi
Judgment:
29 September 2022
SENTENCING NOTES OF CAMPBELL J
R v TOFA-TULISI [2022] NZHC 2483 [29 September 2022]
Introduction
[1] Mr Tofa-Tulisi, you appear for sentence having pleaded guilty to a charge of possession of MDMA for supply,1 and a charge of supplying MDMA.2 My job today, on behalf of the community, is to impose a sentence on you for those offences in accordance with law.
Offending
[2] A summary of facts was presented to the Court when you pleaded guilty. You accepted that summary of facts. I will sentence you on the basis of those facts, together with any inferences I can draw from them.3
[3] In 2020, the Police National Organised Crime Group began an investigation into a drug syndicate comprising primarily members of two motorcycle clubs, and various associates. The investigation centred on the syndicate’s apparent involvement in the importation, manufacture, production and commercial scale supply of various controlled drugs in New Zealand.
[4] In this investigation, you were identified as being involved in the possession and supply of MDMA. During the period of offending from 9 January to 2 December 2020, you would generally sell MDMA in gram amounts. You used an encrypted messaging application to facilitate drug deals. As a result, Police captured only a small fraction of your offending.
[5] On 2 December 2020, Police executed a search warrant at your home. In your car, officers found 17 zip-lock bags inside a satchel, each containing one gram of MDMA.
[6] Police also located your iPhone. Analysis of the iPhone’s contents showed that you sold grams of MDMA. You sold grams for $200 and ounces for $2,000. Also
1 Misuse of Drugs Act 1975, s 6(1)(f) & (2)(b). Maximum penalty: 14 years’ imprisonment.
2 Section 6(1)(c) and (2). Maximum penalty: 14 years’ imprisonment.
3 R v R [2019] NZCA 135 at [33]; R v Kinghorn [2014] NZCA 168 at [20] and [31]; Pokai v R [2014]
NZCA 356 at [30]–[36]; and R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494.
on the phone were videos of you counting and bundling large quantities of cash, being the proceeds of your MDMA dealing.
[7] When spoken to by Police, you did not comment on your drug dealing activities. As to the MDMA found in your car, you stated you had found it at a wedding.
Approach to sentencing
[8] The Sentencing Act 2002 sets out the purposes and principles of sentencing. Here, relevant purposes include holding you accountable for the harm that your offending has done to the community, promoting in you a sense of responsibility for that harm, denouncing your conduct, deterring you and others from committing similar offending, and protecting the community.4
[9] The principles include the need to consider the gravity of your offending and your degree of culpability, the seriousness of these offences and the general desirability for consistency with sentences that have been imposed in similar cases. I must also impose the least restrictive outcome that is appropriate in the circumstances.5
[10] Determining the appropriate sentence involves, in your case, three steps. First, I must determine a term of imprisonment as the “starting point” for the sentence, which will be based on the seriousness of the offending to which you have pleaded guilty. Secondly, I will consider your personal circumstances, including the appropriate deduction for your guilty plea.6 This will produce the notional end sentence. Thirdly, I will consider whether a sentence less than imprisonment, such as home detention, is appropriate.
4 Sentencing Act 2002, s 7(1).
5 Section 8.
6 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].
Starting point
[11] A case called Wallace is the guideline judgment for offending involving class B drugs such as MDMA.7 It establishes that there is a considerable range in the seriousness of such offending. It identifies three categories of offending. The first two categories, involving commercial activity on a very large scale, will attract starting points of between five and 14 years’ imprisonment. The third category is for smaller operations that nevertheless still represent commercial dealing. That sort of offending will attract a starting point of up to five years’ imprisonment.8
[12] Your offending falls within that third category. You possessed and supplied MDMA in commercial quantities, but you played a lesser role than others in the syndicate.
[13] In deciding where your offending sits in relation to the range of available starting points in that third category, I take into account three main factors. First, there was significant premeditation and sophistication to your offending. It spanned most of 2020 and it involved the use of encrypted apps. Secondly, the videos extracted from your phone show that you obtained some profit from the offending. On the other hand, and thirdly, Mr Kirkpatrick acknowledged that you were on the outer periphery of the offending.
[14] In light of those factors, you sit roughly in the middle of the third category, and a starting point of two years and six months’ imprisonment is appropriate. This is also consistent with the starting points in similar cases to which Mr Kirkpatrick referred me.9 Your counsel, Mr Kovacevich, referred me to largely the same cases.10
7 R v Wallace [1999] 3 NZLR 159 (CA). Mr Kovacevich, in his submissions, said that the recent decision in Cavallo v R [2022] NZCA 276 was the new relevant tariff decision. But [28] of that decision makes clear that it is not a guideline judgment.
8 At [30]–[32].
9 R v Schaumkell HC Auckland CRI-2007-004-14251, 1 February 2008 (starting point: two years’ imprisonment); R v McKenzie HC Auckland CRI-2006-404-355, 12 October 2006 (starting point: two years and six months’ imprisonment); and R v Campen HC Auckland CRI-2007-004-18646, 27 August 2010 (starting point: three years and six months’ imprisonment).
10 R v Burke [1999] CA373/98, 19 April 1999; R v Schaumkell HC Auckland CRI-2007-004-14251, 1 February 2008; R v McKenzie HC Auckland CRI-2006-404-355, 12 October 2006; R v Campen HC Auckland CRI-2007-004-18646, 27 August 2010.
Personal circumstances
[15] I now turn to your personal circumstances. There is nothing in your circumstances to justify any uplift to the starting point. You do, by contrast, have some matters that warrant credits against the starting point.
[16] Mr Kirkpatrick acknowledged that a guilty plea credit in the range of 15 per cent is available. Mr Kovacevich contended for a 20 per cent credit, saying that the charging documents and agreed summary of facts were not finalised until very late.
[17] You pleaded guilty on the first day of your scheduled trial. The lateness of your plea reduces the credit available to you. Ordinarily, you would not receive a 15 per cent credit for a plea on the first day of trial. However, I accept that the plea was made in the context that Mr Kovacevich described. In the circumstances, a 15 per cent allowance is appropriate.
[18] Mr Kirkpatrick also said that you are entitled to credit for your lack of prior convictions.11 I accept that such a credit is appropriate if also accompanied by evidence of previous good character. In this case there is plenty of such evidence. I have been provided with several letters of reference, and your uncle Mr Eroni Clarke has spoken very highly about you this morning. You are still a young man of 26. You have spent most of your adult life employed. That includes for much of the time that you have been on bail on these charges. Your current employers speak highly of you. Other referees speak highly of your commitment to your family and your community. I accept that, apart from this offending, you have made a positive contribution to your family and society. A 10 per cent allowance against the starting point is appropriate.
[19] Mr Kovacevich also sought a five per cent credit for remorse. You have written a letter of remorse to the Court. I have read it and accept that it is genuine. I have also been provided with a report under s 27 of the Sentencing Act. The report writer, Sir Michael Jones, says that you understand that you have done wrong and are very remorseful. I accept his views.
11 Mr McCoubrey referred me to Fangupo v R [2020] NZCA 484 at [58].
[20] A credit for remorse in addition to a credit for a guilty plea is, however, exceptional.12 I accept that your expression of remorse is genuine, but it has come late and has not as yet been accompanied by action. I consider that the 15 per cent credit for your guilty plea already takes adequate account of any remorse.
[21] The s 27 report does not only report your remorse. It also explains some of your background. You were born in Auckland but are of Samoan heritage. You moved to Australia with your immediate family when you were twelve. In 2019, when you were 23, you moved back to Auckland to look after your grandparents, who were ill. Your immediate family remained in Australia. You did this out of a feeling of obligation to your family. Most of your income went to your family back in Australia (who were suffering financially from the pandemic) or towards your grandparents.
[22] During 2020, your great grandmother and then your grandfather died within a week of each other. You felt under a lot of pressure to contribute financially on behalf of your family after their deaths. Some of your contributions came from money you had earned from drug dealing.
[23] I consider that this background provides some explanation – though not an excuse – for your offending, and therefore needs to be taken into account in assessing your overall responsibility for that offending. You returned to Auckland by yourself at a young age and were consequently separated from the support of your immediate family at that time. I consider that this contributed to your poor decision-making that led you to deal in illicit drugs. This would have been exacerbated by the loss of your great grandmother and grandfather during 2020. I also take into account the pressure that you felt to contribute to your family at that time. This pressure was in part a response to your Samoan culture described eloquently to me both by Sir Michael Jones and by Mr Clarke this morning. I consider that a further allowance of 10 per cent against the starting point is appropriate to reflect all of these circumstances.
[24] Finally, you spent four and a half months on bail subject to a 24 hour curfew. Although this was not electronically monitored, I accept it was restrictive. I allow a credit of half a month for this.
12 Pollard v R [2018] NZCA 244 at [37].
End sentence
[25] In summary, I take a starting point of two years and six months’ imprisonment. Against that starting point, I allow 15 per cent for your guilty plea, 10 per cent for your previous good character, 10 per cent for the background that I have described, and half a month for your time on restrictive bail terms. This produces an end sentence of 19 months.
[26] Mr Tofa-Tulisi, that is what is known as a short-term sentence. This means I can consider home detention as a sentencing option. In this case I consider it is the appropriate sentencing option. Your offending was serious and deserves to be deterred and denounced. A sentence of home detention achieves those purposes.13 And Mr Kirkpatrick for the Crown acknowledged that home detention was likely to be the appropriate sentence.
[27] Home detention periods are commonly calculated by halving the end sentence of imprisonment that otherwise would have been imposed. I will follow that practice here, except for a small upwards adjustment to reflect that imprisonment is more onerous than home detention.14 The end sentence is therefore ten months’ home detention.
[28] Mr Tofa-Tulisi, in addition to the standard conditions of home detention, I will impose the special conditions that have been proposed for you in the pre-sentence report, which Mr Kovacevich agrees are appropriate.
Result
[29]Mr Tofa-Tulisi, please stand.
[30] For your conviction on the charge of possession of MDMA for supply I sentence you to ten months’ home detention. For your conviction on the charge of supplying MDMA I sentence you to ten months’ home detention. Both sentences are to be served concurrently, so it’s a total of ten months.
13 R v Iosefa [2008] NZCA 453.
14 R v Bisschop [2008] NZCA 229 at [19].
[31] Your home detention address is the address set out in the pre-sentence report dated 13 September 2022. In addition to the standard conditions of home detention, I impose the recommended special home detention conditions on page five of that report.
[32] Finally, Mr Tofa-Tulisi, I acknowledge your parents, your sister and your wider family, including Mr Clarke, who are here in court today. Your immediate family I am told travelled from Australia to show their love and support for you today. From what I have read before today, and from what I heard this morning, I am confident that you are going to repay that love and support that they have shown to you by being here today. The best way to do that is to stay on the right path. Good luck Mr Tofa- Tulisi.
[33]Please stand down.
Campbell J
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