R v Tofa-Tulisi - [2022] NZHC 2483

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tofa-Tulisi

Details

AGLC: R v Tofa-Tulisi [2022] NZHC 2483
Case: [2022] NZHC 2483
Decision Date: 29 September 2022

CaseChat Overview and Summary

Joshua Tofa-Tulisi appeared before the High Court of New Zealand, Auckland Registry, for sentencing following his guilty plea to charges of possession of MDMA for supply and supplying MDMA. The court was required to determine an appropriate sentence that adhered to the principles and purposes of sentencing under the Sentencing Act 2002, while considering the specific circumstances of the offender and the nature of the offending. The court had to balance the need for accountability, deterrence, and community protection against the personal circumstances and mitigating factors presented by the defence.

The court commenced by establishing a starting point for the sentence based on the seriousness of the offending, guided by the Wallace case which provides a framework for drug-related offences. It was determined that Tofa-Tulisi's involvement, while significant, was on a smaller scale compared to other members of the syndicate. The court identified a starting point of two years and six months' imprisonment, reflecting the commercial nature of the offending, albeit acknowledging Tofa-Tulisi's peripheral role. The court then considered personal circumstances and mitigating factors such as the offender's guilty plea, lack of prior convictions, and evidence of good character. Additionally, the court took into account the offender's background, including his separation from immediate family and financial pressures related to his cultural obligations, which provided context but not an excuse for his offending.

After evaluating these factors, the court determined an end sentence of 19 months' imprisonment. Given the nature of the offence and the mitigating factors, the court deemed home detention to be an appropriate alternative to imprisonment. The court imposed a sentence of ten months' home detention, to be served concurrently, with special conditions as recommended in the pre-sentence report. The court emphasised the importance of the offender's rehabilitation and reintegration into society, encouraging him to stay on the right path.

The court's final orders included a sentence of ten months' home detention for each charge, to be served concurrently, with specific conditions for home detention as outlined in the pre-sentence report. The court also acknowledged the support shown by the offender's family and encouraged him to maintain a positive relationship with them.

Orders