R v Tuilotolava
[2017] NZHC 2621
•26 October 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2016-029-000652 [2017] NZHC 2621
THE QUEEN
v
MALACHI DAMIEN NAUA TUILOTOLAVA
Hearing: 26 October 2017 Counsel:
RB Annandale for Crown
RM Mansfield for DefendantJudgment:
26 October 2017
SENTENCING NOTES OF DOWNS J
Solicitors:
Crown Solicitor, Whangarei.
RM Mansfield, Auckland.
R v NAUA TUILOTOLAVA [2017] NZHC 2621 [26 October 2017]
Introduction
[1] Mr Tuilotolava, you appear for sentence in relation to one charge of importing methamphetamine and one charge of participating in an organised criminal group. The Crown has abandoned two related charges. The primary issue is whether you should receive a sentence of life imprisonment. My conclusion on this is much influenced by another Judge’s treatment of two of your co-offenders. More about that later.
Facts
[2] Your charges concern the largest known importation of methamphetamine to
New Zealand. On 12 July 2016, you and at least eight others imported
501 kilograms of methamphetamine—half a tonne—to this country. If sold in kilogram amounts, the drugs would have fetched between $130 million and
$150 million. Your offending is extremely serious.
[3] The factual background is contained in a summary of facts, which you largely accept. The one aspect you do not accept—and to which I shall return—does not, by agreement, require a separate, disputed facts hearing.
[4] In brief, you helped purchase and launch a boat from a remote beach in Northland which travelled approximately 12 kilometres out to sea and returned carrying half a tonne of methamphetamine. You helped unload the drugs. As an Australian national with no close ties to New Zealand, you came here only to commit this offending.
[5] At least eight individuals participated in the importation, which while a common enterprise, involved two distinct groups. The first group was responsible for the delivery of methamphetamine from the offshore vessel to the Northland beach. It consisted of Mr Wan, a Hong Kong national, and Mr Tsai, a Taiwanese national. The second group was responsible for collecting the methamphetamine once it had been brought to shore. You were a member of the second group. You took instruction from Mr Iusitini. Like you, he is an Australian national.
[6] On 29 February 2016 you flew with Mr Iusitini from Auckland to Bangkok. On 6 May 2016 Mr Iusitini returned to Auckland and began preparations for this offending. He instructed Mr M to purchase boxes and hire a campervan, all of which were to be used to store and move the methamphetamine once it arrived here.
[7] On 19 May 2016 you too returned to New Zealand. On 23 May 2016 you travelled with Mr M in the hired campervan to Pukenui, north of Kaitaia. At this stage, you and your associates expected the methamphetamine to arrive on or about
1 June 2016. For some reason, it never did. You travelled back to Auckland on
3 June 2016.
[8] On 5 June 2016 you returned to Northland. You and another bought a nine metre Bayliner boat for $40,000. You paid in cash. A local resident was engaged to complete work on the boat.
[9] On 9 June 2016 you and five others attempted to launch the Bayliner at Shipwreck Bay, Ahipara. You engaged the help of a local. Your group told him the purpose of the launch was to scatter the remains of relatives at sea. The ruse was accompanied by a brief ritual on the beach. The local told your group the boat was not suitable for the rough sea conditions. Presumably Shipwreck Bay has that name for a reason. His warning went unheeded. The boat was severely damaged and had to be removed from the beach to a nearby property for repair.
[10] On 11 June 2016 you and three associates purchased another nine metre boat in Auckland. Again, you paid in cash—on this occasion $98,000. You drove immediately to Ahipara beach, just two kilometres north of Shipwreck Bay. The boat was launched successfully the same evening. It was operated by Mr Wan and Mr Tsai. They took it approximately 12 kilometres out to sea. They returned to shore at approximately 1 am with more than 500 kilograms of methamphetamine in
20 kilogram bags. Mr Wan and Mr Tsai played no further part in the operation. You and two others unloaded the boat and put most of the bags into the campervan. However, you told your associates, on instruction from Mr Iusitini, to take approximately 50 kilograms of the drug to a nearby location hidden in the sand dunes.
[11] On 12 June 2016 Police became involved. It is sufficient to observe your group had aroused suspicion. Police arrested several of your associates, including Mr M while he was driving the campervan containing 440 kilograms of methamphetamine. He later showed Police where to find the 50 kilograms of the drug buried in the sand dunes.
[12] On 14 June 2016 you left New Zealand for Cambodia. While in transit you bought a ticket to Manila. You were there denied entry. And returned here.
[13] You told the pre-sentence report writer you became involved in this operation through a friend. You said your friend manipulated you and took advantage of your trust in him. You said there was no explicit talk of money but you believed you might have received “some financial compensation once the job was completed”. To be clear, those were your words.
Starting point
[14] Importation of methamphetamine carries a maximum penalty of life imprisonment. I am required to impose this penalty if your offending “is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate”.1 Clearly, your offending is within the most serious of its type. Indeed, to date, it is the most serious. As I have said, your offending involves the largest consignment of methamphetamine ever imported to New Zealand. It dwarfs the previous largest importation of approximately
96 kilograms.2
[15] Three of your co-offenders—Mr Wan, Mr M and Mr Fonua—have already been sentenced by this Court.3 The Judge involved with two of those cases, Lang J, was persuaded the facts of the offending required life imprisonment. However, the Judge also concluded the circumstances in relation to Mr Fonua and Mr Wan meant life imprisonment would be inappropriate. The Judge instead imposed very long
finite sentences. The issue for me is whether your personal circumstances, having
1 Sentencing Act 2002, s 8(c).
2 Chen v R [2009] NZCA 445, [2010] 2 NZLR 158.
3 R v Fonua [2017] NZHC 1193; R v [M] [2016] NZHC 2881; and R v Wan [2017] NZHC 1255.
regard to the precise nature of the role you played, would make a sentence of life imprisonment inappropriate.
Is life imprisonment inappropriate?
[16] Lang J described Mr Fonua as “a trusted lieutenant who was required to carry out physical tasks at the behest of those superior to him in the group”.4 He was not involved in the financing of the operation or its overall planning. There was no suggestion he was responsible for, or involved in, the sourcing of the product. Lang J considered it highly unlikely Mr Fonua would have shared in the profits the enterprise would have made.
[17] The Judge concluded Mr Wan’s culpability was significantly greater than that of Mr Fonua. Mr Wan met with those higher up in the organisation in Hong Kong. He agreed to come to New Zealand to become directly involved in the importation— for monetary gain. He was sufficiently trusted to be part of the seagoing crew to collect the drugs. Mr Wan’s role was described by Lang J as “particularly important to the overall success of the importation”.5 Also of note, Mr Wan left the scene as soon as the boat landed, presumably to confine his role to—and knowledge of—the seaward arm.
[18] Fogarty J described Mr M as a highly trusted and “conscientious participant”.6 The Judge assessed his culpability as similar to that of Mr Fonua, for, they carried out broadly similar acts. While Mr M did not assist in purchasing the boats, he was ultimately entrusted with driving the van (containing the
440 kilograms of methamphetamine).
[19] Which brings me to your role. The Crown contends you were second-in- command to Mr Iusitini. The summary of facts, which you accept as broadly correct, records you as “the leader of the group deployed in Northland and active in
effecting the physical landing of the methamphetamine import”. The summary of
4 R v Fonua, above n 3, at [24].
5 R v Wan, above n 3, at [23].
6 R v [M], above n 3, at [4].
facts says you received instructions from Mr Iusitini and “in turn directed others to complete them, demonstrating the group held a hierarchical structure”.
[20] Mr Mansfield advances a different view. He contends your group had a flat hierarchy and you were just a “grunt on the ground” along with other Australian and New Zealand nationals. Mr Mansfield accepts you were a “leader”, but qualifies you only received instructions for the group and reported to management. Mr Mansfield contends you had this role only because your mobile phone could function in areas of poor reception. He submits others had equally important roles. And, draws an analogy with the role of a soldier carrying the radio within a platoon. He submits you were simply the conduit of communications rather than a commander, and a leader only in this much more confined sense. Mr Mansfield notes others were often with you.
[21] I do not accept the analysis. The summary of facts portrays your role as more significant. And for good reason. You had a close association with the directing member of the New Zealand group, Mr Iusitini. You went with him to Bangkok on
29 February 2016. You both returned to New Zealand at similar times (May 2016). You relayed Mr Iusitini’s instructions to the group. That fact alone is significant. Instructions are not conveyed by junior members of an enterprise.
[22] You were also present at almost every significant logistical phase of the operation, including the purchase and launch of both boats and the unloading of the methamphetamine once it finally arrived. Unless the drugs were successfully landed, they were unusable. Your role was to ensure the drugs were landed and available for distribution. For completeness, even if your phone was the only one among the group to function in areas of poor reception, it bears repeating Mr Iusitini chose to communicate with you rather than asking you to pass the phone to others. I conclude you were his trusted lieutenant.
[23] The Crown contends your culpability is greater than that of Mr Wan. I reject this analysis too. I consider your culpability is equivalent to that of Mr Wan. While the summary of facts suggests you issued instructions to Mr Wan, I do not consider this factor alone elevates your culpability beyond his. As noted earlier, Mr Wan was
operating somewhat independently of the New Zealand and Australian nationals. He met with those higher up in the organisation in Hong Kong and accepted instructions directly from them to travel to New Zealand to assist in the offending. And Mr Wan was only one of two people to go on the receiving boat. You, however, played a critical role in overseeing the successful landing of the methamphetamine, and readying it for distribution. Notably, Mr Iusitini did not, it appears, ever go to Northland. He did not need to. You were his lieutenant.
[24] As to your personal circumstances, Mr Mansfield properly emphasises your previous good character: you have no convictions in Australia or New Zealand; there is no suggestion you have done anything like this in the past; you have a diploma in counselling; and you appear to have had steady employment prior to your involvement in this offending. Mr Mansfield also submits a sentence of imprisonment would be harsher on you than for a New Zealand citizen because you have no family support or network in this country. In that respect, I note the public gallery is empty of friends and family. Then there is your guilty plea.
[25] The question is whether these factors make it inappropriate to impose a sentence of life imprisonment. Mr Wan’s position is instructive. Lang J concluded his guilty plea and lack of previous convictions meant a sentence of life imprisonment was inappropriate. The Judge reached the same conclusion in relation to Mr Fonua. Fogarty J reached a broadly similar conclusion in relation to Mr M.
[26] If I had been approaching the case without reference to your co-offenders, I would have imposed a term of life imprisonment on you for the reason offending of unprecedented scale must be met with an unmistakable response. It bears repeating you helped import half a tonne of methamphetamine, a truly pernicious controlled drug. However, a longstanding sentencing principle constrains my response, for, your co-offenders’ sentences affect your sentence. Rather than impose life imprisonment, I adopt the same starting point as Lang J did for Mr Wan: 32 years’ imprisonment. Your culpability is the same as his.
Adjustment for mitigating factors
[27] You are a 26-year-old Australian national with Tongan heritage. As discussed earlier, you were of good character. You are described as “intelligent, well-educated and thoughtful”. You enjoy good rehabilitative prospects. Sadly, these factors have little purchase in relation to the length of your finite term for a number of reasons. First, factors such as these have only modest weight in cases involving commercial dealings in drugs, particularly when the quantity of the drug is so large. Second, these factors persuaded Lang J not to imprison two of your co-offenders for life, a position I have adopted in the interests of what is called parity. To again give these factors effect at this second stage of the analysis would be to engage in double- counting of mitigating features. And given the quantity of methamphetamine involved, general deterrence must be the decisive sentencing principle.
[28] Mr Mansfield submits a sentence of imprisonment would be harsher on you than for a New Zealand citizen because of the absence of family support or a network here. Lang J discounted Mr Wan’s sentence by a year to reflect this factor. I decline to do so. You chose to come to New Zealand to commit these offences. General deterrence—meaning deterrence of those who may otherwise commit like offending—will not be achieved if those who target New Zealand believe they will receive more lenient treatment as foreigners.7 In any event, Mr Wan’s circumstances are different to yours. He was from Hong Kong, and hence “far from … home” as the Judge put it.8 And, English may well be his second language.
[29] There is, however, your guilty plea. Mr Mansfield submits the full
25 per cent discount should be allowed. You pleaded guilty on 26 July 2017. These charges were laid on 16 June 2016. Trial for this matter in relation to those who have not pleaded guilty is scheduled to commence in April 2018.
[30] Mr Fonua pleaded guilty in April 2017. He received the full 25 per cent discount. Mr Wan pleaded guilty on 11 May 2017. He also received a 25 per cent
discount even though Lang J accepted the plea had not been entered at the earliest opportunity.9
[31] The level of discount for a guilty plea depends on a number of factors, including, obviously, the timing of the plea, the strength of the prosecution case and other matters. In your case two other charges were dropped, I assume in consequence of a plea arrangement; namely, possession of methamphetamine for the purpose of supply, and money laundering. However, the two charges to which you have guilty have remained unchanged. I gather the evidence against you was strong.
[32] On balance, I am satisfied you should receive the full discount for pleading guilty for the reasons identified by Lang J vis-à-vis Mr Wan. While your guilty plea is a little later than his, you have also spared the prosecution from the burden of bringing a trial against you. In an era of strained resources, that is not insignificant.
[33] This leaves a sentence of 24 years for the charge of importing methamphetamine.
Minimum period of imprisonment
[34] The Crown seeks a minimum term of imprisonment at the statutory maximum, which is 10 years.
[35] A minimum period may be imposed when a Court is satisfied parole eligibility after one-third of the sentence would be insufficient for any or all of the purposes of accountability, denunciation, deterrence and community protection.10 It is unlikely you will pose a risk to the community in the future, for, your prospects of reform are good. So, community protection is not in issue.
[36] However, the imperatives of denunciation and deterrence in conjunction with the unprecedented scale of your offending and insidiousness of the drug concerned require an emphatic response. More particularly, this jurisdiction must not be
viewed as “soft” by those who may otherwise bring large amounts of controlled drugs here, especially a drug as pernicious as methamphetamine.
[37] I adopt the statutory maximum of 10 years’ imprisonment. For completeness, Mr Wan’s nine-and-a-half-year minimum period likely reflects his shorter determinate sentence. He was sentenced to 23 years’ imprisonment.
Sentence
[38] Please stand Mr Tuilotolava. On the charge of participating in an organised
criminal group, you are sentenced to five years’ imprisonment.
[39] On the charge of importing methamphetamine you are sentenced to a term of
24 years’ imprisonment. You must serve a minimum period of 10 years. [40] All terms are concurrent, meaning they operate at the same time. [41] You may stand down.
……………………………..
Downs J
9