R v Vailea - [2010] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA510/2009

[2010] NZCA 67

BETWEEN THE QUEEN
Appellant

ANDUNALOTO RAHERA VAILEA Respondent

Hearing: 8 March 2010
Court: Ellen France, Miller and Allan JJ Counsel: B D Tantrum for Crown
W N Dollimore for Respondent

Judgment: 15 March 2010 at 11.30 am

JUDGMENT OF THE COURT

The application for leave to appeal against sentence is granted but the appeal is

dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] The respondent was sentenced on 23 July 2009 to a term of 18 months imprisonment. She had pleaded guilty to seven counts of selling cannabis or having

R V VAILEA CA510/2009 15 March 2010

possession of cannabis for the purposes of sale, plus charges of receiving, possession

of methamphetamine, possession of utensils (methamphetamine) and breach of

District Court bail.[1]

[1] R v Vailea HC Hamilton CRI 2007-019-010321, 23 July 2009.

[2] The Solicitor-General seeks leave to appeal against the sentence on the basis the sentence is manifestly inadequate and wrong in principle. The application raises issues about the appropriateness of the starting point adopted and of the discount for mitigating factors.

Factual background

[3] The charges faced by the respondent arose out of a police investigation into drug dealing by the Mongrel Mob in the Waikato region between March and December 2007. Woodhouse J, in sentencing the respondent, observed that the investigation revealed an organised criminal structure. The top tier involved those at the highest echelon of the gang. The second tier comprised senior patched members who were responsible for obtaining and distributing drugs to those in the third tier, like the respondent.

[4] The facts giving rise to the offending are described by Woodhouse J as follows:

[6] There was a search on 1 August 2007. A methamphetamine pipe was found. [The respondent] admitted it was [hers]. A stolen television was also found.

[7] There was a further search on 27 August. The police found quantities of cannabis in tinnies and ounce bags, cash in different places, another methamphetamine pipe in [the respondent’s] bedroom, and another stolen television. [The respondent] admitted that this television was stolen.

[8] [The respondent was] living at this house with other members of
[her] family. The property was rented in [her] father’s name. [Her] father was convicted on a charge of permitting the premises to be used for selling
cannabis over the period from 27 August to 6 December 2007. ... [her]
mother has also been convicted on charges arising out of this. In another bedroom – this is on the 27 August search – in another bedroom occupied by [her] sister and her [sister’s] boyfriend, the police found a further 2 tinnies and $4,930 in cash.

[9] There was a further search on 6 December 2007 when the police operation came to an end. The police found 11 cannabis tinnies in [the respondent’s] bedroom and 6 more in other places. There was more cash, including $1,845 in [her] father’s possession. In the bedroom of…

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 Vailea

Details

AGLC: R v Vailea [2010] NZCA 67
Case: [2010] NZCA 67
Decision Date: 15 March 2010

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the case of R v Vailea involved the respondent, Unaloto Rahera Vailea, who was sentenced to 18 months imprisonment after pleading guilty to seven counts of selling cannabis and related charges. The Crown sought leave to appeal against the sentence on the basis it was manifestly inadequate and wrong in principle, particularly questioning the appropriateness of the starting point and the discount for mitigating factors. The court had to determine whether the sentence was appropriate in light of the respondent's involvement in an organised drug-dealing scheme, her level of culpability, and the need for deterrence.

The court acknowledged that while the starting point was within the range appropriate for the seriousness of the crime, the uplift for offending while on bail could have been higher. However, the court found that the sentence was lenient due to the significant discounts for personal circumstances and guilty pleas. Although the personal circumstances considered by the Judge were not particularly compelling, the court concluded that the sentence should not be disturbed as the respondent was due for release shortly. The court also noted that the sentence was unlikely to have relevance to other cases arising from the same investigation.

The Court granted leave to appeal but dismissed the appeal. The decision underscores the importance of ensuring that sentencing reflects the seriousness of the crime and the need for deterrence, while also respecting the discretionary power of the sentencing judge.

Orders