Samson vs R
[2025] NZCA 159
•9 May 2025
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA760/2024 |
| BETWEEN | MAIRIAU SAMSON |
| AND | THE KING |
| CA752/2024 | ||
| BETWEEN | TOKOFA PAULO TOROMA | |
| AND | THE KING | |
| Hearing: | 26 February 2025 |
Court: | Hinton, Woolford and Edwards JJ |
Counsel: | B J M Meyer and V M Markova for Appellant in CA760/2024 |
Judgment: | 9 May 2025 at 2.30 pm |
JUDGMENT OF THE COURT
A The appeal against sentence in CA760/2024 is dismissed.
B The appeal against sentence in CA752/2024 is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
On 14 November 2024, following guilty pleas shortly before the commencement of a jury trial, Wilkinson-Smith J sentenced Mr Samson and Mr Toroma to two years and four months’ imprisonment and three years’ imprisonment respectively, each for one charge of participating in an organised criminal group.[1] This related to their roles in a syndicate involved in the commercial importation of over 100kg of methamphetamine into New Zealand through the use of corrupt baggage handlers at Auckland International Airport.
[1]R v Piukana and ors [2024] NZHC 3428 [Judgment under appeal]; Crimes Act 1961, s 98A. Maximum penalty: 10 years’ imprisonment.
Mr Samson and Mr Toroma now appeal their sentences.
Mr Samson contends that the High Court erred by adopting an excessively high starting point and failing to give adequate consideration to personal mitigating factors. He says that approach ruled out the possibility of home detention and resulted in a manifestly excessive end sentence.
Mr Toroma also contends that his starting point was too high, particularly when considering parity with Mr Samson and Mr Kimela Piukana, a co-defendant who acted as a messenger for the syndicate.
The Court must allow an appeal against sentence if it is satisfied that there is a material error in the sentence and a different sentence should be imposed.[2] A manifestly excessive sentence constitutes a material error.
Background
[2]Criminal Procedure Act 2011, s 250.
We adopt the Judge’s summary of the facts in sentencing the two appellants. To avoid confusion, we note the summary refers to Mr Matangi Piukana, the older brother of Mr Kimela Piukana. Mr Matangi Piukana was a key player in the syndicate, as opposed to Mr Kimela Piukana, on whose sentencing the appellants rely.
[5] In June 2021, the New Zealand Police commenced a joint investigation with the New Zealand Customs service (Operation Selena). Operation Selena arose after previous joint investigations identified a number of syndicates involved in the importation of drugs, mostly methamphetamine, including two syndicates operating out of Auckland International Airport (the Airport).
[6] One of these syndicates was directed by Nigel Iuvale — a patched member of the King Cobra gang and a co-offender in this offending.
[7] Throughout 2021, Matangi Piukana, a close associate of Mr Iuvale who worked for Air New Zealand as a Service Delivery Leader at the domestic terminal of the Airport, received instructions from Mr Iuvale via encrypted messaging apps and face-to-face meetings relating to the importation of methamphetamine on board Malaysian Airlines flight MH145 and Air New Zealand flight NZ5. In his role at Air New Zealand Mr Piukana was responsible for assigning baggage handlers to particular flights and for unloading baggage when the crew was short staffed. By virtue of his employment, he had airside access to international flights arriving at the Airport.
[8] On multiple occasions Mr Piukana organised a crew of baggage handlers to remove shipments of methamphetamine from recently arrived aircraft. These drugs were subsequently driven off Airport grounds and on‑supplied to other members of the syndicate.
[9] Malaysian Airlines flight MH145 was serviced by Menzies Aviation (Menzies). Mr Piukana instructed a Menzies employee, Mr Manuel, to retrieve consignments of methamphetamine from MH145 flights. Mr Manuel then facilitated the handover of the importations to other members of the syndicate via the Airport security checkpoint — Checkpoint Charlie.
[10] Mr Samson, you were directed by Mr Piukana to assist driving the methamphetamine importations away from the Airport. You contributed to the activities of the syndicate by being available as a courier to help distribute the drugs following importations.
[11] Mr Toroma, in 2021 you were directed by Mr Piukana, who is your cousin, to assist in a courier role. You initially contributed to the activities of the syndicate as a courier at the Airport. However, after commencing work for Air New Zealand as a baggage handler in mid-2021 you assisted Mr Piukana in the organisation of meetings in furtherance of planned imports and were available to be rostered to divert drug imports from aircraft when they arrived.
[12] In April 2021, after the drugs arrived and were removed from the Airport you, Mr Toroma, offered assistance in furthering distribution of the drugs to third parties. You were in communication with Mr Piukana who kept you informed of the status of planned importations. On 30 April 2021, you and Mr Piukana planned to meet at his address until Mr Piukana advised you that he was running late and that the meeting was cancelled because there was a big problem, and that he would update you tomorrow. Mr Piukana had been meeting other members of the syndicate.
[13] Sometime in 2021, Mr Iuvale arranged for the importation of a commercial quantity of methamphetamine to arrive in New Zealand via MH145 on either 18 or 19 May 2021. Your cousin arranged for a crew to assist in facilitating the unloading and receiving of the methamphetamine from the aircraft once it landed and the placing of the methamphetamine into a van, removing it from the Airport. That crew included you, Mr Toroma, and you, Mr Samson.
[14] Mr Samson, on 15 May 2021 at 11.04 pm, Mr Piukana messaged you advising that there would be “big coin” on Tuesday when the importation arrived. Two days later, on 17 May 2021, Mr Piukana attempted to contact you and Mr Toroma — both calls went unanswered. Mr Piukana then messaged both of you to inform you that you had “missed a collect” and would need to wait for the next time.
[15] Mr Toroma, on 17 May 2021 at 9.49 pm, your partner messaged you “please be careful tomorrow morning okay. I know we need this money but it’s not worth the trouble”. On 18 May 2021 at 5.26 am, you were waiting outside the Airport to receive the planned import. You were advised that it was cancelled and postponed until the next day. On 20 May 2021, you discussed the delay with another member of the syndicate. Mr Samson, you were also advised of the cancellation and further delay.
[16] Mr Samson and Mr Toroma, on 11 June 2021, you were both photographed at Mr Piukana’s house holding a large sum of cash.
[17] In July 2021, Mr Iuvale and Mr Piukana organised a shipment of methamphetamine agreed for the purpose of sentencing to be at least 10 kilograms from Los Angeles, United States.
[18] On 12 July 2021 at approximately 5.44 am, flight NZ5 arrived at the Airport. The methamphetamine was retrieved from the aircraft. At 5.51 am, you, Mr Samson, received a call from Mr Piukana confirming that the importation had arrived. At 6.07 am, you were contacted by a member of the syndicate who said that they had possession of the bag and wanted to know where to drop it. At 6.11 am, whilst you were at the Airport you received two more calls from this co-offender who arranged for you to receive the imported methamphetamine. At 6.34 am, Mr Piukana called you in furtherance of the plan to distribute the methamphetamine, which was subsequently delivered for storage and on-supplying.
[19] In October 2021, a large import of commercial quantities of methamphetamine was organised from Malaysia. Mr Toroma, at this time you were working for Air New Zealand and assisted Mr Piukana in planning this importation.
[20] On 10 October 2021 at approximately 1.15 pm, Mr Piukana called you, Mr Toroma, to request that you take him to see Mr Iuvale. You picked Mr Piukana up from his house and took him to a Gilmours Supermarket to meet Mr Iuvale. The pair met at the Mount Roskill store at 2.15 pm. You waited in the car throughout the 45‑minute meeting during which, the Crown case is that Mr Iuvale outlined the plan for the importation. The meeting concluded at 3 pm and Mr Piukana returned to your vehicle.
[21] At 3.03 pm, Mr Piukana, called another co-defendant, Mr Manuel, to discuss Mr Manuel’s work schedule. Mr Manuel was off work for the next two weeks, and he agreed to meet with Mr Piukana the next day. On 19 October 2021, Mr Piukana arranged a meeting at his home address to plan and make arrangements for an upcoming importation. Mr Toroma, you were directed by Mr Piukana to attend that meeting after he inquired whether you had read an Instagram message and further directed you to organise for Mr Samson to attend the meeting.
[22] At 12.03 pm, Mr Piukana called Mr Manuel confirming the import for 23 October 2021 that would arrive on MH145. Mr Manuel confirmed that MH145 would usually arrive between 1 to 2 pm. Mr Toroma and Mr Samson, and other members of the crew, then arrived at Mr Piukana’s address to discuss the planned importation and your roles.
[23] On 22 October 2021 at approximately 11.30 pm, three boxes of methamphetamine were driven into Kuala Lumpur International Airport. I note that the summary of facts says three boxes, the Airport waybill says five boxes and I proceed on the basis that it is immaterial for the purpose of your sentencing. The boxes were destined for flight MH145 to Auckland with the consignee listed as PB Technology, 587 Great South Road, Manukau, Auckland. The Malaysian police were made aware of the boxes and examined them before they were loaded onto flight MH145. Photographs attached to the summary of facts show tightly packed packages in tea packaging.
[24] The syndicate that you were involved with was unaware of the seizure of the drugs by Malaysian authorities and continued to plan for the importation.
[25] On the morning of 23 October 2021, members of the syndicate arrived at the Airport to commence their shifts, unaware that Malaysian police had intercepted the planned importation. At 6.42 am, Mr Manuel messaged Mr Piukana further details about flight MH145 saying “Kuz. 82. Across from gate 2”. This provided Mr Piukana the location to retrieve the methamphetamine later that day. At 10.31 am, Mr Piukana advised Mr Manuel that the importation was cancelled messaging him “Cancel call me when your free”. Four minutes later, Mr Piukana informed Mr Manuel that the methamphetamine was not loaded at Kuala Lumpur and did not make it onto the aircraft.
[26] Mr Samson, at 1.52 pm, Mr Piukana contacted you to confirm that you were aware of the cancellation.
[27] Mr Toroma, on 24 October 2021, you made a number of internet searches including: “Malaysia airlines flight 17”, “Malaysia airlines flight 240” and “Malaysia airlines flight radar”. On 4 November 2021, you searched “latest drug news in Malaysia”.
(Emphasis added).
Sentencing
The Judge noted that other drug importation cases were not entirely helpful, because the offending here involved an additional and highly unusual element of corruption.[3] She considered R v Tali,[4] R v Edmands,[5] and R v Piukana, being, as noted above, the sentencing of one of the appellants’ co-defendants, Mr Kimela Piukana.[6]
[3]Judgment under appeal, above n 1, at [71].
[4]R v Tali [2022] NZHC 2181.
[5]R v Edmands [2022] NZHC 246.
[6]R v Piukana [2024] NZHC 2311.
The Judge described Tali and Edmands as follows:[7]
(a)R v Tali:a starting point of two and a half years’ imprisonment was considered appropriate for charges of participating in an organised group, offering to supply methamphetamine and supplying methamphetamine. Mr Tali’s offending related to the supply of 20 kilograms of methamphetamine in Northland. Mr Tali was described as a ‘runner’ passing messages between members of the group who assisted with smaller tasks at the request of a more senior group member. Mr Tali had a very minor role in the group; was at the bottom of the group’s hierarchy, having joined through association with one of the co-offenders rather than the gang itself; was involved in the group for a limited period; was unlikely to have financially benefited from his participation; and did not appear to have made any independent decisions.
(b)R v Edmands: a starting point of three years’ imprisonment was considered appropriate for one charge of participation in an organised criminal group and one charge of failing to carry out obligations relating to a computer search. Mr Edmands’ offending related to the supply of methamphetamine, cocaine and MDMA. Mr Edmands was described as a “catcher” who collected and delivered sealed packages. He was aware that the packages contained considerable sums of cash for forwarding on behalf of the syndicate leader. Mr Edmands, on one occasion, received an international package of drugs at his address. The Judge considered the scale of drugs supplied by the syndicate and Mr Edmands’ awareness of the syndicate’s criminal activities.
[7]Judgment under appeal, above n 1, at [71] (citations omitted).
In Piukana the Judge adopted a starting point of two years and three months, reflecting the scale and nature of the syndicate in this case and Mr Kimela Piukana’s involvement as a messenger near the bottom of the group.[8] She found that although corrupted by his older brother he must have known that the organisation was engaged in serious drug offending, and that he obtained some degree of financial gain from his offending.[9]
[8]R v Piukana, above n 6, at [7], [20] and [45].
[9]At [21], [23] and [35(a)].
As to Mr Samson and Mr Toroma, the Judge said that the present syndicate imported, and intended to import, over 100kg of methamphetamine, but accepted they did not necessarily know the exact quantities and were not involved in all importations. Most of their involvement was intended involvement. She noted, however, that Mr Samson had collected and supplied 10kg of methamphetamine into the community. The Judge considered the use of corrupt airline baggage handlers to breach the border to be a serious aggravating feature, which directly applied to Mr Toroma, a baggage handler, but that Mr Samson was nonetheless aware that was happening. She considered that the offending was commercially motivated and noted that the two men had discussed the financial gain and posed with large amounts of cash.
The Judge considered both Mr Samson and Mr Toroma’s offending more serious than that of Mr Kimela Piukana. She noted that instead of purely acting as a messenger, they had varied and integral roles. They had assisted in planning an importation that had taken place in October 2021 and were prepared to act as couriers for other imports. Mr Samson handled and delivered methamphetamine.
The Judge also considered that Mr Samson and Mr Toroma’s offending was more serious than that in Tali, because the aggregate operation was larger, and, in addition, in Mr Toroma’s case, because the offending involved a major breach of trust.
For Mr Samson, the Judge adopted a starting point of three years and six months. To this she made a 15 per cent allowance to reflect his guilty plea, 10 per cent to reflect his youth[10] and previous good character,[11] and a nominal allowance of three per cent to reflect Mr Samson’s rehabilitative efforts. In terms of rehabilitation, Mr Samson had voluntarily enrolled in an eight-week programme to reduce his drug use, no longer used methamphetamine or cannabis, and obtained full-time employment as a traffic controller. An additional credit of five per cent was given to reflect the time Mr Samson had spent on restrictive bail, and thus his final sentence was two years and four months’ imprisonment. The Judge expressly considered whether the sentence could be reduced to permit home detention and concluded that this was ruled out by the severity of the underlying offending and the need for deterrence.
[10]Mr Samson was aged 21 at the time of the offending.
[11]Mr Samson had previously appeared before the courts, but only on a drink driving matter.
With regard to Mr Toroma, as noted, the Judge considered it significant that he was one of the baggage handlers involved in the syndicate. His identity was “crucial” to the group’s offending. This also added the additional element of breach of trust. For these reasons, the Judge considered Mr Toroma’s role more serious than Mr Samson’s, even allowing for Mr Samson having couriered 10kg of methamphetamine. She adopted a starting point of four years’ imprisonment, to which she made a 15 per cent deduction for his guilty plea, and 10 per cent for youth[12] and good character.[13] The Judge thus imposed a final sentence of three years’ imprisonment. She again noted that home detention had been sought but was ruled out by the severity of the underlying offending, the damage to New Zealand’s reputation and the need for deterrence.
First issue — starting point
[12]Mr Toroma was 23 at the time of the offending.
[13]Mr Toroma had previously appeared before the courts on a number of driving offences arising from the same incident.
Mr Meyer, for Mr Samson, submits that Mr Samson’s role within the criminal group was low-level. In particular, contrary to the Judge’s description of his role as “integral”,[14] it is claimed that Mr Samson did not participate in planning or orchestrating the group’s activities, held no leadership role, and did not derive substantial financial benefit from his involvement. His role is described as “peripheral”. He is said to be less culpable than the defendant in Edmands and only slightly more culpable than the defendant in Tali. As a result, Mr Meyer submits that the appropriate starting point would be two years and ten months, not three years and six months.
[14]Judgment under appeal, above n 1, at [77].
Mr Hudson, for Mr Toroma, argues that the starting point was excessive in comparison to that adopted for Mr Samson and Mr Kimela Piukana. The offending for all three is claimed to be broadly similar, and in particular that Mr Toroma’s starting point should have been the same as Mr Samson’s, that is three years and six months rather than four years.
The Crown submits that both starting points were appropriate. The culpability of Mr Samson and Mr Toroma is said to be greater than that in Tali, given the quantum of drugs alone, before factoring in the significant breach of trust. Particular focus is placed on the unprecedented use of corrupt airport baggage handlers to bypass Customs’ screening processes, undermine the integrity of New Zealand’s border security, and damage New Zealand’s international reputation. When considered along with the sophistication, scale and significant commercial quantity involved, the Crown submits these cases are materially more serious than orthodox drug importation cases like Tali and Edmands. The Crown further submits that Mr Kimela Piukana’s offending was much less serious than the offending here.
Our view is that both the starting points adopted were appropriate. The group’s offending was much more serious than that in Tali. It involved the importation of over 100kg of methamphetamine in a sophisticated operation, whereas in Tali the group imported 20kg (and produced 2.5kg) of methamphetamine.[15] The social harm caused by the level of group offending in this case is immense. As this Court noted in Paku v R:[16]
Whilst culpability is not to be assessed by just collating the offending of each individual member, there nevertheless is a degree of responsibility for the wider scale of the offending which is to be visited on each participant. That is the very purpose of the organised criminal group charge.
[15]It is not clear how much methamphetamine was involved in Edmands.
[16]Paku v R [2011] NZCA 269 at [12].
Mr Samson and Mr Toroma’s roles were more serious than in either Tali or Edmands. Mr Tali was a messenger at the bottom end of the group hierarchy. His role was analogous to Mr Kimela Piukana’s role in the present syndicate. Mr Edmands was a “catcher”, collecting and delivering sealed products. The packages, except on one occasion, contained cash.[17] He was not engaged in any planning and received modest payment.[18]
[17]R v Edmands, above n 5, at [9].
[18]At [11].
By contrast, Mr Samson was a driver, who repeatedly drove methamphetamine shipments away from the airport. He was engaged in regular phone calls in furtherance of the plan to distribute the methamphetamine. He attended a planning meeting on 19 October 2021. Mr Toroma was a baggage handler, and therefore key to the operation. He used his trusted employment position to bypass Customs and unload the methamphetamine, in addition to doing some driving. He too attended the planning meeting on 19 October 2021. Our view is that both Mr Samson and Mr Toroma were roughly in the middle of the hierarchy. Both were more integral to the offending than the offenders in Tali and Edmands. We do not agree that their offending can be described as “peripheral”.
Mr Kimela Piukana’s participation in the criminal group at issue was much less serious than either Mr Samson or Mr Toroma’s. His participation was genuinely restricted to being a messenger. His role was materially less important than either the courier role of Mr Samson or Mr Toroma’s role as a baggage handler.
It is not clear how much financial reward Mr Samson and Mr Toroma received for their participation. It is clear, however, that they were enticed into it by the prospect of a large financial reward.[19] They took the liberty of posing for photographs with large amounts of cash, suggesting at that point they at least wished to signal they had received large financial payouts for their participation. While we cannot say that they actually received such rewards, this is indicative of their commercial motivation, and their awareness of the wider operation.
[19]Judgment under appeal, above n 1, at [104].
Our view is therefore that both appellants’ offending is substantially more serious than in the three comparator cases.[20] Compared to the highest starting point, being three years in Edmands, a starting point of three years and six months for Mr Samson is well within range.
[20]We note, for completeness, that Mr Tali was also charged with offering to supply methamphetamine and supplying methamphetamine, and that the sentencing judge adopted an aggregate starting point taking into account the total offending. We see no significance in this point, nor did counsel suggest otherwise. Criminal offending can often be conceptualised as a number of charges, but not always prosecuted as such for obvious logistical reasons. Participating in an organised criminal group, definitionally, will often involve some other offending. The number of charges at issue in any particular case is not necessarily significant. What matters is the severity of the facts in question, and on those facts, we consider this offending more serious than in Tali or Edmands.
The Judge rightly considered Mr Toroma’s employment at Air New Zealand a major aggravating feature. His trusted role as a baggage handler was integral to the offending. There is a particular public interest in deterring such offending. We consider a four-year starting point to be also well within range.
It follows that this ground of appeal fails.
Second issue — personal mitigating factors for Mr Samson
Mr Meyer submits that insufficient weight was given to factors mitigating Mr Samson’s culpability, particularly that, while on bail, Mr Samson had voluntarily enrolled in and completed an eight-week programme to address his substance use and harmful behaviours. Further, Mr Samson’s bail terms had been varied such that he had been in full-time employment from October 2023 until his incarceration in November 2024. In general, these efforts are said to amount to a significant transformation that ought to receive greater recognition. A 10 per cent credit is submitted to be appropriate, rather than the nominal three per cent that was allowed.
Mr Meyer also argued that Mr Samson deserves more credit for the nearly three years he spent on ordinary bail, for the first year of which he was subject to a curfew. Counsel submits that a 15 per cent credit was appropriate in this regard as compared to the five per cent allowance that was made.
While Mr Samson’s rehabilitative efforts are commendable they are not sufficient to justify a greater reduction on that account. The drug rehabilitation program he attended was relatively short and his offending appears to have been motivated by financial gain, rather than substance abuse. The short programme to address his substance abuse thus lacks any direct causal nexus with his offending. It does not make it less likely to reoccur. Likewise, while Mr Samson’s employment deserves acknowledgement, it is not sufficient to justify a substantial discount. The modest allowance the Judge made was appropriate.
Mr Samson was granted bail on 2 December 2021 and remained on bail until his sentencing on 14 November 2024. For the first year, he was subject to a 7pm–7am curfew which was later reduced to a 9pm–6am curfew to allow him to commence nightshift work.
In Kreegher v R, a five per cent discount was granted for compliance with a 7pm–7am curfew for three years.[21] In Tuarae v R, the offender was on bail simpliciter for two and a half years (subject to bail checks) with a residential condition, non-association condition, and conditions not to have contact with young people under 16 years of age, as well as not to apply for any passport or travel documentation.[22] This Court held that no discount was appropriate: mere compliance with bail, where those conditions are not very restrictive, does not warrant a discount.[23]
[21]Kreegher v R [2021] NZCA 22, (2021) 29 CRNZ 622 at [49].
[22]Tuarae v R [2023] NZCA 229 at [24].
[23]At [27].
On balance, we view Mr Samson’s bail situation as less restrictive than that in Kreegher and more restrictive than that in Tuarae. Five per cent was therefore a fair deduction.
Conclusion
For the above reasons we are not persuaded that Mr Samson or Mr Toroma’s sentences were manifestly excessive, or even in error.
Result
The appeal against sentence in CA760/2024 is dismissed.
The appeal against sentence in CA752/2024 is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent in CA760/2024 and CA752/2024.
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