Legal Research
Cases
Sililoto v R

Sililoto v R

Case [2016] NZCA 328 14 July 2016

Appeal

Sentencing

Admissibility of Evidence

Unreasonable Verdicts

Legitimate Expectation

Criminal Law

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA722/2014
[2016] NZCA 328

BETWEEN	FILIMAEA SILILOTO Appellant
AND	THE QUEEN Respondent

CA728/2014
BETWEEN	JOHN FETU Appellant
AND	THE QUEEN Respondent

CA36/2015
BETWEEN	KAINUI (BEN) KAUKASI Appellant
AND	THE QUEEN Respondent

CA234/2015
BETWEEN	ZEBULIN MARIO DAVOREN Appellant
AND	THE QUEEN Respondent

Hearing:	10 May 2016
Court:	Harrison, Simon France and Woolford JJ
Counsel:	B L Sellars for Appellant (CA722/2014) M W Ryan for Appellant (CA728/2014) S J Bonnar QC for Appellant (CA36/2015) S J Lance and K L Wendt for Appellant (CA234/2015) K S Grau and A J Ewing for Respondent
Judgment:	14 July 2016 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence in CA722/2014 is allowed. The sentence of seven and a half years’ imprisonment is quashed. A sentence of six and a half years’ imprisonment with a minimum period of three years and three months’ imprisonment is substituted.
BThe appeal against conviction and sentence in CA728/2014 is dismissed.
C The appeal against sentence in CA36/2015 is allowed. The sentence of 10 years and nine months’ imprisonment with a minimum period of five years and four months’ imprisonment is quashed. A sentence of nine years and three months’ imprisonment with a minimum period of four years and seven months’ imprisonment is substituted.
D The appeal against sentence in CA234/2015 is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Following a four month trial before Toogood J and a jury in the High Court at Auckland in 2014, nine members of an organised drug manufacturing and distribution syndicate were found guilty of numerous criminal offences. Two other men were found guilty of one related charge by virtue of a single transaction with a syndicate member. The eleven men were later convicted and sentenced to terms ranging between 18 and a half years’ imprisonment and home detention.[1] Minimum periods of imprisonment of half of the finite terms were imposed in a number of cases.
[1]R v Afakasi [2014] NZHC 2907 [Sentencing notes].
Seven of the men have appealed. One of them, Henry Afakasi, a ring leader in the syndicate who was sentenced to 14 years imprisonment, died before his appeal was heard.[2] Of the other six, John Fetu has appealed against his conviction and sentence; Christopher Wise and Justin Abel have appealed against their convictions only;[3] and Zebulin Davoren, Ben Kaukasi and Filimaea Sililoto have appealed against sentence only.
[2]Mr Afakasi’s appeal was thus abandoned.
[3]The appeals by Messrs Wise and Abel were allowed following argument of these appeals. Our reasons judgment is being issued contemporaneously with this judgment: [2016] NZCA 327.
By way of brief background, in December 2011 a clandestine methamphetamine laboratory exploded and set fire to premises in West Auckland. A one-year police investigation followed, leading to discovery of a major methamphetamine manufacturing and distribution enterprise. Within a few months of the investigation’s inception, the group changed the focus of its activities into distributing pseudoephedrine, a precursor used in manufacturing methamphetamine.
Messrs…

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 Sililoto v R

Details

AGLC: Sililoto v The Queen [2016] NZCA 328
Case: [2016] NZCA 328
Decision Date: 14 July 2016

CaseChat Overview and Summary

This case involves seven appellants who were members of a drug manufacturing and distribution syndicate that was convicted and sentenced in 2014. Zebulin Mario Davoren, Ben Kaukasi, and Filimaea Sililoto appealed against their sentences, while John Fetu appealed against both his conviction and sentence. The Court of Appeal of New Zealand heard the appeals on 10 May 2016 and delivered its judgment on 14 July 2016. The Court allowed the appeal against sentence in CA722/2014, quashed the sentence of seven and a half years’ imprisonment, and substituted a sentence of six and a half years’ imprisonment with a minimum period of three years and three months’ imprisonment. The appeal against conviction and sentence in CA728/2014 was dismissed. The appeal against sentence in CA36/2015 was allowed, and the sentence of 10 years and nine months’ imprisonment with a minimum period of five years and four months’ imprisonment was quashed. A sentence of nine years and three months’ imprisonment with a minimum period of four years and seven months’ imprisonment was substituted. The appeal against sentence in CA234/2015 was dismissed.

The Court found that the Judge had correctly assessed the relative culpabilities of each member of the syndicate and imposed sentences that reflected a careful exercise in proportionality and consistency. The Court also found that the Judge had not erred in imposing a higher starting point for Zebulin Mario Davoren’s sentence, as his involvement in the syndicate’s activities was more intense and prolonged than that of the other members. The Court allowed the appeal against Ben Kaukasi’s sentence, as the Judge had erred in adding an extra year to his starting point for his participation in an organised criminal group. The Court also found that the three-month discount allowed for the 22 months spent on restrictive bail conditions was inadequate and substituted a discount of six months. The Court allowed the appeal against Filimaea Sililoto’s sentence, as the Judge had not accounted for the two years he spent in custody on recall for his life sentence pending trial on the current charges. The Court substituted an adjusted starting point of eight years and reduced the sentence by 18 months to reflect the element of double punishment. The Court dismissed the appeal against John Fetu’s conviction and sentence, as the Judge had correctly admitted the voice identification evidence and there was no miscarriage of justice arising from its admission. The Court also found that the jury’s guilty verdicts were not inconsistent or perverse, as the Crown led circumstantial evidence in support of the two counts on which Mr Fetu was found guilty.

Orders