The King v John Logo and Andrew Fausia
[2024] NZHC 3087
•23 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-004-2616
[2024] NZHC 3087
THE KING v
JOHN LOGO and ANDREW FAUSIA
Hearing: 23 October 2024 Appearances:
HDL Steele and S Wakefield for the Crown M W Ryan for Mr Logo
J M Hudson and D A Bousfield for Mr Fausia
Sentence:
23 October 2024
SENTENCE OF GAULT J
Solicitors / Counsel:
Mr H Steele and Ms S Wakefield, Meredith Connell, Office of the Crown Solicitor, Auckland Mr M W Ryan, Barrister, Auckland
Mr J M Hudson, Barrister, Auckland
R v LOGO and FAUSIA [2024] NZHC 3087 [23 October 2024]
Mr Logo, you appear for sentence today having pleaded guilty in this Court to:
(a)one charge of supplying a Class A controlled drug methamphetamine;1
(b)one further representative charge of supplying methamphetamine;2
(c)two charges of possession of methamphetamine for supply;3 and
(d)one charge of conspiracy to injure.4
[2] You are also for sentence in respect of two further charges to which you pleaded guilty in the District Court, and which have been transferred to this Court so you can be sentenced on all matters together.5 Those charges are:
(a)one representative charge of supplying methamphetamine;6 and
(b)one charge of possession of methamphetamine for supply.7
[3]Mr Andrew Fausia, you appear for sentence having pleaded guilty to:
(a)one representative charge of supplying methamphetamine;8
(b)one charge of possession of methamphetamine for supply;9
(c)three charges of unlawful possession of a firearm;10 and
(d)one charge of unlawful possession of explosives.11
1 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). The maximum penalty is life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). The maximum penalty is life imprisonment.
3 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). The maximum penalty is life imprisonment.
4 Crimes Act 1961, ss 189(2) and 310. The maximum penalty is five years’ imprisonment.
5 R v Logo HC Auckland CRI-2023-004-002616, 7 October 2024 (Minute of Downs J).
6 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). The maximum penalty is life imprisonment.
7 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). The maximum penalty is life imprisonment.
8 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). The maximum penalty is life imprisonment.
9 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). The maximum penalty is life imprisonment.
10 Arms Act 1983, s 45(1). The maximum penalty is four years’ imprisonment and/or a $5,000 fine.
11 Arms Act 1983, s 45(1). The maximum penalty is four years’ imprisonment and/or a $5,000 fine.
[4] I will begin by setting out the facts of your offending, before explaining the approach I am required to take in sentencing.
Agreed summary of facts
[5] Mr Logo, shortly before 8:00 pm on 7 March 2023, you arrived at the Auckland Newmarket Motel in your Mazda Demio, where Mr Adrian Selwyn lived. You and Mr Selwyn had communicated via Facebook Messenger and arranged to meet so Mr Selwyn could purchase methamphetamine from you. Mr Selwyn exited his room and walked directly to your Mazda Demio, getting into the front passenger seat. You supplied Mr Selwyn with an amount of methamphetamine. This gave rise to the first charge of supplying methamphetamine. Mr Selwyn then exited the vehicle and returned to his room, and you left the motel.
[6] The circumstances giving rise to the conspiracy to injure charge were that approximately 15 minutes after you left the motel, Mr Selwyn contacted you, complaining about the quality of the methamphetamine supplied. During the following communications, you proposed that you return to the motel for a “1 on 1” fight. At about 9:27 pm, you sent Mr Fausia a text message, outlining that a person was complaining about the “product” supplied, and that you would pick up Mr Fausia so that you could “fasi” Mr Selwyn. Fasi is a Samoan word, for which a commonly accepted English translation is “to smack” or “to beat”.
[7] At 10:15 pm, you also contacted Mr Fausia’s brother, Mr Alex Fausia, via text message, relaying the same information and proposing that you also pick up Mr Alex Fausia for the same purpose. He agreed.
[8] At about 10:45 pm, you and the Fausia brothers returned to the Auckland Newmarket Motel in your Mazda Demio. After parking and exiting the vehicle, you sent Mr Selwyn a message, telling him to “come out”. Mr Selwyn exited his room shortly afterwards and approached you, leaving a distance of about one metre between you. You assumed a fighting stance and clenched your hands into fists. Mr Selwyn stood with his hands at his sides, and does not appear from the available CCTV footage to have indicated that he intended to fight you.
[9] Seconds into the conversation between you and Mr Selwyn, Mr Alex Fausia kicked Mr Selwyn in the head with his left foot. Mr Selwyn did not see or anticipate the assault, and therefore did nothing to protect himself. He was immediately knocked unconscious and fell backwards, hitting the back of his head on the pavement. Neither Mr Selwyn nor you made any attempt to break his fall.
[10] You and Mr Alex Fausia immediately approached Mr Selwyn and attempted to wake him before you carried him back to his room, where he was placed on his bed. You and Mr Alex Fausia were joined by Mr Andrew Fausia, and the three of you spent the next seven minutes coming and going between Mr Selwyn’s room and the car. CCTV footage shows all three of you with cellphones in your hands during this time, but you made no attempt to contact emergency services or any occupants of the motel to obtain assistance for Mr Selwyn. Shortly afterwards, you all left the scene in the Mazda Demio.
[11] On 15 March 2023, Mr Selwyn was discovered deceased and decomposing on his bed, where he had been left by the three of you eight days earlier. Police were called, and a homicide investigation commenced.
[12] As a result of the kick to his head and his unbroken fall, Mr Selwyn suffered a contusion and skull fracture to the back of his head. He also suffered a brain bleed due to the impact. The preliminary cause of death was blunt force head trauma.
Mr Alex Fausia has already pleaded guilty to Mr Selwyn’s manslaughter.12
[13] A further charge arose in the course of the police investigation into Mr Selwyn’s death. Text messages obtained during this investigation demonstrated you both, Mr Logo and Mr Fausia, were working together to supply methamphetamine to unidentified customers. These messages include:
(a)On 8 March 2023, Mr Logo’s message content records taking a methamphetamine order from a customer, and directing Mr Fausia to supply the customer. You both exchanged messages about the amount of money the customer had and the amount of methamphetamine to
12 R v Fausia [2024] NZHC 2448.
give him. The messages about this sale end with a message from Mr Fausia to Mr Logo saying “done uce”, confirming he had supplied the drugs.
(b)Later that same evening, Mr Logo messaged Mr Fausia that he had woken up to “heaps of missed faakaus” on his phone, and that he was sending them Mr Fausia’s number “so we keep serving them”. Faakau is a Samoan word, for which a commonly accepted English translation is “buys”.
[14] The total quantity of methamphetamine you both supplied during March 2023 was at least five grams. For each of you, this conduct gave rise to the representative charge of supplying methamphetamine.
[15] On Tuesday 4 April 2023, police executed search warrants at the home address of Mr Logo, Mr Fausia, and Mr Alex Fausia.
[16] Mr Logo, at your address police located 55 grams of methamphetamine which had been packaged for sale in a satchel next to your bed. Eight grams of methamphetamine and $5,000 in cash were located on you. This gave rise to two charges of possession of methamphetamine for supply.
[17] Mr Fausia, at your address, located in various plain plastic bags above a cabinet next to your kitchen, were 132.1 grams of methamphetamine, 15.7 grams of dimethlysulphone (a cutting agent commonly used to “cut” or dilute methamphetamine), and $19,000 in cash. This gave rise to a charge of possession of methamphetamine for supply.
[18] Mr Fausia, also located at your address were three shotguns and 32 rounds of associated shotgun ammunition. The firearms and ammunition were located, concealed by a blanket but unsecured, above the cabinets in your kitchen. You do not possess a firearms licence, nor does any other resident of the address. This gave rise to three charges of unlawful possession of a firearm and one charge of unlawful possession of explosives.
[19] Mr Logo, in respect of the District Court charges against you, from 8 December 2023 to 9 January 2024, you supplied methamphetamine on 41 different occasions to 15 separate people. You supplied a minimum of 34.25 grams in total. You arranged these transactions through SMS messaging attributed to a phone number in respect of which police had obtained a production order. This gave rise to a representative charge of supplying methamphetamine.
[20] Around 7:32 am on Thursday 1 February 2024, police executed a search warrant at your home address. During the search, police located approximately 100 grams of methamphetamine in your bedroom. Located with the methamphetamine was a set of scales and a large number of snap-lock bags, and $2,070 cash. The cellphone used for the earlier transactions was located tucked behind your bed. This gave rise to a charge of possession of methamphetamine for supply.
Approach to sentencing
[21] In terms of my approach to sentencing,13 for each of you I will first set a starting point for your offending reflecting its nature and consequences, having regard to its aggravating and mitigating features. I will then adjust each starting point – up or down
– to take into account any aggravating and mitigating factors personal to you so as to determine your end sentences.
[22] I must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.14 In the context of methamphetamine sentencing,15 particularly relevant purposes include holding you accountable for the harm caused by your offending,16 promoting a sense of responsibility for your offending,17 denouncing your conduct,18 deterring you and others from committing similar offending,19 protecting the community,20 and assisting in your rehabilitation and reintegration.21
13 Following the two-stage approach set out by the Court of Appeal in Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
14 Sentencing Act 2002, ss 7 and 8.
15 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [58].
16 Section 7(1)(a).
17 Section 7(1)(b).
18 Section 7(1)(e).
19 Section 7(1)(f).
20 Section 7(1)(g).
21 Section 7(1)(h).
[23] Also of relevance in this case are the need to take into account the gravity of the offending, including your degree of culpability,22 and the seriousness of the offending.23 Mr Logo, in relation to the charge of conspiracy to injure, I also acknowledge the need to take into account the information provided to me concerning the effect of the offending on the victim, Mr Selwyn, and his whānau.24 I must also take into account the general desirability of consistency between sentences for similar offending,25 your personal background,26 and the need to impose the least restrictive sentence that is appropriate in the circumstances.27
Lead offending – methamphetamine offending
[24] Before addressing your individual offending, I note that for each of you, and as counsel agreed, I take your methamphetamine-related offending as the lead offending, though it is necessary to take into account all your offending. In doing so,
I apply the guideline decision in Zhang v R.28
[25] There are five bands for methamphetamine offending in the guideline decision.29 The bands reflect the quantity of the drug involved in the offending and set out a corresponding range of penalties. Culpability is therefore measured first by the quantity of the drug – quantity being an indicator of commerciality and of the harm it will cause to the community.30 Culpability is also measured with regard to the offender’s role in the offending; whether it is a leading, significant or lesser role.
22 Section 8(a).
23 Section 8(b).
24 Section 8(f).
25 Section 8(e).
26 Section 8(i).
27 Section 8(g).
28 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
29 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
30 At [104].
Mr Logo
Starting point
[26] Mr Logo, I address your position first. By reference to two comparable cases,31 the Crown submits that your methamphetamine offending should attract a starting point of at least six years’ imprisonment. Your counsel, Mr Ryan, proposes a starting point of five and a half years’ imprisonment for this offending, also referring to other cases which I have footnoted.32
31 Su v R [2020] NZCA 128: Mr Su was convicted of one count of possessing methamphetamine for supply. He had participated in a methamphetamine dealing organisation by acting as a driver and storing the drug at his home. The quantity of methamphetamine involved in this case was 233 grams, placing the offending near the top end of band two in Zhang. On appeal, the Court of Appeal concluded that Mr Su was more than a courier and storeman, and that he was involved in preparing methamphetamine for onward sale. The Court determined that he must have had some knowledge of the scale of the operation, but ultimately concluded that his role was a lesser one as he likely acted under direction and did not obtain any monetary benefit beyond receiving methamphetamine to feed his addiction. The Court held that, based on quantity alone, Mr Su’s offending would attract a starting point of in the region of eight years, but that his lesser role in the operation reduced the starting point to five and a half years’ imprisonment. Gray v R [2020] NZCA 548: Mr Gray was sentenced for offering to supply methamphetamine, possession of methamphetamine for supply, possession of cannabis for supply, injuring a police dog, and injuring with intent to injure. His methamphetamine offending involved a quantity of
237.8 grams. On appeal, the Court of Appeal held that the presence of cash found by police at Mr Gray’s house indicated that he had some control over sale proceeds, which was likely temporary, and that there was no evidence of assets or financial rewards to suggest that he had obtained any great profit from his offending. The Court also concluded that there was sufficient evidence to corroborate Mr Gray’s self-reported addiction, and that it was more than likely that he was involved in supplying methamphetamine to feed his own addiction, but was receiving at least a little profit in doing so. The Court therefore concluded that Mr Gray had an operational function within a chain, was not directing others, and was not primarily motivated by profit or expected financial gain, but he did understand the scale of the operation. Accordingly, the Court considered that his offending fell at the higher end of the “lesser” role category and the lower end of the “significant” category, leading to a starting point of six years’ imprisonment for both the methamphetamine and cannabis offending.
32 Su v R [2020] NZCA 128, summarised above at n 31.
R v Simpson [2022] NZHC 1902: Mr Simpson was sentenced on several charges arising on two separate occasions. The second incident occurred when police located in Mr Simpson’s vehicle 293 grams of methamphetamine, approximately $3,000 in cash, a bucket containing iodine residue, digital scales, approximately 100 small ziplock bags, a cut-down .30 calibre military-style semi-automatic rifle, a collapsible shotgun stock, and nine rounds of ammunition, including two 12-gauge shotgun cartridges and six .30 calibre rounds of ammunition. Mr Simpson was charged with being in possession of these items. The quantity of methamphetamine involved in this incident placed the offending in band 3 in Zhang, for which the starting point range is six to 12 years’ imprisonment. The High Court considered that Mr Simpson was “involved at a retail level in a drug distribution network”, stating that it would have placed him in the “lesser” role category had it been necessary to do so. The Court ultimately took these charges into account by way of an uplift of two years to the starting point determined for Mr Simpson’s other offending, but stated that on a standalone basis, they would have attracted a starting point of approximately six years’ imprisonment, accounting for Mr Simpson’s role, the quantity of methamphetamine involved, and the presence of firearms and ammunition.
[27] Your offending involved a quantity of at least 202.25 grams of methamphetamine. This places it towards the higher end of band two in Zhang.33 The suggested range of starting points within this band is two to nine years’ imprisonment.34
[28] The Crown submits you played a significant role whereas Mr Ryan submits your role was between lesser and significant. Although the communications on 8 March 2023 indicate that you directed Mr Fausia on at least two occasions, I accept that overall your roles may have been similar given the larger amount of methamphetamine and cash found at his address. Most of your supplies were of small street dealer/retail amounts.
[29] Given the quantity of methamphetamine involved and your role – which I assess to be in between lesser and significant – and the comparable cases, I consider the appropriate starting point is five years and six months’ imprisonment.
Uplift for other offending
[30] The Crown submits that your offending in relation to the conspiracy to injure charge warrants an uplift to the starting point of approximately 12 months’ imprisonment, by reference to a similar case.35 The defence agrees with this.
[31] In determining the appropriate uplift, I have taken into account the victim impact statements provided by Mr Selwyn’s whānau for the earlier sentencing. The relevant charge today is conspiracy to injure, but I recognise that its outcome was the tragic loss of Mr Selwyn’s life. I have read those victim impact statements and
33 Between 5 and 250 grams.
34 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
35 R v Hemopo [2023] NZHC 1613: Mr Hemopo was sentenced on one charge of conspiring to injure with intent to injure and one charge of driving whilst disqualified. Mr Hemopo was the intimate partner of Ms Burns-Wong-Tung, and was enlisted by her to assist in a plan to bring the victim to her for retribution. Mr Hemepo drove Ms Burns-Wong-Tung to the scene of the planned attack, where she subsequently attacked the victim with a large knife. Mr Hemopo then drove Ms Burns- Wong-Tung away from the scene. The victim died approximately an hour and a half later. The High Court took conspiring to injure as the lead offending. The Court concluded that the aggravating factors of vigilante justice and harm to the victim meant that this offending fell within band two of the relevant guideline judgment, Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 (which provides for a starting point of up to three years’ imprisonment), but imposed a starting point of two years’ imprisonment for this offending to reflect that Mr Hemopo had a relatively limited role in the conspiracy, whereas Ms Burns-Wong-Tung was the “principal architect”.
I know that whatever sentence I impose today for the relevant offending today cannot undo the harm the family has experienced.
[32] On a stand-alone basis, the conspiracy to injure would warrant an uplift of at least two years. On a totality basis though, an uplift for the conspiracy to injure of at least 12 months’ imprisonment is appropriate.
[33] Accordingly, the starting point for your overall offending Mr Logo is six years and six months’ imprisonment.
[34]I now turn to your personal circumstances.
Personal aggravating factors
[35] Two of the charges you face – specifically, one charge of supplying methamphetamine and one charge of possessing methamphetamine for supply – arose while you were on bail for your earlier offending. The Crown submits that this warrants a modest uplift to uphold the principle of specific deterrence. Mr Ryan accepts that a modest uplift is appropriate to account for this factor. I agree – an uplift of five per cent, or four months, is appropriate.
[36] Counsel agree, as do I, that your previous convictions are not for relevant offending and do not warrant a further uplift.
Personal mitigating factors
[37]Mr Ryan seeks the following reductions for your personal mitigating factors:
(a)15 per cent for your personal background factors;
(b)15 per cent for youth and remorse; and
(c)25 per cent for your guilty pleas.
[38] First, your relevant background. An alcohol and other drug (AOD) report has been provided to the Court, which identifies the following factors as being likely to have contributed to your offending:
(a)active methamphetamine use and gambling disorders at the time of offending;
(b)genetic and environmental predisposition to addiction and addictive behaviours;
(c)negative community influence; and
(d)escalating negative behaviours amidst compounding external stressors.
[39] With reference to a comparable case,36 Mr Ryan submits that a 15 per cent reduction is warranted to account for these factors.
[40] Mr Logo, you are of Samoan descent and were raised in South Auckland. You have an older brother. You were loved and did well at school. Your mother’s health required additional support and your father exhibited addictive behaviours. Tragically, he died when you were about 20 and you returned to New Zealand from Australia and became the main provider and support for your mother. According to the AOD report, your drinking escalated and you developed mild gambling and severe methamphetamine disorders. Your drug disorder is said to be in early remission within a controlled environment. However, this contradicts what you told the pre-sentence report writer. You stated that you have never consumed methamphetamine and denied being under the influence of substances at the time of the offending, and that you turned to drug sales as a source of income. Unfortunately, Mr Ryan has only now seen that pre-sentence report. He acknowledged that an adjournment was not appropriate
36 McCaslin-Whitehead v R [2023] NZCA 259: The Court of Appeal held that a 20 per cent reduction was appropriate to account for factors in the offender’s background including childhood trauma (which included physical and emotional abuse from those close to him), childhood sexual abuse, the fact that the offender had been diagnosed with a mood disorder and had managed his mental health at different times with or without medication, consumption of LSD, MDMA and cannabis, the fact that the offender was drawn into the offending as a result of a relationship he formed with an international drug trafficker, and the fact that the offender had generally led a pro-social life.
and that I would need to reconcile the reports. I accept that your background has had some causative contribution towards your offending. But I am not satisfied that addiction has played a material role in your offending. In respect of your background a 10 per cent reduction is appropriate.
[41] Next, youth and remorse. Youth is a mitigating factor.37 The courts have accepted that there are significant neurological differences between young people and adults.38 The abilities to plan, consider, control impulses and make wise judgements are the last parts of the brain to develop, and it is acknowledged that young persons’ brains are programmed to engage in higher levels of risk. Young people are more susceptible to negative influences and the environment in which they act could lead to inappropriate behaviour. It is accepted that long sentences can have a devastating impact on young people, that cognitive differences will also affect a young offender’s perception of a term of imprisonment,39 and that young people are more amenable to treatment and consequently have better prospects of rehabilitation than adult offenders.
[42] You were 24 years old at the time of your offending, so at the latter stages of transition into adulthood. Mr Ryan submits that a reduction is warranted to account for your youth, associated poor judgement and greater impulsivity combined with remorse and a demonstrated capacity for rehabilitation, referring to an earlier case, which again I will footnote.40
[43] The AOD report also states that you described being remorseful for your offending, particularly your part in the loss of Mr Selwyn’s life. It states that you are devastated at what occurred and highly cognisant of the pain of the victim’s family. The report also states that you spoke with shame of the money you have taken from families and the impact of your offending on your family, particularly your mother.
37 Sentencing Act 2002, s 9(2)(a).
38 Dickey v R [2023] NZCA 2; [2023] 2 NZLR 405; and Churchward v R [2011] NZCA 531; (2011) 25 CRNZ 446.
39 Millar v R [2019] NZCA 570 at [28].
40 Roberts v R [2020] NZCA 441: The Court of Appeal awarded a 10 per cent reduction for Mr Roberts, a 19-year-old offender, declining to apply the higher 25 per cent reduction awarded in R v Feleti for an 18-year-old offender’s youth and remorse on the basis of Mr Roberts’ history of offending and medium to high risk of reoffending, and the fact that he was regarded by pre- sentence report writers as insincere and superficial in his statements of remorse and insight.
[44] This morning I have received your remorse letter together with a certificate of completion of a correspondence course taking charge of your life. This may be the letter referred to in the pre-sentence report. Your letter sincerely apologises to the victim’s family. You acknowledge you have no excuse for what you have done and say you will take full responsibility and ownership of your action. This also contradicts what you told the pre-sentence report writer. You there sought to blame the victim and denied any intention to hurt him. Your account to the report writer was inconsistent with the summary of facts and undermines the existence of genuine remorse at that time.
[45] Mr Ryan submits that a reduction of 15 per cent is appropriate to account for both your youth and remorse. Although this offending occurred in your twenties, I accept that a reduction is appropriate for your youth, any belated remorse and, related to youth, your rehabilitative prospects. Avoiding double-counting with the reduction for your background, a further reduction of 15 per cent is appropriate, but I indicate that does not include a discrete discount for remorse.
[46] Finally, your guilty pleas. The Crown submits that a reduction of 15 per cent is appropriate to account for your guilty pleas. Mr Ryan submits that your guilty pleas were entered at, or in substance, the first reasonable opportunity and that a full 25 per cent reduction41 should therefore be awarded.
[47] In this Court, you were charged on 4 April 2023 and pleaded guilty on 9 August 2024, with trial scheduled to begin on 23 September 2024. In the District Court, you were charged on 1 February 2024 and pleaded guilty at callover on 27 August 2024.
[48] Accepting that the guilty pleas promptly followed amended charges, with manslaughter changed to conspiracy to injure, I nevertheless consider that a 15 per cent reduction is appropriate. Mr Alex Fausia was given a 15 per cent reduction for his earlier guilty pleas, including for manslaughter. Your guilty pleas on the operative charges did not occur at an early opportunity and given the nature of the evidence I do not consider a higher reduction is appropriate.
41 Hessel v R [2010] NZSC 135; [2011] 1 NZLR 607 at [75].
End sentence
[49] The total reductions of 40 per cent are offset by the five per cent uplift for offending while on bail. The net reduction of 35 per cent reduces your starting point of six and a half years’ imprisonment down to an end sentence of four years and two months’ imprisonment.
[50]Mr Logo, please stand.
[51] On each of the methamphetamine charges, you are sentenced to four years and two months’ imprisonment.
[52]For conspiracy to injure, you are sentenced to one year’s imprisonment.
[53]These sentences are to be served concurrently.
[54] I also make orders for the destruction of all substances, materials and equipment, and for forfeiture of money, seized by police.42
[55]Please stand down.
Mr Fausia
Starting point
[56] Mr Fausia, the Crown submits, by reference to two comparable cases,43 that the appropriate starting point in respect of your methamphetamine offending is in the
42 Misuse of Drugs Act 1975, s 32(1) and (3).
43 Scott v R [2022] NZHC 2274: Mr Scott was sentenced for one charge of supplying methamphetamine, one charge of offering to supply methamphetamine, one charge of unlawful possession of a firearm, and one charge of unlawful possession of ammunition. The charges in relation to methamphetamine offending arose when police obtained a production order for Mr Scott’s cellphone and thereby found evidence of supply and offers to supply the drug. The methamphetamine offending involved a quantity of 104.75 grams, falling within band two in Zhang. On appeal, the High Court upheld a starting point of four years’ imprisonment for the methamphetamine offending, agreeing with the District Court Judge that Mr Scott’s role in the relevant supply chain shared characteristics of both a lesser and significant role. The Court held that Mr Scott was a “sole operator” who had supplied methamphetamine to fund his own addiction, but also to supplement his income, and that while the operation was relatively small, Mr Scott had acquired significant financial benefit. The Court considered that there was no evidence suggesting that Mr Scott’s addiction impaired his ability to make rational choices.
Kelly v R [2022] NZHC 1298: Mr Kelly was sentenced for a number of drug offences (involving
region of four and a half years’ imprisonment. Your counsel, Mr Hudson, submits that a starting point of four years’ imprisonment is appropriate for this offending.
[57] The quantity of methamphetamine involved in your offending is at least 137.1 grams. This puts it near the middle of band two in Zhang. As noted, the suggested starting point range for this band is two to nine years’ imprisonment.44
[58] In terms of your role, Mr Hudson submits that your methamphetamine offending falls within the “lesser” category. Mr Steele, for the Crown, submits that your offending is captured by the “lesser” role indicia, but notes that your offending had some characteristics of the “significant” role category. I accept you operated under Mr Logo’s direction on the two occasions identified. However, the items located at your address – methamphetamine in plastic bags, cutting agent and significant cash – indicate an operational function of some scale and actual or expected financial advantage.
[59] Given the quantity of methamphetamine involved and your role – again between lesser and significant – and the comparable cases, I consider the appropriate starting point is four years and six months’ imprisonment.
Uplift for other offending
[60] The Crown submits that an uplift of at least 12 months’ imprisonment is warranted to take into account the three charges of unlawful possession of a firearm and the charge of unlawful possession of explosives, by reference to a comparable
methamphetamine and cannabis) and possession of a firearm. He had sold methamphetamine directly to users, and supplied street-level dealers. The offending involved at least 147 grams of methamphetamine, although there had been further transactions to which quantity could not be attached. While the District Court Judge’s assessment that Mr Kelly was “a lesser participant, moving towards a more significant participant” in terms of the methamphetamine offending was not challenged on appeal, the High Court noted that it assessed Mr Kelly’s offending as falling within the “significant” category, as it involved an “operational or management function in [his] own operation”; he involved others (including his daughter) in the operation “whether by pressure, influence, intimidation or reward”, there was “actual or expected commercial profit”, and Mr Kelly inevitably had “some awareness and understanding of [the] scale of [the] operation” given that it was his own operation. On appeal, the High Court upheld a starting point of six years’ imprisonment for the methamphetamine offending (which was not uplifted for the cannabis offending), taking into account the band two range of two to nine years, and the fact that Mr Kelly had run his own scheme which had “dealt a quantity comfortably above the mid-point of the range” over seven months.
44 At [125].
case.45 Mr Hudson refers to the same case and accepts that an uplift of 12 months’ imprisonment is appropriate in the circumstances. Deterrent sentences are required where firearms offending is associated with drug dealing activity. However, on a totality basis, an uplift of at least 12 months is appropriate.
[61] Accordingly, Mr Fausia, the starting point for your overall offending is five years and six months’ imprisonment.
[62]I turn to your personal circumstances.
Personal aggravating factors
[63] There was a dispute as to whether your offending occurred while you were on bail for other alleged offending involving a group assault on Princes Wharf in February 2022. However, the Crown acknowledged that you were not on bail at that time and in any event you have since been sentenced for that offending, pleading guilty to injuring with intent to injure,46 and the Crown accepts an uplift is negated by the need to account for that sentence.47 Mr Hudson proceeded, correctly as it turns out, on the basis that you were not on bail in February 2022, which was acknowledged by the sentencing Judge. No uplift is required.
[64] In addition to that sentence, you have 11 prior convictions. These include three convictions for failing to comply with a prohibition as an unlicensed driver, two convictions for breach of community work, one conviction for breach of home detention conditions, two convictions for theft, one conviction for assault with intent to injure, one conviction for failing to report an injury/accident in 24 hours, and one
45 Scott v R [2022] NZHC 2274: In addition to two charges for methamphetamine offending, Mr Scott was sentenced for unlawful possession of a firearm and unlawful possession of ammunition. The latter two charges arose when police executing a search warrant at Mr Scott’s home address located a “cut down” firearm and 97 rounds of .22 calibre ammunition in his car. On appeal, the High Court upheld the 12-month uplift imposed by the District Court Judge for this offending, noting its consistency with other Court of Appeal cases which have upheld 12- to 18- month uplifts “where drug offending is combined with firearms offending”. In imposing this uplift, the District Court Judge had referred to the need for deterrent sentences “where unlawful possession of firearms and ammunition are associated with drug dealing activity” given the danger these firearms pose to the community, and considered that the 12-month uplift was “the minimum appropriate” for Mr Scott’s “possession of such a dangerous firearm, along with a considerable quantity of ammunition”.
46 R v Fausia [2024] NZDC 14990.
47 Sentencing Act 2002, s 85.
conviction for careless driving while under the influence of drink or drugs causing death. Mr Hudson submits that no uplift is necessary for these previous convictions. While they undermine any suggestion of a previous good record, the Crown accepts that these are not relevant previous convictions and I agree that no further uplift is appropriate.
Personal mitigating factors
[65]As for mitigating factors, Mr Hudson seeks reductions of:
(a)5 per cent for remorse;
(b)20 per cent for personal background factors raised in the s 27 report provided to the Court; and
(c)20 per cent for your guilty pleas.
[66]Mr Hudson says you accept that an end sentence of imprisonment is inevitable.
[67]I deal with each of these mitigating factors.
[68] First, remorse. The pre-sentence report states that you acknowledged your offending, stating you regret your actions and the part you played in the offending, and that you are ashamed of yourself for taking part “in this”. However, you sought to downplay your part, indicating you did not know how serious the offending was and saying the motive for your offending was your own addiction and financial struggles you were facing, and that you were trying to give your family the best life you could. The Crown acknowledges your remorse for Mr Selwyn’s death but notes that you are not being sentenced on a charge relating to that.
[69] This morning I have received a letter from you, together with certificates of attendance at parenting and fitness programmes. Your remorse letter apologises for your drug offending and indicates that you have seen the effect of it in prison. It expresses regret and remorse and says you take full responsibility for your action.
I acknowledge this letter. However, in all the circumstances I do not consider a discrete reduction for remorse is warranted.
[70] Next, your personal background. You are 30 years old, of Samoan heritage, born in Christchurch but have lived in Auckland most of your life. You have two siblings. You have a partner and four young children and are described as a good partner and a loving father.
[71] Section 27 of the Sentencing Act provides that an offender who appears before the Court for sentencing may request the Court to hear any person called to speak on various factors relating to the offender’s personal, family, whānau, community and cultural background.48
[72] The s 27 report from May 2024 was prepared for your earlier sentencing related to the Princes Wharf violence offending. It details a number of personal factors in your background which Mr Hudson submits warrant a 20 per cent reduction to the sentence. The report identifies abuse and normalisation of violence in your upbringing. The more recent pre-sentence report says you grew up in a stable household surrounded by the nurturing presence of your parents, albeit intertwined with a strict disciplinary style, and suggests you were veered off course with the wrong crowd at the age of 13, plunging into a world dominated by alcohol and drug addiction. You characterised this to the s 27 report writer as trying to “block out” the abuse. You described feeling afraid your entire life and having anxiety and suicidal thoughts. You report multiple concussions from playing rugby and suffering from regular migraines ever since, but you have not had a medical assessment.
[73] Your drug use from age 13 or 14 included cannabis and cocaine when it was available. You tried methamphetamine but did not carry on with it. You reported that you stopped using cannabis aged 21 when your first child was born but continued using alcohol heavily until your first daughter was born. You only use alcohol occasionally now, although you told the report writer you were intoxicated at the time of the Princes Wharf offending. You had a good work history until these charges.
48 Sentencing Act 2002, s 27(1).
[74] You report being stabbed in prison and requiring medical treatment, and that you feel anxious in custody. However, it is not suggested that, for you, imprisonment is disproportionately severe.
[75] I acknowledge the deprivation in your youth but note that at age 21 you effectively stopped using drugs and maintained a work and family life, which indicates that at most your background has had a limited causative contribution towards your current offending.49 Recognising your earlier issues, and the possibility that you have the ability to get back on track for your supportive partner and children as well as for your own wellbeing, I am prepared to give you a 15 per cent reduction for your personal circumstances.
[76] Finally, your guilty pleas. You were charged on 4 April 2023 and pleaded guilty on 9 August 2024, with trial scheduled to begin on 23 September 2024. The Crown says the appropriate guilty plea reduction is 15 per cent in light of the strength of the evidence against you and the benefit received from the withdrawal of charges. Mr Hudson seeks a reduction of 20 per cent for your guilty pleas on the basis that they promptly followed withdrawal of the manslaughter charge. Accepting that, I nevertheless consider that a 15 per cent reduction is appropriate. Guilty pleas on the operative charges did not occur at an early opportunity and given the nature of the evidence I do not consider a higher reduction is appropriate.
End sentence
[77] The total reductions of 30 per cent reduce your starting point of five and a half years’ imprisonment down to an end sentence of three years and ten months’ imprisonment.
[78]Mr Fausia, please stand.
[79] On each of the methamphetamine charges, you are sentenced to three years and ten months’ imprisonment.
49 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [121].
[80] On each of the Arms Act charges, you are sentenced to one year’s imprisonment.
[81]These sentences are to be served concurrently.
[82] I also make orders for the destruction of all substances, materials and equipment, and for forfeiture of money, seized by police.50
[83]Please stand down.
Gault J
50 Misuse of Drugs Act 1975, s 32.
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