Tilialo-Staples v Police - [2013] NZHC 1255

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000144 [2013] NZHC 1255

BETWEEN JOSHUA TILIALO-STAPLES Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 May 2013

Counsel: S Moala for Appellant
LM Mills for Respondent

Judgment: 27 May 2013

JUDGMENT OF ASHER J

Solicitor/Counsel:
Moala Merrick, Auckland. Crown Solicitor, Auckland.

TILIALO-STAPLES v NZ POLICE [2013] NZHC 1255 [27 May 2013]

Introduction

[1] Joshua Tilialo-Staples appeals against a sentence imposed upon him of three years’ imprisonment for his conviction on one charge of the supply of pseudoephedrine, a Class B drug. Mr Tilialo-Staples was involved in a most serious drug importation. However, for the reasons that I am now going to traverse, I consider that the end sentence imposed upon him was too high.

[2] On 19 July 2012, the vessel “Cap Mondego” was inspected at the Port of Auckland. A portable air compressor packed with 21.9 kilograms of pseudoephedrine was discovered. The source was China. The Police valued the worth of the pseudoephedrine at $940,000. The summary of facts reveals the Police knew a good deal about this importation.

[3] Because most of the co-offenders have still to stand trial I will refer to them by their initials.

[4] One of the organisers was allegedly a Mr L who had arranged for the lodging of an application for a Customs client code under a false name. The aim was to permit the collection of the compressor through a Customs broker. The Police assert that Mr L arranged for Mr C to be responsible for the collection of the compressor from the Customs broker.

[5] On 9 September 2012, Mr C contacted Mr Tilialo-Staples and a Mr B and they agreed to collect the compressor. On the same day, Mr L emailed the Customs broker using a false name, notifying them that Mr Tilialo-Staples would collect the compressor. In fact, by the Police summary it was Mr B who collected the compressor.

[6] The compressor was taken to Mr Tilialo-Staples’ parents’ address in Flatbush.

It was there for 20 minutes and it was then allegedly taken to Mr B’s address. At

6 pm, Mr Tilialo-Staples collected the compressor and took it back to his home where it stayed for some hours. The Police say Mr L and Mr C then arrived at Mr Tilialo-Staples’ home. Mr Tilialo-Staples’ mother and stepfather were still awake and he asked them to go away and come back when they had gone to bed. Mr L and

Mr C did this, returning at 11 pm. The compressor was then removed at about midnight.

[7] The Police executed a search warrant on Mr L’s address and the compressor was found. He admitted to having collected it from Mr Tilialo-Staples’ home. When arrested, Mr Tilialo-Staples immediately admitted his involvement. He had been paid $500 to collect the compressor. He needed the money to collect his car, which had been impounded. Clearly he knew that there was an illegal transaction in train. However, he had no knowledge of the type…

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.

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Details

Case: [2013] NZHC 1255
Decision Date: 27 May 2013

CaseChat Overview and Summary

Joshua Tilialo-Staples appealed against his sentence of three years’ imprisonment for the supply of pseudoephedrine, a Class B drug. The drug was part of a significant importation involving multiple individuals, though most had yet to stand trial. Tilialo-Staples was minimally involved, collecting the drug for a short period and being paid $500. He was unaware of the drug's nature or quantity.

The legal issues before the court involved determining the appropriate starting point for sentencing and whether sufficient discounts were applied for mitigating factors. The maximum penalty for this offence was 14 years in prison. The court had to balance the large quantity of the drug against Tilialo-Staples' minimal involvement and knowledge. It also had to consider personal mitigating factors, including his youth, remorse, good character, and assistance to the police.

The court found that the starting point of six years was excessive given Tilialo-Staples' low level of involvement, which was not critical to the importation. A more appropriate starting point would have been four years. The court also found that the discount for mitigating factors was too low, warranting a 45% reduction instead of the 33% applied. This would have resulted in a sentence of one year and nine months. Given the new sentence, the court imposed a term of eight months' home detention, taking into account the six weeks Tilialo-Staples had already spent in prison.

The appeal was allowed, and the sentence of three years’ imprisonment was quashed. An eight-month sentence of home detention was imposed in its place, to begin the following afternoon. Tilialo-Staples was to reside at his mother’s residence under certain conditions, including not consuming alcohol or drugs and not associating with co-offenders.

Orders