FONUA v R [2021] NZCA 480

FONUA v R [2021] NZCA 480 [22 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA738/2020[2021] NZCA 480BETWEEN JAROME FONUAAppellantAND THE QUEENRespondentHearing: 23 August 2021Court: Collins, Duffy and Peters JJCounsel: R M Mansfield QC for AppellantM R Harborow and E H K Rangamuwa for RespondentJudgment: 22 September 2021 at 11.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Fonua pleaded guilty to participating in an organised criminal group,1money laundering,2 and possession of methamphetamine.3 He was sentenced by1 Crimes Act 1961, s 98A.2 Section 243(2).3 Misuse of Drugs Act 1975, s 7(1)(a).Lang J on 24 November 2020 to a total term of four years and six months'imprisonment.4[2] The sentence comprised:5(a) Four years and four months' imprisonment for participating in anorganised criminal group.(b) Three years' imprisonment for laundering money. That sentence wasto be served concurrently with the sentence for participating in anorganised criminal group.(c) Two months' imprisonment for possession of methamphetamine, to beserved cumulatively to the sentence for participating in an organisedcriminal group.[3] Mr Fonua appeals the sentence. He contends the sentence was manifestlyexcessive because:(a) the Judge adopted too high a starting point for the charges ofparticipating in an organised criminal group and money laundering; and(b) the Judge should have provided Mr Fonua with greater credit for hisguilty plea.Background[4] The amended summary of facts which Mr Fonua accepted when he pleadedguilty records that in early 2018 police commenced an investigation, codenamed"Nova", into the suspected drug and money laundering activities of members andassociates of the Comanchero Motorcycle Club (the Comancheros). Mr Fonua wasthe Secretary of the Comancheros during the period of time covered by the charges towhich he pleaded guilty.4 R v Fonua [2020] NZHC 3107 (Sentencing notes).5 At [24].Organised criminal group[5] Mr Fonua, together with other members and associates of the Comancheros,became involved in a large-scale money laundering operation during the course of2018 and 2019. Mr Andrew Simpson, who at the time was a practicing lawyer, wasthe architect of the money laundering enterprise. He allowed his trust account to beused to deposit cash totalling approximately $1.8 million during the relevant period.On most occasions the deposits were made by Mr Donald Vuisevuraki. The amendedsummary of facts makes clear that most, if not all the cash laundered throughMr Simpson's trust account came from illicit drug deals.[6] Although there was no evidence Mr Fonua was personally involved in the drugdeals, Lang J noted that by pleading guilty, Mr Fonua acknowledged that he was awarethe funds laundered through Mr Simpson's trust account "came from criminalactivities, most probably in the form of drug offending".6Money laundering[7] Mr Fonua's involvement in money laundering arose in two ways:(a) In August 2018, he handed $60,000 in cash to Mr Donald Vuisevuraki.He in turn deposited that money into Mr Simpson's trust account.Those funds were later used to assist the President of the Comancheros,Mr Pasilika Naufahu, to purchase a property in Bucklands Beach.(b) In August 2018, Mr Fonua received the benefit of $239,000 that hadbeen laundered through Mr Simpson's trust account when he acquireda Range Rover. The vehicle was registered in the name of Mr Fonua'spartner.6 At [7].Possession of methamphetamine[8] Operation Nova was terminated in April 2019. At that time, search warrantswere executed at the residence of Mr Fonua, Mr Naufahu and four other members orassociates of the Comancheros.[9] During the course of a second search of Mr Fonua's home in May 2019, thepolice found 5.9 grams of methamphetamine. A money counting machine was alsofound at Mr Fonua's home.Sentencing notes[10] In sentencing Mr Fonua, Lang J explained why he was satisfied that throughoutthe relevant time Mr Fonua knew the organisation was receiving funds derived fromdrug-related activity. Those reasons were distilled to four points:(a) The fact Mr Fonua was the Secretary of the Comancheros and as suchhe was "a senior and trusted member of the inner circle responsible forthe governance of the organisation".7(b) Mr Fonua was trusted with cash and he had in his possession a moneycounting machine. The Judge noted "[f]ew persons would need amoney counting machine for legitimate activities".8(c) The fact Mr Fonua received a valuable luxury motor car from launderedfunds.9(d) Having presided over the trial of some of Mr Fonua's co-offenders,Lang J had seen photographs that showed "the closeness of the innercadre who were responsible for the activities of the organisation".10Although the Judge did not say so, we assume Mr Fonua appeared insome of those photos.7 At [11].8 At [11].9 At [11].10 At [11].[11] The Judge described Mr Fonua as being "an important player" in the organisedcriminal group "and one who had full knowledge of the group's activities".11[12] In adopting a five-year starting point for the lead charge of participating in anorganised criminal group, Lang J had regard to the six-year starting point that hadpreviously been adopted when van Bohemen J sentenced Mr Daniels for participatingin an organised criminal group and money laundering.12 Mr Daniels was theVice-President of the Comancheros.[13] The five-year starting point adopted by Lang J for the charge of participatingin an organised criminal group encompassed the money laundering charge.13 Thepossession of methamphetamine was treated as a discrete offence. A starting point ofthree months' imprisonment was adopted in relation to that offence.14[14] In relation to the sentence for participating in an organised criminal group andmoney laundering, a discount of eight months was applied to reflect Mr Fonua's guiltyplea, which the Judge described as being "late" in the process.15 That equated to adiscount of 13 per cent from the starting point.16 In relation to the sentence forpossession of methamphetamine, this was reduced from three months to two monthsto reflect Mr Fonua's guilty plea, which the Judge described as being "early".17 Thatequated to a discount of 33 per cent from the starting point. The sentence forpossession of methamphetamine was to be served cumulatively to the sentence forparticipating in an organised criminal group.18 This resulted in a total end sentence offour years and six months' imprisonment.1911 At [13].12 At [17], referring to R v Daniels [2020] NZHC 275.13 At [17].14 At [19].15 At [21].16 At [22].17 At [21]–[22].18 At [24].19 At [24].Grounds of appeal[15] Mr Mansfield QC, counsel for Mr Fonua, submitted Lang J erred in thefollowing ways when setting the starting point of five years' imprisonment for theorganised criminal group charge:(a) by inferring Mr Fonua had knowledge of the drug offending of thegroup, and of the amount of money the group was laundering; and(b) by drawing an incorrect comparison between Mr Daniels' offending,and that of Mr Fonua.[16] It was also submitted in relation to the organised criminal group charge that adiscount of 15 per cent was warranted for Mr Fonua's guilty plea.The response[17] Mr Harborow and Ms Rangamuwa, who appeared for the Crown, submittedthat there were no errors in the approach taken by Lang J when sentencing Mr Fonuaand that appropriate inferences were drawn "that spoke to [Mr Fonua's] overallculpability". The discount for the guilty plea was said to be more than adequate.AnalysisStarting point[18] In setting a starting point of five years' imprisonment, Lang J was entitled toinfer Mr Fonua had a "broad" understanding of the drug dealing and money launderingactivities of the organisation.20 Mr Fonua's guilty plea involved his acceptance of theamended summary of facts and an acknowledgement he participated in an organisedcriminal group and that he had engaged in and benefited from significant moneylaundering.20 At [12].[19] We accept there is no evidence Mr Fonua was directly involved in the criminaloffending that generated the money that was laundered. Nor is there evidenceMr Fonua knew of the full extent of the money laundering activities.[20] Lang J was careful to acknowledge Mr Fonua may not have had knowledge ofindividual money laundering transactions or drug deals. The Judge rightly inferredhowever, Mr Fonua had a "broad knowledge of what was happening".21 Thatinference was entirely reasonable because of:(a) Mr Fonua's trusted role within the organisation;(b) the fact he benefited from the money laundering activities by receivinga very expensive luxury vehicle;(c) his role in providing $60,000 cash to Mr Donald Vuisevuraki; and(d) his possession of a money counting machine.[21] In assessing the starting point adopted by Lang J, it is necessary to ensureconsistency in the sentences imposed on other defendants.22 Two other sentencesimposed upon persons investigated as part of Operation Nova are particularly relevantto Mr Fonua's case:(a) Mr Daniels pleaded guilty to nine charges of money laundering and wasinvolved in offending on a greater scale than Mr Fonua. He derived asignificant financial benefit. Mr Daniels also pleaded guilty to onecharge of participating in an organised criminal group. As stated above,van Bohemen J adopted a starting point of six years' imprisonmentwhen sentencing Mr Daniels.2321 At [12].22 Sentencing Act 2002, s 8(e).23 R v Daniels, above n 12, at [29].(b) Mr Simpson pleaded guilty to 13 charges of money laundering.van Bohemen J adopted a starting point of four years and six months inrelation to his offending.24[22] In our assessment, the differences in culpability between Mr Daniels andMr Fonua were accurately calibrated by Lang J, when he adopted a starting point offive years' imprisonment for Mr Fonua. Both were senior members of the organisationand both benefited significantly from the money laundering activities of theorganisation. It is also significant that although Mr Simpson was the architect of themoney laundering scheme, he was sentenced solely on the basis of his moneylaundering offending. Unlike Mr Fonua and Mr Daniels, Mr Simpson was notsentenced for participating in an organised criminal group. That point alonedistinguishes Mr Simpson's case from that of Mr Fonua.[23] In concluding the starting point adopted by Lang J was within the range thatwas reasonably available we have had regard to the relevant purposes of sentencing,namely, the need:25(a) to hold Mr Fonua accountable for the harm done to the community byhis offending;(b) to denounce his conduct; and(c) to deter Mr Fonua and others from offending in a similar way in thefuture.[24] We have also had regard to the need to impose the least restrictive outcomethat is appropriate.26[25] In our assessment, the five-year starting point adopted by Lang J wasreasonable and reflected the seriousness of Mr Fonua's participation in an organised24 R v Daniels, above n 12, at [48].25 Sentencing Act, s 7.26 Sentencing Act, s 8(g).criminal group and benefits he obtained through the money laundering activities ofthat organisation.Discount for guilty plea[26] The 13 per cent discount for Mr Fonua's guilty plea in relation to the organisedcriminal group charge was well within the range that was reasonably available. TheJudge was correct in finding that Mr Fonua's guilty plea was late in the process, beingonly two weeks before trial. The Judge also appropriately distinguished betweenMr Fonua's guilty plea to the organised criminal group charge with his guilty plea tothe possession of methamphetamine charge, the latter being early in the process andresulting in a significant discount.Result[27] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent