R v FAKAOSILEA AND OTHERS [2022] NZHC 3207

R v FAKAOSILEA AND OTHERS [2022] NZHC 3207 [1 December 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2020-004-9587[2022] NZHC 3207THE KINGvSEIANA FAKAOSILEARICHARD PELIKANIDIAMOND KATOARHAKIM MATAIAHearing: 1 December 2022Appearances: R McCoubrey for the CrownJ Rhodes and K Tuialii for Mr FakaosileaS McColgan for Mr PelikaniD Stevens and S Norrie for Mr KatoaJ Lucas for Mr MataiaDate: 1 December 2022SENTENCING NOTES OF CAMPBELL JIntroduction[1] Mr Fakaosilea, Mr Pelikani, Mr Katoa, and Mr Mataia, you appear for sentencethis morning for serious drug dealing offences.[2] Mr Fakaosilea, you pleaded guilty to two charges of possession of a Class Acontrolled drug for supply,1 and four charges of supplying a Class A controlled drug.2You were found guilty at trial of two charges of conspiracy to importmethamphetamine,3 and a further charge of possession of methamphetamine forsupply.4[3] Mr Pelikani, you pleaded guilty to possession of a Class A controlled drug forsupply.5 You were found guilty at trial of a charge of conspiracy to importmethamphetamine.6[4] Mr Katoa, you pleaded guilty to three charges of supplyingmethamphetamine.7[5] Finally, Mr Mataia, you pleaded guilty to three charges of supplyingmethamphetamine,8 two charges of unlawful possession of a firearm,9 and two chargesof unlawful possession of ammunition.10[6] My job today, on behalf of the community, is to impose a sentence on eachof you for those offences.1 Misuse of Drugs Act 1975, ss 6(1)(f) and 2(a). Maximum penalty: life imprisonment.2 Sections 6(1)(c) and 2(a). Maximum penalty: life imprisonment. Three of these charges relatedto methamphetamine. The Crown and Mr Fakaosilea are in dispute whether the remaining chargerelated to methamphetamine or cocaine. For reasons I will explain later in the judgment, thedistinction is not consequential for sentencing purposes.3 Sections 6(1)(a) & 2A. Maximum penalty: 14 years' imprisonment.4 Sections 6(1)(f) and 2(a). Maximum penalty: life imprisonment.5 Sections 6(1)(f) and 2(a). Maximum penalty: life imprisonment.6 Sections 6(1)(a) & 2A. Maximum penalty: 14 years' imprisonment.7 Sections 6(1)(c) and 2(a). Maximum penalty: life imprisonment.8 Sections 6(1)(c) and 2(a). Maximum penalty: life imprisonment.9 Arms Act 1983, s 45(1). Maximum penalty: four years' imprisonment.10 Section 45(1). Maximum penalty: four years' imprisonment.Offending[7] A summary of facts was presented to the Court when you pleaded guiltyto those charges. You accepted that summary of facts, subject to some disputes, whichI resolved in a later disputed facts judgment.11 I will sentence you on the basis of thosefacts, together with any inferences I can draw from them.12 And, as the trial judge atMr Fakaosilea and Mr Pelikani's trial, I am entitled to make factual findings based onthe evidence in respect of their offending, if consistent with the jury's verdicts.13[8] I will summarise your offending now.[9] In 2020, the Police National Organised Crime Group began an investigationinto a drug syndicate involved in the importation and commercial scale supplyof various controlled drugs around New Zealand.[10] On 9 March 2020, Police intercepted a conversation between Mr Fakaosileaand a co-defendant, Jie Huang, in which they discussed an importationof methamphetamine from Fiji to New Zealand. They also agreed to import a further600 kg of methamphetamine from South Africa. Mr Fakaosilea told Mr Huanghe would bring Mr Pelikani over to Mr Huang's house to discuss the South Africanimportation. The next day, Mr Fakaosilea picked up Mr Pelikani from his home. Theydrove to Mr Huang's house. There, the three discussed the South African importation.[11] Further intercepted communications from March 2020 showed that as wellas the planned methamphetamine importations, Mr Huang was supplying Mr Pelikaniand Mr Fakaosilea with methamphetamine. Between 1 January 2019 and 16 March2020, Mr Huang supplied Mr Fakaosilea with 10 ounces of methamphetamineon at least four separate occasions. The total amount of methamphetamineMr Fakaosilea possessed for supply was therefore at least 40 ounces.11 R v Fakaosilea [2022] NZHC 2984.12 R v R [2019] NZCA 135 at [33]; R v Kinghorn [2014] NZCA 168 at [20] and [31]; Pokai v R[2014] NZCA 356 at [30]–[36]; and R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494.13 Sentencing Act 2002, s 24(1)(a); and Edwardson v R [2017] NZCA 618 at [105]–[107].[12] Mr Fakaosilea acquired five units of a controlled drug on 11 March 2020,which he passed on to Mr Pelikani. The quantity and type of that drug was disputed.In my disputed facts judgment, I said I would sentence Mr Fakaosilea and Mr Pelikanion the basis that they were in possession of five ounces of cocaine.14[13] Sometime during the morning of 15 March 2020, Mr Mataia and Mr Katoa,at Mr Fakaosilea's direction, travelled to Hamilton airport with an unknowncommercial quantity of methamphetamine.15 They flew to Christchurch, where theymet one of their co-defendants, Luke Mathers, a member of the Rebels MotorcycleClub. They supplied Mr Mathers with the methamphetamine. This was the firstChristchurch drug run.[14] On 20 March 2020, Mr Mataia flew from Auckland to Christchurch. Mr Katoa,and a co-defendant, Samuel Halaholo, flew from Hamilton to Christchurch the nextmorning with an unknown commercial quantity of methamphetamine.16 Mr Mataiacollected Mr Katoa and Mr Halaholo from the airport. Mr Mataia and Mr Katoa latersupplied Mr Mathers with the methamphetamine. This was the second Christchurchdrug run, and it was again at Mr Fakaosilea's direction.[15] On 15 April 2020, Mr Fakaosilea supplied a small amount of a Class Acontrolled drug to Brodie Collin-Haskins. Mr Fakaosilea has said the drug wascocaine; the Crown says it was methamphetamine. That dispute remains unresolved.The Crown concedes the resolution of that question will not, in any event, affectMr Fakaosilea's sentence. I agree with that.[16] Another Christchurch drug run took place in August 2020. Mr Mataia,at Mr Fakaosilea's direction, rented a car from Auckland airport. Mr Mataia andMr Katoa, along with co-defendant Elizabeth Bolea, travelled in the car fromAuckland to Christchurch. Police executed a covert search on the car while it wason the Interislander ferry between Wellington and Picton. Officers located two clear14 R v Fakaosilea [2022] NZHC 2984 at [40].15 At [53].16 I sentenced Mr Halaholo on the basis that the quantity of methamphetamine fell within a rangearound the middle of band two of the applicable tariff decision, Zhang v R [2019] NZCA 507,[2019] 3 NZLR 648. See R v Halaholo [2022] NZHC 3031 at [15].plastic containers containing methamphetamine. In my disputed facts judgment, I saidI was satisfied that the containers held at least 500 g of methamphetamine.17[17] After arriving in Christchurch, Mr Mataia and Mr Katoa travelled to10 Thackers Quay, where they met Mr Mathers and gave the methamphetamineto him. They were later stopped and arrested by Police.[18] Police executed search warrants at Mr Mataia and Mr Katoa's home addresses.At Mr Mataia's address, Police located two loaded pistols, $10,000 in cash, and itemsconsistent with drug dealing, including digital scales, plastic snap-lock bags andmultiple Ciphr cell phones.Approach to sentencing[19] The Sentencing Act 2002 sets out the purposes and principles of sentencingthat I have to follow. Here, relevant purposes include holding you accountable for theharm that your offending has done to the community, promoting in you a senseof responsibility for that harm, denouncing your conduct, deterring you and othersfrom committing similar offending, and assisting in your rehabilitation.18[20] The principles include the need to consider the gravity of your offending andyour degree of culpability, the seriousness of these offences and the generaldesirability for consistency in sentencing. I must also impose the least restrictiveoutcome that is appropriate in the circumstances.19[21] Determining the appropriate sentences involves, in this case, three steps. First,I must determine terms of imprisonment as the "starting points" for your sentences,which will be based on the seriousness of the offending for which you have beenconvicted. Secondly, I will consider your personal circumstances, including theappropriate allowance for your guilty pleas.20 This will produce your end sentences.17 At [63].18 Sentencing Act, s 7(1).19 Section 8.20 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].Finally, for Mr Fakaosilea and Mr Pelikani, I will determine whether to imposea minimum period of imprisonment (also known as an MPI).Starting pointsFakaosilea[22] Mr Fakaosilea, I will begin with you. At the time of your offending you werethe acting National Commander of the Comanchero Motorcycle Club. For sentencingpurposes, I will take your established methamphetamine offending as the leadoffending, before applying an upward adjustment to reflect the other charges of whichyou were convicted.[23] A Court of Appeal case called Zhang is the guideline decisionon methamphetamine offending.21 The Court there set out five sentencing bands basedon the quantity of methamphetamine involved in the offending.22[24] The Crown submitted that your offending involved at least 1.633 kgof methamphetamine. Your counsel, Mr Rhodes, disagreed. He said the onlyinference I can draw is that the methamphetamine you obtained from Mr Huang wasthe same methamphetamine supplied in the March and August 2020 Christchurch drugruns. He submitted that accumulating the various quantities of methamphetamineunderlying the various charges of which you were convicted, as he said the Crown hasdone, risks significantly overstating the overall seriousness of your offending. Thetotal amount of methamphetamine for setting bands, he said, is therefore around 1.1kg.[25] I do not accept Mr Rhodes' submission. By 16 March 2020, you had obtainedat least 40 ounces of methamphetamine from Mr Huang. That is about 1.133 kg.In that month, you supplied unknown commercial quantities of methamphetamineto Christchurch on two occasions. For the purposes of assessing the quantumof methamphetamine involved in your offending, I accept that I should not add thetwo unknown commercial quantities supplied in March 2020 to the 1.133 kg you21 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.22 At [125].obtained from Mr Huang. That would be double counting, as it is at least a reasonablepossibility that the March supplies derived from the methamphetamine you obtainedfrom Mr Huang. But I consider it is appropriate to include the 500 g that was suppliedto Christchurch in August 2020. That's because I am sure that that drug run, occurringalmost five months later, did not derive from the 40 ounces you obtained fromMr Huang.[26] I therefore consider that your offending involved at least 1.633 kgof methamphetamine. It therefore falls within band 4 of Zhang, indicating a startingpoint of between eight years' and sixteen years' imprisonment. Your quantity is justapproaching the upper quartile of that band.[27] Where an offender falls within a particular band primarily depends on the rolethe offender played. The Court in Zhang described three categories of role: lesser,significant and leading.23 An offender with a lesser role may be one who performsa limited function under direction; is involved through naivety, exploitation,intimidation or coercion; is paid in drugs to feed their own addiction; and hasno influence on or understanding of the organisation. A significant role may involvean operational or management function and the direction of others; an expectationof commercial profit and a financial motivation; and some awareness of the scaleof the organisation. And a leading role may involve directing or organising buyingand selling on a commercial scale; the exercise of influence over others in a chain;close links to the original source; the expectation of substantial financial gain; the useof business as cover; and the abuse of a position of trust or responsibility.[28] The Crown submitted that yours was a leading role and that a starting pointat the top of band 4 is warranted. The Crown therefore submitted that I should set thestarting point for your methamphetamine offending in the range of 15 years'to 16 years' imprisonment.24 Mr Rhodes submitted that the Crown overstated yourrole and that you were on the cusp of significant and leading roles.23 At [126].24 The Crown here referred me to Wellington v R [2020] NZCA 277; Chai v R [2020] NZCA 202;and Tang v R [2021] NZCA 266.[29] As the wholesale supplier to Mr Mathers in Christchurch, you organised thebuying and selling of methamphetamine on a commercial scale. You obtainedmethamphetamine from Mr Huang on a number of occasions. You directed varioussubordinates in the drug syndicate, including Mr Katoa and Mr Mataia. In that sense,it is accurate to say that you were the head of the syndicate. It is an irresistibleinference, from the duration and frequency of, and quantities involved in, theoffending, that you expected to profit substantially from the drug enterprise. In myview, all these factors point to you having a leading role. However, I am not sure thatyou had close links to the original source of the methamphetamine that you possessedand supplied. You had a leadership role, but it was not quite the highest that the courtscome across in dealing with commercial drug syndicates.[30] Given the quantity of the methamphetamine involved, and your leadership role,I consider an appropriate starting point for your methamphetamine offendingis 14 years' imprisonment.[31] There must then be an uplift to reflect the two conspiracy charges of which youwere found guilty. The Crown said the conspiracy charges, standing alone, wouldwarrant a sentence in the region of 12 years' imprisonment. Taking into accounttotality considerations, the Crown submitted I should apply uplifts of six years for theconspiracy offending. Mr Rhodes, by contrast, said an uplift of only two years wasnecessary to reflect your conspiracy charges. He said yours was a conspiracy in itsvery early stages, and that no concrete steps were ever taken to make it a reality.He referred me to a case called Naupoto,25 in which a starting point of four years'imprisonment was imposed for a conspiracy to import 400 kg of methamphetamine.In that case the defendant had been duped by others. The methamphetamine that hewas scheming to import never existed.[32] I consider that the Naupoto case is different to yours. The Court of Appeal hasexplained that in cases like Naupoto substantial discounts from the maximum penaltycan be made to reflect the improbability of the planned importation ever occurring.2625 R v Naupoto [2012] NZHC 3138.26 Gao v R [2018] NZCA 69 at[14].Yours is not such a case. There is nothing to suggest that the two imports could notoccur or were improbable.[33] Mr Rhodes is on stronger ground in submitting that, in your case, there wasnothing more than a conspiracy, by which I mean the formation of an agreement andan intention to carry it out. There is no evidence of any steps taken in furtheranceof the conspiracy. Further, while the agreement discussed things such as quantitiesand price, there was almost no discussion of the roles that each of the participants wasto play. In light of these features, but taking into account that there were twoconspiracies and that one involved 600 kg of methamphetamine, I consider a startingpoint of eight years' imprisonment would be justified for these offences ona standalone basis, and that an uplift of four years is appropriate.[34] Finally, there is the cocaine charge to which you pleaded guilty. The Crownsays this would attract a standalone sentence in the range of four years' to five years'imprisonment. The Crown submitted I should apply an uplift of two years for thecocaine offending.[35] I consider that uplift would be unduly stern. Mr Rhodes makes the valid pointthat had this substance been methamphetamine it would have only pushed youroffending slightly further up Zhang's band 4. I therefore consider that an uplift of onlysix months is warranted.[36] Overall, then, I set a global starting point of 18 years and six months'imprisonment.Pelikani[37] Mr Pelikani, you jointly possessed five ounces of cocaine for supply withMr Fakaosilea, and you conspired to import 600 kg of methamphetamine intoNew Zealand.[38] The Crown submitted I should take the conspiracy charge as the lead offencefor sentencing purposes, with an uplift to reflect your cocaine offending. It said thatthe amount of methamphetamine involved in your offending would ordinarily fit intothe highest end of band five of Zhang, attracting a starting point of ten years'imprisonment to life imprisonment. But it acknowledged that conspiring to importmethamphetamine carries a lower maximum penalty than possession or supplycharges do, being capped at 14 years' imprisonment.[39] The Crown also said you played a leading role in the syndicate. You were nota subordinate of Mr Fakaosilea, the Crown says, but instead a business partner.As with Mr Fakaosilea, the Crown said I should set a starting point near the maximumpenalty. The Crown said a starting point of 12 years' imprisonment would beappropriate,27 and that this starting point should be uplifted by two years to reflectyour cocaine offending.28 The Crown's position, then, is that I should set a globalstarting point in the region of 13 years' imprisonment to 14 years' imprisonment.[40] Your counsel, Mr McColgan, submitted I should set a global starting pointof five years and nine months' imprisonment, comprising no more than four years'imprisonment for the conspiracy charge and an uplift of 21 months for your cocaineoffending.29 He said your conspiracy barely advanced past the initial stages.30He submitted there is insufficient evidence that you played a leading role in thesyndicate, and that it is unsafe to assume, based on your close association withMr Fakaosilea, that you operated within a similar sphere of influence. That being so,he submitted I should sentence you on the basis that your conspiracy never got off theground and that your role in the syndicate is unknown.[41] For the reasons I have just given in relation to Mr Fakaosilea, I consider thereis some force in Mr McColgan's submissions on the conspiracy charge. ForMr Fakaosilea, I assumed a starting point of eight years' imprisonment. A lowerstarting point is appropriate for you, Mr Pelikani. You were party to only oneconspiracy (albeit involving 600 kg) and you were brought into that conspiracy after27 In support of this submission, the Crown cited Banaba v R [2016] NZCA 122; R v Uputaua [2017]NZHC 1921; and Gao v R [2018] NZCA 69.28 The Crown here cited Cavallo v R [2022] NZCA 276; R v Logan [2017] NZHC 994; and R vBhikoo [2017] NZHC 3204.29 Mr McColgan relied on R v Te Rure [2007] NZCA 305; R v Hall [2022] NZHC 2822; and R vNaupoto [2012] NZHC 3138.30 Mr McColgan cited as relevant comparator cases on conspiracy R v Cullen HC Christchurch CRI-2005-009-5165, 31 March 2006; R v Apostolakis (1997) 14 CRNZ 492 (CA); and R v Kiwi [2019]NZHC 3194.it had been formed by Mr Fakaosilea and Mr Huang. For that reason, I consider yourresponsibility is slightly lower than theirs. I therefore adopt an initial starting pointof six years' imprisonment.[42] As for your cocaine offending, the Crown submits that this would attracta sentence of four years' imprisonment on a standing alone basis, and that an upliftof two years is warranted. Mr McColgan is not far from that. He says three and halfyears' imprisonment on a standalone basis and an uplift of 21 months.[43] I consider a standalone sentence of four years' imprisonment wouldbe warranted. However, I consider that both proposed uplifts would be too stern.Looking at your offending in its totality, I consider an uplift of 18 monthsis appropriate, with a global starting point, therefore, of seven years and six months'imprisonment.Katoa[44] Next, Mr Katoa. As I have already said, you supplied methamphetamine threetimes. The first two supplies were of an unknown commercial quantity; the third wasof at least 500 g.[45] The Crown submitted that the amounts involved put your offending into band4 of Zhang, attracting a starting point sentence of between eight years' imprisonmentand sixteen years' imprisonment.31[46] As to your role, the Crown submitted you were a significant player in thesyndicate. You were actively involved in the transportation of methamphetamineto Christchurch for on-supply. Your involvement extended over a number of monthsand you were aware of its scale. As with Mr Fakaosilea and Mr Pelikani, the Crownsubmitted that a starting point sentence at the bottom of the applicable bandis therefore not available to you. It said a starting point sentence of nine years'imprisonment would be appropriate in your case.3231 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].32 The Crown referred me to three comparator cases: Clark v R [2020] NZCA 641; Cullen v R [2022]NZCA 308; and R v Chanthawong [2022] NZHC 1623.[47] Your counsel, Mr Stevens, submitted that the application of the sentencingbands in Zhang requires flexibility and discretion. He said you performed a limitedfunction in the syndicate under Mr Fakaosilea's direction. You were essentiallya courier, with no influence over those above you in the hierarchy. And you did notinvolve or direct other participants. Referring to my sentencing of your co-defendantSamuel Halaholo, Mr Stevens said your role in the organisation falls on the cuspof "lesser" and "significant". And, referring to my sentencing of your co-defendantLemeki Namoa, he said a starting point well below the bottom of the applicable bandis available. On those bases, Mr Stevens contended for a starting point in the regionof six and half years' imprisonment to seven years' imprisonment.33[48] Mr Katoa, the quantity of methamphetamine you supplied places you withinband four of Zhang. Your case differs in important ways from those of Mr Halaholoand Mr Namoa. Your role was more pronounced than theirs. Mr Halaholo participatedin one Christchurch drug run and did not actually supply the drugs. Mr Namoa hada limited role in possessing drugs. You participated in three Christchurch drug runsand did supply. You were a repeat player. I can infer from this that you were awareof the scale of the operation, and that you engaged in it for your personal financialadvantage.[49] For those reasons, I consider the role you played in the syndicate was at thelower end of significant. Mr Katoa, taking into account your role, and that the quantitywas in the lower quartile of band 4, I set a starting point for your sentence of eightyears' imprisonment.Mataia[50] Finally, Mr Mataia. Your counsel, Mr Lucas, said you did not havea significant role in the operation, and that your offending falls in between bands twoand three of Zhang. He said a starting point of seven years' imprisonment wasappropriate in your case.33 Mr Stevens said this starting point would be consistent with the Court of Appeal's decision in R vPhilip [2022] NZCA 128.[51] It should be clear from what I have already said about Mr Katoa, whosemethamphetamine offending was much the same as yours, that I do not accept thosesubmissions. Those earlier remarks also apply to you. But there are some additionalfeatures of your offending that I must account for in setting the starting point for yoursentence. I consider you had a greater role in the offending than Mr Katoa. Youinvolved others in your offending — your partner, Elizabeth Bolea. A substantial sumof cash was found at your address. There were items such as digital scales and Ciphrcell phones also found there. These factors indicate a greater role and so justifya slightly higher starting point than Mr Katoa's for your methamphetamine offending.A starting point of eight years and six months' imprisonment is appropriate for thatoffending.[52] I must uplift that starting point to reflect that you have also been convictedof firearms offending. The Crown directed me to appellate authority stating thatuplifts of between 12 and 18 months' imprisonment are appropriate where drug dealershave been found with firearms in their possession.34 The Crown contends for 12months here. Mr Lucas accepts that is appropriate. I agree.[53] I therefore set a global starting point for your sentence of nine years and sixmonths' imprisonment.Personal circumstances[54] I now turn to your personal circumstances and any uplifts or allowances to yournotional sentences that those circumstances require.Uplifts[55] The only uplift for which the Crown contends is in respect of Mr Fakaosilea.It says that because Mr Fakaosilea's offending took place while he was subject to bail,I should impose an uplift.[56] Mr Fakaosilea, Mr Rhodes said you were found not guilty of the charges forwhich you were on bail at the time of your present offending. He submitted this34 Perez v R [2015] NZCA 267 at [51]; and Joyce v R [2020] NZCA 124 at [24].suggests you should not have been on bail in the first place. In those circumstances,he said, there is minimal justification for an uplift. He cited a case, Fangupo v R,in support.35 But that case concerned a defendant who allegedly offended while ontrial in the High Court. That is not the same situation as where an offender commitsan offence while on bail.[57] Mr Fakaosilea, I am satisfied that an uplift is warranted for individualdeterrence,36 and to recognise that your offending while on bail displayed a disregardfor court processes.37 But the uplift should be relatively small.38[58] I will impose an uplift of five per cent to reflect that your offending took placewhile you were on bail.Personal backgrounds[59] I am now going to say a little about each of your personal backgrounds.[60] Mr Fakaosilea, I have been provided with two reports on your background.You were born in Australia to Tongan parents. Your father abandoned the family soonafter you were born. That's going to be a common theme today. You were one of theyoungest of seven siblings. From a young age you were exposed repeatedly to familyviolence. To a substantial extent you were raised by your older siblings, as for someyears your mother spent six months each year absent while working in another city.Your oldest brother was a particular influence on you, essentially your role model andfather figure as you were growing up. He was a very poor role model. He wasfrequently in and out of prison. He introduced you to drugs at a young age. Whenyou were expelled from a school at age 13, he encouraged you into gangs andcriminality rather than finding another school. You have been a heavy drug user formost of the years since then, with cocaine being your preferred drug.35 Fangupo v R [2020] NZCA 484 at [57].36 Thomas v R [2020] NZCA 257 at [19].37 Clunie v R [2013] NZCA 110 at [22].38 Thomas v R [2020] NZCA 257 at [20].[61] Your brother was deported to New Zealand in 2016. You were 16 years oldat the time. You decided to follow him here. Once in New Zealand, you becameinvolved with the Comancheros. You joined the gang in 2018 and began climbing itsranks. This morning you've given me a detailed letter of remorse. You blame onlyyourself for your offending and for the situation in which you now find yourself.I acknowledge that.[62] Mr Pelikani, I have a report on your background. You grew up in SouthAuckland. Your father was an alcoholic. He regularly gave you beatings in youryouth. He was also violent towards your mother. Your parents separated when youwere in intermediate school, and you went to stay with your grandparents. But thatwas not a safe environment for you either, and after a few months you moved again— this time to live with an uncle and his family. After about a year at your uncle'shome, you again moved to stay with another uncle. And then you ended up back withyour grandparents, remaining there until you were about 18 years old.[63] While you were at your grandparents' house, your older cousin returned fromthe United States. Your cousin, who was a few years older than you, had been heavilyinvolved in gangs. It was not long before you fell in with gangs, too. You did not lastin your schooling. You were eventually expelled. You effectively lived on the streets.At one time, you were placed in a boy's home.[64] Your first interactions with Police were when you were 12, and they becameregular occurrences after that. From that young age you were also drinking regularly,smoking marijuana and experimenting with MDMA and LSD.[65] You first went to prison when you were 19 years old. When you were released,you immediately fell back into taking drugs and alcohol. You were involved in a gangfight and were charged with assault to injure and assault of a Police officer. You wentto prison again at 21. You described it as feeling like a second home. After you werereleased from prison for the second time, you picked up a serious methamphetaminehabit.[66] You say that you are seeking to put your old life behind you. You have beenmarried for just a few years, and you want to build a better life with your wife. Youhave engaged with rehabilitative opportunities when you were on bail, completingboth residential and outpatient programmes through NZBASS. You also have givenme a letter this morning. It shows a genuine desire to improve your life, Mr Pelikani.[67] Mr Katoa, I have been provided with a report on your background as well.I have also been given a large number of references from your partner, various friendsand family members, and from prospective employers. And you have written me aletter in which you take responsibility for your offending and show insight into theharms it has caused.[68] Mr Katoa, you grew up mostly without your father. Your family sufferedserious economic deprivation. In your childhood, you witnessed and experienceddomestic violence at home.[69] You completed your schooling but found it difficult to maintain employmentafterwards. Without a stable job or strong connection to home, you began to be guidedmore and more by peers who exerted a negative influence on you. You eventuallyparticipated with them in an aggravated robbery, for which you were jailed. It wasin jail that you were first introduced to drugs and began thinking about selling them.[70] You eventually established an affiliation with the Comancheros, which you feltprovided a way to reconnect with your Tongan roots. You were drawn into the ganglifestyle, and the money you earned from it fed into a developing gambling habit.[71] In your letter to me, you say you take full responsibility for your offending andthat you understand its seriousness. You say you understand the impact drugs haveon the end user and the community. You say you are embarrassed and ashamed of youractions, and that you are deeply remorseful for what you have done. You say you arelooking to move forward in your life.[72] Mr Mataia, I also have a report on your background. You had a dysfunctionalupbringing. Your father abandoned you at an early age, though in later life you re-engaged with him. Your mother became caught up in a cycle of domestic violencefrom various partners, which you observed. You moved around from place to placeand from school to school. You experienced poverty throughout your childhood. Yourdesire to make money became a primary motivator of your later offending.[73] You and your mother moved to Sydney in 2008, when you were 13 years old.Fighting was a regular part of life at the school you attended. You eventually madefriends with a group of "street kids" and dropped out of school when you were 15 yearsold. You carried out robberies with your new friends. The robberies led to a stay inprison and eventually to your deportation back to New Zealand. You arrived inChristchurch in 2018 with no money and few connections. Eventually, seeking toregain a sense of connection and brotherhood, you moved to Auckland and joined theComancheros.[74] Since your arrest, and while on EM bail, you have been parenting a youngdaughter with your partner. I have received and read several letters filed in yoursupport. They speak to your helpfulness, your commitment to your young family, andyour contribution to community groups in which you are involved.[75] I have spent some time going through your backgrounds because an importantpart of the sentencing process is to adjust the starting point so that the end sentencetakes into account the sorts of circumstances that I have just been discussing. Thosepersonal circumstances can mean, for example, that your moral culpability orresponsibility for your offending or your prospects for rehabilitation are different fromothers who may be sentenced. The Sentencing Act requires judges to makeadjustments for those sorts of matters. Sometimes the adjustments are upwards,sometimes they are downwards. In each of your cases, your personal circumstancesjustify some decreases to the starting point.Mr Fakaosilea[76] Mr Fakaosilea, you had a seriously dysfunctional upbringing. Your much olderbrother stepped into the void left by your absent father and by your mother's needto be away for work to support the family. From a very young age, your brother ledyou down a path of drugs and crime. I am satisfied that his influence, and your poorupbringing generally, continued to contribute to the choices that you made to offend.This lessens your moral culpability for that offending. I consider I should makean allowance of 15 per cent against the starting point to reflect this.[77] Also, you were 20 years old at the time of your offending. Mr Rhodes said thatyour relative youth warrants a 10 per cent credit. I consider that to be unduly generous.A youth credit is generally justified by the impaired decision-making abilitiesof younger offenders and their better prospects for rehabilitation. As to the first, inarriving at a 15 per cent credit for your upbringing, part of my reasoning is that, onaccount of your age, you were still suffering from the influences of your older brother.As to the second, while you have plenty of time ahead of you for rehabilitation, as yetyou have shown no concrete steps towards taking that path. I do hope that changessoon Mr Fakaosilea. Given these matters, while I still consider there should be somecredit for your youth, it should be only five per cent.Mr Pelikani[78] Mr Pelikani, you also had a seriously deprived upbringing. You were not giventhe start to life that most New Zealanders experience and deserve. I am satisfied thatthis contributed to the path and to the decisions that led to your current offending.However, you have had opportunities in the past to leave that path. When you weresentenced at age 21 you said you intended to go straight. You chose not to. I acceptthat with your upbringing going straight is easier said than done. But your moralculpability is, for this reason, not diminished by your upbringing as much as isMr Fakaosilea's. I allow a 10 per cent credit.[79] Mr Pelikani, the culpability of offenders may sometimes be reduced byaddiction issues.39 Mr McColgan asks me to take this into account in sentencing you.The material to which I have already referred describes your drug addiction as seriousand long-standing. I am satisfied that your addiction exists,40 and that it may havediminished your capacity to make rational choices.4139 Zhang v R [2019] NZCA 507; [2019] 3 NZLR 658 at [144].40 Paikea v Police [2014] NZHC 2609 at [36]–[37].41 Smith v R [2020] NZCA 221 at [20].[80] But it is a different question whether your addiction was causative of youroffending.42 The causative link is likely to be absent where the offending iscommercial in nature.43 On balance, I am not persuaded that your addiction causallycontributed to your offending. Your offending was commercial. You are not someonewho offended for the promise of reward in drugs, with little other financial gain.44[81] Accordingly, I decline to make a discrete credit to reflect that you were drug-addicted at the time of your offending. Having said that, your addiction is relevantto whether you should be allowed a credit to recognise your prospects forrehabilitation. You have successfully engaged in several intensive rehabilitationprogrammes since 2021, including by taking on leadership roles in your programmesand by mentoring others with addiction problems. I am satisfied that you have goodprospects for rehabilitation, and I will allow you a credit of five per cent to recognisethat.Mr Katoa[82] Mr Katoa, you also experienced an upbringing characterised by an absentfather and poverty. I consider you are in a similar position to Mr Pelikani, in that yourupbringing has continued to contribute to your offending, despite some opportunitiesto leave a path of crime. I allow a 10 per cent credit for this.[83] I consider that you show very good prospects for rehabilitation. You havecompleted an eight-week drug and alcohol abuse course. The letters of support referto the steps you have taken since being arrested for this offending to turn your lifearound. They also express their support for you to do this. Your letter to me showssome insight into the causes of your offending and its effect on the community. I makea 10 per cent allowance for these matters.42 Zhang v R [2019] NZCA 507; [2019] 3 NZLR 658 at [147].43 Glassie v R [2022] NZCA 556 at [52].44 Smith v R [2020] NZCA 221 at [20].Mr Mataia[84] Mr Mataia, as with your co-offenders, I recognise that your upbringing wasseriously dysfunctional. This clearly contributed to your offending as a youth and thento your deportation to New Zealand, where you had no money and few connections.I consider your position is much the same as Mr Pelikani and Mr Katoa, and I allow10 per cent for the way in which your upbringing has contributed to your offending.[85] Like Mr Katoa, I consider that you now show very good prospects forrehabilitation. Becoming a father seems to have been a turning point for you. Yourletters of support speak to this. I allow 10 per cent for these prospects.Guilty plea allowances[86] Having dealt with your personal backgrounds, I now address the credits towhich each of you is entitled for your guilty pleas. Mr Katoa and Mr Mataia, I alloweach of you a 15 per cent credit from your respective starting points, recognising youpleaded guilty on the first day of your scheduled trial.45 That is the approach I havetaken with most of your co-defendants.46[87] Mr Fakaosilea and Mr Pelikani, the position is different in your cases. Youpleaded guilty at the same time as Mr Katoa and Mr Mataia. But a guilty plea creditcan attach only to the charges to which you pleaded guilty.47 So I will apply the creditto the notional starting points I would have set for the charges to which you pleadedguilty.48[88] Mr Fakaosilea, for those charges, I would have been sentencing you foroffending involving the possession of 30 ounces of methamphetamine, possession of45 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75]–[76]. Compare Kelly v R [2019] NZCA275 at [38] (five per cent discount for a guilty plea on the second-to-last working day before trialwas held to be in range); Hernandez v R [2018] NZCA 309 at [23] (15 per cent discount for a pleaentered the day before trial); and Solicitor-General v Hutchison [2018] NZCA 168, [2018] 3NZLR 420 at [42] (maximum discount of 15 per cent should have been made for guilty pleaentered close to the scheduled trial date).46 See, for example, R v Tofa-Tulisi [2022] NZHC 284 at [17]; R v Mafileo [2022] NZHC 2481 at[22]–[23]; and R v Halaholo [2022] NZHC 3031 at [38].47 Agar v R [2021] NZCA 350 at [30]–[37].48 I consider the notional starting points, rather than the uplifts, to be the appropriate guide for theguilty plea credit.five ounces of cocaine, the supply of at least 500 g of methamphetamine (and twoadditional commercial quantities), and the supply of an unknown amount of anunknown Class A drug. Following the approach I took earlier, I would have seta starting point of about 14 years' imprisonment for that offending. I consider a 15per cent credit is appropriate to give to your guilty pleas to those charges. A 15 percent credit from the starting point of 14 years amounts to 25 months.[89] Mr Pelikani, I have heard further details this morning to the background ofyour guilty plea on the charge of possession of Class A drugs for supply. Thisparticular charge, as it was made clear to me, was only laid three weeks approximatelybefore the start of trial. You pleaded to that charge on the day the trial was scheduledto begin. In those circumstances I consider a slightly higher credit than MrFakaosilea's is appropriate, and I consider 20 per cent is appropriate for you. Had Ito sentence you only on the charge of possessing five ounces of cocaine for supply, Iwould have set a starting point of four years' imprisonment.49 A 20 per cent creditfrom that starting point amounts to ten months.Credit for time spent on bail[90] I must also take into account that three of you have been on electronicallymonitored (EM) bail for periods of time.50[91] There is no fixed formula to be applied. Much turns on the relativerestrictiveness of the bail conditions and your compliance with them.51[92] Mr Pelikani, you were on EM bail from 29 January 2021 to 11 August 2022.You spent the first five months subject to a 24-hour curfew at a rehabilitation facility.I allow two and half months for that period. You then spent four and a half monthssubject to a 24-hour curfew at your home, but with several exceptions each week forexercise. I allow one and a half months for that less restricted period. Finally, youhad a further nine months during which you had exceptions both for work and forexercise. As became apparent at the end of your trial, the work exception was very49 See Zhang v R [2019] NZCA 507; [2019] 3 NZLR 65; and Cavallo v R [2022] NZCA 276.50 Sentencing Act, ss 9(2)(h) and (3A).51 Section 9(3A).flexible. I allow only one month credit for that final nine-month period. In total,I allow a credit of five months.[93] Mr Katoa, you were granted EM bail on 11 June 2021 and remained on thatbail until your convictions in mid-July 2022. For the first four months you had a 24-hour curfew. For the remaining nine months the curfew was relaxed so that you wereable to exercise daily between 12 pm and 4 pm. There is no record of non-compliance.I consider a total credit of five months should be given.[94] Mr Mataia, by my calculations you were on EM bail subject to a 24-hourcurfew for two periods totalling about 18 months. I allow a nine-month credit forthose periods. Since early April this year, a period of eight months, your curfew hasbeen from 9 pm to 7 am. For that less restrictive period I allow a further credit of twomonths. So your total credit for time on EM bail is 11 months.Another matter[95] There is one final matter for Mr Fakaosilea and Mr Pelikani, which was raisedwith me yesterday by a joint memorandum. Having considered that, I allow eachof you a further credit of six months.52End sentences[96] Mr Fakaosilea, I take a starting point of 18 years and six months'imprisonment. I impose an uplift of five per cent to reflect that you offended while onbail. I then apply credits of 15 per cent for your personal background, five per centfor your youth at the time of offending, 25 months for your guilty plea and a furthersix months for the matter raised yesterday. This gives an end sentence of 13 yearsand two months' imprisonment.[97] Mr Pelikani, I take a starting point of seven years and six months'imprisonment. I apply credits of 10 per cent for your personal background, five percent for your rehabilitative prospects, ten months for your guilty plea, five months for52 I have recorded my reasons in a separate minute, which I have directed is not to be accessedwithout leave of a Judge.the time you spent on EM bail and a further six months for the matter raised yesterday.This gives an end sentence of four years and 11 months' imprisonment.[98] Mr Katoa, I take a starting point of eight years' imprisonment. I apply creditsof 10 per cent for your personal background, 10 per cent for your prospects forrehabilitation, 15 per cent for your guilty pleas, and five months for the time you spenton EM bail. This gives an end sentence of four years and nine months'imprisonment.[99] Mr Mataia, I take a starting point of nine years and six months' imprisonment.I apply credits of 10 per cent for your personal background, 10 per cent for yourprospects for rehabilitation, 15 per cent for your guilty pleas, and 11 months for thetime you spent on EM bail. This gives an end sentence of five years and threemonths' imprisonment.Minimum periods of imprisonment[100] Mr Fakaosilea and Mr Pelikani, in both of your cases the Crown contended forminimum periods of imprisonment of at least 40 per cent of your sentences. It saiddeterrence, denunciation and accountability purposes of sentencing come to the forein cases involving significant commercial dealing.[101] An MPI must not be imposed as a matter of routine or in a mechanistic way.53In each of your cases I consider an MPI is unnecessary. I acknowledge that youroffending involved significant commercial quantities of methamphetamine. But youare both relatively young and you have prospects of rehabilitation. And you are in anycase to serve significant periods of imprisonment even without the imposition ofan MPI. The default period suffices to hold you accountable, denounce your conductand deter you and others from similar offending.Result[102] Could you all please stand.53 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169].[103] Mr Fakaosilea, for each of your convictions on three charges of possession ofa Class A controlled drug for supply and on four charges of supplying a Class Acontrolled drug I sentence you to 13 years and two months' imprisonment. On eachof your convictions on two charges of conspiracy to import methamphetamine,I sentence you to eight years' imprisonment. All these sentences are to be servedconcurrently.[104] Mr Pelikani, for your conviction on a charge of conspiracy to importmethamphetamine, I sentence you to four years and 8 months' imprisonment. Foryour conviction on a charge of possession of a Class A controlled drug for supply, Isentence you to four years imprisonment. These sentences are to be servedconcurrently.[105] Mr Katoa, for each of your convictions on three charges of supplyingmethamphetamine, I sentence you to four years and nine months' imprisonment.These sentences are to be served concurrently.[106] Mr Mataia, for each of your convictions on three charges of supplyingmethamphetamine, I sentence you to five years and three months' imprisonment.For each of your convictions on two charges of unlawful possession of a firearm andtwo charges of unlawful possession of ammunition, I sentence you to two years'imprisonment. These sentences are to be served concurrently.[107] Please stand down.______________________Campbell J