SELAIMA FAKAOSILEA v R [2023] NZSC 115

SELAIMA FAKAOSILEA v R [2023] NZSC 115 [30 August 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 39/2023[2023] NZSC 115BETWEEN SELAIMA FAKAOSILEAApplicantAND THE KINGRespondentCourt: Glazebrook, Williams and Kós JJCounsel: G N E Bradford for ApplicantN J Wynne for RespondentJudgment: 30 August 2023JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal (R v F [2018] NZHC 3377) is dismissed.B The application for leave to appeal (Fakaosilea v R [2021]NZCA 401) is dismissed.____________________________________________________________________REASONS[1] The applicant has applied for leave to appeal against two sentences imposed in2018 and 2019 for drug offending.2018 sentencing[2] In early 2018 the applicant pleaded guilty to two charges of supplyingmethamphetamine (14.9 kilograms and nine kilograms) and one charge of supplying1.9 kilograms of cocaine. She was sentenced to 14 years and six months'imprisonment,1 in reliance on the then-applicable guideline in R v Fatu.2 The applicanthas sought leave to appeal directly against that sentence.2019 sentencing[3] The applicant was later convicted after a High Court jury trial on one chargeof importing 501 kilograms of methamphetamine and one charge of participating inan organised criminal group.3 She was sentenced to 12 years and six months'imprisonment with an MPI of seven years.4 This was cumulative on the sentence theapplicant was already serving of 14 years and six months. The applicant's effectiveend sentence was therefore 27 years.[4] The applicant appealed to the Court of Appeal against conviction and sentence.Applying what was then the new guideline for sentencing drug offenders inZhang v R,5 that Court allowed her sentence appeal and reduced the effective endsentence to 24 years.6[5] In early 2022 this Court dismissed Ms Fakaosilea's application for leave tobring a second appeal against the 2019 conviction and sentence, but reserved leave forher to reapply in relation to sentence if this Court's judgment in Berkland v R (issuedlater that year)7 provided any basis for reconsideration of the applicant's sentence.8She now reapplies pursuant to that reservation of leave.1 R v F [2018] NZHC 3377 (Palmer J). Palmer J set the starting point for the first charge ofsupplying methamphetamine at 13 years' imprisonment. He uplifted it by four years for the secondmethamphetamine charge and one year for the cocaine charge, resulting in an overall starting pointof 18 years' imprisonment. He then discounted the sentence by 22 months for Ms Fakaosilea'spersonal history and 20 months for her guilty plea.2 R v Fatu [2006] 2 NZLR 72 (CA).3 R v Cullen [2019] NZHC 2088 (Gordon J).4 That sentence was for the lead charge of importing methamphetamine, uplifted to reflect theadditional charge of participating in an organised criminal group. Ms Fakaosilea was concurrentlysentenced to seven years' imprisonment for the offence of participating in an organised criminalgroup.5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.6 Fakaosilea v R [2021] NZCA 401 (Miller, Venning and Peters JJ). The High Court sentencingoccurred before the Court of Appeal delivered its decision in Zhang. The Court of Appealconsidered the applicant was entitled to any advantage from the new guideline.7 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.8 Fakaosilea v R [2022] NZSC 17 (O'Regan, Ellen France and Williams JJ).Submissions[6] Mr Bradford for Ms Fakaosilea submits that her personal circumstances oughtnow to be reconsidered under the framework for methamphetamine sentencing inBerkland. He suggests that greater allowance could have been made for the causativecontribution the applicant's background made to her offending. He makes nosubstantive submissions in respect of the out of time application for leave to bring adirect appeal against the 2018 sentencing but we address the merits of that applicationin any event.[7] The Crown opposes leave, arguing that the effective discount of 16 per cent forbackground factors in relation to the second sentencing was within range, particularlyin light of the seriousness of the offending. The Crown emphasises the propositionadopted by this Court in Berkland that in particularly serious offending othersentencing purposes and principles may wholly or partially occlude the mitigatoryeffect of background.9 The Crown makes no substantive submissions on the directappeal against the 2018 sentencing.Analysis[8] Setting aside for the moment any doubts we may have on jurisdiction,10 thereis no appearance of inconsistency between the 2018 sentence and the approach inZhang, as modified by Berkland, given the quantities involved and Palmer J'streatment of the applicant's background.[9] As to the 2019 sentencing, the causative contribution of the applicant'sbackground was traversed in the pre-sentence reports, including a careful andcomprehensive s 27 report. Despite the seriousness of the offending, the Judgediscounted the applicant's sentence by four years due to those background factors.[10] We do not consider the requirements for leave are met in relation to eitherapplication.11 No question of principle requiring consideration by this Court has been9 Berkland, above n 7, at [111]–[112].10 See Berkland, above n 7, at [72]; and Zhang, above n 5, at [187]–[191].11 Senior Courts Act 2016, s 74.identified.12 Rather, the arguments advanced relate to the application of what are nowsettled matters of judicial sentencing policy. Nor are we satisfied that there is any riskof substantial miscarriage of justice in either case.13 It follows that the requirementsfor a direct appeal in relation to the 2018 sentencing cannot be met.14Result[11] As the criteria for the grant of leave are not met for the 2018 sentencing, thereis no point in granting an extension of time. The application for an extension of timeto apply for leave to appeal (R v F [2018] NZHC 3377) is dismissed.[12] The application for leave to appeal a second time against the 2019 sentence(Fakaosilea v R [2021] NZCA 401) is dismissed.Solicitors:Crown Law Office, Wellington for Respondent12 Section 74(2)(a).13 Section 74(2)(b).14 Section 75.