SELAIMA FAKAOSILEA v R [2021] NZCA 401

SELAIMA FAKAOSILEA v R [2021] NZCA 401 [24 August 2021]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFDEFENDANT "M" REMAINS IN FORCE. SEE [2016] NZHC 2881.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA454/2019[2021] NZCA 401BETWEEN SELAIMA FAKAOSILEAAppellantAND THE QUEENRespondentHearing: 12 May 2021Court: Miller, Venning and Peters JJCounsel: GNE Bradford and BCS Moyer for AppellantJEL Carruthers for RespondentJudgment: 24 August 2021 at 10.00 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed in part.C The sentence imposed on the importation offending is quashed and asentence of nine years, six months' imprisonment is substituted.D The minimum period of imprisonment imposed on the importationoffending is reduced from seven years to five years, four months.E The sentence imposed on the organised criminal group offending remainsand is to be served concurrently with the sentence imposed on theimportation offending.___________________________________________________________________REASONS OF THE COURT(Given by Peters J[1] Following a jury trial before Gordon J in the High Court in June 2019, theappellant, Ms Selaima Fakaosilea, was convicted of importing a Class A controlleddrug (methamphetamine) and participating in an organised criminal group.1 She wassentenced to 12 years and six months' imprisonment with a minimum period of sevenyears.2[2] Ms Fakaosilea now appeals against conviction and sentence.[3] The appeal against conviction is brought on the ground that a miscarriage ofjustice has occurred.3 The appeal against sentence is brought on the ground that it ismanifestly excessive.4BackgroundOrganised criminal group offending[4] As appears below, Ms Fakaosilea's importation offending was vastly moreserious than her criminal group offending. However, the criminal group offendingpreceded the importation in time.[5] The Crown case on the criminal group offending was that Ms Fakaosilea,together with several of her co-offenders on the importation charge, was a member ofa group which committed various offences under the Misuse of Drugs Act 1975,including possession of methamphetamine for supply, supply of methamphetamine,and then the importation itself, which occurred in June 2016.[6] In her sentencing notes, the Judge itemised the various acts that she wassatisfied Ms Fakaosilea had undertaken by way of participation in the group, from1 Misuse of Drugs Act 1975, s 6(1)(a); and Crimes Act 1961, s 98A.2 R v Cullen [2019] NZHC 2088.3 Criminal Procedure Act 2011, s 232(2).4 Section 250(2).March 2016 onwards.5 In short, the Judge was satisfied Ms Fakaosilea had collectedand delivered large quantities of drugs and large sums of cash (by which we mean inthe hundreds of thousands of dollars) on several occasions.Importation[7] The importation occurred on 12 June 2016 and comprised 501 kilograms ofmethamphetamine, the largest in New Zealand's history. Ms Fakaosilea was chargedas a secondary party, and we list below the assistance the Judge was satisfied she gave.[8] The methamphetamine was brought to New Zealand on a large "mother" ship,which entered New Zealand's territorial waters on or about 24 May 2016. Initially itwas expected that some of those on board would themselves bring the drugs ashore inNorthland, with the drugs to be uplifted and distributed from there. Several ofMs Fakaosilea's co-offenders were in Northland from 23 May 2016, in preparation forthe arrival of the drugs.[9] For some reason the original plan could not be implemented, and an alternativearrangement was decided upon. This alternative included two co-offenders, Mr Wanand Mr Tsai, being nominated by the ultimate masterminds, whoever they were, toventure out to sea to effect the uplift. Mr Wan was already in New Zealand, butMr Tsai travelled from Hong Kong to Auckland for this purpose, arriving on or about5 June 2016.[10] Ms Fakaosilea's brother, Mr Ulakai Fakaosilea, who had returned toNew Zealand from Australia only a few days prior, drove the two men to Northland.The Judge was satisfied, however, that Ms Fakaosilea had assisted in arrangingMr Tsai's entry to the country, had arranged the hire of the vehicle in which the mendrove north, had given her brother instructions in connection with this trip and withjobs he was to undertake, and had continued to do so whilst he was in Northland.6[11] To enable Mr Wan and Mr Tsai to travel out to the larger ship, a boat waspurchased at a cost of at least $40,000. The Judge was satisfied Ms Fakaosilea was5 R v Cullen, above n 2, at [34].6 At [33](a)–(d).the person, code-named Blaze, who provided this cash.7 The issue of whetherMs Fakaosilea was indeed Blaze was vigorously contested at trial and was importanton sentencing.[12] Several days later Ms Fakaosilea hired a second vehicle, being a campervan,and she, with another person, loaded it with toolboxes that had been bought to storethe methamphetamine. A cousin of Ms Fakaosilea's drove the campervan with thetoolboxes north on 12 June 2016. The Judge was satisfied this was done onMs Fakaosilea's instructions, and that Ms Fakaosilea also instructed her cousinregarding delivery of the toolboxes, and told her to put her mobile phone on flightmode as she drove north and not to use it.8[13] As it turned out, the boat was badly damaged shortly after it was launched. Asecond boat was then purchased on or about 11 June 2016. This was successfullylaunched and the methamphetamine brought ashore in the early hours of 12 June 2016.[14] The Police apprehended most of the group, although not Ms Fakaosilea, overthe next few days (Mr Tsai had already left the country), having stopped M, aco-offender, as he drove some 449 kilograms of the shipment north in a differentcampervan. The Police also recovered the balance, apparently buried in nearby sanddunes. M gave evidence for the Crown at trial.Trial[15] Ms Fakaosilea stood trial with Mr Stevie Cullen. He too was charged with theimportation and the criminal group offending.[16] The others charged on the importation were Messrs Wan, Tuilotolava, Iusitini,M, Fonua and Fakaosilea, and most were also charged with the criminal groupoffending. That said, for all bar Ms Fakaosilea, that latter offending seems to haveconsisted solely of the importation.7 At [33](b).8 At [33](e)–(g).[17] By the time of trial, all of the other co-offenders had pleaded guilty to, andbeen sentenced for, the offending with which they were charged.[18] In addition to M, the Crown called numerous other witnesses at trial. Theseincluded the cousin who drove the campervan north loaded with the toolboxes, localswho had observed the "comings and goings" on the beach, those who had sold theboats, and representatives of several rental car companies.[19] The Crown case against Mr Cullen was that he was fully involved in theimportation and carried out numerous important tasks. Mr Cullen gave evidence,wholly implausible, to the effect that he was travelling in Northland in the course of a"spiritual journey", and had come across the group by chance.[20] The Crown case against Ms Fakaosilea was that she was "embedded" in thecriminal group involved in the importation. She was not in Northland in the earlystages, or at all, because it was her practice to operate "at a distance". The Crown casewas that she had to become more overtly involved when the original plan wasabandoned.[21] We said above that the Judge was satisfied Ms Fakaosilea was the person whoprovided or delivered the $40,000 to acquire the first boat. This largely derived fromM's evidence, to the effect Mr Fonua had told him the cash used to acquire the firstboat had been provided by Blaze, and that he understood from his co-offenders thatBlaze was an attractive woman, in Auckland. This evidence was adduced pursuant tothe co-conspirators rule.9[22] Ms Fakaosilea did not give evidence at trial but called Mr Fakaosilea as awitness in her defence. The gist of Mr Fakaosilea's evidence was that he, not his sister,was Blaze, and that to the extent that she had done the things attributed to her, such ashiring vehicles, she had done so at his request and in ignorance that she was doinganything improper.9 Evidence Act 2006, s 22A.[23] Mr Fakaosilea was adamant that he was giving his sister instructions, and notthe other way round. He flatly rejected the suggestion that he would ever takeinstructions from his sister. His evidence was that he had just returned from Australia;that he had agreed to help Mr Iusitini; that Mr Iusitini was giving him instructions onwhat he, Mr Fakaosilea, was required to do; that he ran into difficulty with some ofthese tasks having been out of the country for so long, and so enlisted Ms Fakaosilea'shelp, all the while giving her innocent explanations for what he required.Mr Fakaosilea also explained many of the communications between them as innocenttexts and emails between siblings, for example in arranging a younger brother's 21stbirthday party.[24] Accordingly, on the case against Ms Fakaosilea on the importation charge,there was a significant factual issue as to whether she was Blaze, and also as to herstate of knowledge at the time she gave the assistance she did. This latter issue wasalways going to be a difficult one for Ms Fakaosilea because the Crown was able toadduce propensity evidence of other serious drug offending she had committed after,but close in time to, the importation. We refer to this below, in the context ofthe Judge's sentencing of Ms Fakaosilea.[25] As it turned out, the jury did not accept either Mr Cullen's or Ms Fakaosilea'sdefence and found both guilty of both charges.Sentence[26] For Ms Fakaosilea, the Judge adopted a starting point of 28 years'imprisonment on the importation charge10 and uplifted it by one year for the criminalgroup offending.11 The Judge then deducted four years for personal mitigating factors,giving a total of 25 years' imprisonment.12[27] However, that was not the end of the matter because, at the time she was forsentence, Ms Fakaosilea was already serving a sentence of 14 years, six months'10 R v Cullen, above n 2, at [110].11 At [115].12 At [122]–[123].imprisonment on charges of supplying methamphetamine and cocaine.13 Thesecharges arose from a different police investigation, Operation Virunga (Virungaoffending), and were before the jury as propensity evidence at trial. AlthoughMs Fakaosilea had committed this offending after the offending before Gordon J, shepleaded guilty to these charges and was sentenced by Palmer J in December 2018,before she went to trial before Gordon J. Palmer J did not impose a minimum periodof imprisonment (MPI), considering that it was unnecessary to impose a longer periodof imprisonment than the statutory minimum non-parole period of four years,10 months.14[28] Gordon J arrived at her end sentence by first assessing the term ofimprisonment required for both sets of offending. The Judge assessed this as 27 years(being 28 years on the importation charge, plus one year for the participation in anorganised criminal group, plus two years for the Virunga offending and a discount offour years for mitigating features).15[29] From this term of imprisonment, the Judge deducted Palmer J's 14 years, sixmonths and imposed a cumulative sentence of 12 years, six months' imprisonment onthe importation charge.16[30] The Judge also imposed a sentence of seven years' imprisonment on thecriminal group offending, concurrent on the importation sentence,17 and an MPI ofseven years on the importation charge, being 56 per cent.18 One point raised in theappeal against sentence is that the effect of this MPI, coupled with the "at least onethird" Ms Fakaosilea will be required to serve on the sentence imposed by Palmer J(four years, 10 months), breaches the statutory maximum of 10 years' imprisonmentunder s 86 of the Sentencing Act 2002.13 [Redacted].14 At [31].15 R v Cullen, above n 2, at [129].16 At [130].17 At [116].18 At [135].Appeal against conviction[31] Ms Fakaosilea appeals against her convictions on three grounds:(a) she could not have been a party to the importation as it ended beforeher first involvement on 5 June 2016;(b) trial counsel, Ms Pecotic, erred in failing to call a witness who couldhave given evidence helpful to Ms Fakaosilea's defence; and(c) the Virunga offending was wrongly admitted as propensity evidence.Submission on importation[32] Mr Bradford, counsel for Ms Fakaosilea on appeal, submits that Ms Fakaosileacould not have been a party to the importation. This was because the importationoccurred and was complete when the large vessel carrying the methamphetamineentered New Zealand's territorial waters towards the end of May 2016, and before5 June 2016, being the date on which Ms Fakaosilea rendered her first act ofassistance.[33] In support of this submission, Mr Bradford referred us to the following passagein this Court's decision in R v Hancox, a case in which it was necessary to determinewhen an importation of MDMA tablets had ended.19 Richardson J said:... importing is concerned with those acts designed to bring the goods fromoutside New Zealand to the point where they are available to the intendedconsignee. Any involvement on the part of the importer or anyone involvedas a party up to that point would properly be viewed as facilitating theimportation of the goods into New Zealand. After that point any dealings witha controlled drug would not constitute importing, but might amount topossession for supply or other illegal conduct under the Misuse of Drugslegislation.[34] Mr Bradford submits that the methamphetamine was "available to the intendedconsignee" when the large vessel entered New Zealand's territorial waters and thus19 R v Hancox [1989] 3 NZLR 60 (CA) at 63."[a]fter that point any dealings with [the methamphetamine] would not constituteimporting, but might amount to possession for supply ".Discussion[35] We do not accept this submission.[36] In Hancox, Customs had located a parcel of MDMA tablets in a post officebox. Ms Hancox subsequently opened the box and removed the parcel. She wascharged with and convicted of "importing" the tablets "into New Zealand".[37] The issue on appeal was whether the importation had ended before Ms Hancoxremoved the parcel. This Court found it had. Before the passage to which Mr Bradfordreferred us, Richardson J said:20"To import" involves active conduct; and the bringing of goods into thecountry or causing them to be brought into the country does not cease as theaircraft or vessel enters New Zealand territorial limits. Importing intoNew Zealand for the purposes of s 6(1)(a) is a process. It does not begin andend at a split second of time. The element of importing exists from the timethe goods enter New Zealand until they reach their immediate destination the process does not end so long as the goods remain in transit, that is until the consignment is available to the consignee at its immediate destination.[38] The "immediate destination" in Hancox was the post office box and thus theimportation ended when the package was placed in the box, and before Ms Hancoxuplifted it.[39] Applying Hancox, in this case the process of importation of themethamphetamine commenced when the vessel entered New Zealand's territorialwaters and ended when the methamphetamine was "available to the consignee at itsimmediate destination". The very earliest point in time at which that could haveoccurred was when Messrs Wan and Tsai uplifted the drugs and were returning toshore.[40] However, the better analysis is that the methamphetamine did not reach itsimmediate destination until the boat came ashore at Ahipara, and possibly even after20 At 62.that. It is to be borne in mind that the drugs were removed from the boat, put in thecampervan and driven away from the beach, no doubt for delivery to other parties.It was in the course of that delivery that M was stopped.[41] Whatever the answer may be, the process of importation was not completebefore 5 June 2016, and so we do not accept Mr Bradford's submission that theimportation ended before then.[42] For the sake of completeness, we record that Mr Bradford also submitsMs Pecotic erred in committing Ms Fakaosilea to an agreed statement of factspresented to the jury at trial, in which it was agreed that an importation had taken placeon 12 June 2016. We are satisfied Ms Fakaosilea consented to the contents of theagreed statement and, given the view we take of Hancox, the concession was a properone to make. That said, nothing turned on the point because we would not have heldMs Fakaosilea to the concession had there been anything in Mr Bradford's submission.Counsel error[43] Mr Bradford submits that Ms Pecotic erred in not calling evidence fromMr Malachi Tuilotolava, a co-defendant who had pleaded guilty to both charges andwho had been sentenced by the time of trial. Mr Bradford submits Mr Tuilotolava wasavailable as a witness for Ms Fakaosilea and that he could have given evidencefavourable to her defence.[44] To succeed on this ground, Mr Bradford must establish counsel's failure to callMr Tuilotolava was an error in the sense it was not objectively reasonable at the timeand, if an error in that sense, that there is a real risk it affected the outcome of thetrial.21[45] To put this submission in context, Mr Tuilotolava was one of the threeco-offenders identified as the "leaders" of the group on the importation offending. Theother two leaders were Mr Wan and Mr Iusitini. For much of the time, Mr Tuilotolava21 R v Scurrah CA159/06, 12 September 2006 at [16]–[20].was in Northland co-ordinating the group and, amongst other things, he and Mr Fonuawere the two who effected the purchase of both boats.Affidavit evidence[46] The evidence on this ground of appeal is contained in affidavits fromMr Tuilotolava, Ms Fakaosilea, and Ms Pecotic. None of these deponents were calledfor cross-examination before us.[47] From these affidavits, it is apparent that Ms Fakaosilea's and Ms Pecotic'sunderstanding going into trial was that Mr Cullen was going to call Mr Tuilotolava togive evidence. However, it became apparent on or about 22 May 2019, when the trialwas well advanced but before the Crown closed its case, that Mr Cullen had decidedagainst this.Mr Tuilotolava's evidence[48] It was at that point that Mr Tuilotolava telephoned Ms Pecotic and said hewould give evidence for Ms Fakaosilea. Ms Pecotic made notes of whatMr Tuilotolava would say if called as a witness. These notes are in the nature of bulletpoints but in his affidavit Mr Tuilotolava says he would have given evidence that heunderstood "Blaze" to be Mr Fakaosilea, not Ms Fakaosilea as the Crown contended;that Mr Iusitini had delivered the cash he and Mr Fonua used to purchase the first boat;that Ms Fakaosilea had no role to play in the importation and that at the time he didnot know who she was; and that he did not even know Mr Fakaosilea's name until hereceived the police disclosure, deliberate decisions having been made to keep contactwith those not closely involved to a bare minimum and anonymous. Mr Tuilotolavaalso states that Ms Pecotic told him it was too late to obtain a brief of evidence fromhim and for her to call him to give evidence for Ms Fakaosilea at trial.Ms Pecotic's evidence[49] Ms Pecotic's evidence is that her immediate concern was that, ifMr Tuilotolava gave evidence, it was inevitable that he would be asked whetherMr Cullen was involved in the offending and Mr Tuilotolava would confirm that hewas involved.[50] Ms Pecotic thought that calling Mr Tuilotolava as a witness would requirenotice to counsel for Mr Cullen under s 39(2) of the Evidence Act 2006, that is thatMs Fakaosilea would be "offering" evidence that challenged Mr Cullen's veracity, andthat she, Ms Pecotic, had left it too late to give this notice.[51] As discussed below, there was no basis for this concern.[52] Ms Pecotic's second concern was that, as things developed, it became apparentMr Cullen was going to give evidence in his own defence.[53] It is not entirely clear to us whether Mr Tuilotolava was willing to giveevidence for Ms Fakaosilea if Mr Cullen continued to defend the charges.Mr Tuilotolava had previously advised Ms Pecotic that Mr Cullen would need toabandon his defence and plead guilty, as he did not wish to "nark" on Mr Cullen.Mr Tuilotolava does not say in his affidavit where he stood on giving evidence forMs Fakaosilea given Mr Cullen was maintaining his defence. This is an importantomission from his affidavit.[54] Ms Pecotic's evidence is that, from her discussions with Mr Tuilotolava, sheformed the impression that if called as a witness, Mr Tuilotolava might lie ifquestioned about Mr Cullen's involvement, as of course he would be. Ms Pecoticconsidered herself unable to call Mr Tuilotolava in those circumstances. Ms Pecoticalso thought it would backfire on Ms Fakaosilea if the jury thought she had called awitness who was telling them untruths.[55] Ms Pecotic states that in those circumstances she did not consider it inMs Fakaosilea's best interests to call Mr Tuilotolava. She adds that Ms Fakaosilea'sbrother had said much of what it was proposed Mr Tuilotolava would say, being thatMs Fakaosilea knew nothing of the importation.[56] Ms Pecotic says she informed Ms Fakaosilea of these matters, thatMs Fakaosilea accepted her advice not to call Mr Tuilotolava as a witness, and thatMs Fakaosilea gave written instructions to Ms Pecotic to that effect. That is correct.Ms Fakaosilea's signed instructions to Ms Pecotic referred to an inability to callMr Tuilotolava because "it was too late for my lawyer to have him ready for my trial";that if Mr Tuilotolava gave evidence he would not be able to "speak the truth" as hedid not wish to implicate Mr Cullen, and that "it would all go badly and impact" onMs Fakaosilea's case if Mr Tuilotolava tried to lie. Ms Fakaosilea also instructed thatshe did not wish to give evidence but that she wished her brother to be called as awitness, as he was.Ms Fakaosilea's evidence[57] Ms Fakaosilea's evidence is consistent with Ms Pecotic's. She states that sheinitially wished to have Mr Tuilotolava called but that her lawyer at the time (it is notclear whether that was Ms Pecotic) told her that she, the lawyer, could not speak toMr Tuilotolava as Mr Cullen was calling him as a witness. That advice was incorrectif indeed it was given, there being no property in a witness. Ms Fakaosilea also saysthat she asked Ms Pecotic to speak to Mr Tuilotolava when it became clear thatMr Cullen was not going to call him, at which point Ms Pecotic advised that he couldnot be called as a witness for the reasons to which we have referred.Discussion[58] First, we accept it is possible Ms Fakaosilea would have been assisted hadMr Tuilotolava given evidence at trial consistent with his affidavit on appeal.Evidence that a male, whether Mr Iusitini or someone else, was the source of the cashused to acquire the first boat would have been exculpatory of Ms Fakaosilea on thatfactual issue and, of course, would have been relevant on sentencing if it came to that.That Mr Tuilotolava understood Blaze to be Mr Fakaosilea, and that Mr Tuilotolavadid not know of Ms Fakaosilea having any involvement at all, may also have had animpact on the jury.[59] Secondly, we do not consider there were grounds for Ms Pecotic's concern thats 39 of the Evidence Act would have been engaged had she called Mr Tuilotolava togive evidence.[60] Section 39 applies if a defendant in a criminal proceeding seeks to offerevidence that challenges the veracity of a co-defendant. If such evidence is proposedto be offered, the trial Judge must first give leave, and notice of the contents of theproposed evidence must be given to all co-defendants, unless they or the Judge waivethat requirement.[61] Clearly, Mr Tuilotolava was going to be cross-examined, inter alia, onMr Cullen's defence if he gave evidence. To the extent this evidence contradictedMr Cullen's defence, it would have been evidence elicited by the prosecution, and notoffered by defence counsel. Moreover, such evidence would not have constituted anattack on Mr Cullen's veracity, that is his disposition to refrain from lying.22 Lastly,if Ms Pecotic considered s 39 an issue, she was bound to seek leave from the trialJudge and seek a waiver of the requirement for notice in the event of dispute.[62] In short, if Ms Pecotic considered it in Ms Fakaosilea's best interests to callMr Tuilotolava as a witness, then she was bound to advise Ms Fakaosilea accordinglyand, assuming Ms Fakaosilea accepted the advice, Ms Pecotic was required to takesuch steps as she properly could to achieve that outcome.[63] That said, Ms Pecotic's assessment that Mr Tuilotolava might seek to lie in thewitness box was a fair one and likewise her assessment that Ms Fakaosilea would notbe assisted if he did so. On the possibility that Mr Tuilotolava might seek to lie,Ms Pecotic's recollection is that he told her he had been "[w]racking his brains" onhow he could answer questions regarding Mr Cullen, given the latter's refusal toabandon his defence and plead guilty. A lawyer must not adduce evidence knowing itto be false.23 It is conceivable, just, that Ms Pecotic may not have infringed the letterof this rule had Mr Tuilotolava lied in answering the prosecutor's questions regardingMr Cullen, but she would have infringed the spirit of that rule. Moreover, Ms Pecotic's22 Evidence Act, s 37(5).23 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.10.assessment that Ms Fakaosilea's position with the jury would not be enhanced bycalling a witness who was seeking to mislead them was a reasonable one.[64] In these circumstances, Ms Pecotic's advice to Ms Fakaosilea thatMr Tuilotolava should not be called as a witness was reasonable at the time, andMs Fakaosilea accepted the advice. Accordingly, we do not accept Ms Pecotic'sfailure to call Mr Tuilotolava as a witness was an error by counsel in the requiredsense.[65] Had we concluded Ms Pecotic had erred, it would have been necessary todecide whether there is a real risk the error affected the outcome of the trial.Mr Bradford did not make submissions to us on this point. The matters that would benecessary to take into account are that Mr Fakaosilea's evidence coincided withMr Tuilotolava's evidence that Mr Fakaosilea was Blaze. The jury may have beenmore inclined to accept that evidence from Mr Tuilotolava, given that there was noobvious reason for him to be seeking to protect Ms Fakaosilea. On the other hand,Ms Fakaosilea's defence in large part rested on the jury accepting she did not know ofthe importation and, as we have said, that was always going to be a difficult issue forher. This is because of her organised criminal group offending, the propensityevidence and other evidence such as the loading of the toolboxes into the campervanand telling her cousin to put her cell phone in flight mode as she drove north and notto use it.[66] Having regard to these matters, we are not persuaded that the necessary realrisk would arise even if Ms Pecotic did err in failing to call Mr Tuilotolava.[67] To conclude on this point, we are not persuaded counsel erred in the requiredsense in failing to call Mr Tuilotolava to give evidence and we are not persuaded thefailure to do so created a real risk the outcome of the trial was affected.Propensity evidence[68] In a pre-trial ruling, Woolford J granted the Crown's application to adduceevidence of the Virunga offending as propensity evidence at the trial.24 Woolford Jaccepted that the evidence tended to show Ms Fakaosilea had a particular state ofmind, namely that she knew she was assisting in importing and distributingmethamphetamine when she offended at that time.25 At trial this evidence was putbefore the jury in the statement of agreed facts and in her summing up Gordon Jdirected the jury it was relevant only to mens rea on the two charges and nothing else.[69] Mr Bradford submits Woolford J erred in his ruling, as only acts or omissionsoccurring prior to the alleged offending can constitute propensity evidence.Mr Bradford submits that, as the relevant provisions in the Evidence Act are silent onwhether acts or omissions subsequent to those in issue may constitute propensityevidence, the provisions should be read consistently with the veracity rules in s 37 ofthe Evidence Act. Mr Bradford submits, correctly, that the veracity rules areconcerned with evidence of a prior or existing lack of honesty or impartiality.Mr Bradford submits that existing authority from this Court, to the effect that an actor omission subsequent to the events in issue may constitute propensity evidence, hasbeen wrongly decided.[70] Alternatively, Mr Bradford submits that, at trial, the Crown relied on thepropensity evidence to contradict Ms Fakaosilea's defence that she did not know ofthe importation, and thus the admissibility of the evidence ought to have beendetermined by reference to the veracity rules.Discussion[71] The definition of propensity evidence in s 40(1) of the Evidence Act does notrestrict such evidence to acts or omissions preceding those in issue at trial. Thatsubsequent acts or omissions may constitute propensity evidence is well-establishedand we do not propose to revisit the point.2624 R v Fakaosilea [2019] NZHC 810.25 At [12] and [18].26 R v Mata [2009] NZCA 254; Solicitor-General v Rudd [2009] NZCA 401; S (CA514/08) v R[2009] NZCA 622; Narayan v R [2013] NZCA 24; and Watchhorn v R [2014] NZCA 493.[72] As to Mr Bradford's alternative submission, Ms Fakaosilea's offending inSeptember and November 2016 was relied on as evidence relevant to a matter in issue,namely mens rea. It was not relied on as evidence solely or mainly relevant toMs Fakaosilea's veracity, that is her disposition to refrain from lying and, accordingly,the veracity rules were not engaged.27Conclusion on appeal against conviction[73] We are not persuaded there was any miscarriage of justice and we dismiss theappeal against conviction.Appeal against sentence[74] Ms Fakaosilea contends her sentence is manifestly excessive on four grounds:(a) The Judge's starting point of 28 years' imprisonment on the importationcharge was too high, given Ms Fakaosilea's lesser role in the offendingand her personal circumstances. This latter point as to personalcircumstances would fall to be considered after the starting point butwe need not discuss it because Mr Bradford did not pursue it in his oralsubmissions.(b) The Judge did not treat her consistently with Mr Cullen, in that theJudge uplifted her sentence by one year for the criminal offendingcharge, but did not uplift Mr Cullen's.(c) The Judge erred in ordering that the sentence be served cumulativelyon the sentence for the Virunga offending, rather than concurrently.(d) No MPI should have been imposed, alternatively the MPI the Judgeimposed was not only excessive but also unlawful becauseMs Fakaosilea's effective MPI is 11 years, 10 months'imprisonment — being the seven years imposed by Gordon J plus the27 Evidence Act, s 37(5).four years and 10 months on the sentence for the Virunga offending —and thus exceeds the maximum permitted MPI of 10 years.Preliminary points[75] As we have said, all of Ms Fakaosilea's and Mr Cullen's co-offenders had beensentenced by the time of trial and under the then guideline judgment, R v Fatu.28[76] Each Judge sentencing those other offenders had accepted the Crownsubmission that the quantity involved put the offending within the most serious ofcases, requiring the imposition of the maximum penalty — life imprisonment onimportation of a class A drug — unless circumstances relating to the offender renderedthat inappropriate.29 That said, in each case the Judge concerned did find themaximum penalty permitted inappropriate and adopted a finite starting point instead.[77] Gordon J adopted the same approach. At the time of sentencing, this Court hadnot released its decision in Zhang v R, and thus the Judge applied Fatu.30 The Judgealso accepted that the preliminary starting point for Mr Cullen and Ms Fakaosileashould be life imprisonment, but that other considerations made that inappropriate.31Role[78] Given the date on which she lodged her appeal, Ms Fakaosilea is entitled toany benefit Zhang confers on her.32[79] Although quantity remains "highly relevant to culpability" under Zhang, it isnot the sole determinant.33 As Mr Bradford submits, the role played by the offendermust also be assessed when determining culpability. A more limited measure ofengagement deserves a less severe sentence than a significant or leading role.3428 R v Fatu [2006] 2 NZLR 72 (CA).29 Sentencing Act 2002, s 8(c).30 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.31 R v Cullen, above n 2, at [62] and [107].32 Zhang v R, above n 30, at [187]–[191].33 At [104].34 At [118].Mr Bradford's submission is that the Judge's starting point of 28 years on theimportation charge does not give sufficient recognition to Ms Fakaosilea's lesser role.Co-offenders' roles[80] To put this submission in context, it is necessary to refer to the roles the otheroffenders played and the starting points adopted for them.[81] Messrs Wan, Iusitini and Tuilotolava were considered the leaders of the groupand all received the highest starting points of 32 years' imprisonment.35[82] Mr Wan was closely associated with the "masterminds", whom he met inHong Kong. Only he and Mr Tsai were trusted to go out to sea to collect the drugs.Lang J was satisfied that Mr Wan played a particularly important role and this wasfurther confirmed by the fact that he was removed from the scene immediately afterthe drugs were brought ashore.36[83] Messrs Iusitini and Tuilotolava had both travelled to Thailand in advance ofthe operation. Once back in New Zealand, Mr Iusitini sent instructions to the groupand received regular progress reports from them, but from a safe distance.Mr Tuilotolava received and relayed Mr Iusitini's instructions, thereby enabling thelatter to avoid travelling to Northland. Mr Tuilotolava participated in almost everyimportant event, including the purchase and launch of both boats, and the unloadingof the drugs when they finally came ashore.[84] M and Mr Fonua were each given starting points of 30 years' imprisonment.37[85] M spent several weeks in Northland prior to the importation. He helped sourceequipment such as toolboxes and a vehicle, was present at the launch of both boats,and was entrusted with the campervan carrying 450 kilograms of methamphetamine.35 R v Wan [2017] NZHC 1255 at [36]; R v Fakaosilea [2018] NZHC 3362 at [57]; and R vTuilotolava [2017] NZHC 2621 at [26].36 R v Wan, above n 35, at [22]–[25].37 R v [M] [2016] NZHC 2881 at [21]; and R v Fonua [2017] NZHC 1193 at [4].[86] Mr Fonua accompanied Mr Tuilotolava to purchase both boats, driving thesecond one from Auckland to Northland. He also assisted in unloading the drugs whenthey were brought ashore and was generally trusted to carry out the instructions ofMessrs Iusitini and Tuilotolava. Mr Fonua was not involved in planning or financingthe operation and was not likely to have shared in the profits.[87] Mr Cullen's starting point was also 30 years' imprisonment.38 He purchased avehicle for the purpose of the operation, booked accommodation, and recruited andacted as the point of contact with locals. He checked weather forecasts, tides, and theposition of Navy patrol boats. He was present at the launch of both boats and whenthe drugs came ashore, and he was the "getaway" driver for Messrs Wan and Tsai.He was a "trusted lieutenant" who reported to Mr Tuilotolava.39[88] Mr Fakaosilea's starting point was 29 years' imprisonment, slightly less thanM and Mr Fonua as he was involved in fewer stages of the operation, having arrivedin New Zealand only a few days before driving Messrs Wan and Tsai north.40He delivered phones to co-offenders, and was present when the drugs were unloaded.He too was a trusted member of the group and helped bury some of the drugs afterthey arrived on shore.Four-year differential[89] No submission has been made to us that a 32-year starting point for the leaderswas excessive. Given that, we have approached Mr Bradford's submission byconsidering whether the four-year difference between that 32-year starting point andthe 28-year starting point applied to Ms Fakaosilea sufficiently reflects her lesser role.The following matters are relevant.[90] Ms Fakaosilea was involved for a shorter period than all others, about a weekin total, and only when the original plan had been abandoned. There is no evidencethat she had a role in planning the importation, she took relatively few practical stepsto assist in the importation, she was not present when either boat was launched, or38 R v Cullen, above n 2, at [64].39 At [55].40 R v Fakaosilea, above n 35, at [41].when the drugs were unloaded, and there is no evidence that she knew the quantitywas as great as it was.[91] That said, the steps Ms Fakaosilea took were important to the success of theimportation. The acquisition of the first boat was made possible by her provision ordelivery of a substantial sum of cash. Not only did she hire two vehicles, she gaveinstructions to others., first to her brother, and then to her cousin. She was not a merefunctionary but trusted and astute. And although Ms Fakaosilea may not have knownthe precise quantity involved, it is apparent from her criminal group offending that shewas no stranger to large quantities of cash and drugs. She would also have deducedfrom the number of toolboxes that a significant haul was expected.[92] Taking all of these matters into account, Ms Fakaosilea's role would seem tofall somewhere between "lesser" and "significant" as described in Zhang.41 A startingpoint well in excess of 20 years was inevitable, given the massive quantity involved.42That said, we are not satisfied that, under Zhang, a four-year differential is sufficientto reflect Ms Fakaosilea's lesser role. We consider a starting point of 25 years'imprisonment, but no more, was required to reflect the culpability inherent inMs Fakaosilea's offending.Uplift[93] The answer to Mr Bradford's submission of a lack of parity between Mr Cullenand Ms Fakaosilea on the criminal group offending is that Mr Cullen's offending wasconfined to the importation, whereas Ms Fakaosilea's was not. To uplift Mr Cullen'sstarting point would have been "double counting".[94] In fact, there is an argument that the Judge's uplift for the criminal groupoffending could have been higher than one year, although we do not propose toincrease that uplift given that the sentence is already lengthy.41 Zhang v R, above n 30, at [115].42 At [125].End sentence[95] The effect of a reduced starting point of 25 years on the importation chargebrings the end sentence to 24 years, that is 25 years, plus one for the criminal groupoffending, plus two for the Virunga offending, less four for personal factors.Deducting the 14 years, six months imposed by Palmer J gives a cumulative sentenceof nine years, six months' imprisonment.Cumulative/concurrent[96] Turning to Mr Bradford's submission that a concurrent sentence ought to havebeen imposed, first, it was common ground that the Judge's sentencing for theoffending before her should be cumulative on the sentence imposed on the Virungaoffending. Secondly, we do not consider the two sets of offending "connected" in thesense of s 84(2) of the Sentencing Act. The Virunga offending was committed severalmonths after the criminal group and importation offending, and with a differentlyconstituted group. The only difference Mr Bradford's submission might make inpractice is in relation to the MPI, which we now address.MPI[97] Counsel are correct that, following Gordon J's sentencing, Ms Fakaosilea'seffective MPI was 11 years, 10 months.43[98] Mr Bradford submitted that s 86(4) of the Sentencing Act precludes theimposition of a MPI if doing so will increase the offender's overall non-parole periodbeyond 10 years. Mr Bradford did not cite any authority for this proposition and, tothe extent Crown counsel did so, it does not appear to be on point.44[99] Regardless, on our reading of s 86, Mr Bradford's submission cannot becorrect. Section 86(1) permits the court, on sentencing, to impose an MPI "in relationto that particular sentence", and the maximum period provided for in s 86(4) is the43 Parole Act 2002, s 84(4).44 Crown counsel cited Briggs v R [2020] NZCA 453 on this point but we do not consider this assists.lesser of 10 years or two-thirds of the full term "of the sentence". That can only be areference to the sentence just imposed.[100] Next, Mr Bradford submitted that no MPI was required at all, given the alreadyvery long sentence. Moreover, as this Court said in Zhang, an MPI is not to be imposedas a matter of routine but only if the circumstances of the particular case require it.45[101] We are satisfied that this is a case for a MPI. The offending was very seriousand, as is apparent from the examples given in Zhang, offending of this nature willusually attract an MPI.46 This importation was huge and, but for the Policeintercepting the shipment, would have caused untold misery and earned enormousprofits. General deterrence and denunciation require an MPI in such a case.[102] We propose to retain Gordon J's 56 per cent, giving an MPI of five years, fourmonths' imprisonment on the importation offending. For the sake of completeness,we record this brings Ms Fakaosilea's total non-parole period to 10 years, two months'imprisonment.Result[103] The appeal against conviction is dismissed.[104] The appeal against sentence is allowed in part.[105] We quash the sentence of 12 years, six months' imprisonment imposed onimportation of methamphetamine offending and substitute a sentence of nine years,six months' imprisonment. This sentence is to be served cumulatively on the sentenceof 14 years, six months' imprisonment imposed by Palmer J on 18 December 2018.[106] The minimum period of imprisonment imposed on the importation charge isreduced from seven years to five years, four months.45 Zhang v R, above n 30, at [169].46 At [171].[107] The sentence imposed on the organised criminal group offending remains andis to be served concurrently with the sentence imposed in [105] above.Solicitors:Crown Law Office, Wellington for Respondent