KULU v R [2022] NZCA 284

KULU v R [2022] NZCA 284 [1 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA703/2020[2022] NZCA 284BETWEEN TEVITA KULUAppellantAND THE QUEENRespondentHearing: 22 June 2021Court: Kós P, Brewer and Davison JJCounsel: J E L Carruthers for AppellantB D Tantrum for RespondentJudgment: 1 July 2022 at 9 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is allowed in part.C The order for a minimum period of imprisonment of 50 per cent imposed bythe High Court is quashed and substituted with a minimum period ofimprisonment of 40 per cent.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Kulu appeals against his sentence of 18 years' imprisonment with aminimum period of imprisonment (MPI) of 50 per cent on the basis that parity shouldmean his sentence should be reduced to be proportionate to that of his co-offender,Mr Fangupo, who earlier successfully appealed his sentence from one of 17 years'imprisonment with an MPI of 50 per cent, down to 14 years and five months'imprisonment with an MPI of 40 per cent.1Background[2] Between June 2017 and January 2018, Messrs Kulu and Fangupo importedapproximately 20 kg of methamphetamine in multiple packages from California toNew Zealand.2 Both men had conspired to import 21 kg of methamphetamine,imported 27 g of cocaine, and unlawfully possessed firearms. Additionally, Mr Kulutwice supplied 0.5 kg of methamphetamine and thrice offered to supply additionalquantities of the drug. He had bundles of cash totalling almost $215,000 in hisapartment when arrested.[3] Messrs Kulu and Fangupo were convicted following a jury trial in 2019.Sentencing[4] Downs J considered Messrs Kulu and Fangupo had "complementary, leadingroles" and were equals "at the top" of a "home-grown operation" they establishedthemselves.3 The offending was "reasonably sophisticated" and "motivated byprofit".4 The actions the two men took in importing the drugs were "not the actionsof people other than at the top of their own enterprise".5[5] For Mr Kulu, the Judge adopted a starting point of 20 years' imprisonment forthe importation offences, emphasising his leading role, financial motivations and thelarge quantities involved.6 The Judge declined to uplift that starting point forMr Kulu's other drug charges, although acknowledged that he could have done so.71 Fangupo v R [2020] NZCA 484.2 Mr Fangupo had imported one package fewer than Mr Kulu.3 R v Fangupo [2019] NZHC 2896 at [16]. See also at [20].4 At [17].5 At [21].6 At [25].7 At [26]–[28].[6] For Mr Fangupo, the Judge adopted a slightly lower starting point of 19 years'imprisonment, citing the fact that Mr Fangupo was convicted of one fewer importationthan Mr Kulu and faced no supply charges.8[7] Turning to personal mitigating features, the Judge gave Mr Kulu a 10 per centdiscount for the prospect of his reform despite his refusal to accept responsibility forthe drug offending, and to acknowledge that Mr Kulu's addiction to opiates "maymake prison a little harder".9 The Judge declined to give a discount for good character,saying that Mr Kulu's previous convictions in the United States and financialmotivations made such a discount "awkward".10 The Judge likewise gave Mr Fangupoa 10 per cent discount for his prospects of rehabilitation despite his denial of the drugoffending.11[8] The Judge imposed MPIs of 50 per cent for both men. The Judge consideredthat their becoming eligible for parole after serving only one third of their respectivesentences "would send quite the wrong message".12[9] This produced an end sentence of 18 and 17 years' imprisonment with MPIs of50 per cent for Messrs Kulu and Fangupo respectively.13Mr Fangupo's successful sentence appeal[10] In 2020, Mr Fangupo appealed against his 17-year sentence on the grounds thatthe Judge had erred in concluding that he was as culpable as Mr Kulu and, in anyevent, had adopted an excessive starting point. Mr Fangupo also argued the discountfor his personal mitigating factors was inadequate, and the 50 per cent MPI was toohigh.[11] The first ground of appeal was rejected; the Judge was justified in treatingMessrs Fangupo and Kulu as equal partners in crime.14 However, the starting point8 At [29].9 At [39].10 At [39].11 At [41].12 At [49]. See generally Parole Act 2002, s 84(1).13 At [51].14 Fangupo v R, above n 1, at [36].adopted was held to be too high having regard to later authority consideredcomparable.15 Having regard to these cases — which, it should be noted, all involveddefendants in the "significant" category as defined in Zhang v R16 — a starting pointof 17 years' imprisonment was substituted.17[12] Turning to Mr Fangupo's personal circumstances, the discount given wasincreased from 10 to 15 per cent.18 A discount was found to be available forMr Fangupo's previous good character.19 An MPI of 40 per cent was consideredsufficient to achieve the objectives of s 86 of the Sentencing Act 2002, having regardto Mr Fangupo's age and his good prospects of rehabilitation.20[13] Overall, this produced an end sentence of 14 years and five months'imprisonment with an MPI of 40 per cent.21Extension of time[14] Mr Kulu's appeal was filed about a year out of time.22 An extension of time toappeal is required. It is not opposed by the Crown and will be granted.23Appeal[15] Mr Kulu appeals on the basis of parity. The Judge considered that Messrs Kuluand Fangupo played "complementary, leading roles" in the offending; this Courtendorsed that finding.24 Yet, Mr Fangupo is now serving a significantly more lenientsentence. According to Mr Kulu, the appropriate sentence for him is one of 15 yearsand four months' imprisonment with an MPI of 40 per cent.[16] The Crown accepts that parity would require a lower starting point.15 At [43]–[49]. The other authorities considered were Pai v R [2020] NZCA 146; Wan v R [2020]NZCA 328; and Berkland v R [2020] NZCA 150.16 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [126].17 Fangupo v R, above n 1, at [50].18 At [58].19 At [53]–[58].20 At [64].21 At [67]–[68].22 Criminal Procedure Act 2011, s 248(2).23 Court of Appeal (Criminal) Rules 2001, r 11.24 R v Fangupo, above n 3, at [16]; aff'd Fangupo v R, above n 1, at [36].[17] We had intended to issue this judgment after delivery and review of thejudgment of the Supreme Court in Berkland and Harding v R.25 That judgment is notyet to hand, and we consider the delivery of this judgment should not be delayedfurther.Discussion[18] We focus on two matters: first, comparable appellate sentencing involving"leading" perpetrators and substantial band five (greater than 2 kg) quantities;26 andsecondly, whether parity could then justify reducing a sentence to one that ismanifestly inadequate.Commercial methamphetamine dealing sentencing[19] As this Court explained in Cheung v R, the Full Court decision in Zhang,generally speaking, did not reduce starting points for those playing a substantial rolein large-scale commercial drug dealing.27 We emphasise that point, and note also thepoints made recently by the Permanent Court in Cavallo v R that the effect of s 8(c)and (d) of the Sentencing Act is that judges may not shrink from setting substantialstarting points at the first stage of the sentencing process simply because greater, andyet greater, quantities can be imagined.28 As this Court said there:29A point comes where the volumes are so substantial, and the actual or potentialharm they represent so serious already, that more means not much at all andthe real discriminating issue remaining in setting a starting point is the roleoccupied by the offender.[20] We turn now look at leading role and band five comparator cases, apart fromFangupo, which we have discussed already.[21] Zhang dealt with the appeals of Messrs Yip and Thompson. Mr Yip had aleading role in the importation of 60.9 kg of methamphetamine. Ultimately this Court25 For which leave to appeal was granted in Berkland v R [2020] NZSC 125 and Harding v R [2020]NZSC 127.26 See Zhang v R, above n 16, at [125].27 Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [63]. See also Harding v R [2020] NZCA217 at [54].28 Cavallo v R [2022] NZCA 276, at [67].29 At [67].described Mr Yip as occupying a "mid-to-lower level leading role": his remunerationwas relatively low ($10,000) and he had relatively limited decision-making power.30A starting point of 23 years' imprisonment was fixed.31 Mr Thompson's role was notdissimilar to Mr Kulu's: he too was at the top of a home-grown enterprise, in his caseconcerned with 6.8 kg. This Court approved the 18-year starting point imposed aswithin the available range.32 By way of comparison, Mr Zhang himself, who wasinvolved in importing 17.9 kg of methamphetamine, but had a role at the lower end ofthe significant level, would have earned a starting point of 15 years' imprisonment.33[22] We make the obvious point that, applying Zhang, the starting point for Mr Kuluwould need to be below Mr Yip's 23 years (because of quantity, but noting Mr Kulu'srole was at an appreciably higher level than Mr Yip's), above Mr Thompson's 18 years(because role was very similar, but the quantity here much higher) and well aboveMr Zhang's 15 years (because of substantially greater quantity and role). All thatsuggests the Judge was within range, and quite right, in setting a starting point of20 years for Mr Kulu.[23] We turn now to four other cases, post-Zhang. Only the first of these decisionswas referred to this Court in Fangupo, and two of the three others postdate it.[24] In Berkland v R the appellant was the "number two" in a Mongrel Mobmethamphetamine supply operation in the Porirua area.34 In a six-month period,he had been involved in the sale of 15 kg of methamphetamine. The Judge hadadopted a starting point of 16 years and six months' imprisonment. Applying Zhangon appeal, this Court considered that starting point was within range, acknowledgingthat Mr Berkland's role was "towards the upper end of significant".35 We note that thesentence is currently on appeal to the Supreme Court, along with that in the nextdecision, Harding v R.3630 Zhang v R, above n 16, at [298]–[300].31 At [300].32 At [272].33 At [257].34 Berkland v R, above n 15.35 At [56].36 Harding v R, above n 27.[25] In Harding the appellant pleaded guilty to 11 charges "relating to the mostsubstantial methamphetamine manufacturing and distribution network everprosecuted in New Zealand".37 Mr Harding, a patched gang member of theHead Hunters, put together and directed 11 other patched members and associates ofthe gang to manufacture methamphetamine on an industrial scale. He was themastermind of the operation and personally involved in manufacturing anddistributing the drug. Between September and December 2014 the operation produced6.5 kg of methamphetamine and supplied it to other members of the gang for sale intothe Auckland market. Mr Harding himself was not an addict and was motivated purelyby profit. In dismissing his appeal, this Court considered the Judge's starting point of30 years' imprisonment was available even under Zhang.38[26] In Campbell v R the appellant was, it was uncontested, at the "top end of theleading role" in a Gisborne-based methamphetamine supply chain.39 He sourced largequantities of the drug from an Auckland-based supplier and then on-sold it in his localarea. He was not a user and was motivated by profit. Over a two-year period hetrafficked 6.3 kg of methamphetamine. The Judge applied an 18-year starting point,which went unchallenged on appeal.40[27] Finally, there is McMillan v R.41 Mr McMillan had taken a leading role in aWellington-based methamphetamine supply operation, and a starting point of 17 years'imprisonment was adopted by the Judge on the basis of the supply of 10.37 kg.It appears Mr McMillan was the principal offender, a comparison withMr Thompson's case in Zhang having been made.42 This Court held that the startingpoint was within the available range.43[28] None of these further cases give us reason to doubt the conclusion reached at[22] above — namely that Downs J was within range, and correct, in setting a startingpoint of 20 years for Mr Kulu. In particular, Mr Berkland's role and relevant quantity37 At [1].38 At [4].39 Campbell v R [2020] NZCA 631 at [4].40 At [10].41 McMillan v R [2022] NZCA 128.42 At [29]. See [21] above.43 At [31] and [38].were both well below that of Mr Kulu; Mr McMillan's role was comparable, but thequantity was substantially less.[29] In Fangupo a differently constituted division of this Court said:44When we compare Mr Fangupo's position with the defendants in the cases wehave just summarised, it becomes apparent that the 19-year starting pointadopted by Downs J was significantly higher than in other cases that this Courthas considered since Zhang was decided.[30] As noted, however, that division did not have the benefit of the later authoritieswe have referred to. Furthermore, we have here focused only on authorities where theoffender undertook a "leading" role, whereas those relied on in Fangupo involvedoffending at the intermediate "significant" role. It is unclear why that occurred;neither Mr Fangupo nor Mr Kulu were merely "significant" players in the enterprisethey led.[31] In those circumstances we are not disposed to follow the approach taken inFangupo. The starting point adopted by the Judge in the instant appeal was well withinthe available range mandated by Zhang and its satellite authorities, and in our viewwas correct. We would not therefore alter it unless compelled to do so by reason ofparity.Parity[32] As a general principle of even-handed justice, parity requires that like cases betreated alike.45 Where two co-offenders participate in the same offending and possessthe same personal circumstances, both can expect to be treated similarly, withoutdisparity in their sentences.46 But there are limits to this statement of generalprinciple.[33] When an appellate court is dealing with an offender whose sentence appears toit to be proper, the fact a co-offender has received a sentence which the appellate courtconsiders too lenient is not of itself a ground for interfering with the appellant's longer44 Fangupo v R, above n 1, at [49].45 R v K (CA345/02) (2003) 20 CRNZ 62 (CA) at [20].46 R v Lawson [1982] 2 NZLR 219 (CA) at 223.sentence.47 Were the appellate court to take the over-lenient sentence as its benchmark,and reduce the appellant's longer sentence accordingly, it would in effect be saying"where you have one wrong sentence and one right sentence, [the] Court shouldproduce two wrong sentences".48 An appellate court in this situation must strike abalance between maintaining public confidence in the administration of justice on theone hand, and not amplifying the injustice of one manifestly inadequate sentence byadding another.49[34] The parity issue we have just discussed usually arises where the appellate courtis seized only of one offender's sentence appeal, and the contrast is made with another,unappealed sentence. (The fact the lighter sentence is not appealed is, in itself, entirelyunsurprising.) Here however we are dealing with appeals that have proceededseparately, that of Mr Kulu out of time and doubtless encouraged by the result in hisco-offender's appeal. But the principles noted at [33] still apply. McKay v R involveda sentence appeal on the basis that Mr McKay's co-offender had previouslysuccessfully appealed his sentence.50 This Court observed that "[a] lenient orunusually merciful sentence extended to one offender cannot create an expectationother offenders will receive the same indulgence."51 On that occasion, we declinedthe Crown's invitation to differ or disagree with the conclusions reached by it in theprevious, successful sentence appeal.52 "[S]ome adjustment" to Mr McKay's sentencewas required as a result of his co-offender's appeal, but we declined to reduce thesentence by the same amount.53[35] The guiding consideration remains the maintenance of public confidence in theadministration of criminal justice. That consideration does not compel reduction of asentence on appeal to fit better with another sentence reset on appeal at a level that, onreflection, or in light of further authority, appears markedly too lenient.47 R v Rameka [1973] 2 NZLR 592 (CA) at 593; and R v Richards (1955) 39 Cr App R 191 at 192.See generally Hall's Sentencing (online ed, LexisNexis) at [APPII.6.1].48 R v Stroud (1977) 65 Cr App R 150 at 152. See also Mau'u v R [2011] NZCA 385, at [28].49 Ryder v R CA116/98, 23 June 1998 at 6; and Thompson v R CA245/98, 22 December 1998 at 12–14. See also Mau'u v R, above n 48, at [27]–[28] and [30]–[31]; and Jacobs v Police HC RotoruaAP11/90, 21 May 1990 at 6.50 McKay v R [2019] NZCA 493.51 At [27], citing McFarlane v R [2012] NZCA 317 at [24].52 At [28]. The Crown had submitted the Court's reduction in the co-offender's sentence bysix months was "excessive" and "went too far".53 At [29].The reasonably minded independent observer may in fact consider the injustice to bethe too-lenient sentence, then compounded by repetition.54[36] In our view, when considering an earlier appellate decision the better coursefor this Court, which in the New Zealand judicial system takes primary responsibilityfor sentencing supervision, is to emphasise the overall integrity of the sentencingprocess, rather than follow a course taken on another appeal which on reflection provesto be materially out of step. In particular, where the Full Court has recently set outcomprehensive sentencing considerations in a guideline judgment, using actual orexample cases to guide future sentencing, consistency with that decision must takepriority over parity in particular offending.[37] Both these points apply here. It follows that we decline to alter the originalsentence starting point, which in our view was entirely correctly assessed, on paritygrounds. If we are wrong in doing so, that must be determined elsewhere.Other matters[38] We are not persuaded the Judge erred in the second stage of sentencing, in hisassessment of personal factors mitigating sentence. It follows that parity withMr Fangupo does not compel any adjustment either.[39] In Fangupo this Court reduced the MPI from 50 to 40 per cent. We accept thata similar adjustment is, on its own merits, appropriate here when the sentence isotherwise unadjusted.Result[40] The application for an extension of time to appeal is granted.[41] The appeal is allowed in part.54 See, for example, Mau'u v R, above n 48, at [31]–[32].[42] The order for an MPI of 50 per cent imposed by the High Court is quashed andsubstituted with an MPI of 40 per cent.Solicitors:Crown Solicitor, Auckland for Respondent