R v Fonotia [2012] NZHC 159 (1 March 2012)

Last Updated: 12 March 2012

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF JF.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000047 [2012] NZHC 159

THE QUEEN

v

_{DELIA FONOTIA}

Hearing: 1 March 2012

Counsel: B D Tantrum & M Williams for Crown

R M Mansfield for Prisoner

Judgment: 1 March 2012

_{SENTENCE OF KEANE J}

Solicitors:

Crown Solicitor, Auckland

R V DELIA FONOTIA HC AK CRI 2011-404-000047 [1 March 2012]

[1] Delia Fonotia you appear for sentence for 18 offences against the Misuse of Drugs Act 1975. You twice possessed the class A controlled drug methamphetamine for supply, first between 2 - 24 October 2009 and then on 15 February 2010. You made 15 sales of the class C controlled drug pseudoephedrine between 30 September

- 17 November 2009. Finally, you possessed, on 15 February 2010 cannabis for the purpose of sale or supply.

[2] In entering those pleas you put in issue the quantities of methamphetamine you possessed in the October 2009 offending for the purpose of sale, or indeed sold, and whether in the second instance of possession in February 2010 you were merely a courier. I resolved those issues at a disputed facts hearing. You are to be sentenced on the basis of my decision.

Context

[3] In 2009 the police began to intercept your telephone conversations. A pattern soon emerged. Though you dealt with a number of people, principally you purchased pseudoephedrine in bulk from Phap Ly and Huang Nguyen, and you sold it, principally, to Warren Filer and Steven Mehrtens, from whom you purchased methamphetamine you used yourself and in which you traded.

[4] The first offence for which you are for sentence, possession of methamphetamine for supply between 2 - 24 October 2009, encompasses three separate transactions. On the Crown's case at trial, and on sentence, you sold to 'Les' one and a half ounces of methamphetamine on 3 October and a further ounce on 8

October. You sold Nesia Gaffar half an ounce on 23 October.

[5] You admit those transactions but at the disputed facts hearing you contended that they were not in whole or half ounce amounts. They were in whole or half grams. I found that the Crown could not, on the evidence, prove beyond reasonable doubt that you were in these three instances an ounce dealer. I held that you were dealing in grams and that in October 2009 you possessed in all three grams, not, as the Crown contended, 85 grams.

[6] Your second possession of methamphetamine for supply offence, on 15

February 2010, rests on the methamphetamine found in your possession on that date when the police stopped you and your alleged co-offender, JF, under s 317 of the Crimes Act 1961 at Maramarua. You had been seen by the police an hour or so earlier that day at Mr Filer's Whangamata depot.

[7] The statement of facts on which you entered your plea in the District Court narrated that in a nine kilogram gas bottle the police discovered 30 grams of methamphetamine in one snap lock bag and eight grams of methamphetamine in another, and in excess of an ounce of cannabis plant. When you entered your plea you disputed those quantities as the Judge then recorded.

[8] At the disputed facts hearing ESR certificates establishing that you and JF must have been in possession of 31.56 grams of methamphetamine and some 29.5 grams of cannabis plant were not, in the event, disputed and nor, though it was not the subject of any offence, that you possessed also $50,000 cash, on the Crown's case for further pseudoephedrine purchases.

[9] What you put in issue at the disputed facts hearing was whether you were, in the most complete sense, in possession for supply or whether you were a secondary player, perhaps to JF, or to an undisclosed principal, and whether you merely were carrying what was found in your possession as a courier. In my decision resolving that dispute I held that you were in possession in the most complete sense and not merely as a courier.

[10] There was no issue then, and there is none now, that between 30 September

2009 - 17 November 2010 you sold pseudoephedrine in 15 instances or that in seven of those instances the sales you made were to Mr Filer and Mr Mehrtens. The Crown cannot say how much pseudoephedrine you sold to others, although it does say that a number of those sales may have been to Mr Filer and Mr Mehrtens, despite the fact that they could not identified as the recipients.

[11] The Crown contends, and you do not deny, that each time you made a sale to

Mr Filer and Mr Mehrtens you sold them at least five sets except on 31 October

2009 when you sold them 31 sets. The Crown's case is, therefore, that you sold them or others at least 67 sets and that this could have resulted in the manufacture of at least three kilograms of methamphetamine.

[12] It remains to mention this. On 15 February 2010, when you were arrested at Maramarua, you were the subject of an interim recall warrant issued by the Convenor of the Parole Board on 16 December 2009 for further offending.

[13] The further offending spoken of was independent of that for which you were then subject to your existing sentence, obviously enough. It was also independent of the offending the subject of sentence now. That offending, in the event, was not sheeted home to you. You were discharged.

[14] The fact remains that you were recalled to serve your sentence very much on the day of your arrest and you continued to serve it until 24 April 2011, some 14 months later. That too is a factor on sentence.

Pre-sentence report

[15] You are, your pre-sentence report says, aged 52. You had a difficult childhood. Your father, from whom you have been estranged since you were young, was violent to your mother and sometimes to you and the other children.

[16] You suffered a great loss in 1999 when your partner of ten years, who was fleeing from the police, was shot dead after he pointed at them what turned out to be an imitation firearm. You suffered a further loss when your mother, with whom you were very close, died in 2002.

[17] When your partner was shot, you told your assessor, you coped with the publicity and your grief by gambling, a dependency that became entrenched and that you see as the crux of your problems.

[18] In 2005 and 2006, when you were sentenced for further offending that pre- figures that for sentence today, involving possession of methamphetamine for supply

and utensils and plant and LSD, you admitted that you had an increasing issue with methamphetamine. On 10 May 2011 you were sentenced in this Court to a term, reduced on appeal to five years imprisonment, for that offending. It was that sentence that you were recalled to complete.

[19] The 2005 offending was your first since 1996 and all of your earlier offences were of a significantly lesser order. In 2006 you were confident that if you could cease gambling, that would meet any difficulty with dependency. Since 2008 you have undertaken alcohol and drug programs while in custody and while on parole, as well as grief counselling.

[20] Despite the fact that you underwent those programs you, of course, continued to offend and yet, despite that, you remain of the view that you can now come to terms with those destructive patterns. That, I have to say, has to remain a moot issue.

[21] You have also said that once you are released from custody, and this seems to me more real, you wish to live in Christchurch where your sister, and now your two daughters, are living. You wish to be away from those with whom you used to associate; friends you now consider whose interest in you was confined to the drugs you were able to supply.

[22] You are assessed as being at low risk of re-offending but that does not take into account the matters for sentence and, as your assessor says, has therefore to be artificially low. Whether you will re-offend may or may not, as your assessor says, depend on whether you can cope with what has proved to be a lasting gambling addiction.

[23] Your assessor considers that you have limited remorse and, taking into account that your have offended in this way before, as well as the seriousness of present offences, recommends a period of imprisonment.

Letters

[24] I have your letter, which is consistent with your pre-sentence report but is more immediate. You ask me to consider as an alternative to imprisonment a sentence that would permit you to undertake a two year residential rehabilitation program at Odyssey House.

[25] That may well be highly desirable. But your counsel has not urged that option on me, and could not do so. I must sentence you for the offences for which you appear. Such a program will only become possible when you become eligible for parole.

[26] I have letters from your two daughters as well. They are impressive letters and they are moving, as yours was, I have to say. Quite naturally your daughters want you with them. They say, and I entirely agree, that as teenage girls they very much need their mother. Again, however, I must first sentence you as the law requires.

[27] Finally, I have a letter from a community social worker, Sister Anne Hurley. She is impressed by the way in which you participated in weekly sessions conducted in the remand wing in which you first found yourself. You were, she says, a responsible participant. She has no hesitation in supporting you.

[28] Again all that I can say now is that this must stand you in good stead for the purpose of parole.

Sentencing purposes and principles

[29] In sentencing you I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim. This was very far from victimless offending, as I hope you now appreciate.

[30] I must also, so far as it is possible, assist you in your rehabilitation and reintegration. But where drug offending is as significant as yours is, I have to say, personal circumstances and the more positive purposes and principles of sentencing normally have little part to play. Denunciation and deterrence are what is principally called for.

[31] The totality principle also arises in your case, not as to the offending for which you are for sentence standing in isolation, but that offending standing in relation to the five year term imposed on you for the earlier such offending in 2005; and the fact that you were recalled to serve a 14 further months of that earlier sentence.

[32] Totality potentially arises in two ways. The first is that where offending of a similar kind follows, as yours does, on earlier such offending, I am obliged to stand back and look at whether the overall sentence resulting, that for the first offending and that to be imposed for the second offending, will be proportionate to your total offending.[1]

[33] There is also a discrete totality issue, which arises from the fact that you were recalled to serve the earlier sentence at a time when you were also on remand for the offences for which you are now for sentence. That period, during which you were serving your recall sentence, does not count as pre-sentence detention under the

Parole Act. Consequently some account has to be taken of it also.[2]

Crown submissions

[34] The Crown contends that for the purpose of sentence you lie, as to your two possession of methamphetamine for supply offences, in band two R v Fatu[3] which sets for supply of commercial quantities of methamphetamine, between 5 - 250

_{grams, starting points in the range three - nine years imprisonment.}

.

[35] Despite the fact that the quantity of methamphetamine found in your possession for supply, 34.56 grams, lies at the lower end, that, the Crown says, is not to be taken literally. There were four separate identifiable transactions, and that course of offending, the Crown says, ought also to be reflected in the starting point. It commends five years..

[36] The Crown contends that for your pseudoephedrine sales you lie in the top category identified in R v Ho,[4] where instigators generally attract starting points in the range six - seven years and lesser players three - five years. The Crown contends that in your case, as a higher category offender, the starting point out to be five years.

[37] If those two starting points are aggregated, as is notionally possible because they involve discrete strands of offending, the Crown says, a starting point of ten years results. But, as a matter of totality, that has to be reduced to eight years.

[38] Then, because you have previous related convictions and you committed these present offences whilst on parole, the Crown says, that is an aggravating feature that ought to result in an increase above the starting point of two years, bringing your total potential sentence before any mitigating features to ten years.

[39] As against that, the Crown does accept that the principle of totality does need to be taken into account, principally on the basis that you have served 14 months of the earlier sentence imposed whilst on remand for these present offences. The Crown does not recognise the totality principle, in the wider and more fundamental sense, applying independently in your case with any force.

[40] The Crown identifies your guilty plea to the two 15 February 2010 offences and your plea just before trial to all the other offences as your only mitigating feature. It commends in totality a discount no greater than 20%. For the cannabis possession for supply offending the Crown contends for a concurrent sentence of two

_{years. It seeks a 50% minimum term of imprisonment.}

Defence submissions

[41] Your counsel responsibly accepts that the starting point for your offending, however it is arrived at, might defensibly be in the vicinity of seven and a half years imprisonment.

[42] Your counsel calculates that starting point by assuming that you possessed no more than three grams of methamphetamine for supply in October 2009, as well as the 31.56 grams found on your arrest on 15 February 2010. That, he says, putting aside the number of transactions involved, is a quantity that cannot justify a starting point in band two R v Fatu, beyond three years.

[43] Your counsel accepts that the 15 counts of pseudoephedrine supply might yield methamphetamine within band four R v Fatu but contends that your profit was modest and your offending driven by gambling. That, he submits, might justify a starting point in the range five and a half - six years.

[44] Cumulative starting points of eight and a half years, your counsel contends, ought to be reduced on the principle of totality to seven and a half years and he contends for three discounts. The first rests on the two totality principles that I have identified.[5] The second is to recognise your plea, 25%. Finally, he seeks a 5% discount to recognise your remorse.

[45] Your counsel contends that a minimum term of imprisonment cannot be justified. You were simply an agent running a very basic unsophisticated and relatively sporadic business sourcing and distributing pseudoephedrine and occasionally receiving and supplying methamphetamine.

Conclusions

[46] As a result of my decision at the disputed facts hearing, that in October 2009 you possessed no more than three grams of methamphetamine, and in all for both

possession offences no more than 34.56 grams of methamphetamine, you are, I

consider, to be sentenced principally as a pseudoephedrine dealer.

[47] As you yourself do not dispute, you were a dealer in significant quantities of pseudoephedrine. The Crown's calculation, that you were responsible for supplying pseudoephedrine capable of yielding three kilograms of methamphetamine, which you do not dispute, speaks for itself. For your pseudoephedrine offences I take a global starting point of seven years imprisonment.

[48] Ordinarily, the fact that you offended as you did and received a five year sentence in 2005, if not for pseudoephedrine supply, then for methamphetamine possession and supply, would be an aggravating factor and I would add a year to your sentence on that account.

[49] However, though the totality principle in the most fundamental sense does not apply anything like as acutely as it did in Johansen, the case which establishes the principle in such cases as these, it has still to be a check. That you served 14 months imprisonment, while on remand for this offending, moreover, is a factor I am obliged to take into account.

[50] I have decided, and I consider this to be generous, to take the totality principle into account in both those senses by treating them as nullifying the further year I would otherwise have imposed for your previous offending as an aggravating factor. The result is that my starting point remains seven years imprisonment.

[51] You pleaded to your two 15 February 2010 offences very early and if they were your only offences you would be entitled to a maximum discount for plea. You did not plead to the remainder of your offences until the week before your trial. And though that may have been the result of extensive negotiation, you are entitled at most, on the Crown's concession, to a global discount of 20%.

[52] You seek a further discount for remorse but your offending has been so persistent in recent years that I am unable to grant you that distinct discount. The

result is that for your pseudoephedrine offending you will be sentenced to five years, seven months.

[53] There remains your methamphetamine offending. That warrants a sentence, I consider, concurrently, of three years, six months. You will be sentenced concurrently also for your cannabis offending to two years imprisonment.

[54] The Crown seeks a minimum term. I have decided, however, not to impose one. Despite the fact that this is the second occasion on which you have offended seriously in recent years, you must gather your life together at some point. You have a chance to do that if, as you say, you can move to Christchurch where your sister and your children are.

[55] You have said also that you want to enter Odyssey House. That may well be essential in your case if you are to wean yourself from your offending completely. I want to encourage you to do that. The issue when you should be released and on what terms, I consider, should properly rest with the Parole Board.

_{[56] There will be an order, unopposed, for the forfeiture of the $50,000 cash sum.}

P.J. Keane J

---

[1] _{R v Johansen (1997) 15 CRNZ 111 (CA).}
[2] _{R v Repia CA12/95, 26 May 1995; Vernon v R [2010] NZCA 308.}

[3] R v Fatu [2006] 2 NZLR 72

[4] R v Ho HC Auckland CRI 2005-092-000567, 12 April 2005, since approved in R v Qiu

CA202/06, 11 October 2006.

[5] Sentencing Act 2002, s 85(2).