R v Naupoto [2012] NZHC 3138 (23 November 2012)

Last Updated: 28 November 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-15420 [2012] NZHC 3138

THE QUEEN

v

ANGUS NAUPOTO

Hearing: 23 November 2012

Counsel: D G Johnstone for Crown

N T Tupou for Prisoner

Judgment: 23 November 2012

_{SENTENCE OF KATZ J}

_{Solicitors: Crown Solicitor, Auckland -} [e-mail]

_{Copy to: N T Tupou, Auckland} - [e-mail]

R V NAUPOTO HC AK CRI-2011-004-15420 [23 November 2012]

[1] Mr Naupoto, you appear for sentence today having pleaded guilty on 17

October 2012 to a charge of conspiring to import the Class A controlled drug methamphetamine. The maximum penalty for that offence is 14 years imprisonment.

[2] Your guilty plea follows a sentence indication of two years seven months imprisonment which was given on 5 October 2012. However your counsel has submitted that a modest further reduction of the sentence previously indicated is justified, based on new information or matters that were not fully argued at the time of the original sentence indication.

The facts

[3] The factual background to your offending is highly unusual. In essence, it appears that you and your co-offenders were duped by other criminals in Tonga.

[4] In around June 2011, associates of yours in Tonga convinced you that they had a stockpile of approximately 400 kilograms of methamphetamine, which was being held in Nuku’alofa, Tonga. You negotiated with these associates to act as their agent by going to New Zealand to facilitate the importation of the methamphetamine and its onwards distribution.

[5] In July 2011 you arrived in New Zealand and made arrangements with various people to assist in the importation and subsequent distribution of the methamphetamine. While purchasers were being found, your associates in Tonga convinced you that a “sample” of 20 kilograms of methamphetamine was being transported by boat from Tonga to New Zealand. That boat was being skippered by a person known only to you as “Johann.”

[6] In order to ensure that “Johann” would deliver the methamphetamine, one of your New Zealand associates provided the sum of approximately $10,000 cash to cover his costs. You remitted this money overseas to your associates in Tonga. Your Tongan associates advised that they were holding the skipper’s wife against her will as security, in order to ensure the 20 kilogram sample was delivered to you safely.

[7] You endeavoured to meet the boat carrying the 20 kg sample, firstly in Opua Harbour in the Bay of Islands and subsequently in Gulf Harbour, Auckland. During this period you were in regular contact with your associates in Tonga and also on occasion with the supposedly kidnapped wife of the skipper, who was acting as a go- between, between you and her husband. As time passed you became increasingly angry about the non-arrival of the shipment. You told the skipper’s wife that if she did not tell you where “Johann” was you would return to Tonga and kill her yourself.

[8] At that point the New Zealand Police, who were intercepting some of your communications, naturally became somewhat alarmed. They had grave concerns for the safety of the skipper’s wife and terminated their investigation. The authorities in Tonga then unsuccessfully attempted to locate and rescue the skipper’s wife and find the stockpile of methamphetamine. Your Tongan associates were located and interviewed.

[9] It turned out that you and your co-offenders in New Zealand were being scammed by your associates in Tonga. There never was a 400kg stockpile of methamphetamine. Nor was a 20kg sample ever shipped to New Zealand. The boat, the skipper and his wife were all entirely fictitious. The end result is that you were duped. The object of the exercise appears to have been to extract cash from you and your co-offenders in New Zealand, for the benefit of the people you were dealing with in Tonga.

Sentencing Act 2002

[10] In any case involving the importation of the Class A controlled drug methamphetamine, deterrent penalties are required. That is the only way in which the courts can realistically assist in the struggle against the harm that methamphetamine is doing to our country. For that reason, prison sentences are routinely imposed by the courts when a person is found to have been involved in the importation of methamphetamine.

[11] It is also important that such offending is publicly denounced. Drug offending is unacceptable in our society. Methamphetamine is a scourge which is a

major cause of crime and social problems in New Zealand. This Court cannot be blind to the dreadful effect which methamphetamine has on users once it is distributed down the chain.

Starting point

[12] I must first fix a starting point which as accurately as possible reflects your culpability.

[13] The fact that you were duped and the drugs did not actually exist does not mean that your offending was not serious. You were willing to conspire with others to attempt to import a very significant amount of methamphetamine into New Zealand. If the drugs had existed, and been imported into this country, serious social harm would have resulted.

[14] Your culpability in this case lies in the fact that you were willing to become involved in an agreement with others to import a significant quantity of a serious Class A drug into New Zealand. You were a party to a conspiracy. You were effectively the link or “the bridge” between the New Zealand and Tongan ends of the operation. You took active steps to plan for the import into New Zealand of a large consignment of methamphetamine. You were presumably motivated by greed and the prospect of significant financial reward.

[15] If you had succeeded in your importing attempts, you would have been charged with actually importing methamphetamine (rather than conspiracy to import). If we were looking at such an importation in terms of the standard Court of Appeal tariff case of R v Fatu[1] there could be no doubt whatsoever that the quantities involved would fit towards the top end of Band 4 and inevitably a period of 20 years or more imprisonment would result.

[16] The approach that the Court must takes needs to reflect, however, that no importation actually took place, because the methamphetamine did not actually exist.

When dealing with conspiracy to import, the maximum penalty is 14 years and accordingly the R v Fatu bands would need substantial adjustment.

[17] When trying to fix a starting point in a case as unusual as this, one must be guided largely by instinct and commonsense. The only case which is barely comparable is that of R v Briaturi[2] which involved the alleged importation of cocaine into Australia from Uruguay. The offenders there were described by Harrison J as “rank amateurs”. However this authority does not provide much assistance, other than to make the obvious point that the absence of the drug has relevance.

[18] In all the circumstances of this case I assess the appropriate starting point as being four years imprisonment. I note that at the sentence indication hearing the Crown suggested a starting point of somewhere in the region of 4-6 years imprisonment and your counsel accepted a possible starting point in the range of 3-4 years imprisonment.

Mitigating factors

[19] There are no aggravating factors personal to you which would justify any uplift in the starting point. Accordingly, I now consider the extent to which I should reduce the starting point to reflect mitigating factors.

Good character and remorse

[20] You are currently 36 years old. You are married with two children aged 13 and 5. You have no previous convictions in New Zealand or Tonga.

[21] Your home and family is in Tonga, where you are widely respected as a pillar of the community. You have had a successful academic career at the University of the South Pacific. You are a former manager and secretary of the Tongan Rugby Union and were the team manager for Tonga’s 2007 Rugby World Cup team. You have contributed to society in many ways, including as a teacher, a rugby coach, and a mentor. You have held senior roles within government departments. Your twelve

character references include a reference from a Member of the Tongan Legislative Assembly as well as references from community and sporting groups, work and Church colleagues and family members. You are held in high regard by your family, your Church, your village, and indeed Tongan society as a whole.

[22] You are deeply aware that you have let down not only yourself and your family, but the many people who looked up to you as a role model. Indeed you advised your probation officer that imprisonment in New Zealand will not be your main penalty. Your main penalty is still to come, when you return to Tonga and have to face members of your village, your Church and everyone else you have let down. Fortunately for you, you clearly have a very supportive family.

[23] You have expressed remorse for your actions. You are deeply ashamed of what you have done. It appears that you may not have initially realised what an extremely harmful drug methamphetamine is, due to it being relatively unknown in Tonga, certainly in any quantity. However once you became aware of the serious effect this drug has on those who become addicted to it you expressed remorse for the fact that your importing attempts could have caused serious suffering to others.

[24] It is rare to see a man of your background and previous unblemished record before the Courts. As your counsel noted in his submissions, this is a huge fall from grace for you. He submitted that the factors I have outlined would justify a discount of 20 per cent from the initial starting point. However these factors were taken into account when a sentence indication was provided and at that time it was considered that a discount in the order of 15 per cent was appropriate. That is still the case.

Restrictive bail conditions

[25] You have been subject to very restrictive bail conditions since your arrest, which have included a 24 hour curfew. Although there has been one breach of that it was for the purposes of obtaining legal advice. Your bail terms were subsequently altered to allow you to visit your lawyer.

[26] A discount of two months was previously indicated for restrictive bail conditions. However the issue was much more fully argued before me today and your counsel also filed helpful and comprehensive written submissions. He has drawn my attention to some further case law in support of his argument that a higher discount should be allowed for this factor in your case.

[27] In Filoa v R[3] the Court of Appeal observed that:

[9] Compliance with a restrictive bail regime can be taken into account in mitigation of sentence, but need not. The sentencing Judge assesses whether and to what extent a discount is given in the circumstances of the case. When quantifying it the Judge need not take an arithmetical approach by equating restrictive bail to some period of imprisonment. In particular, a

24 hour curfew or EM bail need not be treated as the equivalent of home

detention. Relevant considerations are the extent to which the offender’s

liberty had been curtailed by the bail conditions, the duration of the remand on bail, and whether the offender breached bail.

[28] In another case your counsel relies on, R v Tamou[4] a sentence of 15 months’ imprisonment was reduced on appeal to 12 months on the basis that no allowance had been made for the fact that the offender in that case had been on EM bail for 9 months prior to trial.

[29] Your bail conditions were very restrictive and, with one relatively minor exception, you complied with them. You were on a 24 hour curfew for a period of almost 13 months. As your counsel has pointed out, this was even harder for you than it would be for many others because you are not a New Zealander. You are from Tonga and your family, friends and support network are in Tonga. So you have already been living apart from your wife and two children for 13 months which is onerous in itself. In addition you lost your business in Tonga as a result of being effectively under house arrest in New Zealand.

[30] I have been persuaded by your counsel that a greater discount is justified than was previously indicated for this factor. I therefore propose a discount of approximately four months, rather than two months, to reflect your 13 months on

_{bail under a 24 hour curfew.}

Guilty plea

[31] This leaves an end sentence of 3 years imprisonment before taking into account your guilty plea. The maximum discount that can be given in respect of a guilty plea is 25 per cent.

[32] Your counsel has submitted that the discount of 15 per cent which was previously indicated in this case does not adequately take into account the procedural history of this matter.

[33] At the time of the sentence indication the trial was approximately three weeks away and accordingly your guilty plea was categorised as a fairly late guilty plea. Given the maximum 25 per cent discount mandated by the Supreme Court in R v Hessell[5] a 15 per cent discount was seen as appropriate.

[34] Your counsel submits however that your late guilty plea was to some extent due to matters beyond your control. You originally faced three charges, conspiracy to import methamphetamine, participating in an organised criminal group and conspiracy to kidnap. However the Crown subsequently decided not to pursue the latter two charges. It seems that your counsel first became aware of this immediately prior to the the callover in this Court on 2 May 2012. He immediately filed a Memorandum (on 1 May 2012) advising that he proposed to seek a resolution with the Crown in light of this change in circumstances. He also indicated that the matter may be able to be resolved via a sentence indication. The sentence indication hearing ultimately did not take place however until 17 October 2012. You accepted the sentence indication within the 5 days allowed by the Court.

[35] These facts go some way towards explaining why your guilty plea was only entered shortly before trial. I accept that there is a good prospect that you would have pleaded guilty at an earlier stage if you had only faced one charge rather than

_{three, given that you ultimately did so.}

[36] Given these factors I accept that a discount of 20 per cent for your guilty plea is appropriate, rather than the 15 per cent originally indicated.

Sentence

[37] Mr Naupoto, please stand. On the charge to which you have pleaded guilty you are sentenced to 2 years 4 months imprisonment.

_{[38] You may stand down.}

Katz J

---

[1] R v Fatu [2006] 2 NZLR 72.

[2] R v Briaturi [2008] NZCA 414.

[3] _{Filoa v R [2010] NZCA 588 at [9].}

[4] R v Tamou [2008] NZCA 88.

[5] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.