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R v Clausen [2020] NZHC 3257 (9 December 2020)

Last Updated: 18 January 2021

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Auckland

R v CLAUSEN [2020] NZHC 3257 [9 December 2020]

• [1] Mr Clausen, you appear for sentence today having been found guilty by a jury on a charge of conspiracy to supply a Class B controlled drug, namely, pseudoephedrine.¹ In addition, you pleaded guilty prior to your trial to charges of being in unlawful possession of a pistol,² and a representative charge of being in unlawful possession of firearms and ammunition.³ You therefore fall to be sentenced on a combination of the evidence that was heard at the trial at which I presided, together with two summaries of fact prepared for the firearms charges.

The facts

• [2] I begin by setting out the facts in relation to the most serious charge, which is that of conspiring to supply pseudoephedrine. At the trial the evidence relating to your involvement in the events giving rise to this charge was extremely limited. However, the jury heard reasonably extensive evidence about the background leading up to the events in which you were involved.

• [3] The charge was laid as a result of an incident that occurred on the afternoon of

18 September 2018. That incident had its genesis in events that began at approximately midnight on 16 September 2018. At that time Mr Samuel Vaisevuraki arrived from Australia. He went to an address in Karaka from the airport and the following morning met Mr Pasilika Naufahu. The two men spent some time in each other’s company. Mr Vaisevuraki then left in his vehicle and drove around the South Auckland area. Later in the afternoon he picked up a man known as Mr He Sha. The two men were then under surveillance as they drove around South Auckland for several hours. Eventually Mr Vaisevuraki dropped Mr Sha off, and returned to his home address.

• [4] On the afternoon of the following day Mr Vaisevuraki was again mobile in his vehicle and again picked Mr Sha up. By this stage the police had been able to obtain a warrant permitting them to install a listening device in Mr Vaisevuraki’s vehicle. The police were therefore able to listen to conversations that occurred within the

¹ Misuse of Drugs Act 1975, s 6(1)(c) and (22A)(b): Maximum penalty ten years imprisonment.

² Arms Act 1983, s 50(1)(a): Maximum penalty three years imprisonment and/or a $4,000 fine.

³ Arms Act 1983, s 45(1): Maximum penalty four years imprisonment and/or a $5,000 fine.

vehicle as it travelled around Auckland. They also had mobile surveillance in place so they could follow the van as it drove around.

• [5] The van eventually stopped at a commercial or industrial area in Takanini. Intercepted communications from within the vehicle make it clear that the two men were awaiting the delivery of both cash and pseudoephedrine. Mr Vaisevuraki referred to the fact that the transaction involved pseudoephedrine having a value of $1 million. Mr Vaisevuraki’s conversations confirmed that a courier was to come to the scene with the cash. This indicated he was acting as the intermediary for the purchaser of the pseudoephedrine. Mr Sha’s contributions to the conversation make it clear he was the intermediary for the supplier of pseudoephedrine. Those above him appear to have been based in Sydney.

• [6] The police observed a VW Golf motor vehicle arrive at the scene and park in front of Mr Vaisevuraki’s vehicle. They were able to film what then occurred. This showed you getting out of the front passenger side of the vehicle. You then went around and opened the boot of the vehicle. The intercepted conversations within Mr Vaisevuraki’s vehicle show that he then told Mr Sha to go to your vehicle to inspect the cash. He repeated that demand or requirement on several occasions. Mr Sha went up to your vehicle and appeared to get into it for a brief period. There then occurred a period of uncertainty in which both you and Mr Sha appeared to be somewhat confused. Prior to this, Mr Sha had advised Mr Vaisevuraki that he had received advice from his superiors to the effect that the transaction was cancelled.

• [7] After this carried on for a few minutes the police filmed you getting back into the VW Golf and the vehicle drove away. Mr Vaisevuraki and Mr Sha also drove away. This concluded your involvement in that transaction. By its verdict the jury was clearly satisfied you had agreed to become involved in a transaction in which you were to take cash to the scene and supervise the acquisition of the pseudoephedrine from the persons who were to bring it to the scene by others in Mr Sha’s group.

• [8] You were not arrested at that time. On 12 December 2018 the police executed a search warrant at your address in Weymouth. During the search of the property they discovered a Bruni replica Glock blank firing pistol in the bedroom wardrobe. This

had been modified to allow another round to be inserted into the chamber after the firearm was fired. This modification enabled the firearm to fire a .25 calibre bullet.

• [9] You were arrested on that charge and then released on bail. The police then searched your address again on 11 April 2019. On this occasion they found an 8 mm revolver and a shotgun together with live shotgun shells and 8 mm ammunition. This offending occurred whilst you were on bail on the earlier charge.

Starting point

• [10] The first issue to be determined in terms of sentencing is the starting points to be applied in relation to the three charges. I deal first with the starting point to be selected on the charge of conspiring to supply pseudoephedrine.

Conspiracy to supply methamphetamine

• [11] On this charge the Crown contends a starting point of three to three and a half years imprisonment is appropriate. Your counsel submits a starting point of around 18 months imprisonment is appropriate.

• [12] Counsel have referred me to several cases⁴ but I consider the best guideline is to align the starting point with that adopted in Mr Sha’s case. The Judge who sentenced Mr Sha selected a starting point of four years imprisonment to reflect his overall culpability.⁵ I consider your culpability falls well below that of Mr Sha. He was an intermediary dealing with those higher up on the vendor’s side of the transaction in Sydney. He was also the intermediary who dealt with Mr Naufahu in New Zealand. He travelled to the scene to direct operations from the vendor’s side. He was therefore much further up the chain of command than you were.

• [13] I accept Mr Lance’s submission on your behalf that your role was that of a courier or runner. Your role was to take the money to the scene and to then take possession of the drugs. I also accept the submission of the Crown that this means

⁴ R v Wallace and Christie [1999] NZCA 89; [1999] 3 NZLR 159 (CA); R v Van Lent CA166/99, 29 September 1999;

R v Smith [2000] NZCA 99; [2000] 3 NZLR 656 (CA).

⁵ R v Sha [2020] NZDC 10398.

you must have been a trusted member of the organisation from the purchaser’s perspective. You were trusted with a very large amount of money. This meant that, as the Crown submitted to the jury at trial, you needed to know what you were going to pick up. So your job was not only to take the cash to the scene but also to ensure the person for whom you were acting received what they were expecting in return for the money.

• [14] I am also satisfied, however, that you had no proprietary interest in the drugs. If they had been delivered, your role would have been to deliver them in accordance with the instructions that were given to you from those higher up on the purchaser’s side of the transaction.

• [15] It is likely in my view that your role in the transaction came about because of your association with the Comanchero organisation. Mr Naufahu is the President of that organisation and I have no doubt that you received orders from those higher up to go to the scene on that day with the cash and to pick up the pseudoephedrine.

• [16] Taking those factors into account, I consider your culpability on the pseudoephedrine charge is adequately reflected by a starting point of two years six months imprisonment.

The firearms charges

• [17] The firearms charges present sentencing difficulties because of the fact that both counsel accept cumulative sentences are required. That offending occurred quite separately from the offending relating to the attempt to acquire pseudoephedrine. Standing alone, I consider a starting point of around 12 months imprisonment would have been appropriate to reflect the charge of being in unlawful possession of the Glock pistol. I have regard to totality principles, however, and select a starting point of six months imprisonment on that charge.

• [18] The second charge, that of being in possession of the pistol, shotgun and ammunition on 11 April 2019, is much more serious. First, it involved not one firearm but two. Secondly, it involved live ammunition. Thirdly, it occurred at a time when you were already on bail on another firearms charge. Standing alone, I am satisfied

that charge would easily justify a starting point of between 24 and 30 months imprisonment. Applying totality principles, I select a starting point of one year two months imprisonment on that charge. This means that a cumulative sentence amounting to one year eight months imprisonment is appropriate as a starting point on the two firearms charges.

Aggravating factors

• [19] You have a number of previous convictions from when you lived in Australia. Some of these include crimes involving violence and firearms. A modest uplift is required to reflect that fact. I apply an uplift of two months to the sentence on the firearms charges to reflect your previous convictions for similar offending. This means I reach an overall starting point on the firearms charges of one year ten months imprisonment before taking into account your guilty pleas.

Mitigating factors

• [20] You entered a guilty plea to the charge of being in unlawful possession of a pistol at an early stage. The Crown therefore accepts a full discount of 25 per cent on that charge is appropriate.

• [21] You entered guilty pleas on the other firearms charge shortly before your trial was due to commence and a much lesser discount is therefore appropriate. I consider an appropriate overall discount to reflect your guilty pleas is one of four months. This means the global starting point on the firearms charges is reduced to one year six months imprisonment.

• [22] This brings me to an overall starting point of four years imprisonment before taking into account other mitigating factors.

Mitigating factors

• [23] Your counsel points out that you were on EM bail from November 2019 until 24 March 2020. During that period you were subject to a 24 hour electronically monitored curfew at the Grace Foundation. The Grace Foundation has provided a letter indicating you excelled whilst in their care. You were regarded as a mentor for

other residents at the institution. It was therefore a surprise to staff at the institution when you elected to abscond on 24 March 2020.

• [24] You say the reason for your decision to leave the Grace Foundation is that you wished to be with your family during the Covid-19 alert level 4 lockdown. You remained at large, however, until 4 May 2020. The Crown submits this factor should remove any discount you might receive for the time spent on EM bail at the Grace Foundation.

• [25] I do not accept that submission because you were subject to 24 hour electronically monitored restrictions for a period of some five months. In addition, it is clear that you undertook rehabilitative efforts that earned the praise of the staff of the institution during that period.

• [26] Finally, I consider some recognition needs to be given to the fact that your deportation from Australia left you effectively stranded in New Zealand with very little in the way of family or support in this country. This meant that you were inevitably driven to the Comanchero organisation in order to find friendship and fellowship. I consider those factors justify a discount of four months. This means the end sentence is one of three years eight months imprisonment.

Totality

• [27] Your counsel submits a further discount is required at this point of the sentencing process to reflect totality principles. I do not consider this to be necessary because I have already applied totality principles when selecting the starting points to be applied in relation to the two firearms charges. They are therefore already reflected in the sentence I have reached.

Sentence

• [28] On the charge of conspiring to supply the Class B controlled drug pseudoephedrine you are sentenced to two years four months imprisonment. On the representative charge of being in unlawful possession of firearms and ammunition you are sentenced to one year four months imprisonment. That sentence is to be served

cumulatively on the sentence imposed on the Class B conspiracy charge. I impose a concurrent sentence of seven months imprisonment on the charge of being in unlawful possession of a pistol.

• [29] Stand down.

Lang J