Court of Appeal Judgments of Public Interest

Criminal Practice and Procedure - Sentence - Life imprisonment - Methamphetamine offending

Several years into his sentence of 22 years and nine months' imprisonment for his role in importing 501 kilograms of methamphetamine into New Zealand, Mr Fakaosilea engaged in further methamphetamine offending from within prison, including orchestrating the importation of a further 198.2 kilograms of methamphetamine. He pleaded guilty and was sentenced to life imprisonment with a non-parole period of 10 years. Mr Fakaosilea appeals, contending that the sentence is manifestly excessive and a finite sentence should have been imposed, particularly given his guilty pleas and personal circumstances.

Was the starting point of life imprisonment an error? Held: No.

Mr Fakaosilea's leading role, the amount of methamphetamine he imported and the fact he offended while serving a lengthy sentence for methamphetamine importation meant s 8(c) of the Sentencing Act 2002 applied rather than s 8(d), requiring the maximum penalty unless the personal circumstances of Mr Fakaosilea made that inappropriate.

Should Mr Fakaosilea's guilty pleas have reduced the starting point of life imprisonment to a finite sentence? Held: No.

The Court surveyed the New Zealand cases, the position in Australia, England and Wales, and Canada, and the policy considerations behind giving credit in sentencing for a guilty plea. Of the four offenders sentenced in New Zealand to life imprisonment for methamphetamine offending, not one had pleaded guilty (there was a case in 1986 where an offender who had pleaded guilty to class A drug offending was sentenced to life imprisonment but the Court treated that case with caution given its age).

The principal benefits of a guilty plea in the context of large-scale drug offending are resource savings and the elimination of litigation risk. However, in the circumstances of offending such as Mr Fakaosilea's, resource savings are not a powerful consideration in light of the need for the denunciation, deterrence and, most significantly, public protection, that a life sentence provides. Nor were Mr Fakaosilea's guilty pleas particularly significant in terms of eliminating litigation risk. In any event, incentives to encourage offenders who are facing a real prospect of a life sentence to plead guilty do exist. For example, a guilty plea will likely carry considerable weight with the Parole Board and, in this context, a heightened prospect of early release from prison might well be viewed as a more significant incentive than a very long but finite, rather than indeterminate, sentence.

Also the Crown will sometimes withdraw charges, as happened in this case, despite considering there to be sufficient evidence to prove them, to resolve remaining charges. All that is not to say that, where a starting point of life imprisonment is taken, a guilty plea cannot tip the scales in favour of imposing a finite sentence. Nevertheless, in the context of large-scale drug offending orchestrated by a mature defendant already serving a sentence of imprisonment for previous large-scale drug offending, the significance of a guilty plea is relatively constrained.

The Court rejected the suggestion that a life sentence following a guilty plea in the context of offending like Mr Fakaosilea's would be warranted only if the offender had not suffered any socio economic deprivation and, had addiction issues made a causative contribution to the offending, received (or at least had a real opportunity to receive) full rehabilitative treatment prior to the reoffending. That approach is inconsistent with s 8(c) of the Sentencing Act 2002 as it gives disproportionate weight to the circumstances of the offender as against offending which is clearly within the most serious of cases for which the penalty of life imprisonment is prescribed.

The Court emphasised that each sentencing concerns the individual facts, requiring assessment of both the seriousness of the offending and the personal circumstances of the offender. A guilty plea is recognised by a deduction from the starting point in most cases. That deduction is not, however, invariable where the starting point is life imprisonment. Expressed another way, recognition of a guilty plea might still not be enough to reduce the starting point to a finite sentence.

The Court was satisfied the seriousness of Mr Fakaosilea's offending required the maximum penalty of life imprisonment despite his guilty pleas. Even "within the most serious of cases", particular cases will require the denunciation, community protection and/or deterrence that only a sentence of life imprisonment can provide. In such cases, even significant mitigating circumstances relating to the offender, such as a timely guilty plea, may still prove insufficient to displace the starting point. The Court considered this was just such a case.

Did Mr Fakaosilea's other personal mitigating factors, including prospects of rehabilitation, make a life sentence inappropriate? Held: No.

The Court viewed Mr Fakaosilea's background as going some way towards explaining Mr Fakaosilea's association with a gang and general criminal lifestyle but not warranting recognition as causatively contributing to offending at this level of seriousness. Further, it can be said with some confidence that Mr Fakaosilea does not display any intention of rehabilitating or leaving gang life. Even if any other personal mitigating factors that could be said to apply to Mr Fakaosilea are considered in combination with Mr Fakaosilea having pleaded guilty, the Court was satisfied that, given the circumstances and seriousness of the offending, "circumstances relating to" Mr Fakaosilea did not make life imprisonment "inappropriate".

Standing back, was a sentence of life imprisonment appropriate? Held: Yes.

After discussing what a life sentence means and the policy and purposes behind it, the Court observed that the most significant aspect of the offending was that it was committed from prison whilst Mr Fakaosilea was serving a lengthy term of imprisonment for the importation of over 501 kilograms of methamphetamine. The Court concluded that the sentencing principles of deterrence, denunciation and community protection required nothing short of a life sentence, notwithstanding Mr Fakaosilea's guilty pleas. It is hard to argue against the degree of oversight Mr Fakaosilea needs, given the circumstances and seriousness of his offending. A life sentence means Mr Fakaosilea will be subject to some form of oversight for the rest of his life. Bearing in mind the seriousness of the offending, that is appropriate.

Judicial review — extradition — decision not to domestically prosecute — surrender decision — prosecutorial discretion — disproportionately severe punishment — irreducible life sentence — comity — New Zealand Bill of Rights Act, s 9 — Extradition Act 1999, s 30 — International Covenant on Civil and Political Rights — Extradition (United States of America) Order 1970.

The United States of America wishes to extradite Mr Dotcom from New Zealand where he is a resident to stand trial in the US on charges of criminal copyright infringement, racketeering, and wire fraud. The US alleges that Mr Dotcom was a member of the “Mega Conspiracy”, which the US claims earned revenue in excess of USD 175 million and resulted in losses to copyright owners of at least USD 500 million.

The Extradition Act 1999 (NZ) involves a two-stage extradition process: first, the District Court must determine whether a person for whom an extradition request has been made is eligible for surrender to the requesting country; and second, the Minister of Justice must determine whether the person should be surrendered. Following a decision of the New Zealand Supreme Court in 2020, the first stage was determined: Mr Dotcom and related co-defendants — Mr Ortmann, Mr van der Kolk and Mr Batato — were deemed eligible for surrender to face trial in the US. This appeal is concerned with issues arising under the second stage.

In 2021 the US was granted leave to withdraw its extradition application in respect of Mr Batato due to his terminal illness. In 2022, Mr Ortmann and Mr van der Kolk approached the New Zealand authorities seeking to plead guilty to equivalent New Zealand offences in a New Zealand court. They also offered to provide substantial assistance to the US in its prosecution against Mr Dotcom. After the US signalled willingness to forgo its right to seek extradition of Mr Ortmann and Mr van der Kolk, the New Zealand police prosecuted them. Both pleaded guilty and were sentenced in June 2023 to terms imprisonment in New Zealand.
In July 2023, Mr Dotcom invited the Commissioner of New Zealand Police to consider whether the Crown and US would agree to charge him in New Zealand as well. This invitation was declined.

In August 2024, the Minister of Justice issued his decision that Mr Dotcom was to be surrendered to the US under the Extradition Act. Before making his surrender decision, the Minister received and considered advice from officials. Despite the absence of any explicit requirement under the relevant provision of the Extradition Act, the Minister accepted advice that it would be effectively mandatory for him to refuse surrender if the likely sentence Mr Dotcom would receive in the US would amount to disproportionately severe punishment. This was due to the fact that the issue of disproportionately severe sentences engages s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA). The Minister also accepted the advice that a sentence would only be disproportionately severe if it would be so excessive as to “shock the conscience” of properly informed New Zealanders, or if it would amount to an irreducible life sentence.

In applying those considerations to Mr Dotcom’s case, the Minister took into account advice from a US legal sentencing expert who was of the view that, if convicted and sentenced in the US, Mr Dotcom faced a possible sentence range of 30 to 150 years’ imprisonment in the US, and there was a significant chance he would receive a sentence of at least 30 years. This contrasted with the likely New Zealand sentence, which the Minister considered would be in the range of 12 to 15 years’ imprisonment. Although in the US none of the offences with which Mr Dotcom had been charged carry a life sentence, the Minister accepted that the practical effect of the long finite prison sentence likely to be imposed meant Mr Dotcom was at risk of spending the rest of his natural life in prison.

In light of the circumstances of Mr Dotcom’s case — including the fact that the alleged offending, if proven, would amount to fraud “on a massive scale” — the Minister decided that surrendering Mr Dotcom would not shock the conscience of properly informed New Zealanders. Nor did the Minister consider that Mr Dotcom’s likely US sentence amounted to an irreducible life sentence, given the availability of executive clemency and compassionate release. Having addressed those matters in his surrender decision, the Minister issued a surrender order, the execution of which was deferred for four weeks to enable Mr Dotcom to take legal advice.

Mr Dotcom subsequently issued judicial review proceedings against the Commissioner’s decision declining to charge him in New Zealand and against the Minister’s surrender decision. Mr Dotcom sought declarations that the decisions were invalid, orders quashing the decisions, an order directing the Commissioner to charge Mr Dotcom in New Zealand and an order discharging Mr Dotcom.

In a judgment issued in 2025, Grice J in the High Court rejected all of Mr Dotcom’s grounds of review. Mr Dotcom appealed.

Did the High Court err in finding that the Commissioner’s charging decision was neither erroneous in law nor unreasonable? Held: No

The scope of review for decisions involving prosecutorial discretion is limited, but even if that were not so, the facts of this case made it clear there was a rational and proper basis for the Commissioner’s decision.

As noted in the Commissioner’s decision declining to charge Mr Dotcom, Mr Dotcom’s position differed from that of Mr Ortmann and Mr van der Kolk in fundamental respects. Not only was Mr Dotcom the ringleader in terms of role and financial gain, he was also not offering to plead guilty, meaning his proposal involved having a trial in New Zealand. A trial was not something the New Zealand police considered feasible given the vast volume of complex evidence and investigating agents and witnesses located in the US.

Most critically of all, however, the US was not prepared to withdraw its request for extradition of Mr Dotcom in the way it was for the others. If the New Zealand police were unilaterally to acquiesce to Mr Dotcom’s request, that would be inconsistent with the extradition treaty between the US and New Zealand and the Extradition Act — neither of which contemplate domestic prosecution as an alternative to an extant extradition proceeding — and would undermine the extradition objectives of international cooperation and comity.

The difficulties with Mr Dotcom’s argument could not be cured by his submissions that the Commissioner failed to comply with the Solicitor-General’s Prosecution Guidelines and breached NZBORA. Given the existence of an ongoing extradition proceeding, it was unnecessary for the Commissioner to consider the Prosecution Guidelines. Nor was s 9 of NZBORA engaged. While the Commissioner’s decision did, in one sense, place Mr Dotcom at risk of “punishment” in the US, any sentence imposed by the US was too remote from the Commissioner’s decision to engage s 9.

Did the High Court err by finding that the Minister’s surrender decision was not unreasonable and would not subject Mr Dotcom to disproportionately severe treatment or punishment under s 9 of the New Zealand Bill of Rights Act 1990? Held: No

The parties accepted that the application of s 9 of NZBORA in this case required the Minister to start by identifying the sentence likely to be imposed in the US. Mr Dotcom submitted that the Minister proceeded on a factually incorrect assumption in his risk assessment of the likely US sentence: the more likely sentence was, Mr Dotcom said, nearer to 150 years than 30 years. The Court, however, was not persuaded there was any error, factual or legal, in the Minister’s approach which, while adopting the likely 30-year prison term, did so on the basis it was an effective life sentence.

The parties also agreed that the Minister was correct to determine whether the likely sentence was “grossly disproportionate” for the purposes of s 9 of NZBORA by applying the shocked conscience test. Contrary to Mr Dotcom’s submission, the shocked conscience test did not require a comparison of the sentence Mr Dotcom was likely to receive in the US with the actual sentences imposed on Mr Ortmann and Mr van der Kolk in New Zealand. It was well established that the correct approach was to compare the sentence the person was likely to receive in the requested country with the likely sentence in the requesting country. 

While the Minister was entitled to use the sentences imposed on Mr Ortmann and Mr van der Kolk to inform an assessment of the likely New Zealand sentence as he did, that was the extent to which their sentences were relevant. It was therefore not a reviewable error for the Minister not to take into account the effect of the Commissioner’s decision declining to prosecute Mr Dotcom.

Further, and again contrary to Mr Dotcom’s submission, the shocked conscience test did not ask whether the likely sentence in the requesting country would shock the national conscience if imposed at home, but rather, whether it would shock the national conscience for a person to face such a sentence in another country after an extradition request and surrender. The High Court’s application of the shocked conscience test was therefore entirely consistent with the overseas extradition authorities in Canada, the United Kingdom and Europe.

Finally, while the question of an irreducible life sentence as an alternative pathway for establishing disproportionately severe treatment under NZBORA had not been addressed by New Zealand courts, there was no dispute in this case that it was available as a matter of law. The Court considered, however, that it was not available to Mr Dotcom on the facts. Mr Dotcom contended that having accepted that parole was not a feature of US federal law, the Minister erred by nevertheless going on to find a sentence of 30 years would not be an irreducible life sentence for the purposes of s 9 of NZBORA. He argued that neither compassionate release nor executive clemency was anything more than a theoretical possibility for him. 

The Court considered that what made a life sentence reducible and rights-consistent was the existence of a genuine review mechanism available at the time of sentencing, not the likelihood of it being applied for the benefit of the particular individual whose extradition was sought. The High Court was therefore correct to hold it was open to the Minister to find Mr Dotcom was not facing an irreducible life sentence.

The appeal is dismissed.

The appellant must pay each of the respondents costs for a standard appeal on a band A basis, together with usual disbursements. We certify for two counsel.

The appellant must pay one set of costs to the respondents in relation to an adjournment application on the basis of a standard application, band A with a 50 per cent increase.

Administrative law — judicial review — right to refuse to undergo medical treatment — whether actionable procedural obligation on public decision-maker to consider Bill of Rights issues when making decisions — mandatory relevant consideration — New Zealand Bill of Rights Act 1990, ss 5 and 11 — Health Act 1956, pt 5A

In 2022 the Director-General of Health acting under pt 5A of the Health Act 1956 issued letters to 14 local authorities directing them to fluoridate their drinking water supplies. Although the Director-General complied with and detailed his consideration of the mandatory criteria under the empowering provision of the Health Act, neither the Director-General’s letters nor the appendices annexed to them made any express reference to the Bill of Rights. The fluoridation directions, however engaged the right to refuse medical treatment under s 11 of the Bill of Rights.

In June 2023, New Health New Zealand Inc issued judicial review proceedings against the Director-General and the Attorney-General challenging the directions. The essence of New Health’s error of law argument was that the Bill of Rights created an actionable process obligation on all actors caught by s 3 to undertake a Bill of Rights assessment whenever protected rights were engaged, meaning the Director-General erred in failing to turn his mind to the right to refuse medical treatment and justify his decision under s 5 of the Bill of Rights.

Given its novelty, the error of law ground was isolated in the High Court and dealt with as the following question of law: “Is … there an obligation in a procedural sense on those to whom the [Bill of Rights] applies to consider the application of the [Bill of Rights] if their exercise of power might engage a protected right?”.

In November 2023, Radich J answered in the affirmative. The Judge confirmed the existence of such an actionable process obligation which he held was owed by all public decision-makers and which if breached would render their decision unlawful independently of whether the decision itself was rights-consistent. Although the Health Act did not explicitly mandate consideration of the Bill of Rights, a protected right was engaged, meaning the Director-General was required to turn his mind to whether the directions were in each case a reasonable limit on the right to refuse medical treatment and be satisfied that they were. Failure to treat the Bill of Rights as a mandatory relevant consideration rendered the Director-General’s decision to issue the directions unlawful and that was so regardless of whether it was in fact compliant with the Bill of Rights.

In a relief judgment issued in February 2024, the Judge ordered the Director-General to reconsider the decision while keeping the directions in place. In December 2024, the Director-General concluded that fluoridation of water was a substantively justified limit on the s 11 right and reconfirmed the directions.

Despite the appeal being moot with no practical effect on the dispute, the Crown appealed the November 2023 High Court decision given its legal significance. A Full Court heard the appeal.

Did the High Court err in ruling that the Director-General’s decision to issue the water fluoridation directions was unlawful because he failed to address the restriction on the protected right to refuse medical treatment and consider whether that restriction was justified under s 5 of the New Zealand Bill of Rights Act 1990? Held: Yes

French P, Courtney, Katz and Thomas JJ: Having reviewed New Zealand Supreme Court authorities — and United Kingdom authorities affirmed by the Supreme Court — the better view was that the actionable process obligation adopted by the High Court was not part of New Zealand’s current law. Absent an express provision in the empowering legislation requiring a s 3 decision-maker to consider the Bill of Rights, the Bill of Rights was not generally a mandatory consideration. Substantive compliance with the Bill of Rights was the touchstone of illegality, rather than the process by which the administrative decision had been reached.

Although adopting the novel actionable process duty might heighten awareness of the Bill of Rights, any benefits that might result from recognising such a stand-alone duty were limited and far outweighed by well-founded concerns of practicality, undue formalism, doctrinal confusion and uncertainty.

The High Court therefore erred in finding that through a failure to expressly undertake a Bill of Rights assessment prior to issuing the directions under s 116E of the Health Act, the Director-General acted unlawfully.

Mallon J (dissenting): Mallon J agreed with the High Court that an actionable process obligation arose and would have dismissed the appeal. In her view, unless the empowering statute under which the discretionary public power was exercised clearly excluded it, the Bill of Rights gave rise to both a stand-alone procedural requirement and a substantive constraint on a public decision-maker.

The appeal against the High Court decision of 10 November 2023 is allowed.

The ruling that the first appellant’s decision to issue the water fluoridation directions was unlawful because he failed to address the restriction on the protected right to refuse medical treatment and to consider whether that restriction was justified under s 5 of the New Zealand Bill of Rights Act 1990 is set aside.

We make no award of costs in relation to the appeal.

The costs award made by the High Court in favour of the respondent is set aside, and the costs paid to the respondent refunded.