Fatafehi v R [2016] NZHC 1707 (26 July 2016)

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Fatafehi v R [2016] NZHC 1707 (26 July 2016)

Last Updated: 5 September 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000198 [2016] NZHC 1707

IN THE MATTER OF	an appeal against sentence
BETWEEN	POHIVA FATAFEHI Appellant
AND	THE QUEEN Respondent

Hearing:	25 July 2016
Counsel:	J J Corby for the Appellant S A Wilson for the Respondent
Judgment:	26 July 2016

_{JUDGMENT OF EDWARDS J}

This judgment was delivered by Justice Edwards on 26 July 2016 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel: J J Corby, Auckland

_{Solicitors: Meredith Connell, Auckland}

FATAFEHI v R [2016] NZHC 1707 [26 July 2016]

Introduction

[1] Mr Fatafehi appeals against a sentence of nine years, three months’ imprisonment imposed on two charges of importing methamphetamine. The sentence included an order that Mr Fatafehi serve a minimum term of four years’ imprisonment before being eligible to apply for parole. He appeals on the basis that the starting point was too high, inadequate discounts for personal mitigating factors were given, and a minimum period of imprisonment (MPI) should not have been imposed.

Facts

[2] On 3 March 2015, Mr Fatafehi and two associates arrived in Auckland from San Francisco. They were searched by Customs officials and 395.9 grams of methamphetamine was found on the two associates.

[3] One of those associates admitted to having imported 141 grams of methamphetamine on a previous trip in January 2015 from Tonga. She stated that she had met Mr Fatafehi in Tonga and he had travelled back with her on the same flight.

[4] A fourth offender was also involved in the drug importation. That offender admitted to recruiting the two associates although he did not otherwise travel with the group.

[5] It was accepted for the purposes of sentencing that Mr Fatafehi’s role in the offending was characterised as that of supervisor or overseer of the two associates who were the couriers for the drug.

District Court sentence

[6] The sentence imposed in the District Court followed a sentencing indication which Mr Fatafehi had accepted. Mr Fatafehi and the fourth offender were sentenced together.

[7] In fixing the starting point, the Judge considered that Mr Fatafehi’s offending fell on the margin of bands three and four of R v Fatu, noting that the overall assessment of the gravity of the offending included an assessment of the role played by the offender rather than the quantity of drugs imported alone.¹ The Judge adopted a 12 and a half year starting point for both offenders.

[8] In respect of mitigating factors, the Judge refused to give a discount for the fact that Mr Fatafehi was not a New Zealand citizen. Mr Fatafehi lives in Tonga with his wife and two children. The pre-sentence report records Mr Fatafehi as saying that he offended because he needed money to fund his son’s medical operation. Mr Fatafehi’s son has cerebral palsy, epilepsy and microcephaly. In refusing to give a discount for the fact that Mr Fatafehi was not a New Zealand citizen, the Judge noted the need to deter drug offending and the fact that Mr Fatafehi had specifically chosen to transport drugs to New Zealand.

[9] The sentencing notes of the Judge record that both offenders had filed letters of apology which the Judge had considered and accepted. Numerous character references and other supporting and mitigating materials had also been filed. The Judge noted that there were some significant differences between the two offenders with regard to mitigating factors which led to a substantial difference in the discount given for personal mitigating factors. For Mr Fatafehi, a five per cent good character discount was allowed, with a further three months to reflect remorse and other mitigating factors.

[10] Finally, the Judge gave a 20 per cent discount for Mr Fatafehi’s early guilty plea. This resulted in an end sentence of nine years, three months’ imprisonment.

[11] The Judge considered that an MPI was justified given the need for denunciation and deterrence and imposed a four year MPI. This represented approximately 43 per cent of the end sentence imposed.

[12] The sentence follows the sentence indication with the only difference being the guilty plea discount and discount for remorse. In the sentencing indication, the

¹ R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

Judge had indicated that a minimum period of imprisonment of 50 per cent would be appropriate.

[13] The courier involved in both the January and March offending was also sentenced in the District Court. The Judge adopted a starting point of 11 years’ imprisonment recognising her lesser culpability in the overall offending.

Approach on appeal

[14] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[15] In any other case, the Court must dismiss the appeal.² An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.³

[16] The Court of Appeal has also held that despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.⁴ Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the sentence is reached.⁵

Starting point

[17] Mr Corby, on behalf of Mr Fatafehi, submits that the 12 and a half year starting point was too high and a starting point of 10 years for the importation from

_{the United States, with a one year uplift for the importation from Tonga would have}

² _{Criminal Procedure Act 2011, s 250(3).}

³ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]}

⁴ _{At [33] and [35].}

⁵ Ripia v R [2011] NZCA 101 at [15].

been more appropriate. He submits that the amount of methamphetamine imported from Tonga is not properly established and that a differentiation should be drawn between the different roles played by Mr Fatafehi and the fourth offender in setting a starting point.

[18] Mr Fatafehi refers to the case of R v Slipkus in which a starting point of 12 years and six months was adopted.⁶ The defendant and co-defendant had imported a total of 872.6 grams of methamphetamine. Lang J noted that had he been sentencing the offenders individually, he would have adopted a 12 year starting point, but as they had provided each other with mutual assistance and support to bring in a larger amount of methamphetamine, 12 years six months was an appropriate starting point.⁷

[19] The Court of Appeal has set out four sentencing bands for cases of importation of methamphetamine in R v Fatu.⁸ As the Court of Appeal noted in that case, where an offender fits within any particular band depends not just on the quantity and purity of the drugs involved, but also the role played by the offender. The more significant the offender’s role in any importation, the closer the appropriate sentence will be to the top end of the relevant band.⁹

[20] In my view, the starting point adopted of 12 years, six months was within range. The Judge had regard to the total amount of methamphetamine being brought in, and the role played by Mr Fatafehi in determining that the offending fell within the margins of bands three and four. The description of the roles that each offender played in the offending was set out in the summary of facts. Whilst each played a different role, the distinction now drawn by counsel for Mr Fatafehi is not apparent from the description in that summary of facts. I note that the summary of facts formed the basis upon which the sentencing indication was given, and accepted, by Mr Fatafehi. The same starting point was adopted in that sentencing indication. I do not consider the Judge erred in assessing the culpability of the role that Mr Fatafehi

_{and the fourth offender played as being the same in all the circumstances.}

⁶ _{R v Slipkus HC Auckland CRI-2010-004-19597, 1 March 2011.}

⁷ In written submissions counsel for the appellant referred to Asadpour v R [2013] NZCA 348.

That case concerned an appeal from conviction and does not contain observations about the appropriate starting point adopted for the purposes of sentencing.

⁸ _{R v Fatu, above n 1, at [36].}

⁹ At [31] and [36].

[21] I do not consider the starting points adopted to be inconsistent with R v Slipkus. Both defendants in that case were couriers. The courier role is regarded as less culpable than that of importer or manufacturer, and is less culpable than the role of overseer or minder played by Mr Fatafehi in this case. The courier role would have justified a lower starting point being adopted in R v Slipkus, but the amounts involved and the fact that both men participated in a joint enterprise, resulted in the

12 year, six month starting point adopted for each defendant. I do not consider there is anything in R v Slipkus which indicates that the adoption of the same starting point for Mr Fatafehi was in error.

[22] I do not place any weight on the submission that there was some uncertainty about the amounts imported during the first importation. Mr Fatafehi pleaded guilty to a summary of facts which set out the amount imported. He accepted a sentence indication given on the basis of that summary of facts. No adjustment is required to the sentence to reflect the alleged uncertainty.

[23] Overall I am not persuaded that the starting point chosen by the Judge was excessive or outside the appropriate range.

Discount for personal mitigating factors

[24] Mr Fatafehi challenges the discount given for his personal mitigating factors. He says further discount should be given for the fact that his wife and two children live in Tonga, and the older boy suffers from significant health issues. The focus of Mr Corby’s oral submissions was on the discount for the family situation as opposed to the fact that Mr Fatafehi would be serving his sentence in a foreign prison.

[25] As counsel for Mr Fatafehi appropriately acknowledges, the Court has long recognised that personal factors carry little weight in fixing a sentence for those convicted of dealing commercially in controlled drugs.¹⁰ In Olua v R, the Court of

_{Appeal considered that a five per cent discount for a previous clear record, and the}

¹⁰ R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

fact that the offender was not a New Zealander, was appropriate given that longstanding approach.¹¹

[26] The Judge allowed a five per cent discount for good character in this case, and a further three months discount for remorse and other mitigating factors. Whilst a higher discount could have been afforded, in light of the very clear authority that personal circumstances are subordinated to the need for deterrence,¹² I do not consider there to be any basis upon which to interfere with the discount given for Mr Fatafehi’s family circumstances.

Guilty plea

[27] The Judge imposed a 20 per cent discount for the guilty plea. Mr Fatafehi appeals on the grounds that a full discount of 25 per cent should have been granted.

[28] I am not persuaded that the 20 per cent discount for the guilty plea was inappropriate. The guilty plea was only entered after a sentence indication was requested at a case review hearing, and subsequently accepted. It was not therefore entered at the first available opportunity. The evidence against Mr Fatafehi was relatively strong. In those circumstances the Judge was entitled to give a discount for something less than the full amount of the discount for a guilty plea.

Minimum period of imprisonment

[29] Section 86 of the Sentencing Act 2002 provides that a sentencing judge may impose a minimum period of imprisonment if the usual minimum non-parole period of one-third of the determinate sentence would not be sufficient to achieve any or all of the purposes of accountability, denunciation, deterrence and protection of the community.

[30] I consider that the imposition of the MPI in this case was consistent with

Court of Appeal authority that in cases of very serious drug offending, while the

_{court’s discretion is never fettered, the criteria in s 86 will almost invariably be made}

¹¹ _{Olua v R [2014] NZCA 105 at [65].}

¹² R v Jarden, above n 10, cited in R v Wong [2009] NZCA 332 at [17].

out.¹³ I consider the Judge was entitled to consider that the MPI was necessary for the purposes of denunciation and deterrence. I also note that the MPI imposed was less than that indicated and accepted by Mr Fatafehi in the sentencing indication.

End sentence

[31] Overall, I am not persuaded that the end sentence was manifestly excessive, or contained a material error requiring this Court to impose a different sentence.

Result

_{[32] The appeal is dismissed.}

_{Edwards J}

¹³ R v Wong, above n 12, at [21].