FANGUPO v R [2020] NZCA 484

FANGUPO v R [2020] NZCA 484 [14 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA151/2020[2020] NZCA 484BETWEEN TEVITA MATANGI FANGUPOAppellantAND THE QUEENRespondentHearing: 29 September 2020Court: Collins, Mallon and Ellis JJCounsel: T M Cooper and C G Farquhar for AppellantB D Tantrum and J V Barry for RespondentJudgment: 14 October 2020 at 11.00 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed.C The sentence of 17 years' imprisonment imposed in the High Court isquashed and substituted with a sentence of 14 years and five months'imprisonment.D The order for a minimum period of imprisonment of 50 per cent imposedby the High Court is quashed and substituted with a minimum period ofimprisonment of 40 per cent.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 7 November 2019, Mr Fangupo was sentenced to 17 years' imprisonmentby Downs J, following a trial in which Mr Fangupo was convicted of eight charges ofimporting slightly over 20 kilograms of methamphetamine.1 Mr Fangupo was alsosentenced to shorter concurrent terms of imprisonment in relation to convictions forattempting and conspiring to import methamphetamine, one charge of importingcocaine and one charge of possessing a firearm. He pleaded guilty to the firearmsoffence at the beginning of the trial.[2] Mr Fangupo appeals his sentence of 17 years' imprisonment and an order thathe serve a minimum period of imprisonment (MPI) of eight and a half years before heis considered eligible for parole.[3] The essence of Mr Fangupo's appeal is that the 19-year starting point adoptedby Downs J in relation to the methamphetamine importing convictions was excessive,and that the Judge failed to make appropriate deductions to reflect Mr Fangupo'spersonal circumstances. It is contended these errors led to a manifestly excessivesentence.[4] Mr Fangupo's appeal was filed approximately three months out of time.The Crown acknowledges no prejudice has arisen as a result of this delay andthe application for an extension of time is not opposed. We therefore grant theapplication to extend time for filing the appeal.Sentencing decision[5] Mr Fangupo was tried with Messrs Kulu, Finau and Ikuia. All four defendantswere sentenced together. Some of the Judge's findings in relation to Mr Kulu alsoapplied to Mr Fangupo and vice versa.1 R v Fangupo [2019] NZHC 2896 [Sentencing notes].[6] Based on the evidence he observed during the five-week trial, Downs J wassatisfied Mr Fangupo and Mr Kulu had "complementary, leading roles"2 in a criminalorganisation that set out to import large quantities of methamphetamine intoNew Zealand from California. Mr Finau and Mr Ikuia played lesser roles in theenterprise.[7] Downs J was satisfied Mr Kulu, who had been deported from the United Statesto New Zealand, used his contacts in California to arrange the importation ofmethamphetamine from California to New Zealand. Mr Fangupo arranged addressesin Auckland to where the methamphetamine was to be sent between June 2017 andJanuary 2018.[8] Mr Fangupo's role was said by the Judge to be equal to that of Mr Kulu for thefollowing reasons:(a) Mr Fangupo must have received "a lot of money" from the enterprise.3(b) A rudimentary business plan written by Mr Fangupo showed he andMr Kulu were to share equally in the profits from the venture.(c) Mr Fangupo wrote instructions as to how methamphetamine was to bepackaged before it was sent to New Zealand.(d) Mr Fangupo made a trip to California, taking with him $40,000 whichwas paid to the Californian methamphetamine suppliers.We will examine each of these matters later in this judgment.[9] The Judge also reached conclusions from the evidence about the amount ofmethamphetamine that was involved in Mr Fangupo's offending.[10] Five packages were intercepted by New Zealand Customs and two packageswere intercepted by officials in the United States. Those packages contained close to2 At [16].3 At [19].19 kilograms of methamphetamine. Four packages were not able to be intercepted.Downs J was satisfied from communications between the defendants about thosepackages and other evidence that the packages that were received contained "severalkilograms of methamphetamine".4[11] The Judge found Mr Kulu was convicted of importing more than 20 kilogramsof methamphetamine, while Mr Fangupo was convicted of importing approximately20 kilograms of methamphetamine, a quantity which was described as being slightlyless than the amount involved in Mr Kulu's offending.[12] By comparison, Mr Finau was convicted of helping to import 5.1 kilograms ofmethamphetamine, while Mr Ikuia helped to import 449 grams of methamphetamine.Mr Fangupo paid Mr Ikuia $5,000 for his role in that offending. Downs J describedMr Ikuia as being "nothing more than a pawn", and that Mr Finau was "out of [his]depth" in the enterprise and that their roles were nowhere near as significant as thoseof Mr Fangupo and Mr Kulu.5[13] Downs J adopted a starting point of 20 years' imprisonment for Mr Kulu and19 years' imprisonment for Mr Fangupo. The difference reflected the fact Mr Fangupowas convicted of one less importation charge than Mr Kulu. Nevertheless, Downs Jemphasised Mr Fangupo was "clearly an equal partner at the top of [the] enterprise".6The starting point for Mr Finau was eight years' imprisonment, while the starting pointfor Mr Ikuia was set at five years' imprisonment.[14] The starting points for all four defendants were based upon the Judge'sapplication of this Court's sentencing guideline judgment in Zhang v R7 and, inthe cases of Mr Fangupo and Mr Kulu, the starting points also reflected their leadingroles in the enterprise, the large amounts of methamphetamine they imported andthe Judge's assessment that they were motivated by a desire to make significant sumsof money.4 At [4].5 At [22] and [23].6 At [29].7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.[15] No uplifts were applied to either Mr Fangupo or Mr Kulu to reflect theircocaine and firearms offending.[16] When assessing deductions for Mr Fangupo's personal circumstances,the Judge noted:(a) Mr Fangupo was 26 years old at the time of his sentencing.His previous convictions comprised three driving offences.(b) Mr Fangupo is married and has stepchildren. He presented positivereferences from the community and had significant support from hischurch.(c) Mr Fangupo maintained he was not motivated by money. The Judge,however, rejected this proposition.[17] Downs J provided Mr Fangupo with a 10 per cent reduction to reflect his"prospect of rehabilitation".8 This was the only deduction made in respect ofMr Fangupo's personal circumstances.[18] When imposing MPIs of 50 per cent on the sentences handed down to bothMr Fangupo and Mr Kulu, Downs J said:9You both made a lot of money, albeit how much is unknown. You were bothmotivated by profit. You were the leading figures in this operation. In short,this was yours. Parole eligibility after only one-third of your respectivesentences would send quite the wrong message. I impose minimum periodsof 50 percent. Thereafter, parole eligibility is better left to the Parole Board.Summary of submissions[19] Mrs Cooper, senior counsel for Mr Fangupo in this Court, submitted Downs Jerred in the following ways when setting the starting point of 19 years' imprisonment:8 Sentencing notes, above n 1, at [41].9 At [49] (emphasis in original).(a) By failing to properly differentiate between the roles of Mr Kulu andMr Fangupo. Mrs Cooper submitted that a "careful and properassessment of the trial evidence" demonstrates Mr Fangupo was notequal to Mr Kulu, but sat below him in the hierarchy of offenders.(b) By failing to properly understand that Mr Fangupo's role was on thecusp of being "significant" and "leading" as those categories arereferred to in Zhang. We will describe these categories later in thisjudgment.[20] Mrs Cooper submitted that based on authorities decided under Zhang, theappropriate starting point for Mr Fangupo would have been in the region of 16 to 17years' imprisonment.[21] It was also contended on behalf of Mr Fangupo that Downs J erred whenassessing what discount should be applied in Mr Fangupo's circumstances and that hewas entitled to a 15 per cent credit to recognise his previous good character as well ashis prospects of rehabilitation.[22] Mrs Cooper submitted that in light of this Court's judgment in Zhang, the needfor an MPI was questionable and that in any event we should revisit the term of theMPI.[23] Mr Tantrum, senior counsel for the Crown, submitted:(a) The assessment of Downs J that Mr Fangupo played a leading role andwas at the top of the enterprise was "entirely appropriate and naturallyfollowed from the evidence at trial".(b) The starting point adopted by the Judge was well within the range thatwas available and could easily have been higher.(c) Mr Fangupo's three previous convictions weigh against him receivinga discount for previous good conduct. Even more significantly,Mr Fangupo's drug offending occurred whilst he was on trial in theHigh Court in relation to a charge of kidnapping, for which he wasacquitted.(d) The MPI of 50 per cent was entirely appropriate in the circumstancesof this case.The starting point[24] Mr Fangupo's challenge to the 19-year starting point may be distilled totwo grounds:(a) the finding Mr Fangupo played a complementary leading role in theenterprise was incorrect; and(b) the Judge's conclusion that, a starting point of 19 years was consistentwith the Zhang guidelines was also incorrect.Mr Fangupo's role[25] The factual findings that underpinned the conclusion Mr Fangupo played acomplementary leading role in the enterprise are challenged in the following ways byMrs Cooper.[26] First, Mrs Cooper submitted that Downs J failed to give sufficient weight towhat she submitted were clear differences in rewards from the enterprise received byMr Kulu when compared with Mr Fangupo.[27] The Judge noted that when Mr Kulu was arrested, $215,000 was found in hisapartment. Photographs on Mr Kulu's cellphone showed Mr Kulu with bundles ofcash and in one conversation he said he never dreamed of having so much money. MrFangupo on the other hand, lived a modest lifestyle and showed no outward signs ofhaving received significant amounts of financial reward from the enterprise.[28] Second, Mrs Cooper submitted Downs J placed too much reliance on a notewritten by Mr Fangupo that was found screwed up in the inside of one of his shoes.The note appears to have been a very rudimentary business plan that was partiallyaspirational and possibly designed to motivate Mr Fangupo. The note referred tosignificant quantities of methamphetamine being imported (16 kilograms every20 days) with Mr Kulu and Mr Fangupo each receiving $12,960,000 by the end of theyear. The note also reminded Mr Fangupo to, amongst other things, be "grounded","humble" and never "forget to thank God".[29] There was no suggestion Mr Fangupo and Mr Kulu made anything like theamounts recorded in Mr Fangupo's note.[30] Third, Mrs Cooper submitted the Judge placed too much emphasis on"packaging instructions" written by Mr Fangupo. Mrs Cooper accepted theinstructions probably related to a plan to import approximately 20 kilograms ofmethamphetamine. She submitted however that the packaging instructions did notdemonstrate Mr Fangupo played a leading role in the enterprise.[31] Fourth, Mrs Cooper said the Judge placed too much emphasis on Mr Fangupo'strip to the United States. She said that text communications from Mr Kulu aboutMr Fangupo's trip showed Mr Kulu paid for the trip and that Mr Fangupo was simplya "exuberant" employee on a "first-time business trip".[32] In addition to misconstruing the significance of the four factual matters wehave set out above, Mrs Cooper submitted the Judge failed to properly considercommunications between Mr Fangupo and associates about his inability to exertinfluence over Mr Kulu.[33] In reviewing the Judge's factual findings, we are very mindful that he had theadvantage of observing five weeks of evidence and that this placed him in an idealposition to assess the relative roles of all defendants.[34] We respond to the factual matters raised by Mrs Cooper in the following ways:(a) We accept authorities found no evidence of Mr Fangupo living a lavishlifestyle. Mr Kulu, on the other hand, was wont to display hisnew-found wealth. Mr Kulu's brash attitude to money was a source ofconcern to Mr Fangupo, who urged him not to be so outwardlyextravagant in case his conduct attracted the attention of authorities.Mr Fangupo's cautious approach to money can be compared toMr Kulu's cavalier attitude. Their differences in approach does not, initself, mean however, that they occupied different rungs in theenterprise.(b) Downs J said the note found in Mr Fangupo's shoe revealed him to bea "dreamer" and "even a fantasist".10 The calculations in that note boreno resemblance to reality. What is revealing, however, is that thecalculations show the profits from the enterprise were to be sharedequally between Mr Kulu and Mr Fangupo. This in itself suggests theequal status of Mr Fangupo and Mr Kulu in the venture.(c) The packaging instructions written by Mr Fangupo are part of aconsistent pattern of evidence that Mr Fangupo played a leading role inthe enterprise.(d) Mr Fangupo's trip to California and the fact he took a large sum ofmoney to pay the Californian suppliers is further evidence of his verysenior status in the enterprise.[35] We have examined the communications relied upon by Mrs Cooper to supportthe argument that Mr Kulu played a more dominant role in the venture thanMr Fangupo. We are unable to agree, however, with her submission on this point.All the communications show was that Mr Fangupo was having difficulty controllingMr Kulu because of his cavalier attitude towards money. The conversations do notundermine the proposition that Mr Fangupo and Mr Kulu played "complementaryleading roles" in the enterprise.[36] We are therefore satisfied that the Judge was entitled to conclude there waslittle material difference between the roles played in the enterprise by Mr Kulu andMr Fangupo.10 Sentencing notes, above n 1, at [19].Application of Zhang[37] The sentencing of Mr Fangupo and his co-defendants was one of the first tooccur following the delivery of this Court's judgment in Zhang, a point alluded to byDowns J when he said, "[t]hese are the early days of the recalibrated sentencing regimefor methamphetamine. A conservative approach is warranted".11[38] Zhang introduced a new band for the most serious category ofmethamphetamine offending. Band five, which is reserved for offending that involvestwo kilograms of methamphetamine or more, provides a wide guideline starting pointof between 10 years to life imprisonment.12[39] The role of the defendant is a critical factor in setting the appropriate startingpoint. The Zhang judgment identifies three role categories namely, "lesser","significant" and "leading". The Court explained:13First (and attracting a more substantial scale) there is the "leading role". Thisapplies where the offender is directing or organising buying and selling on acommercial scale and/or is closely connected to product source and/or has anexpectation of substantial financial gain. The second is the "significant role".That is where the offender has an operational or management function withina chain, has subordinates (who may have been recruited or intimidated by theoffender) and/or is motivated by financial or other advantage. The third tieris the "lesser role". Here the offender will probably have performed a limitedfunction under direction and/or may have been engaged by duress, naivety orother vulnerability.[40] This Court declined to adopt the structured guideline for assessing adefendant's role that is a characteristic of the United Kingdom sentencing guideline.The Court did, however, set out part of the United Kingdom guideline in order toprovide some indication to New Zealand courts of the factors that may assist indetermining the role of a defendant:1411 At [27].12 Zhang v R, above n 7, at [125].13 At [115].14 At [126].RoleLesser Significant Leading1. Performs a limitedfunction under direction;2. engaged by pressure,coercion, intimidation;3. involvement throughnaivety or exploitation;4. motivated solely orprimarily by ownaddiction;5. little or no actual orexpected financial gain;6. paid in drugs to feedown addiction or cashsignificantlydisproportionate toquantity of drugs orrisks involved;7. no influence on thoseabove in a chain;8. little, if any, awarenessor understanding of thescale of operation;and/or9. if own operation, solelyor primarily for own orjoint use onnon-commercial basis.1. Operational ormanagement function inown operation or withina chain;2. involves and/or directsothers in the operationwhether by pressure,influence, intimidationor reward;3. motivated solely orprimarily by financial orother advantage, whetheror not operating alone;4. actual or expectedcommercial profit;and/or5. some awareness andunderstanding of scale ofoperation.1. Directing or organisingbuying and selling on acommercial scale;2. substantial links to, andinfluence on, others in achain;3. close links to originalsource;4. expectation ofsubstantial financial gain;5. uses business as cover;and/or6. abuses a position of trustor responsibility.[41] There is no doubt Mr Fangupo's offending placed him in band five of Zhangand that, despite Mrs Cooper's submissions to the contrary, Downs J was entitled toconclude he played a leading role in the enterprise. We have reached this conclusionbased on the following considerations:(a) Mr Fangupo was directly involved in buying methamphetamine fromthe United States on a commercial scale.(b) He had substantial links to, and influence on, others in the enterprise.(c) He became closely connected to the suppliers in California.(d) He had an expectation of a substantial financial gain.[42] On the basis of this analysis, we are satisfied that Mr Fangupo can be describedas having played a moderately leading role in the enterprise.[43] In assessing the appropriate starting point for Mr Fangupo within band five ofZhang, we have had the advantage of considering a number of other cases decided bythis Court since Zhang was delivered. Downs J did not have this luxury.[44] In drawing comparisons with other cases, we are very mindful of the fact thatcases are rarely identical, and that only broad comparisons can be usefully drawn.Nevertheless, the decisions in the following cases provide useful guidance indetermining the appropriate starting point for Mr Fangupo.Zhang v R[45] Mr Zhang was one of six appeals considered by this Court in Zhang. He wassentenced for having imported 17.9 kilograms of methamphetamine. This Courtassessed Mr Zhang as being at the "lower end of significant" under the Zhangguidelines.15 The Court held that the appropriate starting point for the amount ofmethamphetamine involved in Mr Zhang's offending and his role in the operation was15 years' imprisonment. A 50 per cent MPI was applied to Mr Zhang because heknowingly participated in a substantial, commercial drug operation.Pai v R[46] Mr Pai was convicted of importing 22.6 kilograms of methamphetamine andpossession for supply of the same importation. This Court assessed his role as alsobeing at the "lower end" of significant and adopted a starting point of 15 years'imprisonment.16 A 50 per cent MPI was also imposed for similar reasons to those thatwere applied in Zhang.Wan v R[47] Mr Wan was convicted of importing 19.1 kilograms of methamphetamine. Hewas also placed in the "lower end" of the significant category in Zhang.17 A 15-yearstarting point was also adopted. No MPI was imposed.15 At [257].16 Pai v R [2020] NZCA 146 at [52] and [56].17 Wan v R [2020] NZCA 328 at [21]–[22].Berkland v R[48] Mr Berkland was involved in supplying at least 15 kilograms ofmethamphetamine over a six-month period. He was the trusted deputy to the head ofthe enterprise. This Court assessed Mr Berkland's role as being at the "upper end of[the] significant" category in Zhang.18 The 16 and a half year starting point adoptedby the High Court for Mr Berkland was held to be within the appropriate range.[49] When we compare Mr Fangupo's position with the defendants in the cases wehave just summarised, it becomes apparent that the 19-year starting point adopted byDowns J was significantly higher than in other cases that this Court has consideredsince Zhang was decided.[50] Applying Zhang in light of the decisions of this Court that we have referred toleads us to the conclusion that a starting point of 17 years' imprisonment was themaximum that was warranted in Mr Fangupo's circumstances. That is the startingpoint we will apply when reviewing Mr Fangupo's sentence.Previous good character[51] Section 9(2)(g) of the Sentencing Act 2002 requires a sentencing Judge to takeinto account, to the extent that it is applicable, "any evidence of the offender's goodcharacter".[52] As we have noted at [17], Downs J gave Mr Fangupo a 10 per cent discount toreflect his good prospects for rehabilitation. The Judge was not, however, persuadedto give Mr Fangupo any discount for his previous good character, observing that suchdiscounts are usually reserved for "older offenders".19[53] Six references for Mr Fangupo were presented to Downs J. Those referencesincluded letters from leaders of Mr Fangupo's church, his former employer, a teacherwho knew Mr Fangupo when he was at Māngere College and a letter fromMr Fangupo's brother. The letters all portray a young man who, prior to the offending,18 Berkland v R [2020] NZCA 150 at [56].19 Sentencing notes, above n 1, at [39].displayed admirable attributes. For example, he was described by one church leaderas being "a humble and kind individual", qualities which were consistently referred toin all of the references.[54] Some support for these references can be found in the pre-sentence report,which said Mr Fangupo did not appear to be an "overtly pro-criminal individual".[55] We do not accept the notion that discounts for previous good character areusually reserved for older offenders. By the time a young man reaches his mid-twenties he is likely to have shown clear indications of his character. Most men whocommit criminal offences start to do so before they reach the age that Mr Fangupo waswhen he was sentenced.[56] Mr Fangupo's three previous convictions were all for driving offencescommitted in mid-2012 when he was 19 years of age. We do not think thoseconvictions should count against him in setting the appropriate sentence in this case.[57] The Crown advised Mr Fangupo's offending occurred whilst he was on trial inthe High Court on a serious charge. Mr Fangupo was, however, not convicted of thatcharge. We do not agree with Mr Tantrum's submission that an unproven chargecounts against Mr Fangupo.[58] This is a case in which it was appropriate for the sentencing Judge to haveregard to s 9(2)(g) of the Sentencing Act. That would have been achieved by providingMr Fangupo with a modest deduction in his sentence to reflect his previous goodcharacter. We will now do so by deducting 15 per cent from the starting point to reflectboth Mr Fangupo's prospects of rehabilitation and his previous good character.[59] There are no other personal mitigating factors engaged in this case.Minimum period of imprisonment[60] We have very carefully considered whether or not an MPI was warranted inthis case, and if so what the term of any MPI should be.[61] There is no doubt Mr Fangupo engaged in serious drug offending and that hewas motivated by a desire to make significant sums of money. It is therefore necessaryto decide if the normal parole eligibility period is insufficient, having regard to thefollowing objectives specified in s 86(2) of the Sentencing Act:(a) holding Mr Fangupo accountable for the harm done to the communityby his offending;(b) denouncing his conduct;(c) deterring him and others from similar offending; and(d) protecting the community from Mr Fangupo.[62] The three factors that weigh in favour of the imposition of an MPI are:(a) the need to hold Mr Fangupo accountable for the very serious harminflicted upon the community by those who import methamphetamineinto New Zealand;(b) the need to denounce his conduct; and(c) the need to deter others from similar offending.[63] Weighing against the need for an MPI are Mr Fangupo's good prospects forrehabilitation and his comparatively young age.[64] After weighing these factors, we are satisfied Downs J was correct to imposean MPI. We do not, however, accept that the MPI needs to be set at 50 per cent inorder to achieve the objectives of s 86 of the Sentencing Act. Mr Fangupo's age andhis good prospects for rehabilitation lead us to conclude that an MPI of 40 per cent ofthe end sentence will adequately meet the purposes of s 86 of the Sentencing Act.Result[65] The application for an extension of time to appeal is granted.[66] The appeal against sentence is allowed.[67] The sentence of 17 years' imprisonment imposed in the High Court is quashedand substituted with a sentence of 14 years and five months' imprisonment.[68] The order for an MPI of 50 per cent imposed by the High Court is quashed andsubstituted with an MPI of 40 per cent.Solicitors:Crown Solicitor, Auckland for Respondent