Fakaongo v The King
[2024] NZHC 3676
•5 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000493
[2024] NZHC 3676
BETWEEN ALFRED BANGLES FAKAONGO
Appellant
AND
THE KING
Respondent
CRI-2024-404-000494
BETWEEN
SAMSON WESLEY VEAMATAHAU
AppellantAND
THE KING
Respondent
Hearing: 12 November 2024 Counsel:
RM Mansfield KC for Appellants JE Bragg and A Lin for Respondent
Judgment:
5 December 2024
JUDGMENT OF DOWNS J
This judgment was delivered by me on Thursday, 5 December 2024 at 10 am.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Manukau. RM Mansfield KC, Auckland.
FAKAONGO v R [2024] NZHC 3676 [5 December 2024]
The appeals
[1] The appellants were baggage handlers at Auckland International Airport. On 13 November 2022, they attempted to collect a backpack from another airline. An Air New Zealand employee thought they were behaving suspiciously and took the bag to Customs. It contained 4.6 kilograms of methamphetamine. Alfred Fakaongo, one of the appellants, had earlier sold approximately 10 grams of methamphetamine (over four occasions) and offered to supply that drug at least twice.
[2] The appellants ultimately pleaded guilty to a single charge of attempting to possess a Class A controlled drug for supply; Mr Fakaongo’s earlier drug-dealing stayed in the agreed summary of facts. Judge Andrée Wiltens sentenced Mr Fakaongo to a term of three years and three months’ imprisonment, and Samson Veamatahau to a term of two years and nine months’ imprisonment. The appellants appeal these sentences.
[3] An appeal in this context must be allowed if there is an error in the sentence and a different sentence should be imposed.1 The ultimate concern is whether the sentence is manifestly excessive.2
The offending
[4]The offending is captured by the (agreed) summary:
Between 30 June 2022 and 13 November 2022, Mr Fakaongo offered to supply and sold methamphetamine to a number of individuals in various amounts.
In total Mr Fakaongo sold around 10 grams of methamphetamine over at least four occasions and offered to supply methamphetamine on at least two further occasions.
…
When interviewed after he was arrested, Mr Fakaongo stated that he met with a third party at a cafe around a month earlier and he was offered cash to be involved in something illegal at the airport.
…
1 Criminal Procedure Act 2011, s 250(2).
2 Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
On 10 November 2022, the day before the importation, Mr Fakaongo sent and received the following messages:
Fakaongo
“Ballbags”
11:57:09 pm
I work at airport g lol
Fakaongo
“Ballbags”
11:57:15 pm
I do baggage’s and that
Fakaongo
“Ballbags”
11:57:22 pm
And some import of my own [eyes emoji]
[crying/laughing face emoji]
“Ballbags”
Fakaongo
11:57:44 pm
Oussshhhh what airline?
“Ballbags”
Fakaongo
11:57:48 pm
Air nz?
Fakaongo
“Ballbags”
11:57:55 pm
And all the other stuff
Fakaongo
“Ballbags”
11:58:20 pm
Responding to the message “Air nz?”
Emirates Singapore Malaysia Qatar Qantas Air Asia Cathay Pacific
On 11 November 2022, flight NZ5 arrived into New Zealand at Auckland International Airport from Los Angeles. On board this flight were approximately 271 passengers along with their associated luggage and an assortment of other cargo. Included within this cargo was a red and grey coloured Adidas backpack (the backpack) that was later found to contain
4.6 kilograms of methamphetamine. It is not known who placed the backpack on the plane.
On 13 November 2022, another international flight had been cancelled at Auckland Airport so there were a lot of bags waiting to be claimed by passengers. The backpack was placed amongst these bags, near the baggage tracing unit (BTU).
At around 12.30 pm, the defendants arrived at the Auckland International Airport staff carpark. Both defendants were rostered to work at the terminal that day.
Between 4.13 pm and 4.21 pm on 13 November 2022, both defendants walked a number of times past the area where the unclaimed bags (including the backpack) had been placed. Both defendants approached an on-duty Air New Zealand employee and offered to help shift the bags, which was unusual as the unclaimed bags were being dealt with by Air New Zealand and not Menzies Aviation.
Mr Veamatahau moved the backpack away from the main pile of bags to the side of a cart. Mr Fakaongo stood in front of the service entry doors while Mr Veamatahau knelt by the bag and appeared to be inspecting the bag and placing a label on it before he was confronted by an Air New Zealand employee.
Mr Veamatahau told the Air New Zealand employee that he was looking for a bag similar to the backpack; the Air New Zealand employee became suspicious and secured the backpack away from the defendants and referred it to Customs. The defendants left the area but remained at the airport.
At around 5.06 pm, Customs officers examined the backpack and located 10 vacuum-sealed packages which each contained a white crystal substance later identified as methamphetamine. A total of approximately 4.6 kilograms of methamphetamine was located in the backpack.
…
On 17 November 2022 at 2.05 am, Mr Veamatahau messaged Mr Fakaongo: “keep your head on a swivel dox make sure no one’s following, be safe x text if you need”.
On 18 November 2022, Mr Fakaongo was arrested and participated in a DVD interview in which he stated:
(a)Around a month before his arrest, a friend set up a meeting with him and a third party who was “doing something illegal at the airport”. The third party offered him cash to be involved but he told the third party he did not want to be involved.
(b)He was messaged on lnstagram and he agreed to receive a bag that was being taken off an Air New Zealand flight.
(c)On 11 November 2022 (the day the bag arrived into New Zealand) he was sent messages asking him to get the bag. On 12 November 2022, he said no when he was asked again to get the bag. On 13 November 2022, Mr Fakaongo was sent photographs of the bag, told to pick it up and was sent threatening messages.
(d)Mr Fakaongo accepted that he attempted to uplift the bag before being stopped by Air New Zealand staff. He stated that he did so to keep his family safe. He stated he knew drugs were involved but he was told that it was only two kilograms.
Mr Veamatahau was arrested at his address on 18 November 2022 and agreed to participate in a DVD interview. He stated he thought he had lost his backpack and, when he saw the backpack in the baggage hall, he looked inside because he thought it was his.
Sentencing
[5] Both appellants filed affidavits in advance of sentencing.
[6] The Judge adopted a five-year starting point for Mr Fakaongo and a four-year starting point for Mr Veamatahau. The Judge explained the distinction:3
3 R v Veamatahau [2024] NZDC 19436.
[7] … The difference is because Mr Fakaongo was the first person approached who agreed and that arose I think because of his earlier involvement with methamphetamine where he was supplying small amounts of methamphetamine to others in the community for profit. Then he was approached and he agreed to take part in this escapade. He then got cold feet, sense finally dawned that perhaps he should not be doing this and he was obviously nervous when the bag arrived in New Zealand and that nervousness shone through for Mr Veamatahau and matters were then explained, what was going on and Mr Veamatahau decided to try and help. Goodness only knows why. The sensible thing would be to keep well away and the suggestion from Mr Mansfield that somehow your employers are to blame for this, they are not training you to not break the law, I do not accept that. Both of you should have said no immediately individually and this matter would not have arisen.
[8] But Mr Veamatahau was not involved in the initial stages. He only became involved because he believed what he was told, namely that his friend was being threatened and his family was going to get into difficulty should he not cooperate. But then he took the bull by the horns and actually went to get the bag while Mr Fakaongo stood as a guard to make sure that he was not apprehended and an Air New Zealand employee got involved and fortunately the whole matter came to an end at that point in time and the bag was then given to Customs and identified for what it was.
[9] So Mr Veamatahau, your role is less than that of Mr Fakaongo, that is why you get a slightly lesser start point.
[7] The Judge deducted 15 percent for the appellants’ guilty pleas. He gave discounts for age and prospect of rehabilitation: Mr Fakaongo, who was 19, received a 15 percent discount; Mr Veamatahau, who was 23, received a 7.5 percent discount. For personal circumstances, the Judge deducted a further five percent in relation to Mr Fakaongo, and a further 7.5 percent in relation to Mr Veamatahau.
[8] As observed, this resulted in a sentence of three years and three months’ imprisonment for Mr Fakaongo, and a sentence of two years and nine months’ imprisonment for Mr Veamatahau.
The competing cases
[9] The appellants do not contest their starting points, which Mr Mansfield KC described at the hearing as “fair and possibly compassionate”. Rather, issue is taken with:
(a)The guilty-plea discount.
(b)The absence of a discount for remorse.
(c)The level of discount for personal circumstances.
(d)The impact of imprisonment on the appellants’ children.
[10] Mr Mansfield contends appropriate discounts would have meant notional sentences of not more than two years’ imprisonment, which in turn should have been commuted to sentences of home detention.
[11] On behalf of the Crown, Ms Bragg endorses the Judge’s approach with one significant caveat: Ms Bragg argues the starting points should have been much higher, hence the sentences are, if anything, lenient.
Analysis
Guilty-plea discount
[12] In Hessell v R,4 the Supreme Court held the level of discount for a guilty plea depends on a variety of considerations including, unsurprisingly, the timing of the plea, whether the defendant has benefitted from a plea arrangement, and the strength of the prosecution case. Consideration of “all the relevant circumstances will identify the extent of the true mitigatory effect of the plea”.5
[13] Mr Mansfield contends the appropriate reduction was 20 percent, not 15 percent, as the guilty pleas “came at a very early stage”. Mr Mansfield argues time was needed to consider the disclosure comprising the prosecution case. He observes both the Crown and District Court were informed 2 June 2023 — at the case review hearing — resolution was likely. The Crown had, only the day before, offered the plea arrangement ultimately accepted.
[14] Ms Bragg argues the discount was reasonable and could have been lower (say 10 percent). She notes the appellants were arrested 19 November 2022, and the
4 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
5 At [74].
Crown filed its charge notice 1 June 2023. The Crown offered the plea arrangement the same day, but guilty pleas were not entered until 26 October 2023. By then, a “standby” or “backup” trial was scheduled to commence 13 November 2023.
[15] Ms Bragg described the Crown case as “strong”. Closed-circuit television footage showed the appellants attempting to collect the backpack. Mr Fakaongo made admissions in his Police interview, including being aware the backpack contained drugs. Ms Bragg added:
And despite there being earlier indications of the possibility of resolution, Judge Andrée Wiltens was correct when he said that until the defendants actually pleaded guilty, the prosecution and the Court must assume that trial will proceed and allocate resources to this end.
[16] I consider the Judge was correct to confine the guilty plea discount to 15 percent for the reasons identified by Ms Bragg and two others. First, Mr Fakaongo significantly benefitted from the plea arrangement as charges of supplying and offering to supply methamphetamine were dropped, and a charge of importing methamphetamine amended to that of attempted possession for supply. Second, provision of inflated discounts for relatively late guilty pleas is unfair to those defendants who plead guilty at the first reasonable opportunity.
Remorse
[17] Section 9(f) of the Sentencing Act 2002 recognises remorse as a mitigating factor. In Hessell, which was mentioned earlier, the Supreme Court said:6
… Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.
[18] Each appellant wrote a letter of apology to the Judge, and each expressed remorse in the pre-sentence reports and cultural reports. Both appellants also
6 At [64].
expressed remorse in their affidavits. Against this background, Mr Mansfield contends the Judge should have mitigated the sentences for remorse.
[19]Ms Bragg emphasised remorse must be genuine, citing Boldt J in
Sasulu v Police:7
… It is easy to claim to be remorseful, but the Court must be satisfied expressions of remorse are genuine before credit is extended. Actions will generally speak louder than words. The appellant initially denied and minimised his offending, describing the assault as “just an argument”. Even when awaiting sentence, he denied the headbutt, despite having pleaded guilty to a charge arising from it. His remorse letter was brief, impersonal, and plainly written for the benefit of the sentencing Judge. As van Bohemen J noted in Woodlock v Police, “[l]etters of remorse are often written at sentence. Many are formulaic and do not indicate much personal engagement with the reality of the offending.”
[20] I acknowledge Judge Wiltens’ advantage in dealing with the appellants in person, a dimension that can assist in determining whether a claim of remorse is genuine, even though it can be difficult to capture in language why that is so. Despite this advantage, I am persuaded the appellants are remorseful and this should have been reflected with an orthodox deduction of five percent.
[21] I reach this conclusion in relation to Mr Fakaongo because, importantly, he largely admitted the offending to Police. Less importantly, Mr Fakaongo has been consistent thereafter in his expressions of remorse. Mr Veamatahau did not admit the offending to Police, but his affidavit displays an unusual combination: remorse and insight.
Personal circumstances
[22] Mr Mansfield contends the Judge should have given each appellant an additional 10 percent deduction for personal circumstances. As will be recalled, Mr Fakaongo received a five percent discount for his circumstances; Mr Veamatahau a 7.5 percent discount. Mr Mansfield contends:
Mr Fakaongo’s predisposition to this offending started when his family were struggling to make ends meet. The cultural report writer describes this as indicative of disenfranchisement in New Zealand. His desire for material gain
7 Sasulu v Police [2024] NZHC 1470 at [18] (footnotes omitted).
needs to be seen in the context of growing up where money was always scarce. Further Mr Fakaongo’s desire for material gain was exacerbated by his need to fuel his addiction to gambling. As the cultural report writer notes “as a Pasifika man, he was at a greater risk of developing problem gambling behaviours than any other ethnic group in New Zealand.”
Mr Fakaongo felt unable to go to his family for help because he felt guilty and ashamed that his own poor decisions for personal gain had led them to danger.
Mr Veamatahau’s decision making was impulsive and came from a way of “only wanting to help.” The cultural report writer summarised his involvement as follows:
Mr Veamatahau has lived a crime-free life and has always steered clear of dangerous situations and people. His decision-making on the day of his offending was extremely impulsive and came from a place of “only wanting to help”. Mr Veamatahau’s co-offender had told of his fears for his family’s safety and of his terror at what he was about to do to keep them safe. Mr Veamatahau, of Tongan descent, as was his co-offender, knew the family well and acted almost reflexively. This was the younger brother of his good friend. A misplaced sense of family responsibility and duty was evoked. This appears very cultural in context. ‘Anga fakatonga’ (the ‘Tongan way’) is grounded in the concept of “family first” and collective good. As the eldest male child in his family Mr Veamatahau had been indoctrinated into this ideology, with such values instilled in him from early childhood. This was his very way of being and when a friend’s family’s safety came into question he acted without thought and committed his crime.
Like Mr Veamatahau, Mr Fakaongo was of Tongan descent. Mr Veamatahu knew Mr Fakaongo’s family well and was close with his older brother. Important to him was the concept of Anga fakatonga — “The Tongan way” which is a concept grounded in family first and collective good. Mr Veamatahau had this ideology instilled in him from an early age. This was his very way of acting when his friend’s family came into question — he acted without thought to anything other than helping him. Clearly, it was such thinking that led to him agreeing to help Mr Fakaongo, regardless of the perilous situation it put him in.
[23] In Berkland v R,8 the Supreme Court held an offender’s background may mitigate a sentence if it contributed causatively to the offending. The Court emphasised the level of discount depends on a variety of considerations, including the strength of the causal connection, the nature and seriousness of the offending, the circumstances of the case, and considerations under the Sentencing Act, including, for example, the need for denunciation and deterrence.
8 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
[24] I consider the Judge was correct to find Mr Fakaongo’s background did not contribute causatively to the offending. Unlike many to come before the courts, Mr Fakaongo grew up in a loving, supportive, prosocial family who while not well off, could afford the necessities of life. Mr Fakaongo had a paid, part-time job when he was 17. Mr Fakaongo wanted more money. So, he gambled and dealt drugs — Mr Fakaongo says as much in his affidavit. These choices led to Mr Fakaongo making undesirable connections and in turn, his commission of the offending. The sequence is commensurate with agency rather than upbringing or the influence of others. Moreover, to the extent Mr Fakaongo made poor, immature decisions, the Judge recognised this by a discount of 15 percent for youth (and prospect of rehabilitation).
[25] Mr Veamatahau was drawn into the offending by Mr Fakaongo; whom Mr Veamatahau wanted to help. A cultural dimension appears to have underpinned his preparedness to do so. These aspects were recognised by the Judge in the selection of Mr Veamatahau’s lower starting point. No additional discount was, therefore, needed.
[26] In any event, the basis on which the appellants received discounts of five percent and 7.5 percent respectively for their personal circumstances remains unclear. The Judge did not say why these discounts were given. They present as benevolent.
Impact upon children
[27] Mr Fakaongo has a three-month-old daughter and Mr Veamatahau a one-year-old daughter. Mr Mansfield contends the Judge “should have applied a discrete 10% reduction to reflect the role that the Appellants have and will play in their young children’s lives, and the fact that they will not be able to do this while in custody”. The leading case in this context is Philip v R, a decision of the Supreme Court.9 The Court observed:10
… The family situation of a convicted person, including where applicable the wellbeing of an offender’s children, will always be among the personal circumstances to which regard is had by a sentencing Judge. … What however
9 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
10 At [51], quoting R v Harlen (2001) 18 CRNZ 582 (CA) at [22].
must be recognised is that the family situation of an offender, including the wellbeing of the offender’s children, is only one of a number of relevant factors. How much weight it can be accorded in any particular case depends on its circumstances. …
[28] More recently, the Court of Appeal has said:11
… How an offender’s dependent children are impacted by sentencing is something that should be considered by counsel and brought to the attention of the court. Those circumstances may warrant a discrete reduction in the term of imprisonment because of the impacts on the child, even if the offender’s own circumstances do not warrant any further discounts.
[29] The Judge declined to afford Mr Fakaongo and Mr Veamatahau a discount for this factor:12
[20] More latterly, Mr Mansfield has provided further submissions that say I should take into account that you have young children and the loss for those young children of your support as a result of this sentence is something that I should take into account. I do not agree. You had these children, you made to these children while this offence and other equally serious offences were hanging over your head. You have created this circumstance and then you say to the Court now you must take this into account. The Court will not be told what to do by individuals in your circumstances. You decide to have children, you have to live with the consequences and that is not mitigation.
[30] I consider a five percent discount for the impact of a custodial sentence on the young children, otherwise cared for by their mothers, was appropriate.
A return to the starting point
[31] Ms Bragg contends even if error is established, the starting points were “on the lower end of the scale”, hence the sentences cannot be regarded as manifestly excessive. For this reason, I return to the starting points.
[32] The appellants’ offending would fall within band five of Zhang v R had the importation been successful.13 Consequently, a starting point between 10 years’ imprisonment and life would have been in question had the appellants collected the bag containing the drugs.
11 Ah Tong v R [2024] NZCA 144 at [13].
12 R v Veamatahau, above n 3.
13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [15].
[33] The Judge considered both appellants’ roles as “towards the lower end”.14 That characterisation, which I consider correct, puts the case within the “lesser role” identified by the Supreme Court in Berkland v R.15 But, both men abused their position of trust at the airport. The seriousness of this aspect is self-evident. So too the need for associated deterrence. It follows the appellants’ role as (airport) baggage handlers precludes, to my mind at least, the possibility of placement below the applicable band. Any other approach would further encourage the targeting of baggage handlers by criminal syndicates importing drugs, an unwelcome development.
[34] All this means had the importation been complete, starting points at the lower end of band five would have been appropriate: at or about 12 years for Mr Fakaongo, and at or about 10 years for Mr Veamatahau.
[35]Case law supports this analysis:
(a)Faiyum v R:16 involved the importation of five packages containing around 3.2 kilograms of methamphetamine and 535 grams of cocaine. Mr Faiyum’s role was to collect the packages on behalf of importers. A 10-year starting point was upheld.17
(b)R v Gillett:18 Mr Gillett was a “middleman”. He contacted freight companies, paid Customs and collected, on one occasion, the package from the airport. The offending involved the importation of
8.1 kilograms of methamphetamine. A starting point of 13 years’ imprisonment was adopted.19
(c)R v Iuvale:20 Mr Manuel was an airport baggage handler. He assisted the importation of hundreds of kilograms of methamphetamine. The Judge noted his critical role and abuse of trust as aggravating.21 But
14 R v Veamatahau, above n 3, at [6].
15 Berkland v R, above n 8, at [71].
16 Faiyum v R [2020] NZCA 523.
17 At [23].
18 R v Gillett [2024] NZHC 1221.
19 At [39].
20 R v Iuvale [2024] NZHC 3446.
21 At [86].
given his lesser role and parity considerations, a starting point of 15 years’ imprisonment was adopted.22
[36] When sentencing for attempted crimes, an overall assessment of the gravity of the offending (including its consequences) is required.23 Unsurprisingly, proximity to completion is relevant.24 An attempt may be viewed similarly to a conspiracy: the closer to execution, the closer in gravity to the completed crime.25
[37] The appellants’ attempt is towards or at the top of its kind. The appellants just failed to collect the bag containing the drugs: Mr Fakaongo stood in front of service entry doors while Mr Veamatahau got as close as inspecting it. Only then did another intervene — and even that was by chance. A 25 percent reduction from the starting points applicable for completed offending would produce starting points of approximately nine years’ imprisonment for Mr Fakaongo and seven-and-a-half years’ imprisonment for Mr Veamatahau. The Judge’s starting points of six years’ imprisonment’ and four years’ imprisonment are, obviously, much lower.
[38] That being so, the sentences are far from manifestly excessive notwithstanding the errors in relation to remorse and impact on the children. Relatedly, no question of home detention arises.
[39]This leaves an unusual feature, discussed below.
Two sets of sentencing remarks
[40]What happened is captured in my Minute of 21 November 2024:
Background
[1] On 15 August 2024, in the District Court at Manukau, Judge Andrée Wiltens sentenced Alfred Fakaongo and Samson Veamatahau on a single charge of attempting to possess methamphetamine. Both defendants received sentences of imprisonment. Both have appealed to this Court against sentence.
22 At [94].
23 Carpenter v R [2010] NZCA 560 at [12].
24 At [12].
25 R v Garcia [2024] NZHC 1862, referencing R v Te Rure [2007] NZCA 305 at [25].
[2] There are two sets of sentencing remarks, both apparently signed by the Judge. One refers to Mr Veamatahau’s sentence as a term of two years and nine months’ imprisonment. The other refers to Mr Veamatahau’s sentence as a term of two years and six months’ imprisonment.
[3] The warrant of commitment for Mr Veamatahau identifies the sentence as a term of two years and nine months’ imprisonment. That figure accords the Crown’s contemporaneous record of the sentence announced in Court. Mr Mansfield KC has not yet been able to locate the contemporaneous record made by his junior, Mr Hurliman, who appeared in Mr Mansfield’s absence.
The request
[4] Under s 334(1)(c) of the Criminal Procedure Act 2011, I invite the Judge to provide a report (to this Court) explaining, if possible:
(a) The existence of two sets of sentencing remarks.
(b) The discrepancy between the two in relation to Mr Veamatahau’s sentence.
(c) The sentence the Judge intended to impose on Mr Veamatahau.
(d) The sentence the Judge believes he imposed on Mr Veamatahau.
(e) Anything else the Judge considers relevant to (a)–(d).
[5] I would be grateful if the report were provided to my Associate, Sharon Phillips, on or before Friday 5 pm, 29 November 2024. I shall then release the report to counsel.
[6]I thank the Judge for his assistance.
[41] The Judge’s helpful report reads:
1. Downs J. has requested this report in relation to my sentencing of the appellants.
2. I had drafted sentencing notes following the receipt of written submissions while awaiting a further Pre-Sentence Report, with the intention of largely reading the prepared notes at sentencing. I did not stick to that plan and gave an oral decision intending that parts of the prepared notes be incorporated, and indeed referred to that. I understand the prepared notes were then dealt with as if final within the JDI system; and the official recorded notes were subsequently also processed through the JDI system. Hence there are now two versions of my sentencing remarks which appear similar as to parts but not entirely.
3. In my prepared notes I set the end sentence for Mr Veamatahau at 2 years 6 months imprisonment. In the official recording of the sentencing, I said 2 years 9 months imprisonment. In the course of the hearing, I reflected on the disparity between the two appellants given that Mr Fakaongo was sentenced to an end sentence of 3 years 3 months imprisonment, and accordingly considered the difference between their positions should be
reflected by less a differential than 9 months. The means by which I achieved this was to give less reduction for mitigation in respect of Mr Veamatahau.
4. My prepared notes were not altered in this regard and indicate the end sentence to be 2 years 6 months imprisonment. That was not the intended end sentence. The intended end sentence is as pronounced at the sentencing, namely 2 years 9 months imprisonment.
5. That is the sentence I believe was warranted and actually imposed at the hearing.
6. I apologise for the additional work involved in considering the appeal. I should have stuck with the original plan. It’s a mistake I will try very hard to not repeat.
[42] Neither party wished to make submissions on this issue (after being given an opportunity to do so). That is hardly surprising. No doubt exists about the sentence imposed on Mr Veamatahau given the sentence announced by the Judge in court, the Crown’s contemporaneous record of that sentence, the warrant of commitment signed by the Judge, and the Judge’s report. It is not necessary to say more, beyond to thank the Judge for his report.
Result
[43]The appeals are dismissed.
……………………………..
Downs J
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