Fakaongo v The King - [2024] NZHC 3676

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
Appellant

AND

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fakaongo v The King

Details

AGLC: Fakaongo v The King [2024] NZHC 3676
Case: [2024] NZHC 3676
Decision Date: 5 December 2024

CaseChat Overview and Summary

Alfred Bangle Fakaongo and Samson Wesley Veamatahau appealed against their sentences for attempting to possess a Class A controlled drug for supply. Fakaongo was sentenced to three years and three months’ imprisonment, and Veamatahau to two years and nine months’ imprisonment. The appeal centred on whether the sentences were manifestly excessive. The court considered whether the sentences should be altered due to errors in the guilty-plea discount, absence of a discount for remorse, the level of discount for personal circumstances, and the impact of imprisonment on their children. The court found that while the starting points were correct, the guilty-plea discount should have been 20 percent rather than 15 percent, and a five percent discount should have been given for remorse. However, the court concluded that the sentences were not manifestly excessive, given the seriousness of the attempted importation of 4.6 kilograms of methamphetamine. The appeal was dismissed, and the original sentences upheld.

Orders