Legal Research
Cases
Fangupo v R

Fangupo v R

Case [2020] NZCA 484 14 October 2020

Appeal

Sentencing

Minimum Period of Imprisonment

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA151/2020
[2020] NZCA 484

BETWEEN	TEVITA MATANGI FANGUPO Appellant
AND	THE QUEEN Respondent

Hearing:	29 September 2020
Court:	Collins, Mallon and Ellis JJ
Counsel:	T M Cooper and C G Farquhar for Appellant B D Tantrum and J V Barry for Respondent
Judgment:	14 October 2020 at 11.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of 17 years’ imprisonment imposed in the High Court is quashed and substituted with a sentence of 14 years and five months’ imprisonment.
DThe order for a minimum period of imprisonment of 50 per cent imposed by the High Court is quashed and substituted with a minimum period of imprisonment of 40 per cent.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

On 7 November 2019, Mr Fangupo was sentenced to 17 years’ imprisonment by Downs J, following a trial in which Mr Fangupo was convicted of eight charges of importing slightly over 20 kilograms of methamphetamine.[1] Mr Fangupo was also sentenced to shorter concurrent terms of imprisonment in relation to convictions for attempting and conspiring to import methamphetamine, one charge of importing cocaine and one charge of possessing a firearm. He pleaded guilty to the firearms offence at the beginning of the trial.
[1]R v Fangupo [2019] NZHC 2896 [Sentencing notes].
Mr Fangupo appeals his sentence of 17 years’ imprisonment and an order that he serve a minimum period of imprisonment (MPI) of eight and a half years before he is considered eligible for parole.
The essence of Mr Fangupo’s appeal is that the 19-year starting point adopted by Downs J in relation to the methamphetamine importing convictions was excessive, and that the Judge failed to make appropriate deductions to reflect Mr Fangupo’s personal circumstances. It is contended these errors led to a manifestly excessive sentence.
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 and the application for an extension of time is not opposed. We therefore grant the application to extend time for filing the appeal.

Sentencing decision

Mr Fangupo was tried with Messrs Kulu, Finau and Ikuia. All four defendants were sentenced together. Some of the Judge’s findings in relation to Mr Kulu also applied to Mr Fangupo and vice versa.
Based on the evidence he observed during the five-week trial, Downs J was satisfied Mr Fangupo and Mr Kulu had “complementary, leading roles”[2] in a criminal organisation that set out to import large quantities of methamphetamine into New Zealand from California. Mr Finau and Mr Ikuia played lesser roles in the enterprise.
[2]At [16].
Downs J was satisfied Mr Kulu, who had been deported from the United States to New Zealand, used his contacts in California to arrange the importation of methamphetamine from California to New Zealand. Mr Fangupo arranged addresses…

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 Fangupo v R

Details

AGLC: Fangupo v R [2020] NZCA 484
Case: [2020] NZCA 484
Decision Date: 14 October 2020 at 11.00 am

CaseChat Overview and Summary

Tevita Matangi Fangupo appeals against his sentence of 17 years’ imprisonment and an order that he serve a minimum period of imprisonment (MPI) of 50 per cent imposed by the High Court following his conviction for eight charges of importing slightly over 20 kilograms of methamphetamine. The appeal was filed approximately three months out of time. The Crown acknowledges no prejudice has arisen as a result of this delay and the application for an extension of time is not opposed. The Court grants the application to extend time for filing the appeal. The essence of Mr Fangupo’s appeal is that the 19-year starting point adopted by Downs J in relation to the methamphetamine importing convictions was excessive and that the Judge failed to make appropriate deductions to reflect Mr Fangupo’s personal circumstances. It is contended these errors led to a manifestly excessive sentence. The Court examines each of these matters in turn. The Court is satisfied that the Judge was entitled to conclude there was little material difference between the roles played in the enterprise by Mr Fangupo and Mr Kulu. The Court is also satisfied that the Judge was entitled to conclude Mr Fangupo played a moderately leading role in the enterprise. The Court is of the opinion that a 17-year starting point was the maximum that was warranted in Mr Fangupo’s circumstances and that the 19-year starting point adopted by the Judge was excessive. The Court is further of the opinion that Downs J was not persuaded to give Mr Fangupo any discount for his previous good character, observing that such discounts are usually reserved for “older offenders.” The Court does not accept the notion that discounts for previous good character are usually reserved for older offenders. The Court is of the opinion that Downs J was correct to impose an MPI. The Court is further of the opinion that the MPI needs to be set at 40 per cent of the end sentence will adequately meet the purposes of s 86 of the Sentencing Act. The Court allows the appeal against sentence. The sentence of 17 years’ imprisonment imposed in the High Court is quashed and substituted with a sentence of 14 years and five months’ imprisonment. The order for an MPI of 50 per cent imposed by the High Court is quashed and substituted with an MPI of 40 per cent.

Orders