Fangupo v R
[2020] NZCA 484
•14 October 2020 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA151/2020 [2020] NZCA 484 |
| BETWEEN | TEVITA MATANGI FANGUPO |
| AND | THE QUEEN |
| Hearing: | 29 September 2020 |
Court: | Collins, Mallon and Ellis JJ |
Counsel: | T M Cooper and C G Farquhar for Appellant |
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 in Auckland to where the methamphetamine was to be sent between June 2017 and January 2018.
Mr Fangupo’s role was said by the Judge to be equal to that of Mr Kulu for the following 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 and Mr Kulu were to share equally in the profits from the venture.
(c)Mr Fangupo wrote instructions as to how methamphetamine was to be packaged before it was sent to New Zealand.
(d)Mr Fangupo made a trip to California, taking with him $40,000 which was paid to the Californian methamphetamine suppliers.
We will examine each of these matters later in this judgment.
[3]At [19].
The Judge also reached conclusions from the evidence about the amount of methamphetamine that was involved in Mr Fangupo’s offending.
Five packages were intercepted by New Zealand Customs and two packages were intercepted by officials in the United States. Those packages contained close to 19 kilograms of methamphetamine. Four packages were not able to be intercepted. Downs J was satisfied from communications between the defendants about those packages and other evidence that the packages that were received contained “several kilograms of methamphetamine”.[4]
[4]At [4].
The Judge found Mr Kulu was convicted of importing more than 20 kilograms of methamphetamine, while Mr Fangupo was convicted of importing approximately 20 kilograms of methamphetamine, a quantity which was described as being slightly less than the amount involved in Mr Kulu’s offending.
By comparison, Mr Finau was convicted of helping to import 5.1 kilograms of methamphetamine, 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 described Mr 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 those of Mr Fangupo and Mr Kulu.[5]
[5]At [22] and [23].
Downs J adopted a starting point of 20 years’ imprisonment for Mr Kulu and 19 years’ imprisonment for Mr Fangupo. The difference reflected the fact Mr Fangupo was convicted of one less importation charge than Mr Kulu. Nevertheless, Downs J emphasised Mr Fangupo was “clearly an equal partner at the top of [the] enterprise”.[6] The starting point for Mr Finau was eight years’ imprisonment, while the starting point for Mr Ikuia was set at five years’ imprisonment.
[6]At [29].
The starting points for all four defendants were based upon the Judge’s application of this Court’s sentencing guideline judgment in Zhang v R[7] and, in the cases of Mr Fangupo and Mr Kulu, the starting points also reflected their leading roles in the enterprise, the large amounts of methamphetamine they imported and the Judge’s assessment that they were motivated by a desire to make significant sums of money.
[7]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
No uplifts were applied to either Mr Fangupo or Mr Kulu to reflect their cocaine and firearms offending.
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 positive references from the community and had significant support from his church.
(c)Mr Fangupo maintained he was not motivated by money. The Judge, however, rejected this proposition.
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 of Mr Fangupo’s personal circumstances.
[8]Sentencing notes, above n 1, at [41].
When imposing MPIs of 50 per cent on the sentences handed down to both Mr Fangupo and Mr Kulu, Downs J said:[9]
You both made a lot of money, albeit how much is unknown. You were both motivated by profit. You were the leading figures in this operation. In short, this was yours. Parole eligibility after only one-third of your respective sentences would send quite the wrong message. I impose minimum periods of 50 percent. Thereafter, parole eligibility is better left to the Parole Board.
Summary of submissions
[9]At [49] (emphasis in original).
Mrs Cooper, senior counsel for Mr Fangupo in this Court, submitted Downs J erred in the following ways when setting the starting point of 19 years’ imprisonment:
(a)By failing to properly differentiate between the roles of Mr Kulu and Mr Fangupo. Mrs Cooper submitted that a “careful and proper assessment of the trial evidence” demonstrates Mr Fangupo was not equal 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 the cusp of being “significant” and “leading” as those categories are referred to in Zhang. We will describe these categories later in this judgment.
Mrs Cooper submitted that based on authorities decided under Zhang, the appropriate starting point for Mr Fangupo would have been in the region of 16 to 17 years’ imprisonment.
It was also contended on behalf of Mr Fangupo that Downs J erred when assessing what discount should be applied in Mr Fangupo’s circumstances and that he was entitled to a 15 per cent credit to recognise his previous good character as well as his prospects of rehabilitation.
Mrs Cooper submitted that in light of this Court’s judgment in Zhang, the need for an MPI was questionable and that in any event we should revisit the term of the MPI.
Mr Tantrum, senior counsel for the Crown, submitted:
(a)The assessment of Downs J that Mr Fangupo played a leading role and was at the top of the enterprise was “entirely appropriate and naturally followed from the evidence at trial”.
(b)The starting point adopted by the Judge was well within the range that was available and could easily have been higher.
(c)Mr Fangupo’s three previous convictions weigh against him receiving a discount for previous good conduct. Even more significantly, Mr Fangupo’s drug offending occurred whilst he was on trial in the High Court in relation to a charge of kidnapping, for which he was acquitted.
(d)The MPI of 50 per cent was entirely appropriate in the circumstances of this case.
The starting point
Mr Fangupo’s challenge to the 19-year starting point may be distilled to two grounds:
(a)the finding Mr Fangupo played a complementary leading role in the enterprise was incorrect; and
(b)the Judge’s conclusion that, a starting point of 19 years was consistent with the Zhang guidelines was also incorrect.
Mr Fangupo’s role
The factual findings that underpinned the conclusion Mr Fangupo played a complementary leading role in the enterprise are challenged in the following ways by Mrs Cooper.
First, Mrs Cooper submitted that Downs J failed to give sufficient weight to what she submitted were clear differences in rewards from the enterprise received by Mr Kulu when compared with Mr Fangupo.
The Judge noted that when Mr Kulu was arrested, $215,000 was found in his apartment. Photographs on Mr Kulu’s cellphone showed Mr Kulu with bundles of cash and in one conversation he said he never dreamed of having so much money. Mr Fangupo on the other hand, lived a modest lifestyle and showed no outward signs of having received significant amounts of financial reward from the enterprise.
Second, Mrs Cooper submitted Downs J placed too much reliance on a note written 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 partially aspirational and possibly designed to motivate Mr Fangupo. The note referred to significant quantities of methamphetamine being imported (16 kilograms every 20 days) with Mr Kulu and Mr Fangupo each receiving $12,960,000 by the end of the year. The note also reminded Mr Fangupo to, amongst other things, be “grounded”, “humble” and never “forget to thank God”.
There was no suggestion Mr Fangupo and Mr Kulu made anything like the amounts recorded in Mr Fangupo’s note.
Third, Mrs Cooper submitted the Judge placed too much emphasis on “packaging instructions” written by Mr Fangupo. Mrs Cooper accepted the instructions probably related to a plan to import approximately 20 kilograms of methamphetamine. She submitted however that the packaging instructions did not demonstrate Mr Fangupo played a leading role in the enterprise.
Fourth, Mrs Cooper said the Judge placed too much emphasis on Mr Fangupo’s trip to the United States. She said that text communications from Mr Kulu about Mr Fangupo’s trip showed Mr Kulu paid for the trip and that Mr Fangupo was simply a “exuberant” employee on a “first-time business trip”.
In addition to misconstruing the significance of the four factual matters we have set out above, Mrs Cooper submitted the Judge failed to properly consider communications between Mr Fangupo and associates about his inability to exert influence over Mr Kulu.
In reviewing the Judge’s factual findings, we are very mindful that he had the advantage of observing five weeks of evidence and that this placed him in an ideal position to assess the relative roles of all defendants.
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 lavish lifestyle. Mr Kulu, on the other hand, was wont to display his new‑found wealth. Mr Kulu’s brash attitude to money was a source of concern to Mr Fangupo, who urged him not to be so outwardly extravagant in case his conduct attracted the attention of authorities. Mr Fangupo’s cautious approach to money can be compared to Mr Kulu’s cavalier attitude. Their differences in approach does not, in itself, mean however, that they occupied different rungs in the enterprise.
(b)Downs J said the note found in Mr Fangupo’s shoe revealed him to be a “dreamer” and “even a fantasist”.[10] The calculations in that note bore no resemblance to reality. What is revealing, however, is that the calculations show the profits from the enterprise were to be shared equally between Mr Kulu and Mr Fangupo. This in itself suggests the equal status of Mr Fangupo and Mr Kulu in the venture.
(c)The packaging instructions written by Mr Fangupo are part of a consistent pattern of evidence that Mr Fangupo played a leading role in the enterprise.
(d)Mr Fangupo’s trip to California and the fact he took a large sum of money to pay the Californian suppliers is further evidence of his very senior status in the enterprise.
[10]Sentencing notes, above n 1, at [19].
We have examined the communications relied upon by Mrs Cooper to support the argument that Mr Kulu played a more dominant role in the venture than Mr Fangupo. We are unable to agree, however, with her submission on this point. All the communications show was that Mr Fangupo was having difficulty controlling Mr Kulu because of his cavalier attitude towards money. The conversations do not undermine the proposition that Mr Fangupo and Mr Kulu played “complementary leading roles” in the enterprise.
We are therefore satisfied that the Judge was entitled to conclude there was little material difference between the roles played in the enterprise by Mr Kulu and Mr Fangupo.
Application of Zhang
The sentencing of Mr Fangupo and his co-defendants was one of the first to occur following the delivery of this Court’s judgment in Zhang, a point alluded to by Downs J when he said, “[t]hese are the early days of the recalibrated sentencing regime for methamphetamine. A conservative approach is warranted”.[11]
[11]At [27].
Zhang introduced a new band for the most serious category of methamphetamine offending. Band five, which is reserved for offending that involves two kilograms of methamphetamine or more, provides a wide guideline starting point of between 10 years to life imprisonment.[12]
[12]Zhang v R, above n 7, at [125].
The role of the defendant is a critical factor in setting the appropriate starting point. The Zhang judgment identifies three role categories namely, “lesser”, “significant” and “leading”. The Court explained:[13]
First (and attracting a more substantial scale) there is the “leading role”. This applies where the offender is directing or organising buying and selling on a commercial scale and/or is closely connected to product source and/or has an expectation of substantial financial gain. The second is the “significant role”. That is where the offender has an operational or management function within a chain, has subordinates (who may have been recruited or intimidated by the offender) and/or is motivated by financial or other advantage. The third tier is the “lesser role”. Here the offender will probably have performed a limited function under direction and/or may have been engaged by duress, naivety or other vulnerability.
[13]At [115].
This Court declined to adopt the structured guideline for assessing a defendant’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 to provide some indication to New Zealand courts of the factors that may assist in determining the role of a defendant:[14]
[14]At [126].
| Role | ||
| Lesser | Significant | Leading |
| 1. Performs a limited function under direction; 2. engaged by pressure, coercion, intimidation; 3. involvement through naivety or exploitation; 4. motivated solely or primarily by own addiction; 5. little or no actual or expected financial gain; 6. paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved; 7. no influence on those above in a chain; 8. little, if any, awareness or understanding of the scale of operation; and/or 9. if own operation, solely or primarily for own or joint use on non‑commercial basis. | 1. Operational or management function in own operation or within a chain; 2. involves and/or directs others in the operation whether by pressure, influence, intimidation or reward; 3. motivated solely or primarily by financial or other advantage, whether or not operating alone; 4. actual or expected commercial profit; and/or 5. some awareness and understanding of scale of operation. | 1. Directing or organising buying and selling on a commercial scale; 2. substantial links to, and influence on, others in a chain; 3. close links to original source; 4. expectation of substantial financial gain; 5. uses business as cover; and/or 6. abuses a position of trust or responsibility. |
There is no doubt Mr Fangupo’s offending placed him in band five of Zhang and that, despite Mrs Cooper’s submissions to the contrary, Downs J was entitled to conclude he played a leading role in the enterprise. We have reached this conclusion based on the following considerations:
(a)Mr Fangupo was directly involved in buying methamphetamine from the 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.
On the basis of this analysis, we are satisfied that Mr Fangupo can be described as having played a moderately leading role in the enterprise.
In assessing the appropriate starting point for Mr Fangupo within band five of Zhang, we have had the advantage of considering a number of other cases decided by this Court since Zhang was delivered. Downs J did not have this luxury.
In drawing comparisons with other cases, we are very mindful of the fact that cases are rarely identical, and that only broad comparisons can be usefully drawn. Nevertheless, the decisions in the following cases provide useful guidance in determining the appropriate starting point for Mr Fangupo.
Zhang v R
Mr Zhang was one of six appeals considered by this Court in Zhang. He was sentenced for having imported 17.9 kilograms of methamphetamine. This Court assessed Mr Zhang as being at the “lower end of significant” under the Zhang guidelines.[15] The Court held that the appropriate starting point for the amount of methamphetamine involved in Mr Zhang’s offending and his role in the operation was 15 years’ imprisonment. A 50 per cent MPI was applied to Mr Zhang because he knowingly participated in a substantial, commercial drug operation.
Pai v R
[15]At [257].
Mr Pai was convicted of importing 22.6 kilograms of methamphetamine and possession for supply of the same importation. This Court assessed his role as also being 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 that were applied in Zhang.
Wan v R
[16]Pai v R [2020] NZCA 146 at [52] and [56].
Mr Wan was convicted of importing 19.1 kilograms of methamphetamine. He was also placed in the “lower end” of the significant category in Zhang.[17] A 15-year starting point was also adopted. No MPI was imposed.
Berkland v R
[17]Wan v R [2020] NZCA 328 at [21]–[22].
Mr Berkland was involved in supplying at least 15 kilograms of methamphetamine over a six-month period. He was the trusted deputy to the head of the 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 adopted by the High Court for Mr Berkland was held to be within the appropriate range.
[18]Berkland v R [2020] NZCA 150 at [56].
When we compare Mr Fangupo’s position with the defendants in the cases we have just summarised, it becomes apparent that the 19-year starting point adopted by Downs J was significantly higher than in other cases that this Court has considered since Zhang was decided.
Applying Zhang in light of the decisions of this Court that we have referred to leads us to the conclusion that a starting point of 17 years’ imprisonment was the maximum that was warranted in Mr Fangupo’s circumstances. That is the starting point we will apply when reviewing Mr Fangupo’s sentence.
Previous good character
Section 9(2)(g) of the Sentencing Act 2002 requires a sentencing Judge to take into account, to the extent that it is applicable, “any evidence of the offender’s good character”.
As we have noted at [17], Downs J gave Mr Fangupo a 10 per cent discount to reflect his good prospects for rehabilitation. The Judge was not, however, persuaded to give Mr Fangupo any discount for his previous good character, observing that such discounts are usually reserved for “older offenders”.[19]
[19]Sentencing notes, above n 1, at [39].
Six references for Mr Fangupo were presented to Downs J. Those references included letters from leaders of Mr Fangupo’s church, his former employer, a teacher who knew Mr Fangupo when he was at Māngere College and a letter from Mr Fangupo’s brother. The letters all portray a young man who, prior to the offending, displayed admirable attributes. For example, he was described by one church leader as being “a humble and kind individual”, qualities which were consistently referred to in all of the references.
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”.
We do not accept the notion that discounts for previous good character are usually 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 who commit criminal offences start to do so before they reach the age that Mr Fangupo was when he was sentenced.
Mr Fangupo’s three previous convictions were all for driving offences committed in mid-2012 when he was 19 years of age. We do not think those convictions should count against him in setting the appropriate sentence in this case.
The Crown advised Mr Fangupo’s offending occurred whilst he was on trial in the High Court on a serious charge. Mr Fangupo was, however, not convicted of that charge. We do not agree with Mr Tantrum’s submission that an unproven charge counts against Mr Fangupo.
This is a case in which it was appropriate for the sentencing Judge to have regard to s 9(2)(g) of the Sentencing Act. That would have been achieved by providing Mr Fangupo with a modest deduction in his sentence to reflect his previous good character. We will now do so by deducting 15 per cent from the starting point to reflect both Mr Fangupo’s prospects of rehabilitation and his previous good character.
There are no other personal mitigating factors engaged in this case.
Minimum period of imprisonment
We have very carefully considered whether or not an MPI was warranted in this case, and if so what the term of any MPI should be.
There is no doubt Mr Fangupo engaged in serious drug offending and that he was motivated by a desire to make significant sums of money. It is therefore necessary to decide if the normal parole eligibility period is insufficient, having regard to the following objectives specified in s 86(2) of the Sentencing Act:
(a)holding Mr Fangupo accountable for the harm done to the community by his offending;
(b)denouncing his conduct;
(c)deterring him and others from similar offending; and
(d)protecting the community from Mr Fangupo.
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 harm inflicted upon the community by those who import methamphetamine into New Zealand;
(b)the need to denounce his conduct; and
(c)the need to deter others from similar offending.
Weighing against the need for an MPI are Mr Fangupo’s good prospects for rehabilitation and his comparatively young age.
After weighing these factors, we are satisfied Downs J was correct to impose an MPI. We do not, however, accept that the MPI needs to be set at 50 per cent in order to achieve the objectives of s 86 of the Sentencing Act. Mr Fangupo’s age and his good prospects for rehabilitation lead us to conclude that an MPI of 40 per cent of the end sentence will adequately meet the purposes of s 86 of the Sentencing Act.
Result
The application for an extension of time to appeal is granted.
The appeal against sentence is allowed.
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.
Solicitors:
Crown Solicitor, Auckland for Respondent
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