Fatafehi v The Queen

[2016] NZHC 1707

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000198 [2016] NZHC 1707

IN THE MATTER OF	an appeal against sentence
BETWEEN	POHIVA FATAFEHI Appellant
AND	THE QUEEN Respondent

Hearing:	25 July 2016
Counsel:	J J Corby for the Appellant S A Wilson for the Respondent
Judgment:	26 July 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 26 July 2016 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     J J Corby, Auckland

Solicitors:    Meredith Connell, Auckland

FATAFEHI v R [2016] NZHC 1707 [26 July 2016]

Introduction

[1]      Mr  Fatafehi  appeals  against  a  sentence  of  nine  years,  three  months’ imprisonment  imposed  on  two  charges  of  importing  methamphetamine.     The sentence included an order that Mr Fatafehi serve a minimum term of four years’ imprisonment before being eligible to apply for parole.  He appeals on the basis that the starting point was too high, inadequate discounts for personal mitigating factors were given, and a minimum period of imprisonment (MPI) should not have been imposed.

Facts

[2]      On 3 March 2015, Mr Fatafehi and two associates arrived in Auckland from San Francisco.   They were searched by Customs officials and 395.9 grams of methamphetamine was found on the two associates.

[3]     One of those associates admitted to having imported 141 grams of methamphetamine on a previous trip in January 2015 from Tonga.  She stated that she had met Mr Fatafehi in Tonga and he had travelled back with her on the same flight.

[4]      A fourth offender was also involved in the drug importation.  That offender admitted to recruiting the two associates although he did not otherwise travel with the group.

[5]      It was accepted for the purposes of sentencing that Mr Fatafehi’s role in the offending was characterised as that of supervisor or overseer of the two associates who were the couriers for the drug.

District Court sentence

[6]      The sentence imposed in the District Court followed a sentencing indication which  Mr  Fatafehi  had  accepted.    Mr  Fatafehi  and  the  fourth  offender  were sentenced together.

[7]      In fixing the starting point, the Judge considered that Mr Fatafehi’s offending fell on the margin of bands three and four of R v Fatu, noting that the overall assessment of the gravity of the offending included an assessment of the role played by the offender rather than the quantity of drugs imported alone.1  The Judge adopted a 12 and a half year starting point for both offenders.

[8]      In respect of mitigating factors, the Judge refused to give a discount for the fact that Mr Fatafehi was not a New Zealand citizen.   Mr Fatafehi lives in Tonga with his wife and two children.   The pre-sentence report records Mr Fatafehi as saying  that  he  offended  because  he  needed  money  to  fund  his  son’s  medical operation.   Mr Fatafehi’s son has cerebral palsy, epilepsy and microcephaly.   In refusing to give a discount for the fact that Mr Fatafehi was not a New Zealand citizen,  the…