R v Tanginoa

[2012] NZHC 3504

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-015420 [2012] NZHC 3504

THE QUEEN

v

PETER LAWRENCE TANGINOA DOUGLAS DAVID AFEAKI

DAVID CHARLES STEPHEN JOSEPH MAFI

Hearing:         18 December 2012

Counsel:         M R Galler for Crown

P Le'au'anae for Tanginoa
G N E Bradford for Afeaki
M N Pecotic and S Member for Mafi

Sentence:       18 December 2012

SENTENCE OF POTTER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140 [email protected]

Copy to:

P Le’au’aunae, PO Box 76616, Manukau City 2241  [email protected]
GNE Bradford, PO Box 2274, Shortland Street, Auckland 1140  [email protected]

M N Pecotic, PO Box 6379, Wellesley Street West, Auckland 1140  [email protected]

R V TANGINOA HC AK CRI-2011-004-015420 [18 December 2012]

Introduction

[1]      Mr Tanginoa, Mr Afeaki and Mr Mafi were involved in a major drug scam between June and August 2011.  The scam related to the importation of some 400 kilograms of methamphetamine which Tongan associates of Mr Tanginoa claimed they had under their control in Nukualofa.  New Zealand and Tongan police mounted an operation, having received information about this claimed stockpile of methamphetamine.    They  terminated  the  operation  in August  2011,  when  they became concerned through some of the intercepted communications, for the safety of the so-called woman hostage.  When they entered premises in Nukualofa they found that no methamphetamine existed.  Nor did the skipper of a yacht, who was said by the Tongan associates to be bringing the methamphetamine to New Zealand, exist. Nor the woman said to be “the skipper’s wife”, whom the Tongan associates claimed they were holding as a hostage to ensure delivery by the boat skipper of the methamphetamine to New Zealand.  It was all a big scam, apparently aimed at one of the Tongan associates extracting money from a Mr Naupoto, who was the principal liaison person between the Tongan associates and Mr Tanginoa in New Zealand. Transfers of money totalling in Tongan currency, about $10,500 (New Zealand equivalent being about $8,200), were made by or on behalf of Mr Naupoto to the Tongan associates.

[2]      Each of Mr Tanginoa, Mr Afeaki and Mr Mafi had a different role in this conspiracy, as did others including Mr Naupoto, who have been previously dealt with by the justice system.  These three men pleaded not guilty to charges against them. They were found guilty following trial by jury and must now be sentenced.

[3]      These offenders were naïve and inept.   But they were prepared to become involved in a conspiracy to import and distribute in New Zealand the highly dangerous and pernicous drug, methamphetamine.

[4]      It is my responsibility to sentence them for that offending, but the reality is that no sentence I impose can match the real  penalty they, and inevitably their families, will suffer.  I refer to their fall from grace, particularly in the eyes of the Tongan community in New Zealand.

[5]      All these three men have provided numerous references which I have read. Their respective contributions to the community are well documented.  It is very sad that they have allowed themselves to become involved in this serious offending.  In the case of Mr Tanginoa, who at the age of 39 years comes before the Court with no prior offences and an impressive background, the tragedy is particularly acute.

The charges

1.        Mr  Tanginoa  is  for  sentence  on  one  count  of  conspiracy  to  import

methamphetamine, the maximum penalty for this offence is 14 years’ imprisonment.

2.      Mr Afeaki is for sentence on one count of conspiracy to supply methamphetamine.   The maximum penalty for this offence is also 14 years’ imprisonment.

3.       Mr Mafi is also to be sentenced on one count of conspiracy to supply methamphetamine.

Aggravating factors

[6]      The  Crown  submits  that  the  following  are  aggravating  factors  of  the offending.

1.      The massive size of the proposed importation:    400 kilograms of methamphetamine believed to be in Tonga and the prisoners were led to believe that

20 kilograms of methamphetamine were on the yacht said to be bringing the drugs to New Zealand.  That quantity alone is exceedingly large.  The Crown appropriately describes the 400 kilograms of methamphetamine as “massive”.  But the Crown also appropriately acknowledges that the evidence is unclear as to whether Mr Afeaki and Mr Mafi were aware of the quantity of methamphetamine involved.   They were aware that methamphetamine was involved.

2.        The   duration   and   extent   of   the   conspiracy:   from   June   2011   when

Mr Naupoto, the prime liaison person for the group of conspirators, was approached

by the Tongan associates, until 17 August 2011, when the police terminated their operation.  However, the prisoners were involved only from late July.

Mitigating factors

[7]     The Crown acknowledges that the offending is mitigated by the sheer impossibility of the conspiracy succeeding.

Personal aggravating and mitigating factors

[8]      I shall consider these in relation to each of the prisoners separately.

Purposes and principles of sentencing

[9]      Counsel  have  helpfully  referred  me  to  the  purposes  and  principles  of sentencing in ss 7 to 9 of the Sentencing Act 2002 which I take into account.

[10]     The principal purposes of relevance are denunciation and deterrence.  These are invariably primary factors applicable in sentencing for drug offending.

[11]     The Court must also take into account the gravity of the offending, including the degree of culpability of the offender, and must seek to impose the least restrictive outcome that is appropriate in the circumstances.

[12]     I note also the presumption in s 6(4) of the Misuse of Drugs Act in favour of a sentence of imprisonment for drug-related offending at this level of seriousness. This presumption underscores the purposes of denunciation and deterrence.

Authorities

[13]   R v Fatu[1]  is the tariff case applicable in cases of manufacture of methamphetamine which is also applied to importation cases.  But where the charge

is of conspiracy “the nature and scope of the conspiracy and the extent to which the offender participated and persisted in it, must be relevant considerations”.[2]

[1] R v Fatu [2006] 2 NZLR 72.

[2] R v Henry [1997] 1 NZLR 150 at 152.

[14]     Cases concerned with the importation of Class A controlled drugs are of limited assistance as they do not directly address a situation where a conspiracy could never have been carried out as it was based on a false premise.  A reduction in sentencing levels indicated by the tariff cases is, therefore, necessary.

[15]     Here the methamphetamine did not exist and there was never any prospect of the offence proceeding beyond a theoretical agreement and attempts to achieve its aims, which inevitably proved futile.

[16]     I  agree  with  the  Crown’s  submission  that  in  these  circumstances  the appropriate sentence should be addressed to the level of penalty sufficient to meet the needs of general deterrence and to respond to the generalised threat to the public good, which arises inexorably from agreements to engage in this very serious offending, involving as it did, the Class A controlled drug, methamphetamine.

Mr Tanginoa

[17]     Mr Tanginoa received a sentencing indication by Priestley and Katz JJ on

5 October 2012.

[18]     Mr Tanginoa was described as responsible through associates in New Zealand for arranging for the distribution of the drug once it had arrived.   He was also responsible for obtaining funds to cover the costs of the skipper of the yacht, which were transmitted to Tonga via Mr Naupoto or someone on his behalf.

[19]     The   Judges   described   the   essential   culpability   of   Mr Naupoto   and Mr Tanginoa as being that they were prepared to take active steps to plan for the importation into New Zealand of a large consignment of methamphetamine and to arrange for its distribution.  They said that the hope of significant financial reward must have driven both men. The Judges took a starting point for Mr Naupoto of four

years’  imprisonment  and,  accepting  that  Mr Tanginoa’s  culpability  was  less,  a starting point of three years’ imprisonment for him.  The Court referred to the large number  of  references  provided  by  both  men  and  said  that  they  were  of  good character with no past involvement in drugs at all.   A discount of 15 per cent to reflect their previous good character was allowed.   The Court said that discount “bundled up a discount for remorse which both expressed”.

[20]     A discount of 15 per cent was also factored in for a late guilty plea, if entered. Mr Naupoto entered a guilty plea and subsequently received an end sentence of two years seven months’ imprisonment.   The end sentence indication for Mr Tanginoa was two years and one months’ imprisonment, which allowed a total discount of 30 per cent from the starting point of three years’ imprisonment.   But Mr Tanginoa elected to maintain his not guilty plea, as he was perfectly entitled to do, and to face trial.

[21]     I see  no  reason  to  depart  from  the  approach  to  sentencing  taken  in  the sentencing indication.   Mr Le’au’anae submitted a lower starting point and in his written submissions urged a non-custodial sentence for Mr Tanginoa, as had his counsel, Mr Cooke, at the time the sentencing indication was given.  As the Judges then said, in the circumstances such a sentence would be too lenient and would inevitably invite an appeal by the Solicitor-General.   I agree.   That observation is even  more  applicable now that  some  of the  discounts  built  into  the sentencing indication are no longer available.

[22]     There can, of course, be no discount for the guilty plea nor, I consider a discount for remorse.  Mr Tanginoa elected to go to trial.  He gave evidence at length in which he contended that he believed the proposed importation was about gold and Kava.    Clearly the jury in finding him guilty of conspiracy to import methamphetamine, did not accept his evidence.   It appears from the pre-sentence report that Mr Tanginoa does not accept the jury’s verdict and in that report, he continues  to  maintain  his  innocence.    However,  in  a  letter  to  the  Court  dated

13 December 2012, he expresses regret and remorse for his offending.

[23]     The  15  per  cent  discount  for  good  character  in  the  sentence  indication included an allowance for remorse.  Accordingly, the overall discount of 15 per cent for good character needs to be reduced, in the Crown’s submission, to about ten per cent.    I accept,  however,  that  Mr Tanginoa’s  favourable background  warrants  a discount as was recognised in the sentencing indication.

[24]     From a starting point of three years’ imprisonment, allowing a discount of ten per cent for previous good character, the resultant sentence would be 32 months or two years and eight months’ imprisonment.  Treating you as leniently as I consider I am able, Mr Tanginoa, and allowing a discount for previous good character and some element of remorse closer to that given in the sentencing indication, I impose an end sentence of two years seven months’ imprisonment.

Mr Afeaki

[25]     Mr Afeaki, you were a step down in the chain from Mr Wolfgramm, with whom Mr Tanginoa made contact to arrange distribution of the methamphetamine which was expected to be imported.  You were an intermediary in the distribution chain.  Mr Wolfgramm was your cousin.

[26]     The  Crown  submits  that  a  starting  point  of  two  years’ imprisonment  is appropriate, and accepts in your case that a sentence of home detention could be imposed.

[27]     Your counsel, Mr Bradford, urged in his written submissions a sentence of community detention on the basis that such a sentence would adequately meet the principles of accountability, responsibility and deterrence.   I do not agree.   It is unclear whether you knew about the extent of the quantity of methamphetamine that was proposed should be imported, but you were aware that the money you arranged to borrow from Mr Mafi and gave to Mr Wolfgramm, was intended to be used for the purchase  of  methamphetamine  and  you  anticipated  that  you  would  receive  a financial  reward,    you  believed  about  $2,000,  in  return  for  your  part  in  this offending. The offending is simply too serious for a community based sentence.

[28]     You are aged 32 and the pre-sentence report is   positive.   It records your acknowledgement of your part in this offending and your remorse.   You have a number of previous convictions and Youth Court notations, but none are drug-related and can be described as of comparatively less serious nature than this offending. None has involved a custodial sentence.

[29]     You have a supportive wife and four young children.  You are assessed as being of low risk of re-offending. Your home is assessed as suitable for a sentence of home detention.

[30]     Your role in this offending was less serious than that of Mr Wolfgramm who has been sentenced on a basis of a starting point of two years and three months’ imprisonment.   Your role was  slightly less  serious  than that  of Mr Mafi  whose situation I shall next consider.  You did not actually provide funds to facilitate the drug importation, but you worked hard to arrange the loan – you say it was of $2,000

- that Mr Mafi made available and that you handed to Mr Wolfgramm.   I take a starting point of one  year and ten months’ imprisonment which is also the end notional sentence, there being no mitigating or aggravating factors which require the starting point to be adjusted.

[31]     I consider, in your particular circumstances, a sentence of home detention is appropriate.   I impose a sentence of 11 months’ home detention which will be subject to the six conditions set out in the pre-sentence report, dated 11 December

2012, save that the conditions which require the authority of a probation officer to any change shall require the authorisation to be given in advance and in writing.

[32]     The conditions to which the home detention sentence is subject will be set out in full in an appendix to my sentencing notes.

[33]     In addition, I impose a sentence of 120 hours community work.  The level could have been higher, but I am conscious of the family pressures resulting from your current situation and your loss of employment.

[34]     Through  Mr Bradford  you  have  indicated  your  willingness  to  undertake community work  and  it  is  a  way in  which  you  can  show  consideration  to  the community against which you have offended.

Mr Mafi

[35]     Your contact, Mr Mafi, was with Mr Afeaki and through him Mr Wolfgramm. You provided the sum (it is a little uncertain of exactly how much, but somewhere between $2,000 and $3,500) by way of a loan to fund the importation of methamphetamine.  It is implicit in the jury’s verdict that they found proved that you were to be involved in the sale and distribution of the methamphetamine once it was received into New Zealand.

[36]     Unlike Mr Tanginoa and Mr Afeaki, you have a prior conviction for drug offending.   You  pleaded  guilty to  a charge of  possessing methamphetamine for supply on 23 October 2012, arising from events on 3 June 2012.  You received 12 grams  of  methamphetamine  for  supply  which  was  described  by  the  sentencing Judge, Woodhouse J, as “relatively low-level dealing, or intended dealing”.   Only weeks later, while you were still on bail for that offending, you became involved in the offending for which you must be sentenced today.

[37]     You have a number of previous convictions dating back to 1996, but they are of a less serious nature and none has resulted in a sentence of imprisonment.

[38]     A representative from the Corrections Department has appeared today and applied under s 80F(2) of the Sentencing Act 2002 for the sentence imposed on you for that offending, which was nine months’ home detention, to be cancelled on the ground that you have been convicted of an offence punishable by imprisonment. Without opposition, I granted that application.   Pursuant to s 80F(4)(d) the Court may substitute any other sentence that could have imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.

[39]     Having granted the application by the Corrections Department to cancel the sentence  of  nine  months’ home  detention  imposed  on  23 October  2012,  I must now —

(a)       Impose a sentence for the previous offending, namely possession of methamphetamine for supply;  and

(b)Impose a sentence for this offending, namely conspiracy to supply methamphetamine;  and

(c)       Consider the totality of the sentences so imposed in terms of s 85 of the Sentencing Act.

[40]     In this situation the appropriate approach is, I consider, to impose cumulative sentences.  The offences were different in kind, one involving possession for supply and the other involving conspiracy, the common element, of course, being the drug methamphetamine.  They were not part of a connected series of offences in terms of the people involved or the time at which the offences were committed, albeit that they were not far apart in time.[3]   And while you were on bail for the first offending (which the Crown submits is an aggravating factor) there were no connecting factors in the offending except perhaps your drug addiction, to which Ms Pecotic referred in submissions.

[3] Section 84 of the Sentencing Act 2002.

[41]     In relation to the first offending the Crown submits that it is appropriate to adopt the two and a half year starting point adopted by Woodhouse J, but initially submitted that the discounts applied, apart from that for the guilty plea of 20 per cent, are no longer appropriate.  However, Mr Galler retreated from that position in oral submissions today, I consider appropriately.

[42]     Woodhouse J gave you credit for what he described as “genuine recognition by you of the harm you have caused by this offending – and not just to yourself and beyond your own family – it is harm to the community.”   Also he said, “solid evidence of motivation to change”.  Also a positive work record and contribution to

the  community  through  your  rugby  league  club.    Recognition  of  those  factors resulted in a discount which reduced the sentence to two years’ imprisonment.  A further reduction of 20 per cent for the guilty plea brought the end notional sentence to 19 months’ imprisonment.  The Judge then considered and granted a sentence of nine months’ home detention which has now been cancelled.

[43]     Unfortunately the hope placed by Woodhouse J in you, Mr Mafi, in respect of your remorse and recognition being genuine, have proved not to be realised.

[44]     Section 80F(4)(d) requires a sentence to be substituted “that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed”. To reconstruct the sentence with the benefit of hindsight would, I consider, be inconsistent with that provision and unfair and unjust. I, therefore, adopt the notional end sentence of imprisonment that Woodhouse J would have imposed had he not considered home detention appropriate.  That end sentence was 19 months’ imprisonment.

[45]     In relation to this offending, conspiracy to supply methamphetamine, I note the starting point adopted by Lang J in sentencing Mr Wolfgramm of two years and three months’ imprisonment,[4]  on a like charge of conspiring to supply the Class A controlled drug methamphetamine.   I consider your offending is less serious than that of Mr Wolfgramm.  I do not accept the Crown’s submission that your culpability is higher than that of Mr Wolfgramm.  He was at the head of the distribution chain and the link with Mr Tanginoa.   You were at the end of the distribution chain, although, very relevantly you made funds available, and clearly you intended to

distribute the drug once it was imported into New Zealand.

[4] R v Wolfgramm [2012] NZHC 2825.

[46]     I take a starting point of two years’ imprisonment.  The Crown submits that the fact you committed this offending while on bail is a seriously aggravating factor. However, I consider any increase in the starting point to reflect that aggravation is balanced by the fact that you have already served about three and a half weeks of your home detention sentence, for which you should be given credit.  That credit is a

balancing factor against any increase in the starting point for offending while on bail. I treat those factors as approximately cancelling each other out.

[47]     Clearly there are no mitigating factors to warrant a discount in relation to the current offending.  They were fully recognised, with the benefit of hindsight, perhaps generously, in relation to the previous offending.

[48]     The  cumulative  sentences  imposed  are,  therefore,  three  years  and  seven months’ imprisonment:    one  year  seven  months  for  the  possession  for  supply offending and two years for the conspiracy to supply offending.

[49]     I must then stand back in order to ensure in terms of s 85 of the Sentencing Act, that the cumulative sentences do not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.  I consider to fairly reflect the totality of the offending and to impose an overall sentence that fairly reflects both offences, but is not disproportionate, a further reduction of 12 months is appropriate.  I consider that reduction generous in all the circumstances.  It takes into account the need to adequately reflect the period you have served on home detention to the extent that it may not previously have been adequately reflected.

[50]     This results in an end sentence of two years seven months’ imprisonment. The reduction of 12 months is to be made against the sentence for the current offending, thus reducing the sentence for conspiring to supply methamphetamine to one year’s imprisonment.

[51]     Would you please stand.

Result

[52]     In summary the end sentences imposed are —

(a)       Mr Tanginoa, two years seven months’ imprisonment.

(b)Mr Afeaki, 11 months’ home detention, and 120 hours of community work.

(c)       Mr Mafi, two years seven months’ imprisonment.

[53]     I hope gentlemen, that this experience has been salutary and that this Court will not see you again, and that your families will never be asked to suffer again as they have done by this offending.

[54]     You may stand down.

APPENDIX

1.        On the day of sentencing, travel directly to 11 Ilford Crescent, Mangere and await a Probation officer and the installation of electronic monitoring equipment.

2.        To remain at 11 Ilford Crescent, Mangere at all times, unless an absence from that address has been authorised in advance and in writing, by a Probation officer,

and to comply with all requirements of the standard and special conditions of your sentence of Home Detention.

3.        To reside at 11 Ilford Crescent, Mangere and not to move address without prior written approval from a Probation officer.

4.        Not to purchase, possess, or consume alcohol or illicit drugs for the duration of your Home Detention sentence.

5.        To notify your Probation Officer prior to starting/terminating or changing your position or place of employment. To only undertake employment (paid or unpaid) that has been approved by your Probation Officer.

6.        To attend any other such assessments/counselling/programmes as directed by the Probation Officer.