Tatafu v The King
[2025] NZHC 1496
•9 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-142 [2025] NZHC 1496
BETWEEN KOLINO TATAFU
Appellant
AND THE KING
Respondent
Hearing: 3 June 2025
Appearances: R Keenan for the appellant
S Cox for the respondent
Judgment: 9 June 2025
JUDGMENT OF BLANCHARD J
[Appeal against sentence]
This judgment was delivered by me on 9 June 2025 at 4.00 pm Registrar/Deputy Registrar
Solicitors:
Liberty Law Barristers, Auckland Kayes Fletcher Walker Ltd, Manukau
TATAFU v R [2025] NZHC 1496 [9 June 2025]
[1] Ms Tatafu appeals against a decision of Judge L Radich in the District Court at Manukau dated 31 January 2025 sentencing her to two years and seven months’ imprisonment in relation to charges of causing loss by deception.1
The offending
[2] Ms Tatafu offended by setting up several fictitious schemes which caused financial loss to members of the Tongan community. In all, 29 individuals are known to have lost an estimated total of just under $63,000.
[3] The offending took place from late 2019 to late 2023, when was Ms Tatafu was between 65 and 69 years’ old.
[4] Ms Tatafu pleaded guilty to three representative charges. The charges were causing loss by deception (over $1,000),2 causing loss by deception ($500 to $1,000),3 and causing loss by deception (under $500).4
District Court decision
[5]The Judge sentenced Ms Tatafu to two years and seven months’ imprisonment.
To reach this sentence, the Judge:5
(a)took a starting point of three years and nine months’ imprisonment for the current offending;
(b)applied an uplift of three months’ imprisonment to reflect Ms Tatafu’s criminal history, which included offending similar to the present offending; and
(c)applied discounts totalling 35 per cent, being 25 per cent for an early guilty plea and 10 per cent for Ms Tatafu’s age and health issues.
1 R v Tatafu [2025] NZDC 1793.
2 Crimes Act 1961, ss 240(1)(d) and 241(a). Maximum penalty seven years’ imprisonment.
3 Sections 240(1)(d) and 241(b). Maximum penalty one year’s imprisonment.
4 Sections 240(1)(d) and 241(c). Maximum penalty three months’ imprisonment.
5 R v Tatafu, above n 1, at [48].
The appeal
[6] Ms Tatafu’s appeal is only in relation to the 10 per cent discount the Judge applied for her age and health. The Judge said the following about this:6
[43] A further discount is sought for Ms Tatafu’s age and infirmity. In this regard, I have some difficulties, which we have explored in oral submissions. The sole documentation on which a discount is sought is a letter from Ms Tatafu’s general practitioner that is more than a year old, dated 30 November 2023. The letter is brief. It lists seven conditions to which she was subject at that time. These are diabetes, mellitus, asthma, hypertension, IHD (ischaemic heart disease), gastroesophageal reflux, cervicalgia (being pain in the neck), and diverticulosis. I am informed by Ms Keenan that these conditions are chronic and, therefore, that the position has not changed since November 2023.
[44] I was unaware of the nature and treatment of all these conditions, let alone the extent to which they might play into factors justifying a reduction in sentence, so Ms Keenan helpfully showed me some of Ms Tatafu’s current medications. I can see that she is taking at least four medications, at least twice per day. So, although the evidence is not ideal, I accept that she has ongoing health issues.
[45] I raised with Ms Keenan whether it could be said that any of these medical conditions are such that they would make Ms Tatafu’s time in prison, if that is where we were to end up, more arduous, such that a further discount would be appropriate. Ms Keenan very responsibly said that she could not pitch things at that level but also pointed out that Ms Tatafu is approaching old age and, on account of her age and “fragileness” (which Crown accepts) she would be vulnerable to some extent in prison. I accept this.
[46] The question is how much of a discount I might apply for that. There is no particular science to this. Each case needs to be assessed on its merits. I have not been referred to any authorities, aside from one District Court case which I do not consider to be terribly helpful. However, I have independently reviewed a number of High Court cases and cite two of the more recent. First, R v Fairburn. In that case, a defendant who was 67 years old at sentencing and suffered from a degree of ill health received a discount of 12 months from and eight and a half year starting point, equating to around 12 per cent. Secondly, Buchanan v R. That case concerned a 65- year-old defendant who presented with no health difficulties over and above those ordinarily associated with being 65 years old. Nonetheless, a modest two and a half per cent discount was applied and was deemed sufficient to recognise that imprisonment might be more difficult for a 65-year-old than someone of younger years.
[47] Stepping back and taking a broad view, I will apply a 10 per cent discount, which is what the defence seeks. I consider that, on the authorities noted above, a lesser discount could be justified, and perhaps I am incorporating a component of mercy within my consideration.
6 At [43]–[47] (footnotes omitted).
Application to adduce new evidence
[7] Within two weeks of being sentenced, Ms Tatafu had a stroke and was admitted to hospital. She was discharged from hospital in late April or early May 2025, but she continues to suffer the effects of the stroke with left-side weakness to her arm and leg, and she requires mobility aids.
[8] Ms Keenan for Ms Tatafu seeks to adduce two letters relating to Ms Tatafu’s stroke and her present medical condition. These are a letter of Dr Ashfaq A Larik, a consultant in rehabilitative medicine, dated 12 March 2025, and a letter of Dr Mark Fisher, a consulting psychiatrist, dated 29 April 2025.
[9]Mr Cox for the Crown does not oppose the admission of this further evidence.
[10] I accept that the evidence is fresh, credible and cogent. It is in the interests of justice to admit the letters.7 I therefore allow the evidence.
Appeal legal principles
[11] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[12] When reviewing a sentence on appeal, it must be shown that the sentence is manifestly excessive or wrong in principle, or there must be exceptional circumstances.8 The focus is not on the process by which the sentence was reached, but on the correctness of the end result. In making this assessment, the Court does not
7 Ellis v R [2021] NZSC 77, (2021) 29 CRNZ 749 at [33], citing Lundy v R [2013] UKPC 28,
[2014] 2 NZLR 273 at [120].
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31], citing Te Aho v R
[2013] NZCA 47 at [30].
interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.9
Decision
[13] Ms Keenan submits that, in view of the new evidence, the 10 per cent that the Judge allowed for Ms Tatafu’s age and health is clearly too low. She submits that a discount should be allowed that would result in an end sentence of two years’ imprisonment. That would be a discount of 25 per cent. Ms Keenan submits that the sentence of imprisonment should then be converted into one of home detention.
[14] Ms Keenan acknowledges that she is not aware of a case in which the courts have allowed a discount in the order of 25 per cent for age and health. But she submits that, nevertheless, a discount of that order is appropriate in this case.
[15] I do not accept Ms Keenan’s submission. I agree with Mr Cox that the discount of 10 per cent allowed by the Judge remains within range despite the new evidence regarding Ms Tatafu’s stroke. It is in line with the discounts allowed in the cases referred to by the Judge,10 and the cases that have been referred to me for the purposes of this appeal.11
Result
[16]The appeal is dismissed.
Blanchard J
9 Ngawati v New Zealand Police [2022] NZHC 2156 at [6].
10 R v Fairburn [2014] NZHC 120; and Buchanan v R [2019] NZHC 2283.
11 Mathews v R [2024] NZCA 651; M (CA91/2012) v R [2013] NZCA 325; and KHP v R
[2015] NZHC 452.
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