Fa'Anunu v Police HC Auckland CRI-2010-404-000460

[2011] NZHC 258

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000460

JOHN FA'ANUNU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 March 2011

Counsel:         A Kemp and H Retzlaff for the Appellant

L Farmer for the Crown

Judgment:      28 March 2011

ORAL JUDGMENT OF WOOLFORD J

Solicitors:

Public Defence Service, PO Box 90 243, Auckland Mail Service Centre 1142

Meredith Connell, DX CP24063, Auckland 1140

FA'ANUNU V POLICE HC AK CRI-2010-404-000460 28 March 2011

Introduction

[1]      On  26  October  2010,  the  appellant  was  convicted  and  sentenced  by Judge Davis in the Auckland District Court after pleading guilty to being a party to robbery and driving while disqualified.  The Judge issued a first strike warning under s 86B of the Sentencing Act 2002, robbery being a „strikeable‟ offence.

[2]      The sole issue on appeal is whether the Sentencing Act requires a Judge to enter a strike when dealing with offending involving party liability under s 66 of the Crimes Act 1961.

Factual background

[3]      The Judge described the circumstances of the offending as follows:

[6]       In this case Mr Fa‟anunu  was acting in concert with his cousin. Mr Fa‟anunu   and  his  cousin  were  on  Perry  Street  in  Sandringham. Mr Fa‟anunu was driving a Honda Civic motor vehicle.   They observed Yichun Zhang who was walking along the footpath.  Mr Fa‟anunu dropped his cousin off several metres behind the victim and Mr Fa‟anunu drove past the victim and pulled over slightly out of view.   Mr Fa‟anunu‟s  cousin walked up behind the victim, struck her once in the back of the head with a closed  fist  causing  her  to  fall  to  the  ground,  and whilst  on  the  ground Mr Fa‟anunu‟s   cousin  wrestled  the  victim‟s   handbag  from  her  grasp. Mr Fa‟anunu‟s cousin then left the scene on foot.  He went to the vehicle that Mr Fa‟anunu was driving and they left the scene.

District Court Judgment

[4]      The sentencing Judge noted the defence submission that there was a residual discretion not to issue a warning if the offender was a party to the offence rather than a principal offender.  He was, however, of the view that that was not the intention of the legislature.  He referred to Adams on Criminal Law which states:[1]

An offender who is convicted of being a party to the commission of a serious violent  offence  will  receive  a  warning  as  a  party  is  deemed  to  have committed the substantive offence.  However, an offender who is convicted as an accessory after the fact to a serious violent offence cannot be warned.

[1] Para 86A.03

[5]      The sentencing Judge noted that the appellant did not fall into the latter category – he was not an accessory after the fact, he was a party to the offending and in those circumstances having entered convictions, he issued a first strike warning.

Appellant submissions

[6]      The appellant submits that Parliament did not intend that the three strikes regime apply to parties to the commission of an offence.  The submissions raised on appeal can be summarised as follows:

(a)      The purpose of the Sentencing and Parole Reform Act 2010 was to provide a harsher sentencing regime for the worst violent and sexual offenders.   Persons convicted merely of being a party to an offence will tend not to fall within this category, so issuing strikes for party liability would be contrary to the purpose of the Act.

(b)The specific inclusion of certain party liability offences as strikeable offences – s 174 (counselling or attempting to procure murder) and s 175 (conspiracy to commit murder) of the Crimes Act – indicates that Parliament did not intend for other party liability offences to fall within this three strikes regime.

(c)      It would be inconsistent for a strike to be issued where a defendant was  convicted  of  being  a  party  to  an  offence,  but  not  where  a defendant is charged with being an accessory after the fact.

(d)Applying the three strikes regime to party liability may breach the right not to be subjected to disproportionately severe treatment or punishment in terms of s 9 of the New Zealand Bills of Rights 1990.

Crown submissions

[7]      The Crown submits that there was no error in the Judge‟s decision, that he was required to enter a first strike in respect of the robbery charge on the basis that an offender who pleads or who is found guilty as a party is deemed to be guilty of

the substantive offence.  It is submitted that the plain effect of s 66(1) of the Crimes Act is to treat principals and secondary parties on exactly the same terms.  Everyone, regardless of their precise mode of participation, is to be regarded as a party.  They are  guilty  of  the  same  offence  and  liable  to  the  same  maximum  penalty. Section 66(1) does  not  create separate offences  or charges, nor does  it create a hierarchy of participation.

[8]      Section 66(2) also makes it plain that where two or more persons form a common intention to prosecute any unlawful purpose and to assist each other therein each of them is a party to every offence committed by any one of them in the prosecution of the common purpose.

[9]      The Crown submits that accessories after the fact can be distinguished from parties because they are a step removed from the primary offending.   Parties to offences under s 66 are also in a different category from those charged with attempts as the intended offence does not mature.

[10]     The Crown reminds me that s 66 applies the same maximum penalties to parties  as  to  principal  offenders,  which  is  relevant  to  determining  both  the seriousness of the offence and the fundamental difference in approach to penalties for accessories after the fact and for attempts.

[11]     Finally, the Crown submits that no Bill of Rights issues arise in respect of the application of the three strikes regime to s 66 of the Crimes Act 1961.

Discussion

[12]     I am of the view that the appeal must fail for the following reasons:

(a)      A plain meaning interpretation of the relevant Sentencing Act and Crimes  Act  provisions  favours  the  inclusion  of  party  offences. Section 86B of the Sentencing Act 2002 is in plain terms and obliges a Court when it convicts an offender of one or more stage one offences to give the appropriate warning.

(b)Section 66 of the Crimes Act deems all participants in an offence to be parties.  Section 66(1)(a) actually provides that those offenders who actually commit the offence are parties. A person convicted of being a party to an offence is convicted of that offence and is liable to the same maximum penalty. The Act does not treat parties differently.

(c)      Section 86A of the Sentencing Act lists the “serious violent offences” which are subject to the three strikes regime, which includes robbery. There is no ambiguity in its terms.  It is not appropriate for s 5(1) of the  Interpretation Act  1999  to  be  used  to  read  in  ambiguity  into statutes.

(d)The purpose of the three strikes  regime is  to  provide for harsher penalties for repeat serious violent and sexual offenders.  Prima facie, the  inclusion  of  party  liability  as  a  strikeable  offence  is  not inconsistent with this purpose.   As the Crimes Act implicitly recognises,  a  party  may  be  equally  as  culpable  as  the  principal offender in the commission of a crime.

(e)       Sections 174 and 175 of the Crimes Act are stand alone offences.

They carry specific maximum penalties.   There is no basis for concluding that the inclusion of these specific offences should impliedly exclude from the regime other listed offences when they are charged in conjunction with the party liability provision.

(f)      Furthermore, the accessory after the fact offence is a different offence in kind to party liability.  It is treated as a less serious offence in the Crimes Act and carries a maximum penalty of only up to half that of the principal offence.   It is not inconsistent with the purpose of the legislation for the less serious s 312 offence to be excluded but the more serious s 66 related offences to be included in the regime.

(g)      The right preserved under s 9 of the New Zealand Bill of Rights Act

1990  carries  a  very high  threshold.    Whether  the  right  not  to  be

subjected to disproportionately severe treatment or punishment has been breached will depend on the circumstances, but clearly a first strike warning, which carries no tangible punishment in itself, does not come close to the level of serious harm that s 9 is intended to protect individuals from.

(h)Finally, concerns that the appellant raises about the disproportionate treatment of offenders that may result from the application of the three strikes regime is not a complaint isolated to party liability.   The potential for large disparity in sentencing levels is something that affects the three strikes regime generally.   It would be arbitrary to attempt to exclude the application of the regime from offences involving party liability on this basis.

[13]     The appeal is accordingly dismissed.

Woolford J