Faaleaga v R
[2011] NZCA 495
•29 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA306/2011 [2011] NZCA 495 |
| BETWEEN FAALEAGA FAALEAGA |
| AND THE QUEEN |
| Hearing: 13 September 2011 |
| Court: Randerson, MacKenzie and Asher JJ |
| Counsel: T M Saseve for Appellant |
| Judgment: 29 September 2011 at 11.30 a.m. |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of 10 months imprisonment is quashed and a sentence of six months is substituted, to be served cumulatively upon his existing sentence.
___________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
Faaleaga Faaleaga appeals against a sentence of 10 months imprisonment imposed upon him on a charge of threatening to kill.
At the time of the threat Mr Faaleaga was in prison serving an 11 year sentence. He became upset with his sister and her children. He considered they had made complaints of assault against his brother F and believed that one of his nieces had said that she would shoot his brother. The relevant extracts from the letter, written on 25 September 2009, are:[1]
I have found out everything that your children said to [F]. That slut [R] said that she would shoot [F]. Tell her that the next time I set foot there, I will shoot her with her gun, like she said she would [shoot F]. I promise you that I will never ever forgive what you and your prostitute and thieves of children did to [F].
…
Tell your children to wait until I return. I will eat all of their hearts.
…
Tell your children to await my return. I will kill any of them to bring about what they keep telling [F] [they will do].
The decision
[1] R v Faaleaga HC Auckland CRI-2009-092-20857, 20 April 2011 at [3].
The sentencing Judge, Potter J, considered the pre-sentence report, the purposes and principles of sentencing and the aggravating and mitigating factors. She noted that the Crown had sought a starting point of 10 months imprisonment with an uplift of two months to take into account his previous convictions, and that the offence was committed while he was serving a term of imprisonment.
For the defence Mr Saseve who appeared for the appellant had proposed a starting point of six to nine months imprisonment. The Judge considered sentences that had been imposed for more serious offending in relation to threatening to kill and noted:[2]
... These cases provide only limited guidance for sentencing here but it is relevant to note the observation of Woodhouse J in Sykes that the fact the prisoner would not have been able to carry out the threat immediately as he was in custody, does not detract from the severity of the offending because it is the threat itself which causes serious harm.
[2] At [19].
The Judge went on to determine that a starting point of 10 months imprisonment was appropriate. She increased that by one month to reflect the fact that the offending occurred while Mr Faaleaga was serving a sentence of imprisonment. She declined to uplift for previous convictions, and discounted one month for remorse. She considered the totality principle expressed in s 85 of the Sentencing Act 2002 and concluded that a sentence of 10 months on top of his existing sentence of 11 years imprisonment was not wholly out of proportion to the gravity of the overall offending.
Submissions
Mr Saseve for Mr Faaleaga submitted that the starting point was too high and that the Judge placed inadequate weight on the mitigating features relating to both the offending and the offender. He submitted that to add 10 months on to the 11 year sentence resulted in a sentence that was wholly out of proportion. He suggested that the sentence could have been concurrent. He submitted that the Judge had misquoted R v Sykes.[3]
[3] R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.
Ms Edwards for the Crown submitted that given the different circumstances of the threat to kill, a cumulative sentence was the only sentence available. She accepted that it was a sentence “perhaps at the top end of the available range”, but submitted that it was not outside it. She pointed out that the sentencing Judge had presided over the trial and was in a position to assess the impact of the threats on the recipient. She did not accept that the Judge had placed too little weight on remorse and other mitigating factors relating to the offending or the offender.
Assessing culpability
The maximum sentence of imprisonment available was seven years. There is no tariff decision and indeed few appellate decisions that discuss the principles to be applied.
It is difficult to discern any consistent pattern in sentences on charges of threatening to kill. R v Forrest[4] is at the more serious end of the range. A sentence of three and a half years imprisonment was upheld on appeal. However, the circumstances were far more serious than the present case and involved three charges of demanding money with menaces and four of threatening to kill made while the appellant was in prison. At the other end of the range, non-custodial sentences have been imposed in some cases.[5]
[4] R v Forrest CA90/06, 12 October 2006.
[5]Booth v Police HC Invercargill CRI-2010-425-21, 1 September 2010; Haukinima v Police HC Auckland CRI-2006-404-344, 11 July 2007; and Lesatele v Police HC Christchurch AP 260/93, 19 August 1993.
There are two cases a little closer to the current factual situation. In R v McVeagh[6] where a mentally ill offender had sent a letter to a Member of Parliament containing threats to kill, a sentence of 15 months imprisonment was upheld. The offender had a history of similar offending relating to his mental illness. In R v Cherri[7] a sentence of 12 months imprisonment for a series of threats to kill made over the telephone against a police officer was, on appeal, reduced to six months. In that case also there were issues about the psychiatric condition of the offender. She had also spent five months in custody on remand on the charge before sentencing, a matter to which this Court paid considerable weight.
[6] R v McVeagh CA140/94, 4 August 1994.
[7] R v Cherri CA80/89, 26 July 1989.
Key factors in assessing the culpability of offending of this nature will include premeditation (the degree to which the threats were planned or calculated), the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat and the allied question of the actual danger to the victim. The inability to immediately effect a threat reduces the terror it might otherwise invoke, reducing the extent of harm resulting from the offence and thereby reducing culpability. We do not agree with the sentencing Judge that this factor cannot detract from the severity of the offending. Whether it does or not will turn on the specific facts.
On this point, Mr Saseve was correct in submitting that the reference in the judgment[8] to R v Sykes was an error. That case did not contain the proposition stated, although the case could be seen as relevant in that a sentence for threatening to kill and an associated charge of possession of a pistol, for which an 18 month starting point was adopted, was reduced to eight months imprisonment on the basis of the totality principle. The defendant was already serving another sentence of 18 months imprisonment on unrelated charges. The decision that the sentencing Judge is likely to have had in mind is Forrest v Police.[9] Although it also does not contain the proposition, it was observed that the fact that an offender made threats to kill while in prison when he could not carry them out “only goes so far”.[10] In that case Woodhouse J pointed out that the offender had in the past made it clear he would carry out threats as soon as he was able, and at least once made a direct threat when he was not in prison.
This offending
[8] At [19].
[9] Forrest v Police HC Auckland CRI-2009-404-27, 11 May 2009.
[10] At [30].
The threat to kill was mean and vicious. It was directed to children and the threat was to “eat all of their hearts”. However, the sending of the letter appears to have been a spontaneous decision and a reflection of immediate anger, rather than part of a campaign to terrorise. Equally, the rather extravagant nature of the threat cannot be ignored. While the sister gave evidence that she became worried and tearful on receiving the letter, she accepted that the children laughed when it was read out to them.
The threat was contained in a single letter which Mr Faaleaga said at the trial, he immediately regretted sending. He gave evidence indicating that he had tried to stop the letter and apologise to his sister. We do not refer to this in the context of remorse, but rather as a factor indicating the spontaneous and one-off nature of the threat.
In assessing culpability, the fact that the prisoner would not have been able to carry out the threat for a number of years because he was in custody serving a lengthy term of imprisonment is relevant. The fear engendered in the victims by the threat was moderated by the reality that it could not be carried out for a number of years. There was no clear and immediate danger. The threat was not linked to earlier actual violence.
On the basis of this assessment we consider that the seriousness of this offending was towards the lesser end. We would have fixed a starting point a little lower than the sentencing Judge, in the area of eight to nine months. In different circumstances a non-custodial sentence could have been considered.
The offender
We now turn to matters personal to Mr Faaleaga. There are no relevant convictions warranting an uplift in his sentence. We agree with the sentencing Judge that an uplift of one month was appropriate to reflect the added culpability arising from the threat being made while Mr Faaleaga was serving a sentence of imprisonment.
In relation to mitigating factors, Mr Faaleaga said in the evidence he gave during the trial that he wrote the letter to his sister because he was very angry. He said that after he had sent the letter he thought that he should not have done so, but he could not bring the letter back because it was already in the mail. He rang his sister to apologise, although this appears to have been some time later. The probation officer commented that Mr Faaleaga genuinely regretted his actions. He understood the emotional harm it had caused his family. He voiced empathy towards the victims.
The Judge dealt with remorse in this way:[11]
Mr Saseve submits that the remorse expressed by the prisoner is genuine and reference is made to Mr Faaleaga’s attempts to apologise to his sister. This was apparently by telephone. However, he made no attempt to convey his apology by other means, for example, by letter, whereas, he had written a detailed letter containing the threats to his sister. I consider some small reduction for expressed remorse is appropriate.
[11] At [16].
She deducted one month, or approximately 10 per cent for this remorse. We consider one month or 10 per cent in the circumstances to have been appropriate. This would have reduced the end sentence to between eight and nine months imprisonment.
The Judge then considered the totality principle. Given the fact that Mr Faaleaga was serving a long term of imprisonment with some years still to go, it was right to do so. There is no doubt that given the different nature of this offending from the offending for which he was earlier sentenced, a cumulative sentence was appropriate. However, under s 85(2) of the Sentencing Act the total period of imprisonment could not be wholly out of proportion to the gravity of the overall offending. The Judge considered that the cumulative sentence she imposed of 11 years and 10 months imprisonment, with the 10 months being added on for the threatening to kill, was not wholly out of proportion to the gravity of the overall offending.
Where there are successive sentencings, even where the sentencings are not proximate and the events unrelated, the effect of the other sentences must be considered in assessing the correct penalty.[12] It is necessary for a Judge to stand back to look in a broad way at the totality of the criminal behaviour and at the total resulting penalty.[13] Although the Judge did this, we are unable to agree with her decision not to adjust for totality. Mr Faaleaga was already going to spend a very long time in prison. Too long an add-on would be disproportionate in the overall context. We consider that an appropriate add-on viewing the offending in totality with the existing 11 year sentence would have been six months. Given that this is our view, the sentence of 10 months was manifestly excessive.
Result
[12] See R v Johansen CA42/97, 23 May 1997, referred to in Skipper v R [2011] NZCA 250 at [34].
[13] See R v Johansen at 13.
The appeal is allowed.
The sentence of 10 months imprisonment is quashed and a sentence of six months is substituted to be served cumulatively upon his existing sentence.
Solicitors:
Crown Law Office, Wellington for Respondent.
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