BThe sentence of 10 months imprisonment is quashed and a sentence of six months is substituted, to be served cumulatively upon his existing sentence.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Faaleaga v R

Details

AGLC: Faaleaga v R [2011] NZCA 495
Case: [2011] NZCA 495
Decision Date: 29 September 2011

CaseChat Overview and Summary

Faaleaga Faaleaga appealed against a sentence of 10 months imprisonment imposed upon him for threatening to kill. The appellant, who was in prison serving an 11-year sentence, had become upset with his sister and her children, and wrote a letter threatening them. The sentencing judge considered the purposes and principles of sentencing, the aggravating and mitigating factors, and imposed a sentence of 10 months imprisonment, to be served cumulatively upon the existing sentence. The appellant submitted that the starting point was too high and the judge placed inadequate weight on the mitigating features. The Crown submitted that a cumulative sentence was the only sentence available. The Court found that the seriousness of the offending was towards the lesser end and a starting point of eight to nine months was appropriate. The Court also found that the judge had erred in not adequately considering the totality principle. The appeal was allowed, the sentence of 10 months was quashed and a sentence of six months was substituted, to be served cumulatively upon the existing sentence.

The Court of Appeal allowed Faaleaga Faaleaga's appeal against a sentence of 10 months imprisonment imposed upon him for threatening to kill. The Court found that the seriousness of the offending was towards the lesser end and a starting point of eight to nine months was appropriate. The Court also found that the judge had erred in not adequately considering the totality principle, and that the sentence of 10 months was manifestly excessive. The sentence of 10 months was quashed and a sentence of six months was substituted, to be served cumulatively upon the existing sentence of 11 years. The Court held that the sentence of 11 years and 6 months imprisonment, with the 6 months being added on for the threatening to kill, was not wholly out of proportion to the gravity of the overall offending.

Orders