Faaliga v The King - [2023] NZHC 2901

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-497

[2023] NZHC 2901

FRAZER FAALIGA

v

THE KING

Hearing: 9 October 2023

Appearances:

J Murdoch and S Morgan for the Appellant A Al-Jarabi for the Respondent

Judgment:

17 October 2023

JUDGMENT OF POWELL J

[Appeal against refusal to impose home detention]

This judgment was delivered by me on 17 October 2023 at 3.30 pm

…………………..
Registrar/Deputy Registrar

Solicitors:
Kayes Fletcher Walker

Counsel:
J Murdoch S Morgan A Jarabi

FRAZER FAALIGA v R [2023] NZHC 2901 [17 October 2023]

[1] Mr Faaliga appeals his sentence of 21-and-a-half months’ imprisonment imposed by Judge A M Wharepouri in the District Court at Manukau after Mr Faaliga pleaded guilty to one charge of aggravated burglary.1

[2] Mr Faaliga appeals solely on the ground that the Judge erred by not commuting his sentence to a period of home detention. No issue is taken with the Judge’s starting point or discounts for personal mitigating factors, but on behalf of Mr Faaliga Ms Murdoch submits that Judge Wharepouri failed to undertake an appropriate analysis pursuant to s 16 of the Sentencing Act 2002 (“the Act”). Ms Murdoch contends that had that analysis been undertaken home detention would have been identified as the appropriate sentence, and as a result the end sentence of imprisonment imposed on Mr Faaliga is manifestly excessive.

[3] The Crown opposes the appeal and submits imprisonment was appropriate given the seriousness of Mr Faaliga’s offending.

The offending

[4] Mr Faaliga and his co-defendant Mr Matini’s offending was described by the Judge in his sentencing notes as follows:

[2] At approximately 1.30 am, on 16 December 2021, the two of you together with an unknown associate went to an address in Papakura. The victims of your offending included the occupants of the house and a visitor to the address. All of your victims were watching TV in the lounge. One of them answered a loud knock at the front door. When opening the door, she was confronted by one of your groups (sic) holding a shotgun. Terrified by this, she ran from the house out the back door of the home and hid under a neighbour’s vehicle and called police. Despite her urging the others inside the home remained there. One of your number then kicked open the front door and the three of you then entered the house. The gun was pointed at two of the occupants who were ordered to sit down while a search then took place of their home.

[3] The two of you and your associate were there looking for gold and money. According to the summary, the burglary lasted approximately five to 10 minutes before the two of you and your associate left the house. You took with you a handbag which contained a number of items and approximately
$3,000 cash. You all fled the scene using a Mazda vehicle which was located by police a short time later being…

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 Faaliga v The King

Details

AGLC: Faaliga v The King [2023] NZHC 2901
Case: [2023] NZHC 2901
Decision Date: 17 October 2023

CaseChat Overview and Summary

In Faaliga v The King, the High Court of New Zealand reviewed the sentence imposed by the District Court on Mr Faaliga for aggravated burglary. Mr Faaliga appealed the 21-and-a-half-month imprisonment sentence, arguing that the judge had erred by not considering a sentence of home detention. The Crown opposed the appeal, maintaining that imprisonment was appropriate given the seriousness of the offence. The appeal hinged on whether the sentencing judge appropriately exercised his discretion in light of the statutory requirement to consider keeping offenders in the community where practicable and safe.

The court found that the sentencing judge had failed to properly consider the statutory requirement under section 16(1) of the Sentencing Act 2002 to prioritise keeping offenders in the community, which is desirable where it is practicable and consonant with community safety. This oversight was critical as it led to an inappropriate imposition of imprisonment. The court highlighted that the extensive discounts applied by the sentencing judge reduced the severity of the offending and made home detention a more suitable option. The court emphasised that the purposes of denunciation and deterrence had already been sufficiently addressed by the significant sentence discount, rendering imprisonment excessively punitive.

The court concluded that the sentence of home detention was the least restrictive outcome appropriate in the circumstances, aligning with the statutory principles of sentencing. The appeal was thus allowed, and Mr Faaliga’s sentence of imprisonment was replaced with a sentence of 10 months home detention, taking into account time already served and the conditions set out in the Provision of Advice to the Court Report.

Orders