Faaliga v The King
[2023] NZHC 2901
•17 October 2023
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 driven along Marne Road, Papakura…
1 R v Matini [2023] NZDC 20587. Crimes Act 1961, s 232(1)(a). Maximum penalty 14 years’ imprisonment.
The sentencing decision
[5] The Judge accepted that the offending could broadly be characterised as a foolish endeavour driven by the desire for quick and easy money. However, the Judge also considered that the offending displayed numerous aggravating features, namely:2
(a)an element of planning and premeditation, albeit to a moderate degree;
(b)forced entry into a private dwelling, with valuable property taken through the threat of violence;
(c)the involvement of multiple offenders and the use of a loaded firearm with a safety mechanism set to fire; and
(d)the infliction of considerable stress on the victims, as evident from the fact that one of the victims ran and hid after being initially encountered.
[6] In setting a starting point, the Judge considered Paraha v R to be the most instructive of the cases referred to by counsel.3 Like the present offending, it was a case involving unlawful entry into a home through force by multiple offenders, one of whom was armed with a loaded firearm. The offenders were looking for drugs or money. Given the Court of Appeal’s observation in that case that a starting point of seven to seven-and-a-half years’ imprisonment was consistent with its guidance in R v Mako4 and Hay v R,5 the Judge adopted a starting point of seven years’ imprisonment (84 months) for both Mr Faaliga and Mr Matini.
[7] As for mitigating factors, the Judge observed that Mr Faaliga’s pre-sentence report recorded that he accepted full responsibility for his offending, and that he attributed it to being around, to use the Judge’s words “the wrong type of people”. The Judge also referred to a report prepared by Mr Faaliga’s cousin which explained that Mr Faaliga:
2 At [5]–[6].
3 Paraha v R [2022] NZCA 646.
4 R v Mako [2000] 2 NZLR 170 (CA) at [58].
5 Hay v R [2015] NZCA 329.
(a)was raised without a father in his life, experienced feelings of abandonment and lacked a male role model in his formative years;
(b)had difficulties at school and was excluded in year 9 due to involvement in physical altercations;
(c)was placed in a boys’ home but ran away from the home and then went through a period of transience; and
(d)eventually met and formed a meaningful bond with his now partner, who he now has a child with.
[8] From a starting point of seven years’ imprisonment, the Judge allowed a full 25 per cent discount for Mr Faaliga’s guilty plea, a 20 per cent discount for youth given Mr Faaliga was 19 at the time of the offending, and a 10 per cent discount for Mr Faaliga’s efforts to rehabilitate. The Judge then further reduced the sentence by six months (seven per cent) as a discount in recognition of the effect which the loss of Mr Faaliga’s birth father had on him, four months (almost five per cent) for Mr Faaliga’s time on bail given the limited restrictions, and further six months (seven per cent) for previous good character. Accordingly, the Judge reached an end sentence of 21-and-a-half months, which allowed the Judge to consider whether a sentence of home detention should be substituted for imprisonment.
[9] Acknowledging that an assessment of the purposes and principles of sentencing was required, the Judge noted that the offending was serious but that Mr Faaliga was still a young man with responsibility for a young child. The Judge also accepted that imprisonment would expose Mr Faaliga to antisocial figures, but considered that limited weight should be given to that or “we will never send anyone to prison”.6 The Judge then said:
[30] I note also that you are assessed as having a reasonably low risk of future offending. These features must also be contrasted with the importance here in deterring and denouncing offending involving multiple offenders who forcibly enter a private dwelling together with a loaded firearm. You clearly have some rehabilitative needs. However, these can be addressed by the
6 R v Matini, above n 1, at [29].
imposition of release conditions in time. In my view, the sentencing outcome can only be that which properly reflects denunciation and deterrence both general and specific for the serious offending in this case. For that reason, I consider that imprisonment is the only appropriate outcome.
Applicable principles
[10] To succeed on an appeal against sentence, the appellant must satisfy this Court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 The Court will only intervene and substitute its own view if the final sentence is manifestly excessive or wrong in principle.8 An appeal against a Judge’s refusal to impose home detention rather than a short-term sentence of imprisonment is an appeal against the exercise of a “fettered discretion” — a discretion constrained by the purposes and principles of sentencing set out in ss 7 and 8 of the Act.9 These include the sentencing principle that the Court must impose the least restrictive outcome appropriate in the circumstances.10 This is reinforced in relation to imposing home detention rather than imprisonment by s 16 (set out below). The appellant must demonstrate an error by the Judge in exercising his or her sentencing discretion.
Discussion
[11] I begin my analysis by observing that it is not at all surprising that Ms Murdoch took no issue with the discounts given to Mr Faaliga. As detailed above, the discounts total approximately 70 per cent of the starting point adopted by Judge Wharepouri. By any measure the end sentence reached can only be considered as exceptionally lenient, particularly as there seems to be considerable overlap between the discounts given for youth, previous good character and rehabilitation.
[12] Discrete discounts for these three factors need to be approached cautiously when dealing with a young offender. In many cases the fact of an appropriate youth discount, recognising lack of maturity on the part of the offender, is inconsistent with a significant previous good character discount not only because of the necessarily short
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Fraser v R [2013] NZCA 250 at [20].
10 Sentencing Act 2002, s 8(g). See also s 16(2).
period of any demonstrable good character but also the fact that, as a youth discount implies, any good character is likely to be the result of good luck rather than good management. Similarly, where, as here, there is no therapeutic rehabilitation identified any references to rehabilitation appears to be more equipping the defendant with life skills as a result of the defendant’s youth. In this case there would appear to be considerable overlap in the total discounts of 37 per cent given for youth, previous good character and rehabilitation.
[13] Notwithstanding those comments, as the Crown has chosen not to appeal the sentence whether Mr Faaliga should have been granted home detention stands to be considered against the end sentence of 21-and-a-half months’ imprisonment determined by Judge Wharepouri.
[14] As Ms Murdoch noted, notwithstanding the demonstrably serious nature of Mr Faaliga’s offending Judge Wharepouri was required to assess a number of matters before he could conclude that imprisonment was “the only appropriate outcome”.11 These are set out in s 16 of the Act which relevantly provides:
16 Sentence of imprisonment
(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—
(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b) those purposes cannot be achieved by a sentence other than imprisonment; and
(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.
[15] It is clear the Judge did not refer explicitly to s 16 and in particular the mandatory consideration contained in s 16(1) of the “desirability of keeping offenders
11 R v Matini, above n 1, at [30].
in the community as far as that is practicable and consonant with the safety of the community”.
[16] I agree with Ms Murdoch that the failure to consider s 16(1), whether explicitly or implicitly is significant. The matters contained in s 16(1) are required to be considered separately from those in s 16(2) and require a sentencing judge to start from the position that it is desirable to keep offenders in the community if it is both practicable and “consonant with the safety of the community”. Importantly s 16(1) changes the focus from the seriousness of the offending, noting that the subsection can have no application if the end sentence is in excess of two years, to practical considerations (including an appropriate address for the offender to remain during the sentence) ensuring that if the offender remains in the community the community is kept safe.
[17] In the context of this case I am therefore satisfied that the failure to specifically consider s 16(1) meant that Judge Wharepouri erred in his approach and as a result I am required to reconsider this aspect of Mr Faaliga’s sentence in light of s 16(1).
[18] As Ms Murdoch submitted, if regard is had to s 16(1) as required the starting point for the appropriateness of imprisonment is quite different. First I note that the Provision of Advice to the Court Report (“PAC Report”) is very positive about Mr Faaliga. The PAC report noted that Mr Faaliga was a low risk in terms of reoffending, and a low risk of harm to others. The report writer noted in particular:
Mr Faaliga presented well during his interview and the home visit. He accepted full responsibility for this offending and advised his sorry for the harm is caused. He did not present within entitlement and openly admitted he was hanging around with the wrong type of people. He presented as a young 21-year-old and realised his need for support stating he is motivated to attend an intervention to help of an offence free life and to be the best partner and father he can be. Mr Faaliga appeared to be open, honest and sincere during the interview.
[19] Moreover, it was noted that Mr Faaliga has good prosocial support from his partner of four years and their home was assessed as suitable for an electronically monitored sentence. The recommendation was accordingly a sentence of home detention. No issue is taken by the Crown with regard to the suitability of Mr Faaliga for home detention, nor the suitability of the home detention address. Having
considered the PAC Report it is clear that in terms of s 16(1) it is both practical and safe for Mr Faaliga to be kept in the community while serving his sentence.
[20] Notwithstanding this conclusion, s 16(2) does not preclude a sentence of imprisonment from being imposed. As Judge Wharepouri specifically concluded with regard to s 16(2)(a) and (b), imprisonment could be imposed for reasons of denunciation (s 7(e)) and deterrence (s 7(f)). However, s 16(2)(c) required Judge Wharepouri to be satisfied that “no other sentence would be consistent with the application of the principles in section 8 to the particular case” before imprisonment can be imposed.
[21]Section 8 provides:
In sentencing or otherwise dealing with an offender the court—
(a)must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
(b)must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
(c)must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(d)must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(e)must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
(f)must take into account any information provided to the court concerning the effect of the offending on the victim; and
(g)must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A; and
(h)must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would
otherwise be appropriate would, in the particular instance, be disproportionately severe; and
(i)must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and
(j)must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section
10).
[22] There was no comprehensive analysis of these principles in the sentencing decision. Relevantly, although Judge Wharepouri, early in the decision, referred to the need for the sentence to be the least restrictive sentence that is warranted in the circumstances of subs 8(g),12 there was no mention of this in determining whether imprisonment or home detention was the appropriate outcome. Likewise, while his Honour considered the submission made on Mr Faaliga’s behalf that prison would “have a negative impact … exposing [Mr Faaliga] to other antisocial figures, perhaps leading into a cycle of being drawn into a world where [he] might be influenced by other figures more inclined to a life of crime” he was visibly dismissive of this in noting “[w]hile there may be some substance to this claim, if it were given more weight than other considerations we will never send anyone to prison”.13
[23] Instead, his Honour’s conclusion that imprisonment was the only appropriate outcome was otherwise limited to an analysis of the following matters:
(a)The offending was serious;14
(b)Mr Faaliga was a young man with responsibility for a young child;15
(c)Mr Faaliga had a “reasonably low risk of future offending”;16
12 At [4].
13 At [29].
14 At [29].
15 At [29].
16 At [30].
(d)Mr Faaliga had some rehabilitative needs that could be met by the imposition of release conditions.17
[24] When the relevant s 8 principles are considered in light of the s 16(1) analysis it is clear that it is not the case that no sentence other than imprisonment would be appropriate for the purposes of s 16(2)(c) of the Act. First, subs 8(c), (d), (f) and (j) are of little relevance as to whether imprisonment rather than home detention is appropriate in this case, rather than determining the notional end sentence of 21-and a-half months’ imprisonment. Likewise, while the offending was obviously and objectively serious in terms of s 8(b), the level of culpability ultimately determined by Judge Wharepouri reflected by the extensive discounts, and in particular those for youth that were given, significantly reduces the gravity of the offending for the purposes of s 8(a).
[25] In terms of s 8 (e), counsel compared and contrasted this case with R v Karaitiana, a sentencing undertaken by Thomas J.18 The offending involved two offenders forcibly entering a property with pistols at night, punching the victim in the face and accidentally shooting the victim’s left knee. A wallet and phone were stolen. From a starting point of five-and-a-half years’ imprisonment, Thomas J allowed discounts resulting in an overall sentence of 24 months’ imprisonment before accepting that a sentence of home detention and community work was justified given the defendant’s age (20 at the time), very limited criminal history, apparent strong community support and the negative impact that a custodial sentence would have. Her Honour considered that a combined sentence of home detention and community work stood a greater chance of a positive outcome. In that case, the Crown had agreed that a community-based sentence may be appropriate. While there are clearly differences between the cases, Karaitiana illustrates the potential application of home detention to a situation where otherwise extremely serious offending ends up at a notional sentence of two years’ imprisonment or under and the offender is otherwise suitable for and will benefit from home detention.
17 At [30].
18 R v Karaitiana [2020] NZHC 91.
[26] I likewise note that far from merely discounting the potential effect of imprisonment on Mr Faaliga as Judge Wharepouri did in his own analysis, it is in fact explicitly required to be taken into account for the purposes of s 8(h). Further, allowing the sentence to be served by way of home detention is, as the PAC Report recommended, likely to achieve a rehabilitative purpose in terms of s 8(i). Finally, I observe that while the stated rationale for imprisonment was to provide for denunciation and deterrence such a purpose had already been substantively undermined by the notional end sentence reached by Judge Wharepouri.
[27] As a result, and given Mr Faaliga’s circumstances, I conclude the imposition of imprisonment would result in an outcome which was inappropriately punitive and manifestly excessive. Instead, I consider that the only conclusion that can be reached is that the least restrictive outcome available was in fact a sentence of home detention. While for the reasons noted earlier in this judgment the discounts given to Mr Faaliga were exceptionally generous, once they had been given, the inevitable result after undertaking the s 16 analysis in this case was a sentence of home detention.
Decision
[28] The appeal is allowed. Taking into account the additional time spent in custody by Mr Faaliga since he was sentenced and the fact that home detention is not subject to early release as is the case for a short sentence of imprisonment, his sentence is cancelled and replaced by a sentence of 10 months home detention at the address identified and subject to the conditions set out in the PAC Report.
Powell J
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