Faaofo v The Queen - [2020] NZHC 1807

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000187

[2020] NZHC 1807

BETWEEN
KEN FAAOFO

Appellant

AND

THE QUEEN

Respondent

Hearing: 14 July 2020

Appearances:

O Troon for the Appellant

A Al-Janabi and D Muratbegovic for the Respondent

Judgment:

24 July 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 24 July 2020 at 3:00 pm

Registrar/Deputy Registrar

Solicitors: Public Defence Service, Manukau

Kayes Fletcher Walker (Office of the Crown Solicitor), Manukau

FAAOFO v R [2020] NZHC 1807 [24 July 2020]

[1] On 27 May 2020, Ken Faaofo was sentenced to two and a half years’ imprisonment by Judge T V Clark in the Manukau District Court, having pleaded guilty to the following charges:

(a)Possession of cannabis for sale;1

(b)Common assault;2

(c)Failure to answer court bail.3

(d)Breach of release conditions;4

(e)Unlawful possession of a firearm;5 and

(f) Unlawful possession of ammunition;6 He now appeals against sentence.

Factual background

[2] On 6 March 2019 at approximately 12.09am, the police stopped and searched a motor vehicle being driven by Mr Faaofo. They located 35 grams of cannabis wrapped ready for sale in 46 tinnies, as well as $100 in cash. Mr Faaofo was arrested and charged with possession of cannabis for sale.

[3] Having been charged, Mr Faaofo was scheduled to appear in the Manukau District Court the same morning. At 8.14am he was in the court cells. An argument ensued between Mr Faaofo and the victim, who was also in custody waiting to appear in court that day. Without provocation, Mr Faaofo walked over to the victim and punched him once using a closed left hand, causing him to stumble backwards. The

1      Misuse of Drugs Act 1975, s 6(1)(f).
2      Crimes Act 1961, s 196.
3      Bail Act 2000, s 38.
4      Parole Act 2002, s 71A.
5      Arms Act 1983, s 45(1)(b).
6      Section 51(1)(b).

assault was captured on CCTV footage. It did not result in any injuries. Mr Faaofo was subsequently bailed.

[4] On 27 March 2019, Mr Faaofo was scheduled to appear at the Manukau District Court, per the conditions of his bail. However, he failed to appear on that date.

[5] Then on 18 June 2019, Mr Faaofo breached a condition of his release from a previous sentence of imprisonment on 27 October 2018 by failing to undertake an alcohol and drug test as directed by a probation officer.

[6] Finally, on 5 October 2019, at approximately 7.35pm, the police stopped a motor vehicle being driven by Mr Faaofo on an unrelated matter. Inside the vehicle, police located a bag behind the driver’s seat, which contained a sawn-off double- barrelled shotgun and four shotgun shells. Mr Faaofo did not have a firearms licence. He was on bail at the time.

District Court decision

[7] The Judge considered the firearms charges to be the lead offences.7 She adopted a starting point of 26 months’ imprisonment for them, noting that once a shotgun is…

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 Faaofo v The Queen

Details

AGLC: Faaofo v The Queen [2020] NZHC 1807
Case: [2020] NZHC 1807
Decision Date: 24 July 2020

CaseChat Overview and Summary

The appellant, Ken Faaofo, was sentenced by Judge T V Clark in the Manukau District Court to a term of two and a half years' imprisonment, following a guilty plea to possession of cannabis for sale, common assault, failure to answer court bail, breach of release conditions, unlawful possession of a firearm, and unlawful possession of ammunition. Faaofo now appeals against the sentence. The legal issues before the court were whether there was an error in the sentence imposed and whether a different sentence should be imposed. Faaofo argued that the sentence was manifestly excessive, primarily due to the cumulative effect of the starting point adopted and the uplifts applied by the sentencing judge. The court found that the offending was serious and that the combined uplift of 12 months' imprisonment for the other offending necessarily reflected the diverse criminal behaviour for which Faaofo was being sentenced. The court also noted that the four months uplift for offending on bail and Faaofo's previous criminal history were statutorily recognised as aggravating factors of a defendant's offending. In all circumstances, the court could not say that the sentence of two and a half years' imprisonment was manifestly excessive and dismissed the appeal.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of two and a half years' imprisonment imposed by the Manukau District Court was upheld.

Orders