Faaofo v The Queen
[2020] NZHC 1807
•24 July 2020
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 cut down, it really limited the purpose for someone to be in possession of it. Although the Judge accepted in the present case that there was no imminent risk of Mr Faaofo threatening or employing violence, she thought that the very nature of the shotgun as well as the presence of shotgun shells nearby were aggravating factors.
[8] The Judge then uplifted the starting point of 26 months’ imprisonment by nine months to recognise the cannabis offending. This was on the basis that the offending fell within band two of the guideline judgment in R v Terewi.8 The Judge said that an uplift of nine months reflected the sale-ready status of the tinnies, as well as the cash located by the police.
[9] Although the Judge was invited to limit the quantum of the uplift on the basis that the cannabis offending stemmed from Mr Faaofo’s addiction, the Judge
7 R v Faaofo [2020] NZDC 9499.
8 R v Terewi [1999] 3 NZLR 62 (CA).
considered that this factor was more relevant to an assessment of his insight into his offending, as well as rehabilitative prospects.
[10] From there, the Judge also imposed an uplift of three months’ imprisonment for the charges of assault and breach of release conditions and an uplift of four months’ imprisonment for Mr Faaofo’s personal aggravating factors. This reflected both his offending while on bail as well as Mr Faaofo’s prior conviction history for drug, violence and firearms offences. The uplifts totalled 16 months to bring the final starting point, before mitigating factors were taken into account, up to three and a half years’ imprisonment.
[11] Then, by way of mitigating factors, the Judge discounted the final starting point by 10 months’ imprisonment, or 23.8 per cent for Mr Faaofo’s guilty pleas. She said that although he had spent time on electronically-monitored bail, his compliance was described as being “patchy at best”. Accordingly, the Judge did not allow any discount for this factor.
[12] Finally, in recognition of Mr Faaofo’s “willingness and motivation to do something for [himself]” once he completed his prison term, the Judge reduced the prison term by a further two months’ imprisonment to make the final sentence one of two and half years’ imprisonment.
[13] In the end, the Judge imposed the sentence of two and a half years’ imprisonment on the firearm and ammunition charges and the cannabis charge as well as concurrent sentences of three months’ imprisonment on the charge of assault and breach of release conditions. The Judge convicted and discharged Mr Faaofo on the failure to answer court bail charge.
Appeal against sentence
[14]Section 250(2) of the Criminal Procedure Act 2011 provides:
250 First appeal court to determine appeal
…
(2)The first appeal court must allow the appeal if satisfied that—
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
In any other case the appeal must be dismissed.
[15] The Court of Appeal in Tutakangahau v R,9 confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Crimes Act 1961 and the Summary Proceedings Act 1957. It must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal. If there is an error of the requisite character, the Court will then form its own view of the appropriate sentence.
[16] Even where an “error of the requisite character” is identified, the appellate court’s focus is on the outcome and whether the end sentence is manifestly excessive. The appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Mr Faaofo’s submissions
[17] The major submission made by Mr Faaofo is that the cumulative effect of the starting point adopted and the uplifts applied resulted in a sentence that was manifestly excessive.
[18] As to the initial starting point of 26 months’ imprisonment adopted by the Judge for the firearm and ammunition charges, Mr Faaofo submits that the facts in this case do not justify a starting point beyond 24 months’ imprisonment. He acknowledges that there is a line of cases referred to by Moore J in Herewini v Police,10 in which starting points in the range of two years to two and a half years’ imprisonment have been adopted for broadly similar offending, but notes the lack of aggravating factors, such as the presence of other weapons or discovery following a callout for a street disturbance, in this case.
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
10 Herewini v Police [2014] NZHC 2396.
[19] As to the initial uplift of nine months’ imprisonment for the cannabis offending, Mr Faaofo submits that no more than five to six months would have been appropriate, although he acknowledged that in the circumstances, the 47 tinnies found in his vehicle together with $100 cash, casts the offending between the upper end of category one and the bottom of category two in R v Terewi.11 In Terewi, the Court of Appeal set a starting point of between two and four years’ imprisonment for category two offences, but where sales were infrequent or of very limited extent, a lower starting point might be justified.
[20] Had the Judge adopted an uplift of five or six months for the cannabis offending, Mr Faaofo says he would have taken no issue with the uplift of three months for the charges of assault and breach of release conditions. It is the cumulative effect which counsel submits renders the uplift excessive.
[21] As to the uplift for offending on bail and conviction history, Mr Faaofo points out that his only previous conviction for firearms offending is from 1998, for which he received a sentence of six months’ non-residential periodic detention. Any uplift for his previous convictions should, therefore, have been no more than one month, while any uplift to reflect the offending on bail should have been no more than two months.
[22] In conclusion, Mr Faaofo submits that the combination of the uplifts (16 months’ imprisonment in total) also involves some overlap. In particular, the nine months for cannabis offending together with a further uplift of four months for previous convictions and offending on bail and the uplift of three months for the assault and breach of parole condition, resulted in combined uplifts that were excessive. He submits that total uplifts of no more than 10 months on the initial starting point would have been justified. The end sentence of two and a half years’ imprisonment was, therefore, manifestly excessive. A sentence of not more than two years’ imprisonment could be justified.
11 R v Terewi, above n 8.
Discussion
[23] Section 85(4) of the Sentencing Act 2002 provides that if only concurrent sentences are imposed (as was the case here), the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and each of the lesser offences must receive the penalty appropriate to that offence.
[24] Here, there were three sets of unrelated substantive offending over a seven- month period — the possession of cannabis for supply, the assault on a fellow detainee, and the possession of a firearm and ammunition. There were also two charges of breaching court or other orders, which needed to be recognised in some way. Together, these constituted the totality of the offending, which must be reflected in the penalty imposed.
[25] Furthermore, s 9 of the Sentencing Act requires that the Court must take into account the following aggravating factors:
(a)That the offence was committed while the offender was on bail or still subject to a sentence; and
(b)The number, seriousness, date, relevance and nature of any previous convictions of the offender and of any conviction for which the offender is being sentenced or otherwise dealt with at the same time.
[26] On an appeal against sentence, the key issue is whether the overall sentence imposed is manifestly excessive. Appellate courts have often said that the process a sentencing judge uses to reach the overall sentence is less important, unless some procedural misstep has led to a miscarriage of justice.
[27] Of all the cases cited to me, I have found the case of Head v Police to be the most helpful because of its similarities with the present case.12 Mr Head appealed against a sentence of 27 months’ imprisonment on three sets of charges — cannabis
12 Head v Police [2017] NZHC 1733.
and other drug offending, assault and wilful damage and unlawful possession of a shotgun.
[28] During the execution of a search warrant, Mr Head was found to be in possession of two sealed bags of cannabis heads, a meth pipe, a cannabis pipe, 18 cannabis seedlings and other growing equipment. Two weeks later, he had a verbal argument with his partner. He placed one arm around her head and the other around her arm and squeezed her hard. He also smashed a bathroom mirror and light fittings. Then, on a separate occasion, the police were called to a disturbance on the street outside Mr Head’s residence. He admitted possession of a shotgun in his motor vehicle. A search of his vehicle discovered a shotgun with 22 shotgun shells and a crossbow. Both were ready to discharge.
[29] In the District Court, the Judge identified the lead offence to be the unlawful possession of a firearm and adopted a starting point of two years’ imprisonment. He uplifted the sentence by nine months for the drug offending, and three months for assault and wilful damage. The Judge then discounted the sentence by 25 per cent for guilty pleas. The end sentence was 27 months’ imprisonment. An appeal against sentence was dismissed.
[30] The only real difference between the two cases is that in Head, the sentencing judge did not uplift the starting point for offending on bail and Mr Head’s previous criminal history, whereas in the present case, the Judge did uplift the starting point by four months for offending on bail and Mr Faaofo’s previous criminal history, but later gave him two months credit for his willingness to rehabilitate himself.
[31] I am of the view that any changes I would make to the initial starting point and the uplift would be tinkering, which an appellate court should not do. The offending was serious. Mr Faaofo was apprehended in a motor vehicle, in a residential area, with a sawn-off double-barrelled shotgun and associated ammunition in a bag behind the driver’s seat, readily accessible by him. The other offending was quite unrelated in time, nature and circumstances. There was no relationship between the charges. The combined uplift of 12 months’ imprisonment for the other offending necessarily reflects the diverse criminal behaviour for which Mr Faaofo was being sentenced. As
to the four months uplift for offending on bail and Mr Faaofo’s previous criminal history, these are statutorily recognised as aggravating factors of a defendant’s offending. Mr Faaofo is aged 39 and has been offending since he was 17. He had only been released from a sentence of two years and ten months’ imprisonment for supplying methamphetamine, four months before being arrested and charged with the cannabis offending.
Result
[32] In all the circumstances, I cannot say that the sentence of two and a half years’ imprisonment is manifestly excessive. The appeal is dismissed.
Woolford J
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