Fakava v Police - [2016] NZHC 753

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2016-454-000013 [2016] NZHC 753

BETWEEN
SEMISI FAKAVA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 April 2016 (via AVL at Wellington)

Counsel:

J A Younger for Appellant
N J Wynne for Respondent

Judgment:

21 April 2016

JUDGMENT OF COLLINS J

Summary of judgment

[1] I am allowing Mr Fakava’s appeal from a sentence of four months’

imprisonment imposed by Judge Ross in the Palmerston North District Court on

14 April 2016 in relation to one charge of assault.

[2] I am allowing the appeal because the sentence imposed was manifestly excessive. The sentence of four months’ imprisonment is quashed and substituted with a sentence of one month’s imprisonment. All other orders made by Judge Ross remain in force.

Background

[3] On 7 March 2016, Mr Fakava pleaded guilty to one charge of assault, laid under s 196 of the Crimes Act 1961 (the Crimes Act).1 This was a substituted
charge. Previously, Mr Fakava had been charged with male assaults female, laid

1 Maximum sentence is one year imprisonment.

FAKAVA v NEW ZEALAND POLICE [2016] NZHC 753 [21 April 2016]

under s 194(b) of the Crimes Act. That charge carried a maximum sentence of two

years’ imprisonment.

[4] The summary of facts to which Mr Fakava pleaded guilty states that on the morning of 21 November 2015, Mr Fakava was at an address then occupied by himself, the victim (who was at the time Mr Fakava’s partner) and their 10 month old baby. The victim found a broken glass pipe, which she believed belonged to Mr Fakava. The victim accused Mr Fakava of using drugs and an argument ensued. The victim was holding their baby and a cell phone. She was threatening to call the police. Mr Fakava told the victim to sit down and grabbed the victim by her hair with sufficient force to dislodge some of her hair from her scalp. The pair continued to “tussle” in their bedroom, where Mr Fakava took the victim’s cell phone. The victim, carrying the baby, went to the kitchen and got a house key and attempted to unlock the front door. Mr Fakava went over to her and grabbed the key from her hand. The victim went to a kitchen window and called for help. Mr Fakava went into the kitchen and shut the window. A neighbour heard the commotion and called the police.

[5] Ms Younger, who represented Mr Fakava in the District Court and on appeal, advised that there were initially discussions with the police about Mr Fakava being diverted. The police however determined Mr Fakava was not eligible for diversion.

[6] In the meantime, Mr Fakava commenced a family violence counselling course.

[7] Unfortunately, Mr Fakava struggled to adhere to the terms of bail which had been imposed. He breached the terms of his bail on 8 and 25 January 2016,
15 February 2016 and 2 March 2016 when he made contact with the victim. Ultimately, a protection order…

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 Fakava v Police

Details

AGLC: Fakava v Police [2016] NZHC 753
Case: [2016] NZHC 753
Decision Date: 21 April 2016

CaseChat Overview and Summary

The case of Fakava v Police involved an appeal against a four-month imprisonment sentence imposed on Mr Fakava for an assault on his partner. The original charge of male assaults female was substituted with a charge of assault under the Crimes Act 1961, carrying a maximum penalty of one year imprisonment. Mr Fakava had pleaded guilty to the substituted charge and had already commenced a family violence counselling course. However, he breached the terms of his bail multiple times, including making contact with the victim. The District Court judge sentenced Mr Fakava to four months' imprisonment, which he appealed on the grounds that the sentence was manifestly excessive. The appeal was heard by Collins J, who found that the sentence was indeed manifestly excessive and substituted it with a sentence of one month’s imprisonment.

The court considered several factors in deciding the appeal, including the nature of the assault, the offender's previous convictions, the guilty plea, and the offender's remorse. The court found that the assault was at the lower end of the spectrum of assaults, and that Mr Fakava had no relevant previous convictions. Additionally, Mr Fakava pleaded guilty to the amended charge as soon as it was laid, and he was remorseful. The court also found that the judge in the District Court had erred by treating the assault as prolonged and by placing too much emphasis on the breaches of bail conditions. The court concluded that the interests of justice would be best served by reducing the sentence to one month’s imprisonment.

Collins J quashed the four-month imprisonment sentence imposed by the District Court and substituted it with a sentence of one month’s imprisonment. The post-release condition imposed by the District Court judge remained in force. The court considered that the original sentence was manifestly excessive and that a sentence of one month’s imprisonment was proportionate to the offending, taking into account the factors mentioned above.

Orders