Faleui aka Gibbons v The Queen - [2021] NZHC 1826

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-0274

[2021] NZHC 1826

BETWEEN
ALOALI’I FALEUI (AKA SISALI GIBBONS)

Appellant

AND

THE QUEEN

Respondent

Hearing: 19 July 2021

Appearances:

C M Hallaway for the appellant A R Masters for the respondent

Judgment:

19 July 2021

ORAL JUDGMENT OF JAGOSE J

Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland

FALEUI (AKA SISALI GIBBONS) v R [2021] NZHC 1826 [19 July 2021]

[1] Aloali’i Faleui, preferring to be known as Sisali Gibbons, appeals his sentence of 23 months’ imprisonment, imposed by Judge A-M J Bouchier in the District Court at Auckland on 1 June 2021,1 on Mr Gibbons’ guilty pleas to four charges each of threatening to kill and threatening to do grievous bodily harm,2 common assault,3 and converting a vehicle.4

Background

[2] The former three charges arise from Mr Gibbons’ altercations on 11 and 27 October 2020 with the same victim, known to each other. On each occasion happening on the victim in his car: first, after waving him down, Mr Gibbons attacked him with punches and later threatened “this is your end, this knife is going into your throat”; on the other occasion, when the victim was caught in traffic, to abuse and threaten “I’m going to stab you with this screwdriver” for complaining to the police about the former incident. The threats were made in the Samoan language, known to both Mr Gibbons and the victim. The fourth charge is unrelated, not returning a $4,800 vehicle taken on a test drive in September 2020.

Decision under appeal

[3] With reference to factors identified in the Court of Appeal’s decision in Burchell v R,5 the Judge considered the victim was vulnerable “to a degree” to Mr Gibbons’ ‘modestly’ premeditated threats, which were specific and real, including use of a weapon, causing material harm and distress to his direct victim.6 The Judge took starting points of 18 months’ imprisonment for the violence offending, and nine months’ imprisonment for the conversion offending, uplifted by four months for Mr Gibbons’ prior offending to 31 months’ imprisonment.7 Allowing only the 25 per cent discount for Mr Gibbons’ guilty pleas, the Judge rounded down her end

1      R v Faleui [2021] NZDC 10696.
2      Crimes Act 1961, s 306 (maximum penalty: seven years’ imprisonment).:
3      Section 196 (maximum penalty: one year’s imprisonment).
4      Section 226 (maximum penalty: two years’ imprisonment).
5      Burchell v R [2010] NZCA 314.
6      R v Faleui, above n 1, at [13]–[15].
7 At [27].

sentence to 23 months’ imprisonment, commutable to home detention to a suitable address.8

[4] For Mr Gibbons, Christina Hallaway argues only the Judge erred in failing to apply a discount “to reflect matters of personal mitigation raised in the cultural report”. The Judge plainly had regard for the cultural report, but said its mere existence “does not lead to a discount”.9 Ms Hallaway argues for a discount “in the vicinity of 20 per cent”…

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.

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Details

Case: [2021] NZHC 1826
Decision Date: 19 July 2021

CaseChat Overview and Summary

Aloali’i Faleui, also known as Sisali Gibbons, appealed his sentence of 23 months' imprisonment imposed by Judge A-M J Bouchier in the Auckland District Court on 1 June 2021. Gibbons pleaded guilty to four charges: threatening to kill and threatening to do grievous bodily harm, common assault, and converting a vehicle. The charges stemmed from two separate incidents where Gibbons threatened the same victim with a knife and a screwdriver, and one unrelated incident where he did not return a vehicle taken on a test drive. Gibbons argued that the judge failed to apply a discount to reflect the personal mitigation raised in the cultural report, and that the sentence was manifestly excessive.

The legal issues in this case were whether the judge erred in failing to apply a discount based on the cultural report and whether the sentence was manifestly excessive. The appeal court considered whether Gibbons' background and cultural factors should have resulted in a lower sentence. The court assessed whether the sentence was within a range properly justified by accepted sentencing principles and whether it was manifestly excessive.

The court held that the judge did not err in refusing to credit the report with any additional discount on sentence. The court found that Gibbons' background did not mitigate his culpability for the offending, as it did not appear to have sprung from any impaired choice. The court also found that the judge's end sentence was not manifestly excessive. The appeal was dismissed.

The court's reasoning and outcome in this case highlight the importance of considering cultural factors in sentencing, but also the need to balance those factors with the seriousness of the offending and the need for deterrence and denunciation. The court found that the sentence imposed was appropriate and not manifestly excessive, and therefore dismissed the appeal.

Orders