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” — in acknowledgement of “the systemic deprivation suffered by Mr [Gibbons]” and the nexus between it and his offending — taking the end sentence to 17 months’ imprisonment and thus rendering the Judge’s 23 months ‘manifestly excessive’.

Approach to appeals against sentence

[5]                 I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.10 In any other case, I must dismiss the appeal.11 The approach previously taken by courts on sentencing appeals continues to apply;12 the measure of error is the sentence be “manifestly excessive” — the principle is “well-engrained” in this Court’s approach to sentencing appeals.13 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.14

Discussion

[6]                 Mr Gibbons’ “personal, family, whanau, community, and cultural background” is a mandatory consideration for sentencing’s rehabilitative purpose.15 It also has materiality for “the way in which that background may have related to the commission of the offence”.16 The crucial question is if Mr Gibbons’ background is such as should

8 At [28].

9 At [26].

10     Criminal Procedure Act 2011, s 250(2).

11     Section 250(3).

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

13     At [33] and [35].

14     Ripia v R [2011] NZCA 101 at [15].

15     Sentencing Act 2002, ss 8(i) and 27(1)(c)–(e).

16     Section 27(1)(b).

mitigate his culpability, in justifying his offending or explaining his conduct as springing from his “impaired choice”.17

[7]                 The Judge had a report contending for Mr Gibbons’ strong connection with Samoan culture, in which he is said to be “highly competent”, “fluent” and “a leader in his own right”, but illiterate in English language. Although isolated from family influences on the passing of his parents and his siblings’ emigration to Australia (which option is closed by Mr Gibbons’ criminal record), the reporter considers Mr Gibbons has better prospects for restorative justice in the Samoan community. At now 53 years of age, Mr Gibbons is angry about being abused when younger, including possibly suffering a brain injury, and his loss of opportunity for education in favour of earning money for his family.

[8]The reporter says:

… in Samoa, the four core values are giving and receiving tautua (service), fa’aaloalo (respect), and alofa (love), which are crucial in Samoan social relations. Family is the central unit of Samoan life (Kavaliku, 2007, p.28), with the traditional culture of Samoa is a communal way of life based on Fa’a Samoa, the unique socio-political culture. In Samoan culture, most activities are done together. One’s family is viewed as an integral part of a person’s life. The aiga or extended family lives and works together. [Mr Gibbons] did not live this, and he was one of the families raised with dysfunction and disconnectedness.

Yet Mr Gibbons’ own assessment is he is connected to the Samoan community and “culturally active”, including while in custody. His offending was conducted against a member of his community, in the presence of another, and in Samoan  language.    I cannot identify anything in his background that may be said to mitigate his culpability for that offending. It does not appear to have sprung from any impaired choice, but rather the opportunity to threaten and assault those within his community.

[9]                 The Judge did not err in refusing to credit the report with any additional discount on sentence. Additionally, her Honour’s 18-month starting point might be thought benevolent in light of other sentences for repeated threatening and violent

17     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10(l)], [92] and [159].

offending against familiar victims.18 Viewed overall, the Judge’s end sentence is not manifestly excessive.

Result

[10]The appeal is dismissed.

—Jagose J

18 See, for example, Kelly v R [2018] NZCA 347 at [13] (end sentence: 27 months’ imprisonment); Simon v R [2014] NZCA 207 (starting point: three years’ imprisonment); and Burton v R [2014] NZCA 221 (starting point: 30 months’ imprisonment).