Feau v R - [2019] NZCA 72

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA216/2018
[2019] NZCA 72

BETWEEN	DALLY LINTON FEAU Appellant
AND	THE QUEEN Respondent

Hearing:	27 February 2019
Court:	French, Dobson and Brewer JJ
Counsel:	M W Ryan for Appellant M H Cooke for Respondent
Judgment:	28 March 2019 at 10 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Feau was convicted following a jury trial in the District Court of injuring with intent to injure.[1] The presiding Judge, Judge Zohrab, sentenced him to a term of imprisonment of two years and three months.[2]
[1]Crimes Act 1961, s 189(2).
[2]R v Feau [2018] NZDC 7004 [Sentencing Decision] at [36].
Mr Feau now appeals his sentence.

Background

Mr Feau punched a bouncer in the head outside a bar. The bouncer was trying to intervene to stop a scuffle. The punch knocked him unconscious and broke his jaw. He could not talk or eat normally for a month. He was in a great deal of pain and had to take six weeks off work as a builder and 12 weeks off his part time job as a security guard. As a result, he lost earnings of approximately $5,500.

District Court sentencing

Judge Zohrab identified the aggravating features of the offending as being an attack to the head, serious injury, the fact the victim was doing his job trying to break up a fight and the fact the victim was vulnerable due to being distracted by what was going on in the street and also because of the size disparity as between him and Mr Feau.[3] In light of those aggravating features, the Judge considered the offending lay within band two of the guideline decision of Nuku v R (starting point of up to three years’ imprisonment) and adopted a starting point of two years and three months’ imprisonment. [4]
[3]Sentencing Decision, above n 2, at [10] and [14].
[4]At [27]–[28]; Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
The Judge then uplifted that starting point by three months on account of Mr Feau’s prior convictions for violence,[5] before allowing a three month discount in recognition of 13 months spent on electronically monitored (EM) bail.[6] Those adjustments resulted in an end sentence of two years and three months’ imprisonment.
[5]These included a conviction for aggravated robbery in 2008 and in 2014 a conviction for injuring with intent to injure. Mr Feau is 34 years of age.
[6]At [30].
This meant that home detention was not available.[7] However, Judge Zohrab noted that even if it had been, it would have been inappropriate because of Mr Feau’s previous history of violence, the cowardly nature of the attack and the fact that Mr Feau had called his brother to give false evidence that he and not Mr Feau was the assailant.[8]

The appeal

[7]At [30].

[8]Sentencing Decision, above n 2, at [34]–[35].

Mr Feau’s…

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 Feau v R

Details

AGLC: Feau v R [2019] NZCA 72
Case: [2019] NZCA 72
Decision Date: 28 March 2019 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Dally Linton Feau, the appellant, appealed against his sentence imposed by the District Court. The appellant was convicted of injuring with intent to injure and was sentenced to a term of imprisonment of two years and three months. The appeal was heard by French, Dobson, and Brewer JJ, with counsel appearing for both parties. The Court dismissed the appeal against the sentence.

The primary legal issue before the Court was whether the sentence imposed by the District Court was manifestly excessive. The appellant's counsel argued that the sentence was excessive and that, in all the circumstances, the appropriate sentence was home detention. The Crown contended that the sentence was appropriate and within the range of available penalties.

The Court found that the District Court had correctly placed the case within band two of the guideline decision of Nuku v R, considering the aggravating features of the offending. The Court disagreed with the appellant's counsel that the victim's status as a trained security guard meant he could never be treated as vulnerable for the purposes of the Sentencing Act 2002. The Court also found that the discount of three months for electronically monitored bail was within the discretion of the District Court, and that the end sentence was within range and appropriate. The Court further agreed that home detention would not have been appropriate even if available.

The Court dismissed the appeal against the sentence imposed by the District Court.

Orders