Fifita v Police
[2020] NZHC 973
•13 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000067
[2020] NZHC 973
BETWEEN JOHN MISA FIFITA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 May 2020 Appearances:
J Pennick for the Appellant
J Herring for the Respondent
Judgment:
13 May 2020
JUDGMENT OF MOORE J
[Appeal against discharge without conviction]
This judgment was delivered by me on 13 May 2020 at 2:30 pm.
Registrar/ Deputy Registrar Date:
FIFITA v NEW ZEALAND POLICE [2020] NZHC 973 [13 May 2020]
Introduction
[1] The appellant, John Misa Fifita, pleaded guilty in the District Court at Auckland to a charge of wounding with reckless disregard for the safety of others.1
[2] On 28 November 2019 Judge C Henwood refused his application for a discharge without conviction. She entered a conviction and remanded him for sentence.2
[3] On 28 February 2020 the Judge sentenced Mr Fifita to three months’ community detention, nine months’ supervision and reparation of $470. Given the nature of the charge a first strike warning was delivered.
[4] Mr Fifita now appeals. He claims that the Judge was wrong to refuse a discharge without conviction and, in any event, the sentence imposed is manifestly excessive.
[5] The Police oppose the application on the grounds that there was no error by the sentencing Judge who was correct to refuse the application and impose a sentence which the Police submit is within the available range and not manifestly excessive.
The factual background
[6] The summary of facts was accepted. It recorded that at about 10:30 pm on Saturday, 9 February 2019, Mr Fifita was working as a security guard at Habana Joes Bar in Central Auckland.
[7] The victim attempted to enter the bar. A verbal altercation erupted between Mr Fifita and the victim culminating in Mr Fifita striking the victim in the chin using the palm of his right hand. The victim fell and hit his head on a window frame causing a laceration on his head which bled heavily. Mr Fifita left the victim and returned to the bar. The injury required 12 staples.
1 Crimes Act 1961, s 188(2); maximum penalty – seven years’ imprisonment.
2 Police v Fifita [2019] NZDC 23794.
[8] In explanation, Mr Fifita said that he struck the victim who lost his footing and fell.
[9] Mr Fifita filed an affidavit which was not challenged at the hearing of the application. He said that at the time of the offence he had been working as a security guard for two years. On the day in question he described being under immense stress due to a variety of domestic issues involving his family. As a result, when he started his shift he was exhausted and angry.
[10] He said that although the victim was not known to him, he had had dealings with him the previous weekend when Mr Fifita had to remove him because he was “very, very drunk”. He said that on the night of the incident he was on the door checking identifications. About two hours into the shift the victim approached. Mr Fifita asked him for identification. He said he did not have it but asked to be let in anyway. Mr Fifita said that he appeared to be “somewhat drunk, maybe not too extreme, but to the point that I did have some reservations about allowing him into the bar”. Mr Fifita explained to the victim that identification was required and told him to go and get it. According to Mr Fifita the victim reacted angrily. He verbally abused Mr Fifita. He told him to “get fucked” before walking off.
[11] Mr Fifita said that normally he would have ignored the provocation but due to his vulnerable emotional state he allowed his ego to subvert his better judgement.
[12] As the victim walked away Mr Fifita followed him. He said that he intended only to talk to him. He told the victim that there was no need to swear at him. The victim denied he had done so. Mr Fifita said this made him “angrier”. An argument followed and abuse was exchanged. Mr Fifita said he lost his patience and lashed out. He did not intend to do any real harm; his intention was to snap the victim out of the way he was behaving.
[13] Mr Fifita said the victim fell to the ground immediately. Mr Fifita surmised that this might have been because he was drunk and unsteady. Mr Fifita then returned
to the bar. He did not see the victim strike his head on the window sill nor did he see any blood. He claimed he had no idea that the victim had been hurt until he saw people quickly moving around him and saw him sit up. He assumed he was not badly hurt.
[14] Mr Fifita said that the realisation of what he had done began to dawn on him. He walked into the bar, removed his uniform and waited for the Police to arrive.
[15] His employer stood him down immediately. His Security Certificate of Approval was suspended and later he formally resigned. He said he has no intention of returning to the security industry. He is presently relying on a benefit.
Approach to appeal
[16] The procedure for discharges without conviction is governed by ss 106 and 107 of the Sentencing Act 2002 (“the Act”). First, the Court must carry out a three-step test under s 107, considering:3
(a)the gravity of the offence, taking into account all the aggravating and mitigating factors relating to the offending and offender;4
(b)the direct and indirect consequences of a conviction, where the Court is satisfied there is a "real and appreciable" risk such consequences would occur;5 and
(c)whether those consequences are all out of proportion to the gravity of the offence.
[17] If the offender meets the s 107 threshold, the Court may go on to consider whether to exercise its residual discretion to discharge the offender under s 106. However, once the s 107 test is satisfied this will normally result in a discharge.6
3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16].
4 Z (CA447/2012) v R [2012] NZCA 599 at [27].
5 DC (CA47/13) v R [2013] NZCA 255 at [43].
6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [12].
[18] An appeal against a refusal to discharge is by way of rehearing. It requires the Court on appeal to make a fresh assessment in accordance with its own opinion.7
District Court decision
[19] After reciting the facts, the Judge assessed the gravity of the offending having regard to both the aggravating and mitigating factors. She described the charge as moderate to serious, carrying a maximum penalty of seven years’ imprisonment. She pointed to the fact that the offence involved violence by a sober security guard against a member of the public who was intoxicated. She noted that Mr Fifita must have hit the victim with some force, because it was an assault to the head causing an injury which required 12 staples. She regarded it as aggravating that Mr Fifita followed the victim to confront him for being disrespected; conduct she said which was driven by Mr Fifita’s ego and sense of entitlement. She pointed out that Mr Fifita did not remain at the scene and did not render any assistance to the victim after he had fallen to the ground.
[20] In terms of mitigation the Judge accepted that Mr Fifita was under considerable domestic pressure at the time. He was caring for his elderly grandmother who has Alzheimer’s disease and his brother who suffers from cerebral palsy. The Judge also referred to the difficulties Mr Fifita was having with his mother at the time, leading him to act out of character. She acknowledged the many character witnesses who had written letters of support. She pointed to Mr Fifita’s willingness to undergo restorative justice.
[21] The Judge noted the opposition of both the Police and the victim to a discharge without conviction.
[22] The Judge then turned to consider the direct and indirect consequences of a conviction. First, she referred to the difficulty Mr Fifita would have obtaining work and, in particular, his aspirations to qualify as a personal trainer. However, given that no specific proposal to do so was before the Court the Judge found herself unable to
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
make a finding as to proportionality. She declined the application for discharge without conviction and entered a conviction. She remanded Mr Fifita for sentence.
[23] At Mr Fifita’s sentencing three months later the Judge briefly summarised his personal circumstances, focussing on the personal mitigating factors listed above. She did not identify a starting point, nor did she quantify the various discounts available. Instead, she determined a community-based sentence rather than imprisonment was appropriate, given Mr Fifita’s previous good character. She described him as a fundamentally good man. She rejected home detention on the basis that Mr Fifita did not have a criminal history which would warrant such a sentence. Mr Fifita’s health issues made a sentence of community work unrealistic.8 She determined that a sentence of three months’ community work coupled with nine months’ supervision was the best option; Mr Fifita’s domestic situation had settled and he was living in stable circumstances. A 12 hour curfew would provide sufficient oversight. She ordered the payment of $170 for the costs of the victim’s counselling and $300 emotional reparation also payable to the victim.
Grounds of appeal
[24] Mr Pennick, for Mr Fifita, advanced the appeal on two grounds. He first submitted that the Judge erred in declining to grant a discharge without conviction and if that ground was to fail, Mr Fifita’s second ground is that the sentence of 100 hours’ community work was manifestly excessive. I now turn to consider each.
Discussion
Ground 1: Refusal to grant discharge without conviction
[25] Mr Pennick’s primary submission was that the unusual combination of mitigating factors serves to reduce the gravity of the offending to such a level where the general consequences of conviction alone are sufficient to meet the test in s 107 of the Act. He accepted that given the seriousness of the charge, it would normally take
8 Mr Fifita suffers from debilitating gout.
a particularly “rare case” for a submission of that sort to succeed, but he said the present case falls within that “extremely narrow” exception.
[26] Under this heading, his first point was the Judge was wrong to describe the charge of wounding with reckless disregard for the safety of others as moderate to serious. In doing so, he submitted that the Judge may have placed an inappropriate degree of emphasis on the technical quality of the charge itself rather than assessing the gravity of the offending. In support of this proposition he referred me to the decision of this Court in Haukinima v Police, a successful appeal against the District Court’s refusal to discharge without conviction.9 Harrison J in that case commented that the District Court erred in placing undue weight on the possible penalty, noting that Parliament’s prescription of the maximum term of imprisonment was not, of itself, determinative. He pointed out that what is of greater importance is an evaluation of the circumstances of the offending in order to assess its true gravity.
[27] I agree with Harrison J’s comments. While the nature of the charge may assist my assessment of gravity, it can never be determinative. The focus must always be on the nature of the offending. But that is what the Judge did in this case. She made a distinction between the charge itself and the offending which underpinned it. I do not accept she erred. I would, however, note that although the actus reus element of wounding is made out in the present case because there was a breaking in the continuity of the skin,10 a charge of injuring would have captured the nature and gravity of the offending more accurately.11 But this did not lead the Judge into error.
[28] Mr Pennick also took exception to the Judge’s conclusion that Mr Fifita must have hit the victim with some force. He said that if that was the case there would have been some evidence of some facial bruising and that a more likely explanation for the victim falling back was because he was drunk.
[29] Mr Pennick further submitted that an assault to the victim’s head should not be treated as an aggravating factor having regard to the way in which the blow was struck.
9 Haukinima v Police CRI-2006-404-344 HC Auckland,11 July 2007.
10 R v Waters [1979] 1 NZLR 375 at 378.
11 Crimes Act 1961, s 189(2); maximum penalty – five years’ imprisonment.
He submitted that it was not the force of the blow which caused the injuries; rather it was the force of the fall.
[30] Mr Pennick was also critical of the Judge’s description of Mr Fifita’s pursuit of the victim and the fact that after the assault he did not remain and render assistance.
[31] I am not satisfied that any claim of error in these respects is made out when the Judge’s comments are read in context. In any event, an appeal against a refusal to discharge does not involve a search for error. It requires the appeal Court to undertake a fresh evaluation of all the circumstances. Adopting that approach, I am satisfied, as was the Judge, that this was a moderately serious assault given all the circumstances.
[32] At the time of the offending Mr Fifita was on duty as a security guard. I agree with Mr Pennick that this is not a case involving a breach of trust. But Mr Fifita was employed in a role which required the responsible discharge of his interactions with the public. As Mr Fifita frankly acknowledged himself, his duties required a high level of professional detachment. There can be no room for loss of temper. Nor is there a place for angry reactions to the inevitable provocation every security officer must encounter. Those factors are aggravating. It is also relevant to this analysis that he was sober and the victim was not.
[33] After being abused, Mr Fifita followed the victim. He did so only because he was angry. When the victim denied he had used words of abuse, Mr Fifita lost his power of self-control and struck him in the face. This must have been with a reasonable degree of force because, drunk or not, the victim immediately fell backwards onto the ground. I regard it as aggravating that Mr Fifita did not remain or attempt to assist the victim. Instead he returned to the door of the bar.
[34] It is also aggravating that the blow was aimed at and struck the victim in the face. While I accept Mr Fifita did not intend the serious consequences of his actions, the lower level intent of recklessness in the charge reflects he must have had an actual and conscious appreciation of the risk but nonetheless carried on.12
12 Hepi v Police [2013] NZHC 2690 at [12].
[35] As for the mitigating factors relating to the offending, Mr Pennick submitted that the Judge understated the nature, extent and influence of the pressures Mr Fifita was labouring under at the time and may not have given these mitigating circumstances sufficient weight.
[36] I accept that Mr Fifita’s domestic situation was highly stressful and contributed to his offending. At the time he was the primary caregiver for both his grandmother and his brother. He was responsible for their feeding, washing and toileting. While he obtained some assistance from his mother this was limited. His mother and her partner were regularly using methamphetamine in the family home and this too contributed to the stresses. Mr Fifita was unsuccessful when he attempted to confront his mother about this. This, in turn, led to arguments between them which, on the evening of the offence, culminated in Mr Fifita’s mother ordering him out of the house. On Mr Fifita’s account, he packed some basic clothes and possessions and left for work with no expectation he would be returning home.
[37] The essence of Mr Pennick’s submission was that this combination made Mr Fifita vulnerable to provocation which, in normal circumstances, he would have ignored.
[38] In my view only relatively limited weight should be given to these factors in mitigation. Any provocation by the victim was minor. The words used, while offensive and unnecessary, were not personalised nor did they amount to ad hominem abuse. There is no suggestion the words were shouted or that Mr Fifita’s personal space was violated. Regrettably, it is the sort of treatment which security guards at busy downtown bars are likely to experience multiple times every shift. Plainly, Mr Fifita’s reaction was not only disproportionate but quite unnecessary because the victim was retreating when Mr Fifita decided to follow him.
[39] More compelling in my view are Mr Fifita’s personal mitigating factors. He has no previous convictions. Plainly he is remorseful. It is to his great credit that he has taken responsibility for his offending and has engaged in counselling to address his anger issues. The character references attached to his affidavit describe an honest,
reliable and trustworthy employee. He is admired by many. It is evident that the conduct in question was completely out of character.
[40] However, the question for me is whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. It is to that issue I now turn.Mr Pennick frankly accepted that Mr Fifita could only rely on generalised consequences of conviction and, in particular, the impact that a conviction of this sort could have on Mr Fifita’s future intention to obtain employment.
[41] He described him as highly qualified, pointing out his qualifications from the New Zealand Institute of Sport and the fact that when he was younger, he was part of the Warriors development squad. His longer-term goal is to work as a personal trainer.
[42] I accept that in the absence of specific negative consequences there may be general consequences which follow such as employment, travel and immigration. There may be a loss of pride, self-esteem or embarrassment in having to disclose a previous conviction. Mr Pennick referred me to decisions of this Court, but these tended to either relate to less serious offending or were cases where there were significant identifiable and appreciable risks.13
[43] The difficulty with assessing Mr Fifita’s employment prospects is that his stated desire to become a personal trainer is, on his own evidence, merely aspirational. There is no evidence he has taken any steps towards seeking employment in that field or obtaining any qualifications which might assist in reaching that goal. Nor is there any evidence that a potential employer in that field would require disclosure of criminal convictions or that any such disclosure would operate as a bar to employment.
[44] Furthermore, I agree with Mr Herring, for the Police, that Mr Fifita’s highly complimentary references and the evident support he has from others, including former employers, is such that in the event a prospective employer was to become aware of the fact of his conviction, they would recognise that while moderately
13 Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009; Police v SR [2013] NZHC 980 at [11]; Papuni v Police [2013] NZHC 195 at [28]; Singh v Police [2019] NZHC 2985.
serious, Mr Fifita’s offending was out of character and was influenced by the special pressures and stresses he was under at the time.
[45] I am required to be satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence. For the reasons given I am not so satisfied. The offending was serious and nothing has been put before me to persuade me that the consequences of a conviction would be out of all proportion to the gravity of the offence.
Ground 2: Sentence appeal
[46] I now turn to consider Mr Fifita’s appeal against his sentence of three months’ community detention, nine months’ supervision and reparation of $470.
[47] Mr Pennick submitted that in the unusual circumstances of the present case “… the entry of a conviction is sufficient penalty in itself.” He did not refer me to any caselaw to support the proposition that the sentence imposed is manifestly excessive.
[48] As Mr Herring pointed out, there is no guideline decision for wounding or injuring with reckless disregard for the safety of others. However, this Court in Costigan v Police14 observed that the guideline decision in Nuku v R15 may provide assistance, although it is necessary to ensure appropriate adjustments are made in recognition of the reduced level of intent.16
[49] Mr Herring submitted that the present case fits within Band 1 of Nuku where there are few aggravating features, the level of the violence is relatively low and the sentencing Judge considers the defendant’s culpability to be at a level that might have been better reflected in a less serious charge. In such cases a sentence of less than imprisonment may be appropriate.
14 Costigan v Police [2019] NZHC 425.
15 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [37].
16 See too Waitohi v R [2014] NZCA 614 at [15].
[50] Starting points in the range of 12 months’ imprisonment to two years’ imprisonment support the proposition that a relatively short term of imprisonment would be appropriate in the present circumstances.17
[51] The question is the extent to which Mr Fifita’s personal mitigating circumstances combine to reduce such a starting point.
[52] Mr Fifita has, from the outset, accepted responsibility. I am satisfied that he is truly and genuinely remorseful. He has offered to make amends by engaging in restorative justice. I agree with the Judge’s assessment that Mr Fifita is fundamentally a good man.
[53] But for this uncharacteristic lapse, he is a man of good character who is well liked and respected for his honesty and hard work.
[54] I also accept that the offending in question and, in particular, Mr Fifita’s loss of self-control, was precipitated by his very difficult and demanding personal domestic situation, aggravated by tiredness and a sense of frustration. I also acknowledge his guilty plea.
[55] Taking all these factors into account I agree with the Judge that a community- based sentence was appropriate. However, I am of the view that the sentence of three months’ community detention and nine months’ supervision is manifestly excessive. A sentence of six weeks’ community detention only is appropriate in all the circumstances. I am satisfied on the material before me, particularly the various self- improvement courses Mr Fifita has voluntarily undertaken that he has both the insight and motivation to ensure there will never be a repetition of this sort of conduct. Supervision would not, in my view, serve any useful purpose. The order for reparation should remain.
17 Brooking v Police [2012] NZHC 3219; R v Clarke [2020] NZHC 288; R v McGarvey-Teohaere
DC Wellington CRI-2008-091-003899, 20 February 2009.
[56] Accordingly, the appeal against sentence is allowed. The sentence is quashed and substituted by a sentence of six weeks’ community detention only. The supervision order is rescinded. The reparation order of $470 stands.
Result
[57]The appeal against conviction is dismissed.
[58]The sentence appeal is allowed in terms of [56] above.
Moore J
Solicitors:
Mr Pennick, Auckland Crown Solicitor, Auckland
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