Fifita v Police - [2020] NZHC 973

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…

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: [2020] NZHC 973
Decision Date: 13 May 2020

CaseChat Overview and Summary

In the High Court of New Zealand, John Misa Fifita, the appellant, appealed against the District Court's decision to refuse him a discharge without conviction and his subsequent sentencing for wounding with reckless disregard for the safety of others. The District Court had sentenced him to three months’ community detention, nine months’ supervision, and reparation of $470. Fifita claimed that the Judge was wrong in refusing the discharge without conviction and that the sentence was manifestly excessive. The Police opposed the appeal, arguing that there was no error in the Judge's decision and that the sentence was within the available range and not manifestly excessive.

The court considered the appellant's two grounds of appeal. Firstly, the court examined whether the Judge erred in declining to grant a discharge without conviction. The court found that the offence was moderately serious, and the direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offence. The court also noted that the appellant's personal mitigating factors did not sufficiently outweigh the aggravating factors. The appeal against conviction was dismissed.

Secondly, the court assessed whether the sentence of three months’ community detention, nine months’ supervision, and reparation of $470 was manifestly excessive. The court found that the sentence was indeed excessive, taking into account the appellant's personal mitigating circumstances and the fact that he had shown genuine remorse. The sentence was reduced to six weeks’ community detention only, with the supervision order rescinded and the reparation order remaining.

In conclusion, the appeal against conviction was dismissed, and the sentence appeal was allowed with the sentence reduced to six weeks’ community detention only, while maintaining the reparation order.

Orders