Fifita v Police

[2013] NZHC 763

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-15 [2013] NZHC 763

BETWEEN  SIOSAIA TUPOU FIFITA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 April 2013

Counsel:         R L Brown and S I Mills for Appellant

L M Mills for Respondent

Judgment:      15 April 2013

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland

Public Defence Service, DX EX 11066, Manukau City, Auckland

FIFITA V NEW ZEALAND POLICE HC AK CRI 2013-404-15 [15 April 2013]

The appeal

[1]      Mr Fifita appeals against an effective sentence of two years and one month’s imprisonment  following his  conviction on  three charges  of breaching  protection orders and one of assault with a weapon.1   The offending occurred during the period between 25 January 2011 and 25 November 2011.

[2]      Ms Brown, for Mr Fifita, challenges the sentence imposed on three bases:

(a)       First, that the starting point of two years imprisonment taken by the

Judge was too high;

(b)Second, that an uplift for offending relating to the protection order breaches was too high;

(c)       Third, that an uplift for previous convictions was also too high.

[3]      Mr Mills, for the Crown, submits that the sentence imposed fell within the range available to the Judge and could not be regarded as clearly excessive.

The facts

[4]      The complainant obtained a temporary protection order against Mr Fifita, on

17 December 2010.   On 25 January 2011, just over a month after that temporary order was made, Mr Fifita arrived at her house unannounced.  Despite being told to go, he refused.  Eventually, the Police were called and Mr Fifita left.

[5]      The protection order was made final in March 2011.  By this stage, Mr Fifita was on bail in respect of the earlier event that gave rise to a breach of the temporary order.

[6]      On 28 June 2011, the complainant had gone to her home address to uplift property.   On this occasion, after confronting the complainant, Mr Fifita became agitated, was yelling at her and punched the complainant on the right side of her body.  He then began to drive around the Manurewa area, trying to find her address. She declined to tell him where she lived.   Mr Fifita punched, slapped and back- handed the complainant during this phase.  She sustained a bleeding nose.

[7]      Later, after she had exited the car, Mr Fifita pulled her back into it and again assaulted the complainant.  During the course of that assault, she sustained a chipped tooth, bleeding nose and mouth.

[8]      While on bail in respect of the earlier charges, on 25 November 2011, a much more serious offence occurred.  The complainant had gone to an address in Otahuhu to speak to a family member.  Mr Fifita was present. That had not been known to the complainant. When she walked away to a nearby carpark, Mr Fifita followed her.

[9]      Mr Fifita grabbed her by the hair and dragged her back towards the house. At one point, she tripped and stumbled.  Mr Fifita kicked her in the abdomen area.  At another, Mr Fifita was grabbing her hair in one hand and at her waist with the other. When Mr Fifita got her to the house he pushed the complainant into a bedroom and threatened to kill her.

[10]     The complainant attempted to run from the bedroom but was blocked.  She climbed onto a bunk and curled into a ball to protect herself. At this stage, Mr Fifita took an axle with a rubber wheel on it weighing approximately 2–3 kilograms, went into the bedroom, locked the door behind him and commenced what the District Court Judge termed “a vicious assault, hitting the complainant numerous times with

this object, telling her in Tongan that [he] was going to kill her”.2

[11]     It appears that the assault ceased for a short time but the weapon was again used to strike her.  After the Police arrived, it became clear that the complainant had suffered  bruising  to  her  entire  body  and  tenderness  to  her  head  and  face. Nevertheless, she did not require treatment by a medical practitioner.

[12]     Understandably,   the   Judge   described   the   victim   impact   statement   as “sobering reading”.3    Not only was the complainant forced to obtain a protection order at an early time but the order was breached on a number of occasions in a serious manner.

[13]     Sentencing took place in the District Court at Manukau on 21 December

2012.  Judge McNaughton described the offending as “serious violent offending”.4

He considered that the appropriate starting point on the charge of assault with a weapon was one of two years because of the sustained and prolonged nature of the assault,  the  use  of  the  weapon  and  the  extensive  injuries  suffered.    The  Judge recorded that had there been permanent or more serious injuries, he would have taken a higher starting point.   He considered that the starting point of two years

imprisonment was the minimum that could appropriately be taken on that charge.5

[14]     Ms Brown, for Mr Fifita, submitted correctly that if the Judge intended to treat  the  offence  as  aggravated  by  use  of  the  weapon,  that  was  not  a  correct conceptual approach.  The use of a weapon is inherent in the charge of assault with a weapon.  Nevertheless, there are at least two other significant factors to which the Judge did not refer that do aggravate the offending further.   One comprises the attacks to the head.  The other is the vulnerability of the victim, particularly due to the fact that she had needed protection from Mr Fifita earlier and her attempts to avoid injury when the most serious assault occurred.

[15]     Were this case to be considered in the context of the guidance given recently by the Court of Appeal in Nuku v R,6 the existence of three aggravating factors could lead to a potential starting point of up to three years imprisonment.7   In the context of an offence that falls outside the Nuku guidelines and carries a maximum penalty of five years imprisonment, I am not prepared to say that a starting point of two years

was outside the range.

3 Ibid, at para [7].

4 Ibid, at para [11].

5 Ibid, at para [12].

6      Nuku v R [2012] NZCA 584.

7      Ibid, at para [38](b).

[16]     In my view, it was well within it and the offending could have justified more. I say that notwithstanding the starting points taken in a number of decisions to which Ms Brown referred me.8    I do not regard those cases as appropriate comparators in the context of the offending present in this case.9

[17]     The second and third points taken both involve the uplifts for factors relating to the breaches of the protection order and prior convictions.

[18]     The prior convictions occurred in 2004.   They related to similar offending against a different partner.  On that occasion, Mr Fifita was convicted of assault with a weapon, threatening to kill and male assaults female.  He was sentenced to a non- custodial sentence, during the course of which he underwent an anger management programme.   It is clear from what has happened since, that his behaviour has regressed considerably.   The uplifts for those two factors were six months each, taking the notional starting point up to three years.

[19]     I must take care in assessing what uplift can appropriately be given for the protection order breaches, given that I have assessed some of the violent conduct to fall within the initial starting point to reflect the totality of the offending. Nevertheless, the breaches of the protection order coupled with the offending on bail demonstrate a distinct willingness to disobey Court orders and to commit offences notwithstanding those strictures.  They are discrete aggravating factors.  In my view, an uplift of something in the order of six months was appropriate for those factors, even though it may be seen as stern.

[20]     Likewise,  it  might  be  said  that  the  uplift  of  six  months  for  the  prior convictions in 2004 was too high but ultimately the much higher starting point that could reasonably have been taken tends to weigh against interference with the end

sentence.

8      Mann v Police HC Invercargill CRI 2012-425-35, 8 October 2012 (Lang J), Paterson v Police

HC Hamilton CRI 2009-419-35, 12 June 2009 (Asher J) and Harnett v Police HC Rotorua CRI

2003-463-72, 4 February 2004 (Priestley J).

9      Of more relevance is Giltrap v R [2010] NZCA 157, on authority to which counsel for the

Crown referred.

[21]     The question for my determination is whether the sentence actually imposed by Judge McNaughton was clearly excessive.10    It is not my function to look individually at component parts and pick away at the sentence.  When one views the totality of the conduct in this case, it cannot be said, in my view, that an end sentence of two years and one month’s imprisonment was inappropriate.  That sentence included an appropriate allowance for the guilty pleas and other mitigating factors.

Result

[22]     In those circumstances, the appeal is dismissed.

P R Heath J

10     R v Xie [2007] 2 NZLR 240 at para [17].