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…

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: [2013] NZHC 763
Decision Date: 15 April 2013

CaseChat Overview and Summary

Siosaia Tupou Fifita appeals against a sentence of two years and one month’s imprisonment following his conviction for breaching protection orders and assault with a weapon. The offending occurred between January 25, 2011 and November 25, 2011. Counsel for the appellant, Ms Brown, argues that the starting point of two years imprisonment was too high, the uplift for the protection order breaches was excessive, and the uplift for previous convictions was also too high. The Crown submits that the sentence was within the range available to the judge and was not clearly excessive.

The court considered whether the starting point of two years imprisonment was appropriate, given the sustained and prolonged nature of the assault, the use of a weapon, and the extensive injuries suffered by the complainant. The court also examined the uplifts for the protection order breaches and prior convictions. The court found that the starting point was within the range available to the judge and that the uplifts were appropriate. The court concluded that the sentence was not clearly excessive, taking into account the totality of the offending and other mitigating factors. The appeal was dismissed.

The court dismissed the appeal and upheld the sentence of two years and one month’s imprisonment. The court found that the starting point of two years imprisonment was appropriate, given the sustained and prolonged nature of the assault, the use of a weapon, and the extensive injuries suffered by the complainant. The court also found that the uplifts for the protection order breaches and prior convictions were appropriate. The court concluded that the sentence was not clearly excessive, taking into account the totality of the offending and other mitigating factors.

Orders