Fifita v The Queen

[2016] NZHC 3013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000354 [2016] NZHC 3013

BETWEEN

MARYANE LOTUKALAFI FIFITA

Appellant

AND

THE QUEEN Respondent

Hearing:	12 December 2016
Counsel:	L Freyer for Appellant L Fraser for Respondent
Judgment:	13 December 2016

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 13 December 2016 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Public Defence Service, Auckland.

Meredith Connell, Auckland.

FIFITA v THE QUEEN [2016] NZHC 3013 [13 December 2016]

The issue

[1]      This is a sentence appeal in relation to serious offending which included violence against three victims in the context of a home invasion.   On 21 October

2016, Judge Dawson sentenced the appellant to a term of 26 months’ imprisonment.1

The appellant contends the term is manifestly excessive.   She submits the starting point is too high and the Judge erred in making inadequate discounts for her youth, pregnancy and guilty pleas.   Judge Dawson granted the appellant bail pending determination of the appeal.

Background

[2]      On 18 July 2015 the victims held a party.   The appellant was one of the guests.   At approximately 5.30 pm she and her partner got into a fight.   Others intervened.    This  led  to  an  altercation  between  the  appellant  and  one  of  the occupants.  The appellant was told to leave.  An occupant took her out of the house. This led to another altercation outside.   The appellant shouted she would be back with her brothers.

[3]      The appellant was true to her word.  She returned approximately 20 minutes later with her brother and two other offenders.  The appellant knocked on the door but was told to leave.   She smashed the glass door and then entered.   The others followed.  So too serious violence.  Four victims were assaulted, two with weapons (a bottle and an unidentified object).  Two were rendered unconscious.  All suffered injury and required medical attention.

[4]      The appellant kicked a female victim to the head while the victim was on the ground.  The victim suffered facial bruising and swelling.  The appellant was also a party to  assaults on two male victims.   One was punched  to the ground, there repeatedly kicked and then struck about the head with an unidentified weapon.   The other  was  pushed  into  a  bath  and  then  punched  to  the  face.    He  briefly  lost

consciousness.

1      R v Fifita [2016] NZDC 22109.

[5]      To Police, the appellant acknowledged returning to the house and assaulting the female victim.  But she said only she and her brother did so.

[6]      On 23 May 2016, the appellant pleaded guilty to charges of burglary, injuring with  intent  (x  2),  and  common  assault.    A charge  of  aggravated  burglary  was abandoned by the prosecution, as were two charges of wounding with intent to cause grievous bodily harm.

[7]      The appellant was sentenced on 21 October 2016.  Judge Dawson considered the burglary charge was the lead charge.   In relation to it, the Judge adopted a starting point of two years and six months’ imprisonment.  The Judge uplifted that term by 15 months for the balance of the offending (the violence charges), producing an overall starting point of three years and nine months’ imprisonment.

[8]      The Judge then deducted nine months in recognition of the appellant’s age (she was then 20 years old, as she was at the time of the offending), a relatively clean history, her expression of some remorse, and the fact the appellant was pregnant. The appellant’s guilty pleas resulted in an additional 10-month deduction—and so a sentence of 26 months’ imprisonment.

The appellant’s case

[9]      On behalf  of the appellant  by reference  to  Pokaia  v Police,2   Ms  Freyer submits the starting point should not have exceeded three and a half years’ imprisonment.  In that case, two defendants assaulted a victim in the forecourt of a petrol station.  The attack involved blows to the head while the victim was on the ground.  MacKenzie J upheld a starting point of two years’ imprisonment.

[10]     Ms Freyer submits the discount for the appellant’s age ought to have been greater, her pregnancy “alone should have attracted a discount in the region of 10%”, and weight should now be given to the appellant’s offer to pay reparation of $2,500.

[11]     Ms Freyer also submitted the Judge erred in affording only a 22 percent

reduction for the appellant’s pleas of guilty, when His Honour intended to afford

2      Pokaia v Police [2015] NZHC 1718.

25 percent. This point need not be considered further because Judge Dawson applied the  discount  at  a  point  earlier  than  His  Honour  should,  when  it  is  clear  from Hessell v R the reduction is made last, and as a percentage of what would otherwise be the applicable sentence.3 And, 25 percent at the correct juncture would have been one month less than the discount afforded by the Judge.

Analysis

[12]     There are dangers in analysing starting points by reference to cases of some factual  similarity,  but  which  omit  important  ingredients  of  the  index  offending. Pokaia has little similarity as it did not involve home invasion, the core component of this case.   The better approach is to examine the individual components of the sentence and then ask how they might have been combined to produce an overall starting point.

[13]     So, starting with the offence of burglary first, no guideline judgment exists. However, the Court of Appeal has held the burglary of a home at the lower end of the scale can attract a starting point of between 18 months and two and a half years’ imprisonment.4    Burglary, of course, is frequently committed with an intention to commit theft.   But in this case, that was not what the appellant intended; she was intent on violence.  It follows an appreciably higher starting point would be required.

[14]     The offence of injuring with intent to injure can attract three bands.   In Nuku v R,5 the Court of Appeal held band three comprises a broad range of two years to the statutory maximum when three or more of the aggravating features are present and their combination is particularly serious.  The Court also observed if the case involves a high level of violence or prolonged violence; it will attract band three categorisation even if there are few other aggravating features.

[15]     Plainly, this is a band three case.  It involved premeditation (or an element at least), the administration of significant violence, use of weapons, attacks to the head,

multiple attackers and a home invasion.  It should not be overlooked the appellant

3      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].

4      Arahanga v R [2012] NZCA 480 at [78].

5      Nuku v R [2012] NZCA 584.

assaulted  one  victim  and  was  a  party  to  an  assault  on  two  other  victims. Consequently, whether approached as a serious instance of burglary with violence as a significant aggravating factor, or as violent offending involving a home invasion, a starting point of 39 months’ imprisonment was open to the Judge.

[16]     Two matters underscore this conclusion.  First, in Hewes v Police,6 Gendall J upheld a starting point of three to three and a half years’ imprisonment in relation to broadly similar offending.  In that case, the defendant broke into his former partner’s home, punched and kicked her to the face (breaking her nose), and stole money and tobacco.  The victim was a solo mother, who had obtained a protection order against the defendant.   Contravention of that order was obviously a seriously aggravating factor, so too victim vulnerability.   But here there were several victims, group violence and use of weapons.  A higher starting point was open.  Second, while the charge of aggravated burglary was abandoned, the appellant’s offending (on the

agreed summary of facts) meets all of the ingredients of that offence.7   And, if that

charge had been sustained, the authorities are clear starting points range between

eight and 11 and a half years’ imprisonment.8

[17]     I reach the same conclusion in relation to mitigating features.  Deductions for matters such as youth are not automatic—and never have been.  A Court must be satisfied the mitigating factor is engaged on the facts of the case, and the defendant’s culpability thereby diminished.   So, in the context of youth, such a discount is typically applied  when  a  young person acts  spontaneously and  recklessly.   The reason for this is obvious: this is how young people sometimes behave because of their age.  However, even then, Courts tend to consider if the defendant is remorseful and whether there is an associated prospect of reform.  There is nothing new in any

of this.9

[18]     To return to the facts, the appellant was 20 years old and not as such, a youth. However, the same principle could still admit some discount, at least in conjunction

6      Hewes v Police [2015] NZHC 1718.

7      Crimes Act 1961, s 232(1)(b).

8      O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302.

9      Mako v R [2000] 2 NZLR 170 (CA), (2000) 17 CRNZ 272 at [65]–[66].

with her relatively good record.  But here, theory and practice part company.  The appellant chose to return to the victim’s home. An element of premeditation attached to her offending.  Moreover, the appellant was the ringleader.  She had been evicted from the party, and said she would return with others.   She did just that.   The appellant  kicked  the  door  in.    And  she  entered  the  home  first.    Her  actions encouraged serious violence.  She engaged in that too: she kicked a female victim to the head while the victim was on the ground.  The Judge gave modest discount under this head.  On the facts, that approach was open.

[19]     Pregnancy.  Unless the appeal is allowed and home detention substituted, the appellant will give birth in prison.  This is her first child.  Ms Freyer submits greater weight should have been afforded to this factor.  Giving birth in a penal institution is far from ideal, and no Judge wants to impose a sentence which leads to that consequence.  However, case law does not support Ms Freyer’s proposition; at least in the absence of exceptional circumstances or clear evidence the sentence will be

appreciably more severe because of pregnancy or childbirth.10    Neither factor was

advanced, at least with reference to applicable evidence.  In the absence of either, the issue is a matter for the Department of Corrections as one affecting sentence administration.11  Again, the Judge did not err.

[20]     No offer of reparation was made to the District Court.  On appeal, Ms Freyer submitted the appellant’s offer to pay reparation of $2,500 was mitigating.12    She submitted no money had been available at the original sentencing.   I accept this submission, but it carries little weight.  The appellant minimised the offending to the probation officer, expressed surprise Police had been called, and said the use of violence was “acceptable”.   She did, however, express regret “things got out of

hand”. This is understatement.

10     R v Curd (1992) 10 CRNZ 78 and Neilson v Police [2015] NZHC 2502.

11     See Corrections Act 2005, ss 81A-81C.

12     The appellant also sought leave to tender fresh testimonial evidence.   Ms Freyer properly accepted the material was not fresh and a miscarriage of justice would not arise in its absence.  I declined to admit it, but the result would not have changed had I done so.  The testimonials speak to the appellant being a good employee, and to her remorse.  The latter sits awkwardly with the pre-sentence report.

[21]     The issue of home detention is not reached.  And nor should sentences be constructed with that outcome in mind.  But even if the jurisdictional threshold had been crossed, home detention would not be commensurate with the gravity of the offending.  I acknowledge Judge Dawson imposed that sentence upon the appellant’s brother “by the narrowest of margins”.   But Mr Fifita faced one fewer injuring charge. And, critically, he was not the ringleader.

[22]     In any event, there is now a clear line of authority the parity principle does not  permit  the  reduction  of  an  otherwise  proper  sentence  to  match  a  less  than adequate sentence in relation to a co-offender.13  The disparity is not “gross” either.14

[23]     The appeal is dismissed and bail rescinded.   The appellant must present herself to the Criminal Registry of the Auckland High Court by 10 am on Wednesday

14 December 2016.

……………………………..

Downs J

13     Osman v R  [2012] NZCA 32 at [42].

14     R v Rameka [1973] 2 NZLR 592 (CA) at 594.