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.…

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.

Continue reading Fifita v The Queen

Details

AGLC: Fifita v The Queen [2016] NZHC 3013
Case: [2016] NZHC 3013
Decision Date: 13 December 2016

CaseChat Overview and Summary

In this case, the appellant, Maryane Lotukalafi Fifita, appealed against her sentence for her involvement in a home invasion where she and others assaulted four victims. The appellant was found guilty of burglary, injuring with intent (x 2), and common assault. The sentencing judge, Judge Dawson, imposed a sentence of 26 months' imprisonment. The appellant argued that this sentence was manifestly excessive, contending that the starting point was too high and that the judge had erred in making inadequate discounts for her youth, pregnancy, and guilty pleas.

The court considered the individual components of the sentence and how they should be combined to produce an overall starting point. The court held that the starting point for the burglary charge should have been higher due to the premeditation, violence, use of weapons, attacks to the head, multiple attackers, and home invasion. The court found that a starting point of 39 months' imprisonment was open to the judge. The court also considered the mitigating factors presented by the appellant's counsel, such as her age, pregnancy, and offer of reparation, but ultimately found that the judge's approach was open to them.

The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The appellant was required to present herself to the Criminal Registry of the Auckland High Court within a specified timeframe.

The final orders of the court were that the appeal was dismissed, bail rescinded, and the appellant must present herself to the Criminal Registry of the Auckland High Court by 10 am on Wednesday 14 December 2016.

Orders