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Filivao v The King

Filivao v The King

Case [2024] NZCA 103 11 April 2024

Minimum Period of Imprisonment

Judicial Review

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA98/2021
[2024] NZCA 103

BETWEEN	KASINGA FILIVAO Appellant
AND	THE KING Respondent

Hearing:	12 March 2024
Court:	Gilbert, Whata and Churchman JJ
Counsel:	C A Hardy for Appellant B J Thompson for Respondent
Judgment:	11 April 2024 at 9.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal the conviction is dismissed.
BThe application for an extension of time to appeal the sentence is granted.
CThe sentence appeal is allowed in part.
DA minimum period of imprisonment of nine years is quashed and replaced with a minimum period of imprisonment of eight years and eight months.
EThe appeal against a cumulative sentence of 14 years and six months’ imprisonment is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Churchman J)

Table of Contents

Introduction  [1]
Background   [6]
The trial  [11]
District Court sentencing decision  [17]
Approach on appeal
Extension of time to appeal  [23]
           Appeal against conviction  [26]
           Appeal against sentence  [30]
Issues
Delay    [32]
           Informed decision not to give evidence  [35]
           Included charge  [37]
           Insufficient directions  [51]
Sentence appeal  [56]
Result  [65]

Introduction

Mr Filivao (the appellant) was convicted by a jury of causing grievous bodily harm (GBH) to his partner with intent to cause GBH,[1] and of a separate offence of assaulting his partner with intent to injure.[2] In September of 2016, he was sentenced by Judge McNaughton to 13 years’ imprisonment for the GBH offending, with a minimum period of imprisonment (MPI) of nine years, and 18 months’ imprisonment on the assault with intent to injure charges, to be served cumulatively. In March of 2021, more than four years out of time, he seeks an extension of time to bring an appeal against his conviction and sentence.
[1]Crimes Act 1961, s 188(1). Maximum sentence of 14 years’ imprisonment.
[2]Section 193. Maximum sentence of three years’ imprisonment.
The appellant alleges that a miscarriage of justice has occurred necessitating a quashing of his conviction because:
(a)Trial counsel erred by failing to ensure the appellant made a free and informed decision about whether or not to give evidence at trial.
(b)The Judge erred in refusing to put what was said to be an included charge to the jury; and
(c)The Judge’s directions were deficient.
When an application for an extension of time to appeal is as far out of time as this one, exceptional circumstances are required to grant the extension of time.[3]
[3]Butcher v R [2015] NZCA 102 at [7].
In order for the interests of justice to justify the granting of the application the delay will need to be explicable and there will need to be some merit in the proposed appeal.
The appellant also alleges that his sentence was manifestly excessive, because:
(a)The MPI is excessive, as nine years is more than two-thirds of the 13‑year sentence; and
(b)The uplift of six months for his previous convictions was excessive.

Background

The appellant and the victim were…

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 Filivao v The King

Details

AGLC: Filivao v The King [2024] NZCA 103
Case: [2024] NZCA 103
Decision Date: 11 April 2024 at 9.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Kasinga Filivao, sought an extension of time to appeal against his conviction and sentence for causing grievous bodily harm with intent and assault with intent to injure. The appellant was sentenced to 13 years' imprisonment for causing grievous bodily harm, with a minimum period of imprisonment of nine years, and 18 months' imprisonment for assault with intent to injure, to be served cumulatively. The appeal period expired in October 2016, and the appellant filed his appeal in February 2021. The primary reasons for the delay were his trial lawyer's advice that an appeal had no prospects of success and the appellant's belief that he needed money to appeal.

The appellant raised several grounds for his appeal against conviction, including the trial counsel's failure to ensure he made an informed decision about whether to give evidence, the Judge's refusal to put an included charge to the jury, and the Judge's allegedly deficient directions. The Court found that the appellant made a free and informed decision not to give evidence, and that there was no basis for requiring the lesser charge to be put to the jury. The Court also found that the Judge did not impose undue pressure on the jury. Therefore, the application for an extension of time to appeal the conviction was dismissed.

The appellant also appealed against his sentence, claiming that the minimum period of imprisonment and the uplift for his previous convictions were excessive. The Court agreed that the minimum period of imprisonment was excessive and should be reduced from nine years to eight years and eight months. However, the Court found that the total sentence of 14 years and six months' imprisonment was within the appropriate range and dismissed the appeal against the cumulative sentence.

In summary, the Court granted the application for an extension of time to appeal the sentence, allowed the sentence appeal in part by reducing the minimum period of imprisonment, and dismissed the appeal against the conviction and the cumulative sentence.

Orders