Finau v Police

[2024] NZHC 648

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2024-404-000096

[2024] NZHC 648

BETWEEN

ERIC FUNAKI LORENZO FINAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 March 2024
Appearances:	E M Gresson for the Appellant S J Cox for the Respondent
Judgment:	22 March 2024

JUDGMENT OF TAHANA J

(Appeal against sentence)

This judgment was delivered by me on 22 March 2024 at 3.00pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Kayes Fletcher Walker, Manukau Vulcan Chambers, Auckland

FINAU v NEW ZEALAND POLICE (Appeal against sentence) [2024] NZHC 648 [22 March 2024]

Introduction

[1]                 Mr Finau pleaded guilty to a charge of common assault1 and was convicted on 1 September 2023. He was sentenced to nine months’ imprisonment on 22 February 2024 and denied leave to apply for home detention.2

[2]                 Mr Finau appeals his sentence and says that it is manifestly excessive. This appeal raises the following issues:

(a)whether the starting point was manifestly excessive;

(b)whether the discounts for mitigating factors were adequate;

(c)whether a discount should have been afforded for the time spent on electronically monitored (EM) bail; and

(d)whether leave should have been granted to apply for home detention.

Summary of offending

[3]                 On 3 July 2021, Mr Finau had an altercation with his partner. Following a disagreement, he struck her on the side of her face with the back of his hand while she held their baby. Moments later he grabbed her throat with a firm grip, squeezing for one second. The victim said this did not affect her breathing. There was visible swelling and redness to her face.

Decision under appeal

[4]                 The sentencing Judge adopted a starting point of nine months’ imprisonment noting that the offending “is well up the scale and getting close to the maximum.”3

1      Crimes Act 1961, s 196. Maximum penalty: one year imprisonment.

2      New Zealand Police v Finau [2024] NZDC 4102.

3 At [13].

[5]                 The Judge imposed a one-month uplift for Mr Finau’s two previous convictions for assault in 2017 and 2018, arriving at a global starting point of 10 months’ imprisonment.

[6]                 The Judge considered that Mr Finau’s guilty plea had taken “such a long, long time.”4 The guilty plea was entered two years after he was charged when the Crown amended the initial charge from assault on person in a family relationship to common assault. Due to the delay caused by Mr Finau, the Judge applied a 10 per cent discount resulting in an end sentence of nine months’ imprisonment.

[7]                 A sentence of home detention  was  not  available  at  sentencing  because  Mr Finau had failed to engage with the pre-sentence report writer so no address had been assessed for that purpose. The Judge did not grant leave for Mr Finau to apply for substitution of sentence observing that he had a history of non-compliance with community based sentences.

Law on appeal

[8]                 The appeal is brought pursuant to s 244(1) of the Criminal Procedure Act 2011 (CPA). An appeal is to be determined in accordance with s 250 of the CPA, which provides that the court must allow the appeal if satisfied that—

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[9]In any other case, the Court must dismiss the appeal.5

[10]            The relevant principles on appeals against sentence were summarised by the Court of Appeal in Tutakangahau v R:6

4 At [16].

5      Criminal Procedure Act 2011, s 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

(a)a successful appeal requires identification of an error and the appellate court to be satisfied a different sentence should be imposed;7

(b)the appellate court does not start afresh nor simply substitute its own opinion for that of the sentencing judge — error must be shown, “whether intrinsically, or as a result of additional material submitted on appeal,”8

(c)if there is a material error, the appellant court will form its own view of the appropriate sentence;9

(d)although not referred to in s 250(2), whether a sentence is “manifestly excessive” provides a helpful means of examining the significance of the error to decide whether a different sentence should be imposed;10 and

(e)the focus is on whether the end sentence was within range, not the process by which that sentence was reached.11

Analysis

[11]I consider each issue in turn.

Was the starting point manifestly excessive?

[12]            Ms Gresson for Mr Finau accepts that there is no applicable tariff for this offending but submits that when comparing Mr Finau’s offending with the aggravating features of other cases, where lower starting points were adopted, the starting point was manifestly excessive.

7 At [27].

8 At [30].

9 At [30].

10     At [32]-[33] and [35].

11     At [36] and [40].

[13]            Ms Gresson refers to Wallace v R12 and R v Reihana13 in arguing that the starting point was manifestly excessive.

[14]            In Reihana, the appellant was found guilty of one charge of male assaults female. He had previously been in a relationship with the complainant and had entered her home after she told him not to. The appellant punched the complainant, sufficient to split the eyebrow, blacken and almost close her eye. The appellant had a previous conviction for breach of a protection order which related to the complainant.

[15]            The sentencing Judge adopted a starting point and end sentence of 10 months’ imprisonment. No adjustment was made because the aggravating and mitigating features were seen as equal.

[16]            On appeal, the Court of Appeal halved the end sentence to five months’ imprisonment and leave was granted to apply for home detention. The Court reviewed a number of decisions regarding sentencing for assault on a female and was satisfied that the sentence was beyond the range of penalties generally imposed for the offence.14

[17]            In Wallace, the appellant had been convicted of two counts of male assaults female, two of common assault and one of intentional damage. The sentencing Judge had adopted a starting point of 15 months’ imprisonment which was uplifted by six months for previous convictions and then a further uplift of three months was applied for the common assault charge. The overall starting point was 24 months’ imprisonment. A 25 per cent discount was applied for the guilty plea and a two-month discount for the time spent on EM bail, resulting in an end sentence of 16 months’ imprisonment.

[18]            The Court considered that the six-month uplift for previous convictions was manifestly excessive and considered a three-month uplift was appropriate.15 The Court did not consider that a 25 per cent discount was overly generous for the guilty

12     Wallace v R [2012] NZCA 546.

13     R v Reihana CA 143/03 3 July 2003.

14     R v Reihana CA 143/03 3 July 2003 at [43].

15     Wallace v R [2012] NZCA 546 at [26].

plea despite it not having been made until a year after trial.16 The appellant had been discharged of more serious charges of kidnapping and assault with intent to injure.

[19]            The Court was also satisfied that the two-month discount for time spent on EM bail was open to the Judge despite it being generous.17 In the circumstances, the discount was  appropriate.  The  Court  of  Appeal  quashed  the  end  sentence  of  16 months’ imprisonment and substituted it with a sentence of 14 months’ imprisonment.18

[20]            The Crown submits that a starting point of eight months’ imprisonment with an uplift of one month for the two charges of failing to appear would have been justified. The Crown also says the starting point of 10 months’ imprisonment is within range because the Judge would have been entitled to impose a sterner uplift than one month for his previous convictions.

[21]            The Crown relies on the following cases in arguing the starting point is within range:

(a)Omar v Police19 — the appellant was convicted of a single charge of common assault where his strike to the victim’s face cracked a tooth and drew blood. Gendall J adopted a start point of six months’ imprisonment.

(b)Dempsey v Police20 — the appellant was convicted of a single charge of common assault. The appellant pushed and punched an unknown victim in the head. The sentencing Judge adopted a starting point of 12 months’ imprisonment which was overturned on appeal. The appellate Judge noted that the attack was short-lived, and the victim suffered only minor harm. The appeal court adopted a starting point of six months’ imprisonment.

16 At [28].

17 At [30].

18 At [33].

19     Omar v Police [2017] NZHC 288.

20     Dempsey v Police [2015] NZHC 2589.

(c)Sadlier v Police21 — the appellant was convicted of a single charge of common assault. The appellant went into the victim’s room and without warning, punched his face four to five times and he received a bloody nose. On appeal, the starting point of eight months’ imprisonment was not found to be excessive.

[22]            I accept that the nature of the offending in this case is within the range of cases referred to by counsel which indicate starting points ranging from five to eight months’ imprisonment. The aggravating features of the offending included the vulnerability of the victim, the assault to the head and throat, the familial setting and the fact the victim was holding a baby. The Judge also noted that Mr Finau had locked himself and the baby in the house so the victim had to smash the door with a chair so she could get inside.

[23]            The nature of the assault in Sadlier was more serious (involving multiple punches causing bleeding) as was the assault in Reihana (punch causing a blackened eye) where the Court of Appeal substituted a sentence of 10 months’ imprisonment with five months’ imprisonment. The circumstances of the assault here were more serious in that the victim was holding the baby.

[24]            Overall the aggravating features support a starting point lower than Sadlier but higher than Reihana given the aggravating circumstances. This indicates that the starting point of nine months’ imprisonment was outside of the appropriate range.

[25]            Having regard to the cases, I agree with the Crown that a starting point of eight months’ imprisonment is justified.

[26]            I am not satisfied the Judge erred in  only  applying a one month uplift for  Mr Finau’s previous convictions.

[27]That results in an overall starting point of nine months’ imprisonment.

21     Sadlier v Police [2018] NZHC 993 [8 May 2018].

Did the Judge err in not granting a greater discount for the guilty plea?

[28]The Crown accepts that some delay (six and a half months) was due to COVID-

19. The remainder of the delay, the Crown says is attributable to Mr Finau because he failed to appear at trial and the hearing had to be adjourned. Ms Gresson for Mr Finau says there was bad weather on the day of the trial and the complainant also failed to appear. I accept that some period of delay may be attributable to Mr Finau but not the full two years.

[29]            In Wallace v R, the Court of Appeal noted that the guilty plea had not been entered until one year after the offending took place but nevertheless agreed that the appellant had entered the plea at the first available opportunity.22 In circumstances where the Court accepted that the appellant could not have pleaded guilty earlier and then sought some clarification on the summary of facts, the Court applied a discount of 25 per cent.

[30]            The Supreme Court in Hessell cautioned against the risk of a double benefit being obtained if the full guilty plea discount is given on an amended charge:23

Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example, if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending.

[31]            In circumstances where the summary of facts was not changed when Mr Finau entered his guilty plea, the guidance above is directly relevant to this case.

[32]            Pleading guilty as soon as charges are amended does not automatically entitle a defendant to the full discount. The Crown refers to Knight v R where the appellant had pleaded guilty as soon as the charges were amended although this was just over a year after charges were laid.24 On appeal, Downs J considered that a discount of 15

22     Wallace v R, above n 12 at [28].

23     Hessell v R SC 102/2009 [16 November 2010] at [62].

24     Knight v R [2021] NZHC 2372.

per cent was available, notwithstanding the appellant had entered pleas immediately on the charges being amended. An allegation that Mr Knight had applied pressure to the victim’s throat was abandoned so that the summary of facts was amended to reflect that change.

[33]            Mr Finau entered a guilty plea on a summary of facts identical to that filed with the original charge. He did not indicate to the police that he would plead to a lower charge prior to the resolution being offered. In those circumstances, I do not consider that the Judge erred in only applying a discount of one month such that it is necessary to adjust the discount (which equates to a discount of 11 per cent on a nine-month starting point).

Did the Judge err in not providing discounts for remorse and prospects of rehabilitation?

[34]            While Ms Gresson submits that Mr Finau’s attendance at the boxing gym is relevant to rehabilitation, there is no indication that improving his fitness would mitigate his risk of reoffending. Although I do accept it is relevant to his general wellbeing which may in turn contribute to rehabilitation and his reintegration into the community.

[35]            Mr Finau’s track record suggests his prospects of rehabilitation are not good. In 2018, when sentenced to a sentence of supervision and community detention on a charge of assault with intent to injure, the appellant was convicted on two charges of breach of community detention. Despite that opportunity for rehabilitation, the appellant went on to offend.

[36]            The Judge also had the benefit of the views of the probation officer at the time of sentencing who described Mr Finau’s sentence of supervision as a “train wreck.” That evidence does not indicate that prospects of rehabilitation were deserving of a discount. In those circumstances, I am not satisfied the Judge erred in not applying a discount for prospects of rehabilitation.

[37]            Nor do I consider that the Judge erred in not granting a discount for remorse. Mr Finau’s willingness to attend a restorative justice conference without more does not indicate remorse, such that the Judge can be said to have erred.

Did the Judge err in not providing any discount for the time spent on EM bail?

[38]            A sentencing Court must consider the defendant’s time on EM bail.25 The Court of Appeal in Schuster v R26 confirmed that it is well-established that some allowance may be given for time spent subject to a restrictive bail regime. In assessing the credit to be given, an evaluative assessment of all the circumstances is required. In Schuster, a reduction of three months was given for eight months spent on EM bail.27

[39]            Here Mr Finau was subject to EM bail for 82 days. I accept that the Judge erred in not considering whether any discount should be applied. A discount of one month is appropriate.

[40]            Taking into account a starting point of eight months’ imprisonment and an uplift of one month for Mr Finau’s previous convictions, that results in an end starting point of nine months’ imprisonment. Applying a one-month discount for his guilty plea and a further one-month discount for time spent on EM bail, results in an end sentence of seven months’ imprisonment. I do not consider that a two month difference is tinkering when the maximum penalty is only 12 months’ imprisonment.28 That results in an end sentence of seven months’ imprisonment.

Did the Judge err in not granting leave to apply for home detention?

[41]            The sentencing court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by a sentence less restrictive than imprisonment.29 The purposes of sentencing include holding the offender to account,

25     Sentencing Act 2002, s 9(3A).

26     Schuster v R [2011] NZCA 343 at [10].

27 At [12].

28     See Deslaurier v Police [2022] NZHC 1078 at [21]; Safi v Police [2022] NZHC 1967; and Johnson v R [2023] NZHC 2518.

29     Sentencing Act 2002, s 15A(1)(a) and (b).

promoting a sense of responsibility, deterrence and denunciation, and assisting in the offender’s rehabilitation and reintegration.30

[42]            The Judge noted that  an EM sentence was possibly available but because   Mr Finau’s performance at community-based sentences had been “woeful,” the Judge considered the least restrictive sentence was one of imprisonment.31 The pre-sentence report also notes that Mr Finau’s compliance with community-based sentences and community detention had been problematic and that the report writer would likely have recommended home detention, had it been available. Mr Finau’s previous non- compliance with community based sentences is relevant to his prospects of rehabilitation.

[43]            The Judge also appears to have considered deterrence and denunciation in noting that: 32

It needs to be brought home to the defendant that if he fails to comply with court orders and directions that there will be consequences for that, and of course also, if he chooses to assault his partner, there will be consequences for that.

[44]            While the Crown’s submissions assert that Mr Finau has previously been subject to EM sentences, his record does not disclose any previous  EM  sentence. Mr Finau has only been on EM bail for 82 days. While on EM bail, he breached bail once, but he was subsequently granted a variation to his conditions to enable him to attend the gym. That suggests that the Court did not consider that the strictures of EM bail were insufficient to mitigate the risks under r 8 of the Bail Act 2000. Ms Gresson submits that attendance at the gym is relevant to Mr Finau’s rehabilitation and reintegration.

[45]            In circumstances where Mr Finau has not previously served a sentence of home detention and has a very limited history on EM bail, I consider it was an error to refuse leave to apply for a substituted sentence. An assessment as to whether the strictures

30     Section 7.

31     New Zealand Police v Finau, above n 2 at [17].

32 At [17].

of EM would be sufficient to meet the purposes of rehabilitation, reintegration, denunciation, and deterrence could then be undertaken.

[46]            I therefore consider that the Judge erred in declining leave to apply for substitution of sentence.

Result

[47]            The appeal is upheld. The end sentence of nine months’ imprisonment is quashed, and Mr Finau is sentenced to seven months’ imprisonment with the standard release conditions as set out at [18] of the sentencing notes.

[48]Leave is granted for Mr Finau to apply for substitution of sentence.

Tahana J