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).…

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 Finau v Police

Details

AGLC: Finau v Police [2024] NZHC 648
Case: [2024] NZHC 648
Decision Date: 22 March 2024

CaseChat Overview and Summary

Eric Funaki Lorenzo Finau appeals his sentence following a conviction for common assault, contending that the nine-month imprisonment term is manifestly excessive. The appeal raises issues concerning the starting point for sentencing, the adequacy of discounts for mitigating factors, the consideration of time spent on electronically monitored (EM) bail, and the refusal to grant leave to apply for home detention. The Court of Appeal reviews the sentence under the principles that a successful appeal requires identification of an error and a different sentence should be imposed. The Court analyses whether the starting point was manifestly excessive, whether the discounts for mitigating factors were adequate, whether a discount should have been afforded for the time spent on EM bail, and whether leave should have been granted to apply for home detention.

The Court finds that the starting point of nine months' imprisonment was outside the appropriate range, given the nature of the assault and the vulnerability of the victim. It was more serious than cases where lower starting points were adopted but less serious than cases where higher starting points were used. Therefore, the Court agrees with the Crown that a starting point of eight months' imprisonment is justified. The Court also determines that the Judge did not err in only applying a one-month uplift for Mr Finau's previous convictions. Regarding the discount for the guilty plea, the Court concludes that the Judge did not err in applying a one-month discount, given the delay was partly due to Mr Finau. The Court further finds that the Judge did not err in not granting a discount for remorse and prospects of rehabilitation, considering Mr Finau's history of non-compliance with community-based sentences. However, the Court identifies an error in not considering a discount for time spent on EM bail and determines that a one-month discount is appropriate. The Court also finds that the Judge erred in not granting leave to apply for home detention, as Mr Finau had limited history on EM bail and had not previously served a sentence of home detention.

The appeal is upheld. The sentence of nine months' imprisonment is quashed, and Mr Finau is sentenced to seven months' imprisonment with the standard release conditions. Leave is granted for Mr Finau to apply for substitution of sentence.

Orders