Finau v The Queen

[2010] NZCA 186

IN THE COURT OF APPEAL OF NEW ZEALAND

CA561/2009
[2010] NZCA 186

BETWEENENEASI FINAU

Appellant

ANDTHE QUEEN

Respondent

Hearing:22 April 2010

Court:Glazebrook, Winkelmann and Venning JJ

Counsel:Appellant in Person

J M Jelas for Respondent
L B Cordwell as counsel assisting the Court

Judgment:19 May 2010 at 4.00 pm

JUDGMENT OF THE COURT

A            The application for extension of time in which to appeal is granted.

B            The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1]        In July 2009 the appellant pleaded guilty to one count of causing grievous bodily harm with intent to cause grievous bodily harm for which the maximum penalty is 14 years imprisonment.  At the time of the offending, the appellant was serving a sentence of 11 years imprisonment for one count of aggravated robbery and one count of attempted murder.  At the time of sentencing he had three years imprisonment left to serve on that sentence.  The plea of guilty to the charge of causing grievous bodily harm was entered following a sentence indication of five years imprisonment cumulative on his existing sentences and the sentence imposed upon him accorded with that indication. 

[2]        The appellant appeals against both conviction and sentence on the grounds that he entered the plea of guilty under the mistaken belief that the sentence would be concurrent with, rather than cumulative on, his existing sentence.  The Crown accepts that if this was the appellant’s mistaken belief, it was a material mistake as to the effect of the sentencing indication, and the appeal should be allowed.  The Crown says that there was no such mistake. 

[3]        The appeal is brought out of time.  The Crown does not oppose the extension of the time for appeal, and the extension is granted. 

[4]        The appellant represents himself in respect of this appeal.  Prior to the hearing, counsel for the Crown contacted counsel who was representing the appellant in another matter.  This was because of her concern that if the conviction was vacated as a consequence of this appeal, the appellant would likely ultimately receive a longer sentence as a consequence of losing the benefit of a discount for a guilty plea.  As a consequence of this contact, Mr Cordwell attended the hearing of the appeal.  He suggested that, because of the Crown’s concern, a sensible course of action was to appoint him as amicus to advise the appellant in relation to the appeal, and, if necessary, to assist the appellant with its conduct. 

[5]        We adjourned the appeal to give Mr Cordwell an opportunity to confer with the appellant.  Having done so Mr Cordwell reported that the appellant was happy to be assisted by him in the manner suggested.  We therefore confirmed Mr Cordwell’s appointment as amicus to assist the appellant with his conduct of the appeal on the basis that he would thereby be assisting the Court.  We adopted this unusual course of action because of the concerns raised by the Crown as to the potential for this appeal to adversely affect the appellant’s interests. 

Background

[6]        The summary of facts to which the appellant pleaded guilty is as follows.  The victim was a prison officer in the prison in which the appellant was a serving prisoner.  On a day in September 2008 the appellant was standing outside his cell.  He lashed out as the victim walked past, attempting, but failing, to punch him.  As the victim tried to restrain him, the appellant struck the victim in the face with his right thigh causing the victim to stagger backwards into an open cell.  The victim was then punched in the mouth by the appellant and fell to the ground, semi-conscious.  The appellant then punched the victim on the temple with his left fist, rendering him briefly unconscious. 

[7]        As the victim lay unconscious on the ground the appellant kicked him in the legs.  When the victim regained consciousness he asked the appellant ‘what are you doing?’.  The appellant replied by saying ‘anything’ and then punched the victim twice in the head. 

[8]        At some point the appellant left the cell.  The victim got to his feet.  As he walked past the appellant, the appellant punched him in the jaw rendering him unconscious again.  The victim lay unconscious for a short time whilst the appellant remained in the vicinity.  When the victim regained consciousness he yelled for help and was eventually assisted.  As a consequence of the assault, he received a cut on the inside of his mouth, minor bruising and concussion. 

[9]        The appellant gave a statement to the police following the assault in which he admitted these facts.  He said that he wanted to teach the victim a lesson. 

Evidence on appeal

[10]       Mr Bullock was counsel for the appellant in the District Court.  He filed an affidavit at the request of the Crown and gave evidence at the hearing of the appeal.  He said that he met with the appellant on a number of occasions.  In the course of those meetings he explained the ingredients of the offence with which the appellant was charged and the range of potential sentences, including an explanation that any sentence imposed would be cumulative on the existing sentence he was serving.  He thought he first explained that on the date of the depositions hearing in April 2009 because his file note recorded that a sentence could be as much as nine years cumulative.  He said that although the note uses the word ‘cumulative’, it was his practice to say ‘on top of’ or ‘added to’ because many of his clients would not understand the word cumulative.  Mr Bullock agreed that the appellant has asked him about a concurrent sentence at one of the early meetings, but said that he explained to him that any sentence would not be concurrent. 

[11]       At a later meeting, post-committal, the appellant instructed Mr Bullock that while he did not intend to cause grievous bodily harm, he nevertheless wanted to seek a sentencing indication.  As a consequence, Mr Bullock filed a memorandum seeking a sentencing indication hearing, which was organised. 

[12]       He said that on the day of the sentencing indication hearing he and the appellant discussed the sentence again.  The appellant instructed Mr Bullock that if he received an indication of five years or less he would plead guilty.  Mr Bullock said that he would have again made it clear to the appellant that any sentence he received would be added to his present sentence. 

[13]       During the course of the sentencing indication hearing there was discussion between Mr Bullock and the Judge as to the likely sentence, including discussion that sentence would be on ‘top of’ the appellant’s existing sentence.  Mr Bullock said that following that discussion he approached the appellant in the dock and explained to him that the indication was five years added to what the appellant was presently serving.  He asked him to confirm that he wanted to plead guilty on that basis.  The appellant confirmed he did. 

[14]       The appellant also gave evidence on appeal.  He did not recall Mr Bullock using the expression ‘cumulative’ and prior to this appeal he did not understand the meaning of that word.  He said that if Mr Bullock had described a sentence as cumulative he would have asked him to explain that, and agreed that Mr Bullock was the kind of counsel you could ask questions of.  He said Mr Bullock did not explain that the sentence would be ‘on top of’ his existing sentence. 

[15]       The appellant said his instructions were that he would only plead guilty if the sentence was concurrent, and he understood all discussions to be in relation to a concurrent sentence.  He would never have pleaded guilty if he understood that he was to receive a cumulative sentence. 

[16]       The appellant’s account was that it was only on his return to prison he realised the sentence was cumulative.  He told a prison officer that he had received a sentence of five years concurrent with the sentence he was presently serving.  The prison officer checked the computer system and told him that it was not a concurrent sentence, but rather that it was on top of his existing sentence. 

Analysis

[17]       We have no hesitation in preferring Mr Bullock’s account that he told the appellant that any sentence would be cumulative, and that he explained that cumulative meant ‘on top of’ or ‘added to’.  Mr Bullock’s recollection is corroborated by the file note which records that he discussed a cumulative sentence with the appellant.  When that file note was put to the appellant on cross-examination, he accepted that a cumulative sentence might have been discussed, but said that he just did not remember.

[18]       The appellant’s account that he was never told that the sentence was to be cumulative, or on top of his existing sentence, conflicts not only with Mr Bullock’s evidence, but also with the transcript of the sentencing indication hearing.  The sentencing Judge, Judge Radford, commenced his discussion of the sentence to be imposed by saying ‘what’s going to be the effect of a sentence imposed?  Is it going to be – it’s got to be on top, of course’.  Further on in the discussion, the Judge again said that the sentence would be on ‘top of’ the appellant’s existing sentence, and commented that the sentence was going ‘to have a significant effect’. 

[19]       When this transcript was put to the appellant, he said that he didn’t hear counsel or the Judge talking about the sentence being on top of his existing sentence, but agreed he would have understood it if he had.  The appellant’s account that he did not follow the discussion between his counsel and the Judge on something that so fundamentally affected his interests seems unlikely but in any event the transcript of that hearing also corroborates Mr Bullock’s evidence that he did explain to the appellant that the sentence was to be cumulative/on top of the existing sentence.  It records that Mr Bullock took instructions from his client during the hearing, and following that, confirmed on inquiry from the Judge that his client understood the sentence would be ‘on top of’ the existing sentence. 

[20]       We have also considered the appellant’s evidence that it was only on his return to prison that he realised the sentence was cumulative.  To some extent this is corroborated by Mr Bullock’s evidence that he received a phone call from the appellant in prison later on the day of sentence, in which the appellant said he thought the sentence was concurrent.  But in light of the cogent evidence that the appellant was told on more than one occasion prior to entering his plea that the sentence would be cumulative/on top of the existing sentence, we consider that this approach by the appellant was the result of regret or anxiety over the plea and sentence, rather than any confusion that existed in the appellant’s mind at the time of sentence.

[21]       We have also considered an argument of Mr Cordwell’s that the expression ‘on top of’ is ambiguous, capable of meaning ‘running alongside of’ the existing sentence.  There is no evidentiary basis for Mr Cordwell’s alternative submission.  On the contrary, when the appellant was asked to explain his current understanding of the word cumulative, he too used the expression ‘on top of’, and the appellant agreed he would have understood that explanation of cumulative. 

[22]       It follows that we are satisfied that the appellant properly understood the nature and effect of the sentence indicated during the sentencing indication hearing.  The only ground of appeal advanced in support of either the sentence or conviction appeal was that the appellant was mistaken as to the nature and effect of the sentence indication.  We therefore dismiss the appeals.

Solicitors:

Crown Law Office, Wellington for Respondent