Fisi'iahi v Police

[2016] NZHC 2683

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000345 [2016] NZHC 2683

BETWEEN

FOTU KUOHIKO VALELI FISIʼIAHI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 November 2016
Counsel:	P F Wicks QC for Appellant Z R Hamill for Respondent
Judgment:	9 November 2016

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 9 November 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

P F Wicks QC, Auckland.

Kayes Fletcher Walker, Manukau.

FISIʼIAHI v POLICE [2016] NZHC 2683 [9 November 2016]

The case

[1]      This is a sentence appeal in relation to a charge of injuring by an unlawful act.1   The definition of the offence better captures its gravity—and this case—for the offence prohibits the causing of injury in circumstances in which if death resulted, the offending would constitute manslaughter.   Judge Lovell-Smith sentenced the appellant to a term of six months’ home detention and 200 hours’ community work. The Judge also ordered reparation of $10,000.  The appellant contends the sentence

is manifestly excessive.

[2]      The appellant and victim, Mr Tutai Vaevae-Masters, knew each other.   On

1 November 2015 both were at the Cosmopolitan Club in Mangere.   Both were drinking.  The victim worked at the Club as a security guard, but was not working at the time.  Closing time arrived.  The victim told the appellant and others they needed to finish their drinks and leave.   An argument ensued.   The appellant exchanged words  with  the  victim,  and  they  began  pushing  and  shoving  each  other.    The appellant punched the victim to the face.  The victim fell backwards and hit his head on the concrete floor.  He suffered serious injury, about which I say more shortly.

[3]      The appellant entered a plea of guilty on 19 January 2016.   He is a first offender, academic and former public servant.  The appellant has made a substantial contribution to the community throughout his life.

[4]      But, the victim suffered great harm.  He required brain surgery for a fractured skull and associated blood clots.  Between 70 and 80 staples were placed in his head. The victim was hospitalised for 15 days, when he discharged himself.  Rehabilitation may occupy between six and 12 months.

[5]      The victim describes his injuries as life-changing.  For months, he could not taste or smell.  He was not able to work.  He resigned all three jobs, including that at the Cosmopolitan Club.  The victim bought a new car shortly before the assault, but in the wake of the offending, was unable to service its repayment.  He now has an

$8,000 debt.   The victim describes feeling stress, anger and hatred towards the appellant.  He continues to suffer nightmares.

Sentencing below

[6]      The appellant sought to be discharged without conviction.   Judge Lovell- Smith rejected that application in a comprehensive decision.  The Judge then turned to sentence.  Here, her Honour’s remarks were brief:2

[3]  The police are seeking a starting point of imprisonment.  Mr Tupou of course has submitted that you demonstrated throughout your life your ability to carry out community work.  I have heard from Reverend Masima as well that you are able to do community work and are ready and willing to do so. In fact you have also, I know, done a considerable amount.

[4]  I have to have regard to the purposes and principles of the Sentencing Act 2002, in particular to hold you to account for what you did in causing this  traumatic  brain  injury  to  this  victim  and  for  the  consequences  he suffered as a result.  I also have to consider in addition to the purposes and principles of sentencing which include consistency of sentences.  I have to also have regard to imposing the least restrictive outcome.

[5]   You  are a first  offender.   Whatever else might  be said about  your behaviour has not result in any charges.  I put that to one side.  You have at the outset proffered to pay reparation.  I accept your remorse as genuine and having heard from the Reverend Masima, I think you have progressed quite significantly from the time you saw Dr Kirker, that you now appreciate what is an appropriate reaction and how you should conduct yourself.

[6]   Taking  all  those  matters  into  account  I am going  to  stop  short  of imprisonment and impose a sentence of home detention as follows.

[7]  You will be convicted and sentenced to home detention for a period of six months and the conditions are the same as those set out in the PAC report.

[8]  You are also ordered to pay reparation at $10,000 to the victim and you are also ordered to do 200 hours community work.

A précis of the respective arguments

[7]      For the appellant, Mr Wicks QC contended the Judge failed to adequately articulate  requisite  sentencing  methodology,  so  that  I should  commence  matters afresh.    And,  most  significantly,  he  contended  the  Judge  imposed  a  manifestly

excessive sentence.   Mr Wicks submitted a sentence of community detention, community work and $10,000 reparation represents the correct outcome.

[8]      The respondent acknowledges the brevity of the Judge’s remarks, but submits

the sentence is not manifestly excessive.

Analysis

[9]      The Judge must have concluded imprisonment was an appropriate response because home detention would not have been available otherwise.3    However, the sentencing notes are silent on the starting point, and what deductions, if any, the Judge applied.   No recitation of authority is required for the proposition orthodox sentencing methodology requires the adoption of a starting point against which mitigating features, if any, are offset.   The decision is without this analysis. Consequently, there is little choice but for me to approach the issue afresh or at least conduct my own analysis with a view to comparison against the sentence imposed.4

[10]     Two cases are of assistance, both of which involved the same charge as here.

[11]     In Tutaki v Police,5 the defendant elbowed the victim in the face.  The blow rendered the victim unconscious.   He fell backwards and hit his head on concrete tiles. The victim suffered bleeding to the brain.  The Judge at first instance adopted a starting  point  of  12  months’ imprisonment.    On  appeal,  Lang  J  considered  the defendant “fortunate”.  His Honour considered a 15-month starting point would have been more appropriate.

[12]     In Koloamatangi v Police,6  the victim propositioned the defendant.   The defendant  responded  by  hitting  the  victim  once  to  his  chin.    The  victim  fell backwards and hit his head on the pavement.  He was seriously injured.  The first instance Judge adopted a starting point of 15 months’ imprisonment.   Venning J

allowed the appeal, but the Judge did not disturb the starting point.

3      Sentencing Act 2002, ss 8(g) and 10A.

4      In any event, even if there is an error, the appeal will only be allowed if a different sentence should be imposed: Sentencing Act, s 250(2). The focus is on the overall sentence, not the process used to reach it: Ripia v R [2011] NZCA 101 at [15].

5      Tutaki v Police [2015] NZHC 1177.

6      Koloamatangi v Police HC Auckland CRI-2012-404-82, 24 April 2012.

[13]     In  light  of  these  cases,  Mr  Wicks  acknowledged  his  written-submission starting point of six months’ imprisonment could not be sustained.  But he contended this case was less serious than Koloamatangi, and a starting point of 12 months’ imprisonment was appropriate.  Mr Wicks said the use of an elbow was more serious than a fist, and the instant victim suffered less serious injury than Mr Koloamatangi’s victim.

[14]     I disagree with both propositions.  A blow to the head, whether from a fist, foot or elbow, is liable to cause injury; even more so if the victim falls and hits his or her head on the ground.  Furthermore, case law draws no distinction between a fist and elbow.  And relevantly, Taueki v R treats as aggravating any blow to the head— for obvious reasons.7

[15]     Nor   am   I   persuaded   Mr   Vaevae-Masters’   injuries   were   any   less life-threatening than the victim’s in Koloamatangi.  Brain surgery is not performed lightly.   And as observed, Mr Vaevae-Masters suffered a fractured skull and associated blood clots.  Koloamatangi refers to “extensive medical intervention” to

save the victim’s life.8  That description neatly fits this case.

[16]     It follows a starting point of not less than 15 months’ imprisonment would be required.  And, it may well be a higher starting point could be sustained.  Offending of this nature is inherently serious.   The maximum penalty is three years’ imprisonment, more than twice the starting point imposed in any case.  This is a bad instance of its kind.  The victim suffered serious injury in consequence of what was an unprovoked assault.  He could well have died.  Moreover, I discern a hardening of

curial attitudes in the single-punch manslaughter cases.9   Logically, that should result

in increased starting points for offending of this nature too.

[17]     To return to this case, a starting point of 15 months’ imprisonment would be the least restrictive term a Court could adopt.

7      R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA) at [31](e).

8 At [2].

9      See, for example, Kos J’s comments in R v King [2012] NZHC 3072 at [35]–[37]. See also

Murray v R [2013] NZCA 177 at [21] and R v McFarland [2014] NZHC 1106 at [44].

[18]     There are a number of mitigating features.   First, the appellant has led an otherwise exemplary life.  Second, he is remorseful.  (That was the view of the Judge below too.)  Third, he has attended courses with a view to rehabilitation and paid reparation of $10,000. And fourth, the appellant entered a prompt guilty plea.

[19]     The  first  three  factors  are  largely  a  matter  of  untrammeled  sentencing discretion.   For them, Mr Wicks urged a 25–30 percent reduction.   I consider a

20 percent reduction appropriate.   A deduction  at this level is significant, while avoiding the dangers of “discount-creep” (by which an appropriate starting point is incrementally  but  artificially  overwhelmed  by  an  accumulation  of  mitigation factors).   Authority assists in relation to the fourth factor,10  in relation to which I make full allowance of an additional 25 percent.  This produces a notional sentence of nine months’ imprisonment.

[20]     Mr Wicks submitted home detention was an appropriate response.   For the respondent, Ms Hamill agreed.  Obviously, that was the view of Judge Lovell-Smith. Against this background, I approach matters in the same way.  But I should add my approach might have been different had this not been an appeal by the defendant: hitting another person in the head with a fist and causing life-threatening injury, even when no injury is intended, is a serious criminal act.

[21]     Mr Wicks submitted the term of six months’ home detention was manifestly excessive, and by at least three months.  He also contended it remained open to me to impose a “merciful” sentence of community detention, at the maximum level of six months.11

[22]     I acknowledge sentences of home detention are frequently approached on the basis  one  month’s  home  detention  is  equivalent  to  two  months’ imprisonment, presumably because the maximum period of home detention is half of the maximum period of a short-term sentence of imprisonment.12   However, practice should not be

confused with principle.  Here, the Court of Appeal has observed:13

10     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

11     Sentencing Act, s 69B.

12     Sentencing Act, s 80A.

13     R v Bisschop [2008] NZCA 229 at [18].

…  We do not accept that any mathematical process should be adopted.  The proper approach, consistent with R v Tamou [2008] NZCA 88, is an evaluative assessment of all the circumstances. While the maximum period of home detention that can be imposed (12 months) equates with the maximum period an offender sentenced to a short-term sentence of imprisonment is required to serve, it does not automatically follow that the appropriate term of home detention will be half the appropriate sentence of imprisonment in every case.

[23]   In this case, there is much to commend home detention rather than imprisonment: the appellant pleaded guilty promptly; has an otherwise immaculate record; is remorseful; and has taken steps to atone.  However, there is also much to commend  a  significant  term  of home detention:  through  violence,  the  appellant caused life-threatening and ongoing harm to the victim.  And, if death had occurred, the  appellant  would  be  guilty  of  manslaughter.    He  would  then  be  serving  a substantial term of imprisonment. That he is not reflects chance.

[24]     So,   while   the   Judge   erred   in   not   applying   conventional   sentencing methodology, I am not persuaded the Judge erred as to result.  There is no obvious dissonance in a term of nine months’ imprisonment being commuted to a term of six months’ home detention (as against four and a half months’).  It follows the imposed sentence could have been reached by the application of principle, as demonstrated by the analysis set out above.

[25]     For completeness, I reject as inadequate the prospect of community detention on these facts.   Deterrence and denunciation require a more resolute response, particularly given the level of injury involved (inflicted through violence, albeit without intent as to outcome). The cases referred to earlier support that view.

[26]     The appeal is dismissed.

[27]     I thank counsel for their concise and helpful submissions.

……………………………..

Downs J