Fitikefu v R - [2014] NZCA 99

IN THE COURT OF APPEAL OF NEW ZEALAND

CA356/2013
[2014] NZCA 99

BETWEEN	WALTER FITIKEFU Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2014
Court:	French, Ronald Young and Clifford JJ
Counsel:	R A B Barnsdale for Appellant P D Marshall for Respondent
Judgment:	27 March 2014 at 10.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

On the morning of 21 September 2010, a car was parked near the Kiwibank Post Shop in Mt Eden. Mr Fitikefu and two co‑offenders were in the car, which had been stolen earlier that morning. Mr Fitikefu and one of his co‑offenders got out of the car and went into the bank. Both men had the hoods of their sweatshirts pulled up, covering their heads. Mr Fitikefu stayed at the door. His co‑offender leapt over the security barrier and demanded the tellers empty their tills of cash. Two thousand eight hundred dollars was taken. Mr Fitikefu yelled threats at the staff as the two men ran to the getaway vehicle, where the final co-offender was still waiting. The men drove off. Shortly afterwards the Police stopped the car and Mr Fitikefu was arrested.
Mr Fitikefu entered an early guilty plea to one charge of aggravated robbery in the District Court but the Crown told the District Court Judge that they were seeking a sentence of preventive detention. The sentencing was transferred to the High Court.
In the High Court, Venning J refused the Crown’s application for a sentence of preventive detention. He imposed a sentence of four years and six months’ imprisonment with a minimum period of imprisonment of two years and eight months.[1]
[1]R v Fitikefu HC Auckland CRI-2010-004-17106, 5 July 2011.
Mr Fitikefu seeks to appeal this sentence. He submits:
(a)the starting point was too high;
(b)the Judge failed to adequately take into account remorse; and
(c)the Judge failed to take into account the background circumstances that gave rise to the offending.
Mr Fitikefu says the result of these errors is that the final sentence is manifestly excessive.

Extension of time

Mr Fitikefu requires an extension of time because the appeal was filed approximately 22 months out of time. The Crown opposes an extension given the significant length of the delay and the fact that the delay has not been adequately explained.
The reason for the delay arises from Mr Fitikefu’s complaint about the actions of the Corrections Department and Child, Youth and Family (CYF) relating to access to his child. This same issue also forms the basis of Mr Fitikefu’s claim that his sentence should be reduced because of the background circumstances giving rise to his offending. We therefore consider the merits of the appeal before returning to consider whether an extension of time should be granted.

The sentencing in the High Court

The Crown case at sentencing in support of its submission that…

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 Fitikefu v R

Details

AGLC: Fitikefu v R [2014] NZCA 99
Case: [2014] NZCA 99
Decision Date: 27 March 2014 at 10.30 am

CaseChat Overview and Summary

In Fitikefu v R, the Court of Appeal of New Zealand considered an appeal against sentence by Walter Fitikefu, who was convicted of aggravated robbery. The Court was tasked with determining whether the appeal against the sentence should be dismissed, and if so, whether an extension of time to appeal should be granted. The appellant, Mr Fitikefu, argued that the starting point for his sentence was too high, that the Judge failed to adequately consider his remorse, and that the background circumstances leading to his offending were not taken into account.

The Court of Appeal found that the starting point of five years and four months was appropriate given the seriousness of the offence and the appellant's criminal history. The Court also found that the Judge was entitled to reject the appellant's claim of remorse and that the background circumstances were not relevant to the sentencing decision. The Court concluded that the sentence was not manifestly excessive and was well within the range available to the Judge.

The Court of Appeal granted an extension of time to appeal but dismissed the appeal against sentence. The Court found that the Judge had considered the appropriate factors in arriving at the sentence and that the sentence was not manifestly excessive. The Court also found that the appellant's delay in filing the appeal was not adequately explained and that there were no exceptional circumstances to warrant an extension of time. However, the Court granted the extension of time because the appellant's complaint about the actions of the Corrections Department and Child, Youth and Family (CYF) relating to access to his child formed the basis of his claim that his sentence should be reduced because of the background circumstances giving rise to his offending.

In summary, the Court of Appeal found that the sentence imposed on Mr Fitikefu was not manifestly excessive and that the appeal against sentence should be dismissed. The Court also granted an extension of time to appeal but found that there were no exceptional circumstances to warrant an extension of time. However, the Court granted the extension of time because the appellant's complaint about the actions of the Corrections Department and CYF formed the basis of his claim that his sentence should be reduced because of the background circumstances giving rise to his offending.

Orders