Fonua v Police - [2015] NZHC 2360

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2015-454-18 [2015] NZHC 2360

BETWEEN
AMANAKI FONUA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 September 2015

Counsel:

F D Steedman for Appellant
N J Wynne for Respondent

Judgment:

29 September 2015

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1] Mr Fonua appeals a sentence of two years and three months’ imprisonment imposed in relation to seven convictions for burglary and three for attempted burglary.1

Facts

[2] Mr Fonua is now 23 years old. He committed the first of these burglaries four years ago when living in Auckland. The balance of the offending is more recent and occurred in the Palmerston North area – three in August/September 2013, and
the other six in November 2014.

1 NZ Police v Fonua [2015] NZDC 9752.

[3] The relevant characteristics of the offences are that:

(a) they were of residential properties, many of them in close proximity to where Mr Fonua lived. Indeed two were immediate neighbours;

(b) some houses were targeted more than once;

(c) there was a mixture of day time and night time offending;

(d) the total value of goods taken was low (total reparation of less than

$3,000);

(e) damage was limited to the means of entry, generally by forcing windows.

[4] Mr Fonua has no convictions other than for this spate of offending. He says that he was being pressured by a gang to obtain property for them. Prior to sentencing Mr Fonua had attended a Limited Service Volunteer’s course at Trentham Military Camp. He did well and seemingly found it a significantly changing experience. He received a most favourable report from the course organiser. Mr Fonua also attended a positive restorative justice meeting with the victims from two of the burgled properties.

[5] The sentencing Judge took a starting point of four years. Whilst there was a reference to the well known case of Senior v Police the sentencing remarks do not detail the method by which this figure was reached.2 From this starting point the Judge reduced the sentence by a year to reflect Mr Fonua’s remorse, his steps to address his issues, and the restorative justice process. A 25 per cent guilty plea discount was then applied, leaving a final sentence of two years and three months.

[6] The issues on appeal are related – whether the starting point of four years was too high, and, if so, whether that was off-set by a reduction of more than 40 per cent.

2 Senior v Police (2000) 18 CRNZ 340 (HC).

Assessment

[7] I accept Mr Steedman’s characterisation that the situation is somewhat unusual. Mr Fonua was a 23 year old man who had never appeared in court before, yet he was being sentenced on offending encompassing primarily the preceding
18 months but stretching back four years. There were numerous burglary offences, and the fact that there was offending against two properties on repeat occasions is a particularly aggravating feature. On the other hand,…

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 Fonua v Police

Details

AGLC: Fonua v Police [2015] NZHC 2360
Case: [2015] NZHC 2360
Decision Date: 29 September 2015

CaseChat Overview and Summary

In the case of Fonua v Police, the appellant, Amanaki Fonua, contested the sentence of two years and three months' imprisonment imposed on him for multiple convictions of burglary and attempted burglary. The sentencing was initially handled in the New Zealand District Court, but Fonua appealed to the High Court, arguing that the starting point of four years was too high and that the reduction granted for mitigating factors was insufficient.

The primary legal issues before the court were whether the starting point of four years was appropriate given the nature and extent of the offences, and if the reduction of more than 40 per cent was justified by the mitigating factors presented. The court examined earlier decisions to determine an appropriate starting point for such cases and assessed the extent to which the mitigating factors, including Fonua's remorse, participation in a restorative justice process, and a positive response to a rehabilitation course, warranted a reduction in his sentence.

Simon France J determined that the starting point of four years was excessive given the circumstances of the case. Although the offences were numerous and involved repeated targeting of nearby residential properties, the total value of goods taken was relatively low. The court found that a starting point of three and a half years was more appropriate. While the court acknowledged the mitigating factors, it found that the 25 per cent reduction was greater than typically awarded and concluded that a reduction of one third was the most justified. Consequently, the appropriate sentence would be two years and four months, which was still within an acceptable range and did not render the original sentence manifestly excessive.

Ultimately, the appeal was dismissed as the court found that the original sentence of two years and three months was not manifestly excessive, despite the missteps in calculating the starting point and the reduction for mitigating factors.

Orders