Funaki v Police - [2013] NZHC 2218

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-194 [2013] NZHC 2218

BETWEEN KAPONO TAUKOLO FUNAKI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 August 2013

Counsel: R Brown for Appellant
EC Rutherford for Respondent

Judgment: 29 August 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 29 August 2013 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Public Defence Service (Manukau) for Appellant
Meredith Connell (Auckland) for Respondent

FUNAKI v POLICE [2013] NZHC 2218 [29 August 2013]

Introduction

[1] Mr Funaki appeals his sentence of two years and two months’ imprisonment

imposed on him by Judge JC Moses in the District Court at Manukau on 13 June

2013. The sentence was for assaulting Sione Uikilifi with intent to injure him, assaulting Nathan Pahulu using a weapon, and assaulting Lycia Pahulu using a weapon. The first charge carries a maximum penalty of three years’ imprisonment; the latter two charges carry a maximum penalty of five years’ imprisonment. The appellant entered pleas of not guilty to all three charges and was convicted following trial. The charges in respect of Mr Uikilifi and Mr Pahulu attracted sentences of two years two months’ imprisonment and the charge in respect of Lycia Pahulu resulted in a sentence of one year’s imprisonment; all sentences concurrent with each other.

[2] The appeal proceeds on the basis that the overall sentence is manifestly excessive. The appellant argues that the District Court Judge erred in adopting his starting point (30 months) and in giving only four months credit for personal mitigating factors. In the appellant’s submission, the end sentence should have been two years or less and home detention should have been substituted.

Background

[3] On 9 April 2012, the victims were at an address in Otahuhu socialising with family members. The appellant and a group of his friends were gathered outside the address drinking. The appellant was heavily intoxicated.

[4] At around 7:00 pm, Sione Uikilifi and his wife, Lycia Pahulu, decided to leave the address. They went outside and put their young daughter into their car. One of the appellant’s associates began looking into the car, leading Mr Uikilifi to approach him. At this point, the appellant and his associates rushed at Mr Uikilifi. The appellant was carrying a plank of wood, which he used to hit Mr Uikilifi on the top of his head, rendering him unconscious. The appellant continued to strike Mr Uikilifi while he lay on the ground. This attack gave rise to the charge of assault with intent to injure.

[5] Mrs Pahulu attempted to intervene and the appellant struck her on her hands and body as she attempted to defend herself. Nathan Pahulu, a 15 year old relative of Mrs Pahulu, also intervened to try to stop the attack. The appellant struck him on the head with the piece of wood. The two charges of assault with a weapon resulted from these attacks.

[6] Mr Uikilifi and Mr Pahulu suffered injuries of sufficient…

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.

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Details

Case: [2013] NZHC 2218
Decision Date: 29 August 2013

CaseChat Overview and Summary

Mr Funaki appeals his sentence of two years and two months’ imprisonment imposed by Judge JC Moses in the District Court at Manukau. The sentence was for three charges of assault, two of which involved the use of a weapon. The appellant pleaded not guilty to all charges and was convicted following trial. The appeal proceeds on the basis that the overall sentence is manifestly excessive. The appellant argues that the District Court Judge erred in adopting his starting point (30 months) and in giving only four months credit for personal mitigating factors. In the appellant’s submission, the end sentence should have been two years or less and home detention should have been substituted.

The court found that the starting point of two-and-a-half years’ imprisonment was within the range available to the District Court Judge. The court found that the judge was entitled to take into account the aggravating features of the case, including extreme violence, an unprovoked attack on several victims, and the inflicting of serious injuries to two of the victims which resulted in them being hospitalised. The court found that the judge was not required to double count the use of the piece of wood as a weapon as it was an essential ingredient of two of the charges. The court found that the judge was entitled to take into account in respect of the charge of assault with intent to injure the way in which the piece of wood was used and the degree of force with which it was used. The court found that the judge was also entitled to take into account the attacks to the heads of two of the victims and that there had been more than one attacker so far as Mr Uikilifi was concerned.

The court found that the judge erred in regarding the appellant’s previous criminal history as precluding his character from being taken into account. The court found that a more balanced appraisal was that the history was minor and that rehabilitation and reintegration required greater emphasis. The court found that remorse, even belated remorse demonstrated by post-conviction offers of restorative justice and reparation, could then be given some weight. The belated recognition that alcohol is a problem could also be viewed as an opening to awareness which should be encouraged for the future protection of the community. The court found that an appropriate discount giving all these matters due weight would still be no greater than six months. The court found that this discount was only two months greater than the District Court Judge’s discount. The court found that this difference did not mean that the District Court Judge’s sentence was clearly excessive. The court dismissed the appeal.

Orders