MTM Funds Management Ltd v Force Holdings Ltd
[2000] NZCA 304
•25 October 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 239/00 |
THE QUEEN
V
TUA TUSI FANOLUA
| Hearing: | 24 October 2000 (at Auckland) |
| Coram: | Blanchard J Ellis J Anderson J |
| Appearances: | P J O'Driscoll for Appellant K Raftery for Crown |
| Judgment: | 25 October 2000 |
| JUDGMENT OF THE COURT DELIVERED BY ELLIS J |
The appellant was convicted of intentionally injuring his wife and assaulting her with a weapon. He was sentenced in the District Court at Otahuhu to two years imprisonment. He appealed against his sentence to the Court of Appeal. The offences were committed on the morning of 14 May 2000. He was charged and brought before the Court on 15 May and pleaded guilty at the first opportunity. He did not seek bail. He was sentenced on 26 June. He has been in custody for just over five months. At the hearing we raised the question of jurisdiction. It appears that pursuant to s 28h of the District Courts Act 1947 this is a case where the appeal lies to the High Court. Counsel agree that we reconstitute as a Full Court of the High Court accordingly.
The facts of the assault were that the victim came home from her work in the morning. The appellant and she had agreed to give the appellant's mother $100 as a Mother's Day gift, but the victim refused to give him the money and retired to bed. The accused followed her in and struck her with great force including smashing a drawer from a chest of drawers over her so that it shattered into five pieces. The attack was violent and prolonged. The victim cried out for mercy but was ignored. She was knocked unconscious. She suffered what was at first thought to be a fracture of her lower back and severe swelling and bruising. She had severe pain in her back and required hospital treatment which revealed she also had a broken finger. She was discharged from hospital the next day and has had ongoing outpatient treatment. She has been worried that she may have had permanent injury. In an affidavit filed in this Court she deposes that she did not prove to have a fracture of her back and has fully recovered.
The appellant has a history of prior offending including two previous assaults on the victim. For one in 1991 he was imprisoned for 10 months, and for the other in 1996 he was sentenced to 6 months supervision on special conditions. He has two drink driving convictions and two cannabis related offences.
Members of the appellant's and the victim's families have matai status in Western Samoa. As a result of these offences they have united and performed traditional ceremonies of humiliation and forgiveness involving both the appellant and the victim. It is plain both from the very prompt guilty plea and these ceremonies that the appellant is genuinely contrite and remorseful. Further, the victim forgives him and is anxious to resume family life. With family support and counselling the prospects are favourable. As in so many cases involving family violence the imprisonment of the violent partner punishes the victim and her children who depend on him for support both financial and parental.
The Judge below recognised these features, although there was at that stage the suggestion that the $100 was destined for the Congregational Christian Church. It was confirmed in this Court that it was for the appellant's mother who we were told was to use it for the family's benefit. It seems that submissions were made to the District Court that the appellant was acting under some sort of provocation. Although before the assault, as the victim's affidavit suggested, she may have been affected by alcohol and said abusive words to the appellant we consider, as did the Judge, that there was no provocation involved. It all stemmed from the demand for the $100. On the other hand the appellant and his family of three young children were at the time living in a three bedroom house with six members of his extended family. He and his wife were having trouble "making ends meet". His living circumstances can therefore quite understandably have caused significant stress.
Finally as to the facts, the appellant presented as a man with much support from members of the community and his family, and as a man in steady employment who contributed well to community and family life. Like so many violent people he himself had a violent upbringing and has a very real problem with anger. He has already begun to take counselling for anger management.
There is no doubt that these offences involve serious violence and that s 5 of the Criminal Justice Act 1985 applies. The sentence must therefore be a term of imprisonment unless there are special circumstances. We agree that there are none. The first step is to determine the appropriate starting point. The maximum sentence for each charge is five years imprisonment. In imposing a sentence of two years we think the Judge must have had in mind a starting point of three years imprisonment which we think is too high. We agree with both counsel before us the appropriate starting point is in the order of two years. We also think that the genuine contrition and remorse evidenced by the very early plea, not seeking bail, and undergoing the significant ceremonies of "fa'aleleiga" and "ifoga" call for a significant and palpable discount. After the event the appellant has in effect done all he can do to date to make amends. That is not to say there is not a lot still to be done. Pursuant to s 7 of the Criminal Justice Act the sentence should be as short as is consonant with the safety of the community, especially the victim, and that will be enhanced by a period of supervision subject to special conditions. We do not think this is an appropriate case to suspend the sentence or to order that the offender can apply for home detention.
The appeal is accordingly allowed and the sentence of two years imprisonment is reduced to one years imprisonment to be followed by 12 months supervision on the special condition that the appellant undertake anger management counselling with the Laveai Trust for Anger Management or such other organisation as the Probation Officer may require, and also such other counselling, including for alcohol abuse, as the Probation Officer may require.
Solicitors
King Alofivae Malosi, Manukau for Appellant
Crown Solicitor, Auckland for Crown
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