Ofakineiafu Michael David v The Queen - [2004] NZCA 301

IN THE COURT OF APPEAL OF NEW ZEALAND
CA301/04
THE QUEEN
v
MICHAEL DAVID OFAKINEIAFU
Hearing:28 October 2004

Court:William Young, Randerson and Heath JJ
Counsel:L B Cordwell for Appellant

H D M Lawry for Crown

Judgment:8 December 2004

JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS
(Given by Randerson J)
Introduction
[1]       On 7 July this year the appellant was found guilty by a jury in the High Court at Auckland on a count of injuring with intent to injure. He had originally been charged with murder as well but in the course of his trial the Judge (Cooper J) discharged him on the murder count.
[2]       On 23 July, Cooper J sentenced the appellant to two and half years imprisonment.
[3]       He now appeals against sentence.
Background
[4]       On the evening of 12 September last year, the appellant was at a party which was invaded by a group of youths. One of the appellant’s friends was struck with a baseball bat. The appellant and others armed themselves with what weapons were to hand and chased the invading group off. All made their escape except Jordan Adams. He was 16 years old. The appellant caught up with him as he was trying to unlock the car in which he had arrived and struck him once on the head with a piece of wood. Jordan Adams continued to run after the assault for perhaps 10 to 20 metres before he fell over. He was then assaulted by two other men. He later died as a result of the injuries they inflicted on him.
[5]       The appellant is a 22 year old Tongan man who, up until his trial, was living with his partner and their two children. He has three previous convictions for crimes of violence. It is clear from the pre-sentence report that the appellant was not particularly remorseful and was still seeking to justify his conduct.
[6]       The Judge was given victim impact statements in which relatives of the deceased, in the course of explaining the impact of the deceased’s death, also expressed trenchant criticisms of the appellant.
[7]       In his sentencing remarks the Judge noted that the deceased was no threat to the appellant at the time the appellant attacked him. He referred to the appellant as being “drunk”, “angry” and “out for revenge”. He accepted that the appellant was not “legally responsible” for the deceased’s death but had, by his actions, prevented him from escaping. On this basis he considered that he could “take into account the extent to which you have contributed to the misery with which Jordan Adams’ family are now trying to cope”. He noted that the appellant claimed that he hit the deceased because this was necessary to protect his family and observed:
[10]     I have to say, having sat through the trial, that that is an account of events which just does not wash. The way to protect your family Mr Ofakineafu, was to leave. It was not to…

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: [2004] NZCA 301
Decision Date: 8 December 2004

CaseChat Overview and Summary

The appellant, Michael David Ofakineafu, was found guilty of injuring with intent to injure, after he had assaulted Jordan Adams with a piece of wood during a party that was invaded by a group of armed youths. The appellant subsequently appealed against the sentence imposed by the High Court at Auckland, which was two and a half years imprisonment. The appeal was dismissed by the Court of Appeal of New Zealand. The court found that the appellant's attack on the victim prevented him from escaping and contributed to his later death. The court also found that the appellant's previous convictions for crimes of violence, the use of a weapon, and the painful nature of the injury were all valid aggravating factors. The court concluded that the sentence was within the available range and dismissed the appeal.

The legal issues in this case revolved around the sentencing of the appellant. The appellant's counsel argued that the judge had placed inappropriate weight on the views expressed by the family of the deceased and that the deceased was later to die, did not allow sufficiently for what was alleged to be the "relatively minor" nature of the injury inflicted by the appellant, misstated aggravating circumstances, understated the role of the deceased in the earlier events, and imposed a sentence which lay outside the available range. The court rejected these arguments and found that the judge was entitled to consider the circumstances of the offending, including the fact that the victim was not posing any threat to the appellant at the time of the attack, and that the appellant's actions effectively set the stage for the further attack which resulted in the young man's death. The court also found that the sentence was within the available range and dismissed the appeal.

Orders