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 run 60 metres down the road with a piece of wood to assault somebody who himself was trying to leave.

[8]       The Judge then went on:

[11]     Mr Dickey, for the Crown, has identified a number of aggravating features in respect of this offence which I must take into account under s9 of the Sentencing Act 2002.  They include the fact that the events involved actual violence and the use of a weapon; the injury that was caused by the assault;  your previous convictions of a relevant kind, including assaulting the police, assaults and assaults with intent to use a weapon.

[12]     On the other hand, the only real mitigating factor here is the fact that you were a young person when you committed this particular offence.  But you were 22 years old and youth is a relative thing, and I cannot see in that fact that there is really any mitigating circumstance which I can take into account.

[13]     I do have regard to the fact that you have a young family.  You have a supportive partner, who I think gave evidence at the trial in a way which was consistent with her Oath.  I think the future that you might have with her if you mend your ways could be a positive one. 

[14]     I have had regard to what Mr Anderson has told me about the sentences imposed in other cases involving this particular crime.  I accept that this offending is not at the worst end of the scale, but I do regard it as serious.  A pre-meditated attack with a piece of wood, a substantial piece of wood, is not in my view, able to be dismissed as insignificant.

[15]     I accept that the extent to which Mr Adams was injured by your attack is unclear from the evidence, but from the description of the assault which was given at the trial, I have no doubt that you struck him a very painful blow.

[16]     Having regard to sentences which have been imposed in other cases, having regard to your record, having regard to the other matters which Mr Anderson has drawn to my attention, in my view an appropriate sentence in this case is a sentence of two and a half years imprisonment.  You are sentenced accordingly.

Grounds for appeal

[9]       The appeal against sentence was advanced by Mr Cordwell on the basis that the Judge 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.

[10]     Criticisms of victim impact statements must be assessed with a sense of realism.  If such statements are stripped of all emotive language, there is a risk they will not authentically express the views and feelings of victims.  Further, there is more than one way in which information about the matters provided for in s 17 of the Victims Rights Act 2002 can be conveyed to the Court.  For instance, anger on the part of a victim can be seen as being amongst the “effects of the offence on the victim”.  That a victim is angry can be conveyed directly (by the victim saying that he or she is angry) or indirectly (by the victim expressing that anger in what is said).  As well, a sentencing Judge can be expected to pick up from a victim impact statement what is relevant and to discard the balance.

[11]     In saying this we are not wishing to encourage an “anything goes” approach.  The emotionally laden (and to some extent threatening) terms of some the victim impact statements presented to the Judge went well beyond what is contemplated by the Victims Rights Act 2002: see for instance what was said by this Court in R v Hopkirk (1994) 12 CRNZ 216 and by Chambers J in R v Burns (No 1) (2000) 18 CRNZ 212. 

[12]     These conclusions, however, are of no assistance to the appellant. 

[13]     The prosecutor recognised prior to sentencing that some of what said in the statements went beyond what was appropriate and discussed this with the appellant’s counsel (who was not Mr Cordwell).  The appellant’s counsel did not object to the victim impact statements being considered, sensibly leaving it to the Judge to disregard inappropriate material.  The alternative, presumably, would have been to adjourn the sentencing to enable appropriate victim impact statements to be prepared.  We cannot see how that would have advanced the appellant’s position.

[14]     The legitimate purposes of victim impact statements include informing the Court of emotional harm suffered by, and other effects of the offence on, victims.  To the extent to which the victim impact statements did this, they were unexceptional and the Judge was perfectly entitled to conclude that the death of the deceased had caused “grief”, “hurt”, “anger” and “misery”.  Indeed, no other conclusion appears to have been open to the Judge on the evidence.

[15]     Mr Cordwell was critical of the references made by the Judge to the death of the deceased and suggested there was an element of the appellant being punished for a death for which he was not responsible.

[16]     In particular, Mr Cordwell challenged the Judge’s finding that the appellant prevented the deceased from escaping.  While accepting that the appellant chased the deceased some 60 metres down the road to his car, Mr Cordwell submitted the evidence disclosed that after the incident between the two, the deceased got up and ran on further before tripping and falling.  It was submitted that the victim was then set upon by others who caused his death.  The appellant was not then involved.

[17]     In response, Mr Lawry’s simple point on behalf of the Crown was that it was open for the Judge to conclude on the evidence that, but for the intervention of the appellant, the deceased would have been able to open his car door and drive off.

[18]     We called for further submissions on this point and have ourselves reviewed the evidence because it had not been signalled in the points on appeal or in the written submissions that the Judge’s findings on this would be challenged.  We accept the Crown’s submission.  It was not disputed that the victim had reached his car and was trying to open it when he was struck by the appellant.  Witnesses saw him drop the keys as he attempted to open the door.  One described the victim as panicking as he did this.  It was entirely open for the Judge to find that the victim would have been able to open his car and safely escape but for the appellant’s intervention.

[19]     We accept there was evidence that the victim was only momentarily knocked to the ground and was then able to get up and run down the road where he tripped and was then set upon by others.  But that is beside the point if, as we find, the Judge was entitled to conclude that he could have escaped prior to that stage.

[20]     It follows that the Judge was entitled to find there was a connection between the appellant’s attack on the deceased and his later death, in that the attack created the occasion for the appellant to be later murdered, as he was.  Given that the appellant was one of a number of armed men who were pursuing the deceased, this connection between the appellant’s actions and the deceased’s death is a relevant sentencing consideration.

[21]     Mr Cordwell also challenged the Judge’s finding that when the victim was struck “he was at that stage, absolutely no threat to you”.  It was submitted that the evidence on this point was “ambiguous at best”.  Again, we have reviewed the evidence and accept the Crown’s submission that this conclusion was open to the Judge.  Four witnesses (two of whom were friends or acquaintances of the appellant) saw the incident and made no reference to any provocative or threatening conduct by the victim towards the appellant at the time of the incident.  The jury rejected a submission of self defence.

[22]     There was evidence to the contrary from the witness Siaosi (George) Lua who described seeing the victim threatening the appellant with a wheel brace.  This witness said he was a close friend of the appellant.  The appellant also mentioned a wheel brace at a late stage of his police interview and his partner related an account given to her by the appellant of a confrontation with the deceased involving a wheel brace.  While the Judge accepted the appellant’s partner as a truthful witness, her evidence depended entirely on the veracity of the appellant’s untested account.  He himself did not give evidence.

[23]     While we accept there was conflicting evidence on this point, the Judge was well placed to make his own assessment of the evidence at trial and we see no basis to interfere with his finding on this point.

[24]     It will be recalled that the Judge said that although the extent of the injury caused to the deceased by the appellant’s assault was uncertain, he had no doubt that the appellant “struck him a very painful blow” and that the attack was “premeditated”.  Mr Cordwell criticised these conclusions.  It is, however, self‑evident that the blow was very painful and it is implicit in the jury’s verdict that it caused injury.  Mr Cordwell did not dispute that the piece of timber was about one metre in length and approximately 100 mm by 50 mm.

[25]     Given that the appellant had selected a weapon and pursued the deceased for around 60 metres with the weapon in his hand, the Judge’s conclusion that the assault was also “premeditated” was entirely open to him.

[26]     Mr Cordwell submitted that the Judge’s summary of the aggravating features in [11] of his sentencing remarks in part merely identified the elements of the offence and, to the extent to which they referred to his previous convictions, over stated their seriousness. 

[27]     It may be there were minor infelicities in the way in which the Judge identified the aggravating features.  We think that what he regarded as aggravating were:

a)The use of a substantial piece of wood as a weapon;

b)The painful nature of the injury;  and

c)The previous convictions.

[28]     Each of those considerations was an aggravating factor.

[29]     The appellant does have the previous convictions mentioned by the Judge and they were obviously material to his sentencing.

[30]     We accept that the Judge did not fully state the role of the deceased in the events which preceded the assault on him by the appellant.  The deceased had a weapon in his possession when he was attacked and had earlier been part of a group which had been armed with various weapons at the party.  But the fact remains that the Judge was entitled to conclude that at the time he was attacked by the appellant, he did not pose any threat.

[31]     Mr Cordwell referred us to a number of authorities and submitted that they supported the proposition that the sentence was manifestly excessive.  We accept that the sentence was stern and possibly longer than in some cases where more serious injury was caused.  But for the reasons we have canvassed, the Judge was entitled to give weight to the circumstances of the offending, including in particular his finding that the victim was struck with a substantial weapon at a time when he offered no threat to the appellant and his conclusion that the appellant’s actions effectively set the stage for the further attack which resulted in the young man’s death.

Result

[32]     Those factors lead us inevitably to the conclusion that the sentence was within the available range and that the appeal must be dismissed.

Solicitors:

Crown Solicitor, Auckland