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Pasifatama v The King

Pasifatama v The King

Case [2024] NZHC 3084 23 October 2024

Impact on Dependent Child

Addiction

Discounts in Sentencing

Criminal Law

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-485

[2024] NZHC 3084

BETWEEN
RAE AKENI PASIFATAMA

Appellant

AND

THE KING

Respondent

Hearing: 14 October 2024

Appearances:

J C H Liu and A C L Jordan for Appellant O J Southern for Respondent

Judgment:

23 October 2024

JUDGMENT OF O’GORMAN J

[Appeal against sentence]

This judgment was delivered by me on 23 October 2024 at 3 pm

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:
Public Defence Service, Manukau Kayes Fletcher Walker, Auckland

PASIFATAMA v R [2024] NZHC 3084 [23 October 2024]

Overview

[1] This is an appeal against the sentence of Judge S Moala on 19 August 2024.1 On that date, Mr Pasifatama was sentenced to two years and three months’ imprisonment following his guilty plea to one charge of sexual violation by rape. At the time of the offending, Mr Pasifatama was 19 years old, and the victim was 18 years old. They knew each other because Mr Pasifatama was friends with members of the victim’s family.

[2] Mr Pasifatama had no previous criminal conviction history and was assessed as having a low risk of reoffending. Whilst on bail prior to sentencing, Mr Pasifatama obtained full-time employment, entered into a committed relationship, and now has a newborn daughter who is four months old. Prior to the custodial sentence being imposed, Mr Pasifatama was the sole breadwinner for the family.

[3]On behalf of Mr Pasifatama, Mr Liu submits on appeal that:

(a)insufficient discounts were given for remorse, the causative role of addiction, and the effect on his whānau (including this newborn baby);

(b)accordingly the overall sentence was manifestly excessive; and

(c)an end sentence of home detention is the least restrictive outcome appropriate in the circumstances.

Legal principles

[4] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.3 The focus is on the end sentence imposed, rather than the process by which it is reached.4

1      R v Pasifatama [2024] NZDC 19723.
2      Criminal Procedure Act 2011, s 250.
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
4 At [36].

[5] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.5

[6] Appellate courts do not indulge in mere tinkering with a sentence.6 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

District Court sentencing

[7] The District Court followed the two step methodology for sentencing as…

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 Pasifatama v The King

Details

AGLC: Pasifatama v The King [2024] NZHC 3084
Case: [2024] NZHC 3084
Decision Date: 23 October 2024

CaseChat Overview and Summary

The appeal in Pasifatama v The King was against the sentence of two years and three months' imprisonment imposed on Mr. Pasifatama, who was convicted of sexual violation by rape. The court was required to determine whether the sentence was manifestly excessive or wrong in principle, particularly in light of the mitigating factors presented, including remorse, the causative role of addiction, and the impact on his whānau. The court also had to decide whether home detention would be a more appropriate sentence.

The court found that the District Court made an error in not allowing a discount for the impact of imprisonment on Mr. Pasifatama's newborn daughter, which was a significant mitigating factor. The court accepted that a five per cent discount was warranted for this reason. The court also found that some recognition should have been given for Mr. Pasifatama's genuine remorse, though not as much as the appellant suggested. However, the court did not find any error in the District Court's decision not to provide a discount for alcohol issues. The overall assessment showed that the sentence, while high in discounts, was not manifestly excessive.

The court concluded that while home detention could be a viable option for some cases of sexual violence, it was not appropriate in this case. The statutory presumption of imprisonment for sexual violation required a custodial sentence to meet the purposes of deterrence, accountability, and denunciation. The court substituted the original sentence with 23 months' imprisonment, correcting the error in not discounting the effect on the dependent child.

Orders