Po'oi v The the King

[2022] NZHC 2603

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2022-476-10

[2022] NZHC 2603

BETWEEN

MAKA SIAOSI FAU’ESE PO’OI

Appellant

AND

THE KING

Respondent

Hearing:

28 September 2022

Appearances:

A C Trinder for Appellant

A-M McRae for Respondent

Judgment:

10 October 2022

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 10 October 2022 at 10.15 am.

Registrar/Deputy Registrar Date:

FAU’ESE PO’OI v R [2022] NZHC 2603 [10 October 2022]

Introduction

[1]    The appellant, Mr Maka Fau’ese Po’oi was sentenced to 27 months’ imprisonment in the District Court on 23 August 2022 on one charge of causing grievous bodily harm with intent to cause grievous bodily harm.1 He now appeals that sentence on the ground that it is manifestly excessive, in particular due to insufficient credit being given for his remorse and rehabilitative conduct.

Facts

[2]    On 1 October 2021, Mr Fau’ese Po’oi and four colleagues were at a tavern in Timaru. The victim and their associate were also at the tavern.

[3]    Around 11.30 pm the victim and his associate joined Mr Fau’ese Po’oi and his colleagues at their table and, after some interaction, a verbal altercation ensued between the victim and one of Mr Fau’ese Po’oi’s colleagues.

[4]    Mr Fau’ese Po’oi stood up and walked around the table, approaching the victim from behind. Using the bottom of a beer glass, Mr Fau’ese Po’oi struck the victim in the side of the head. The victim reacted and a physical altercation involving approximately seven people ensued. At some point both the victim and Mr Fau’ese Po’oi ended up on the floor.

[5]    Once back to their feet, Mr Fau’ese Po’oi punched the victim in the face, knocking him unconscious.

[6]    As the victim lay unconscious on the floor, Mr Fau’ese Po’oi stood over him and punched him a further three times in the face before he was stopped by security.

[7]    Mr Fau’ese Po’oi then went over to his colleagues and the victim’s associate, who were physically grappling. Mr Fau’ese Po’oi threw several punches and, after approximately 15 seconds, walked back over to the victim.

1      Crimes Act 1961, s 188(1): maximum penalty of 14 years’ imprisonment.

[8]    As two patrons were attending to the unconscious victim and putting him into the recovery position, Mr Fau’ese Po’oi stood over him and punched him in the face.

[9]    The victim spent the night in the intensive care unit and was released the following afternoon. He suffered a severely broken nose and a fractured cheekbone. A laceration to his forehead required sealing and he suffered bruising and swelling to his head. He was unable to return to work for two weeks due to concussion, and his victim impact statement records ongoing effects.

District Court decision

[10]At sentencing, the Judge adopted a starting point of 60 months’ imprisonment.

[11]   A full discount of 25 per cent, equating to 15 months, was then given for    Mr Fau’ese Po’oi’s guilty plea.

[12]   Somewhat unusually (and departing from Moses v R),2 it appears on the face of the decision the Judge may have considered the issue of provocation (relevant to the offending) and cultural factors (relevant to personal mitigating features) together. The Judge found a low degree of provocation, in combination with relevant s 27 cultural report factors, warranted a further discount of 15 per cent (nine months).

[13]   The Judge considered the s 27 report in detail when determining this was the appropriate discount, identifying a link between the violence Mr Fau’ese Po’oi was exposed to in his childhood and the violent nature of the offending.

[14]   Finally, a discount of 15 per cent was afforded to reflect Mr Fau’ese Po’oi’s remorse, willingness to attend restorative justice, previous good character and rehabilitative prospects. In reaching this discount, the Judge determined Mr Fau’ese Po’oi was genuinely remorseful. He noted Mr Fau’ese Po’oi was willing to attend restorative justice and accepted Mr Fau’ese Po’oi was shocked at his own behaviour when CCTV footage of the offending was shown to him.

2      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

[15]   The Judge considered Mr Fau’ese Po’oi’s single previous conviction for male assaults female in 2014 could be largely put to one side.

[16]   The Judge found that in all other respects of life Mr Fau’ese Po’oi had been a positive and contributing member of the community, working hard and providing financially for his family in Tonga.

[17]   The Judge noted Mr Fau’ese Po’oi had taken active steps to stop drinking alcohol and was willing to undertake a Stopping Violence Programme. The Judge noted Mr Fau’ese Po’oi had been assessed as a low risk of reoffending.

[18]   After applying the discounts set out above (totalling 55 per cent), the Judge arrived at an end sentence of 27 months’ imprisonment.

Principles on appeal

[19]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4

The issues for determination on appeal

[20]The issues for determination in this appeal are:

(a)whether the sentencing Judge made an error when considering the appropriate discounts for mitigating factors, in particular for provocation relating to the offence and Mr Fau’ese Po’oi’s personal circumstances; and

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

4      Ripia v R [2011] NZCA 101 at [15].

(b)if so, was the failure to apply the discounts an error which resulted in an end sentence that was manifestly excessive and requires a different sentence to be imposed?

Applicant’s submissions

[21]   Ms Trinder, for  Mr  Fau’ese  Po’oi,  submitted  the  discounts  afforded  to Mr Fau’ese Po’oi for remorse and rehabilitative prospects were insufficient.

Remorse

[22]   Ms Trinder submitted Mr Fau’ese Po’oi’s display of genuine remorse justified a discount of five per cent on a standalone basis. She highlighted that Mr Fau’ese Po’oi was motivated and willing to undertake restorative justice (although, through no fault of his, this did not take place). Additionally, both the pre-sentence report writer and cultural report writer noted that Mr Fau’ese Po’oi was remorseful for his actions and his most recent employer wrote in a character reference that Mr Fau’ese Po’oi was “deeply sorry” for what he did.

[23]   Ms Trinder submitted that Mr Fau’ese Po’oi also offered to repay an emotional harm reparation at a rate of $200 per week, a significant amount for a person of modest financial means who is also supporting his family in Tonga. She submitted that the Judge did not factor this into his sentence because there was no reference to it in the following excerpt of his decision:5

[26] I accept that you are genuinely remorseful for this incident. You were willing to attend restorative justice. It did not proceed, but that was not through any fault of yours. You say that when you saw the footage of what had happened you were shocked at your behaviour and that you cannot explain why you acted in the way that you did. I accept that you are genuinely and fully remorseful for your actions.

[24]   Whilst the Judge referred to a payment for emotional harm in his decision,6 Ms Trinder submitted it was clearly an afterthought and that, had he properly turned his mind to it, he would have given remorse its own discount of five per cent.

5      R v Fau’ese Po’oi [2022] NZDC 16089.

6 At [40].

Rehabilitative prospects

[25]   Ms Trinder submitted a discount of 15 per cent was appropriate for the factor of Mr Fau’ese Po’oi’s rehabilitative prospects alone. She highlighted the numerous character references provided for Mr Fau’ese Po’oi and submitted that these described a young man of good character, excellent work ethic, and one admired and trusted by colleagues. Mr Barnes, Mr Fau’ese Po’oi’s employer, described him as a polite and gentle person, and confirmed he would support Mr Fau’ese Po’oi through continued employment should he be sentenced to home detention.

[26]   Mr Fau’ese Po’oi’s cultural report noted Mr Fau’ese Po’oi had a positive home environment. It also noted he had made a commitment to remain alcohol-free and was motivated to participate in one-on-one sessions in relation to stopping violence.

[27]   The pre-sentence report writer assessed Mr Fau’ese Po’oi as being at a low risk of further offending, and as generally leading a prosocial life with strong support.

[28]   Ms Trinder accepted Mr Fau’ese Po’oi has a previous conviction for male assaults female from 2014 but submitted the Judge was correct to largely set it aside. She noted the sentence imposed for this conviction was to come up if called upon for six months, which was likely representative of offending at the lowest end of the scale.

[29]   Ms Trinder’s proposed increases to the discounts afforded for Mr Fau’ese Po’oi’s personal factors would bring the end sentence to one of 24 months’ imprisonment.

[30]   Ms Trinder submitted that home detention  would  be  appropriate  here  as Mr Fau’ese Po’oi has strong rehabilitative prospects, a supportive prosocial environment, fulltime employment, and the possibility of rehabilitative treatment in the community on a one-on-one  basis  in  his  native Tongan  language.  In  short, Ms Trinder submitted a sentence of home detention would be the least restrictive sentence available but would still meet the sentencing principles of denunciation and deterrence.

Respondent’s submissions

[31]   Ms McRae, for the Crown, submitted the Judge appropriately set the starting point at five years’ (60 months) imprisonment.

[32]   Ms McRae submitted the Judge appropriately adopted a 25 per cent discount for Mr Fau’ese Po’oi’s guilty plea.

[33]   While the 15 per cent discount for the combined provocation and cultural factors was not challenged, Ms McRae submitted the Judge gave careful consideration to the cultural report factors and the causative link between the provocation and the discount was appropriate.

[34]   Ms McRae referenced Davidson v R, in which it is noted that in cases of serious violence cultural factors will have a lesser effect on sentencing because the considerations of denunciation and community protection will prevail.7  In that case, a discount of approximately 14 per cent was given.

[35]   Ms McRae submitted the Judge carefully considered Mr Fau’ese Po’oi’s personal mitigating factors of remorse, good character and rehabilitative prospects, outlining in detail what he had taken into account when adopting an overall discount of 15 per cent.8

[36]   Finally, she submitted that the Judge did take the offer of emotional reparation into account, as is clear from his decision.9

Analysis

Starting point

[37]   Neither counsel have challenged the starting point of five years’ imprisonment adopted by the Judge. I consider it is well within range. Given the aggravating factors identified by the Judge, it is clear the starting point sits comfortably at the lower end

7      Davidson v R [2020] NZCA 230 at [33].

8      R v Fau’ese Po’oi, above n 5, at [25]—[32] and [40].

9 At [40].

of band two, or possibly the upper end of band one, as set out in the tariff decision of

R v Taueki.10

[38]   The bands set out in Taueki for serious violent offending can be summarised as follows:

(a)Band One: Offending involving violence at the lower end of the spectrum. Where there are none of the aggravating factors, a starting point at the bottom of the band would normally be appropriate where one or more of the aggravating factors is present, a higher starting point would be required. Offending in this band attracts a starting point between three to six years’ imprisonment.

(b)Band Two: Offending where there are two or three of the aggravating factors. Offending within this band attracts a starting point of five to 10 years’ imprisonment.

(c)Band Three: Serious offending which has three or more aggravating factors, where the combination of aggravating factors is particularly grave, attracts a starting point of nine to 14 years’ imprisonment.

Guilty plea

[39]   No issue is taken by counsel with the full discount of 25 per cent afforded by the Judge for Mr Fau’ese Po’oi’s guilty plea. Given the circumstances, I consider this discount was appropriate.

Provocation

[40]   Ms McRae was correct in her submission that, at first glance, it would appear the Judge erred by applying a discount for provocation at the second step of the sentencing process, as set out in Moses.11 A discount for provocation relates to the

10     R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.

11     Moses v R, above n 2.

victim’s conduct at the time of the offending, so must be factored in when setting the starting point.12

[41]   However, I consider the Judge was attempting to explain, in the context of the cultural report information, how Mr Faue’se-Po’oi’s programmed cognitive response to use violence to deal with perceived threats to himself and/or those he is close to was derived from being subject to abuse himself as a child.

[42]   I agree with the Judge that 15 per cent was appropriate to reflect the cultural factors relevant to Mr Fau’ese Po’oi’s personal life history (including his programmed response to threat or provocation).

Remorse, previous good character and rehabilitative prospects

[43]   I accept there is evidence of Mr Fau’ese Po’oi’s genuine remorse. This is shown in his willingness to attend restorative justice, his offer of emotional reparation payment and the many references to his remorse in the reports and character references (which were provided by Mr Fau’ese Po’oi’s work supervisor, his employer and a co-worker).

[44]   Similarly, Mr Fau’ese Po’oi demonstrates strong prospects for rehabilitation. He has a supportive environment, stable employment and prosocial family members who he could live with. The character references provided indicate there was some shock from those who knew Mr Fau’ese Po’oi when they learnt of his offending.

[45]   I agree with the Judge that Mr Fau’ese Po’oi’s prior conviction in 2014 for male assaults female is of little significance here.

[46]   For the reasons set out in the Judge’s thorough assessment of Mr Fau’ese Po’oi’s remorse and rehabilitative prospects (set out above at [14]—[17]), I consider a 15 per cent discount appropriately encapsulates the factors of remorse, rehabilitative prospects and Mr Fau’ese Po’oi’s previous good character.

12     See Wharewhiti v R [2022] NZHC 1367 at [12].

Conclusion

[47]The assault was an extremely serious one.

[48]   The total discount adopted by the Judge was 55 per cent, bringing the end sentence to 27 months’ imprisonment. This was entirely appropriate in the circumstances of the case and was not, in my view, insufficient. There did not need to be an additional discrete discount for remorse.

[49]   The sentencing Judge appropriately considered all relevant considerations when applying discounts for personal mitigating features.

[50]The sentence imposed was not manifestly excessive or wrong in principle.

Result

[51]The appeal is dismissed.

Doogue J

Solicitors:

Crown Solicitor, Christchurch CC:

A Trinder, Christchurch