R v Faateaina TIA Sauvao

[2003] NZCA 266

IN THE COURT OF APPEAL OF NEW ZEALAND

CA345/03
CA352/03

THE QUEEN

v

FAATEAINA TIA SAUVAO
TAYLOR ANAE SIONE

Hearing:17 November 2003

Coram:Elias CJ
Blanchard J
Panckhurst J

Appearances:  I S Sapolu and E R Ward for Mr Sauvao

V Chand for Mr Sione
A R Burns for Crown

Judgment:20 November 2003 

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

[1]       Each of the appellants was found guilty at trial of wounding with intent to cause grievous bodily harm and causing grievous bodily harm with that same intent.  Each was sentenced to six years imprisonment.  The appeals are against that term of imprisonment which is said by counsel to be clearly excessive.

The background

[2]       At about 6.00 pm on 16 June 2002 a father aged 50 years and his two children, a son aged 14 years and a daughter aged 16 years, were walking to local shops to purchase food for the following day.  A group of four young men, including the two appellants, spoke to them.  Offensive comments were directed at the family group, including some words spoken in Samoan.  Following a brief exchange the family continued on their way.  After making purchases they set out to return home, but via an alternative route in the hope that they would not encounter the same four young men. 

[3]       En route, the father, concerned for the welfare of himself and his children, picked up a piece of timber from a building site to use in self defence if required.  Perchance the family encountered the young men.  A chase ensued.  During the course of it the son, aged 14 years, was struck from behind with a child’s metal scooter wielded as a weapon.  He sustained a cut to the back of the head.  His father turned to see his son lying on the roadway, with the group of four about him, one holding the scooter in an elevated position as if to strike with it again.  The father ran to the assistance of his son.  As he did so, he tripped and fell, dropping the wood.

[4]       The group then turned their attention to the father.  One uplifted the piece of wood which the father had been carrying.  Initially the father was kicked and punched a number of times as he lay on the ground.  As he attempted to regain his feet, one of the group swung a blow with the piece of wood.  In defence the father raised his arm to block the blow and, in the result, sustained a break to his right arm.  He fell to the roadway again, where he was again kicked in the vicinity of his upper body and head.

[5]       Both father and son were taken to hospital by ambulance.  The father had sustained a broken jaw, a broken arm, missing teeth, and lacerations and bruising to his upper body and face.  He required surgery the following day for his jaw to be pinned.  His arm was placed in a plaster caste.  The younger complainant received a laceration to the back of his head and bruising to his face and shoulders.  The laceration required suturing.

[6]       Victim impact statements revealed that the complainants were still suffering effects from the incident over twelve months later.  The father said that his injuries had healed although he did not have complete use of his right arm.  However, he remained apprehensive about the safety of himself and his children on the street and suffered flashbacks to the incident.  His son’s statement confirmed that his injuries had healed well, but psychologically he remained affected by the experience.

The sentencing

[7]       One of the assailants was a 16 year old who pleaded guilty in the Youth Court.  He was convicted and ordered to come up for sentence if called upon within one year.  The other three men elected trial by jury.  All were convicted of wounding the son (count one) and causing grievous bodily harm to the father (count three).  The youngest of the three, aged 17 years, was sentenced to four years imprisonment, the Judge having particular regard to his age.  The appellants, aged 19 and 21 years respectively at the time of the incident, were sentenced to six years imprisonment upon each charge.

[8]       In imposing sentence on 7 August 2003 the Judge indicated that he was cynical as to the genuineness of letters written by the appellants in which they conveyed remorse for their involvement.  He could not reconcile the contents of the letters with the appellants’ conduct at trial and, more particularly, the remarks they had made to the writer of their pre-sentence reports.  These remarks indicated an absence of remorse, coupled with the continued assertion that the group acted in self defence.  The sentencer, who was also the trial Judge, rejected absolutely the suggestion that there was any provocation from the complainants.  He described the assailants as “a pack of arrogant young men (who) chose to chase a family unit and apply force without consideration for its consequences”.  He did not regard the violence as impulsive, rather as involving a degree of premeditation.

[9]       The Judge saw no basis to distinguish between the offenders in relation to culpability.  Although he recognised that they each played different roles, he saw the crimes as joint for which each was responsible as a party.  R v Hereora [1986] 2 NZLR 164 (CA) was described as the leading case for the purposes of the sentencing. He did not regard the case as one of impulsive violence involving the use of weapons to inflict serious injuries, which would attract a sentence in the range of three to five years, but rather as a case which exhibited a combination of aggravating features sufficient to warrant penalties in the range five to eight years. The aggravating features were the group attack, its prolonged nature, the weapons used and the injuries inflicted upon the two complainants. The only mitigating feature was the comparative youth of the appellants.

[10]     Approaching the case with the totality principle in mind, the Judge concluded that six years was the appropriate term.  He did not accept a Crown submission that the case called for minimum terms of imprisonment.

The submissions

[11]     Although Mr Chand prepared written submissions in support of Mr Sione’s appeal, on account of a health difficulty he allowed Ms Sapolu to advance the oral submissions for both appellants.  Four discrete submissions were advanced.  These were that the Judge erred in characterising the appellants’ actions as premeditated rather than impulsive, and, likewise in concluding there was no provocation, that mitigating features (in particular remorse) were not sufficiently recognised and that the sentences imposed were out of line with those in previous comparable cases.  In the end result it was the fourth submission upon which the appeals were essentially based.  Ms Sapolu’s central contention was that the Judge was wrong to place the cases of the appellants in the middle category recognised in Hereora.  She submitted that the lesser category, for which sentences of three to five years are reserved, was the appropriate one.

[12]     For the Crown, Mr Burns supported both the approach to the sentencing and its outcome.  He submitted that the case exhibited a combination of aggravating features sufficient to require a sentence in the middle range.  It followed that the sentences of six years were an entirely appropriate, if perhaps firm, response.

Discussion

[13]     We are not persuaded that the Judge was wrong with reference to premeditation, provocation and the absence of remorse.  He was the trial Judge.  The trial occupied five days.  He heard both complainants give evidence, including lengthy cross-examination of them.  He also heard the evidence of the appellants in their own defence.  He was, therefore, uniquely placed to gauge whether the violence was impulsive or whether it involved a measure of deliberation.  As Mr Burns pointed out the evidence indicated a series of events, rather than an isolated incident.  There was, therefore, a basis in the evidence for the conclusion which the trial Judge reached.

[14]     Likewise we accept the Judge’s view concerning the absence of provocation.  The father armed himself with a piece of wood but the evidence indicates that he did so for the purposes of self defence and, indeed, that the weapon was used against him, not by him. 

[15]     With reference to the conclusion that there was an absence of remorse, the conflict between the pre-sentence reports on the one hand and the letters written by the prisoners on the other, provided a sufficient basis for the view which the Judge formed.  He, having observed the appellants throughout a long trial, was best placed to make a judgment upon an issue of this kind. 

[16]     The real question raised by these appeals was whether the sentences of six years imprisonment were out of line by comparison to sentences imposed in other cases involving an application of the Hereora guidelines.  After a consideration of other decisions we are not persuaded of this.  This was random street violence.  The victims were a father and his children.  Initially they were subjected to gratuitous and offensive abuse.  As they endeavoured to find a safe passage home, two of the family members were attacked in the street.  Group violence was involved.  Weapons were used.  Serious injuries were inflicted, particularly to the father. 

[17]     These represent a series of aggravating features sufficient to place the case within the five to eight year bracket recognised in Hereora.  Serious gratuitous violence against members of a family going about their business in a street of their local community cannot be tolerated.  The sentences, although firm particularly for offenders of this age, were not in our view clearly excessive. 

[18]     For these reasons the appeals are dismissed.

Solicitors:
Sapolu Law Office, Auckland, for Mr Sauvao
V Chand Barrister, Auckland, for Mr Sione
Meredith Connell, Auckland