R v Falanai - [2013] NZHC 3239

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2013-406-000008 [2013] NZHC 3239

THE QUEEN

v

FILISI FALANAI

Hearing: 3 December 2013

Counsel: M Inwood and A R Vanechten for Crown
R Harrison for Respondent

Judgment: 6 December 2013

JUDGMENT OF WILLIAMS J

Introduction

[1] Mr Falanai was sentenced in the District Court to two years’ one month imprisonment for one count of aggravated robbery. The Crown appeals on the basis that the sentence is manifestly inadequate.

Facts

[2] Mr Falanai worked as a seasonal labourer on Marlborough vineyards. He held a six month working visa.

[3] The victim of the robbery, Mr Cain, left a bar in Blenheim at about 2:20 am on Sunday 28 July 2013. He was very drunk. He went to an ATM to withdraw cash for a taxi. Mr Falanai saw him leave the ATM foyer. Falanai was also drunk. He followed Cain and then confronted him. Falanai punched Cain in the head. Cain
threw a punch back. In total Falanai hit Cain three times in the head. Mr Cain fell

R v FALANAI [2013] NZHC 3239 [6 December 2013]

on the pavement. Falanai then took the $40 cash Cain had withdrawn and some tobacco, leaving the victim unconscious where he lay.

[4] Mr Cain was not discovered until 7:00 am. He had sustained bleeding to his brain, facial injury, two black eyes, and required extensive rehabilitation. It is not known whether the brain injury was caused by the punches or the fall (or a combination of both. It was certainly not helped by the long delay before he got to a hospital and treatment. But it is clear that the effects on the victim have been very severe. He requires full time care and is largely confined to a wheelchair. He suffers from loss of memory and extreme fatigue. He is unable to work or drive.

District Court sentencing

[5] Judge Kelly described the aggravating features of the offending as follows: (a) actual violence causing grievous bodily harm;
(b) extreme harm to the victim;

(c) the victim was drunk and vulnerable; and

(d)the offender had followed the victim from the ATM before attacking him.

[6] The Judge classified the offending in the top end of the street robberies category in R v Mako1, and set a starting point of three years’ imprisonment. A 5 per cent discount was then applied to reflect remorse (shown by a small reparation payment and apology to the victim) and previous good character. A 25 per cent discount was then applied to reflect the defendant’s guilty plea, which brought the end sentence to two years’ and one month imprisonment.

Solicitor-General appeals

[7] This is a Solicitor-General appeal. The courts are traditionally more cautious when confronting argument to increase a sentence on appeal, than when addressing a sentence applied by the offender. The considerations justifying an increase in sentence must be more compelling than those that might justify a reduction.2 As the Court of Appeal said in R v…

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 R v Falanai

Details

AGLC: R v Falanai [2013] NZHC 3239
Case: [2013] NZHC 3239
Decision Date: 6 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand Blenheim Registry, Williams J delivered a judgment concerning the appeal by the Crown against the sentence imposed on Filis Falana for aggravated robbery. Mr Falana had been sentenced to two years and one month in prison by Judge Kelly in the Blenheim District Court. The Crown appealed on the basis that the sentence was manifestly inadequate. The case involved Mr Falana attacking a drunk Mr Cain, who had just withdrawn cash from an ATM, in a Marlborough vineyard where Falana worked as a seasonal labourer. The attack left Mr Cain with severe injuries, including brain damage and the need for full-time care. The Crown argued that the starting point for sentencing should have been higher, considering the severity of the violence and the impact on the victim. Williams J agreed with the Crown that the starting point should have been four years, rather than three, as initially determined by the District Court. Additionally, the Crown argued that the discount for Falana's guilty plea was excessive, but the judge found that the discount was appropriate given the circumstances.

Williams J found that the Crown's appeal had merit and allowed the appeal. The original sentence of two years and one month was set aside and replaced with a sentence of two years and ten months. This decision was based on the severity of the violence and the impact on the victim, as well as the appropriate discount for Falana's guilty plea.

Orders