R v Falanai
[2013] NZHC 3239
•6 December 2013
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 Falanai then took the $40 cash Cain had withdrawn and some tobacco, leaving the victim unconscious where he lay.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 Muavae:3
It is also necessary to bear in mind that this appeal is brought by the Solicitor-General, so that the sentence should not be increased unless the Court is satisfied that the circumstances of the offending clearly demonstrate that the sentence is manifestly inadequate or that some error of sentencing principle has occurred. Furthermore, even if the Court is persuaded that the sentence should be increased on the grounds of manifest inadequacy or error of principle, the sentence should only be increased to the level which accords with the lower range of appropriate sentences.4
Grounds of appeal
[8] The Crown levels two challenges at the sentence imposed:
(a) that the starting point was too low because the tariff judgments in
Mako and R v Taueki require a higher starting point5; and
(b)the discount for guilty plea was excessive and did not take into account the circumstances in which the plea was entered.
Correct approach
[9] The Crown argues that in cases where the violence in the offending is worse than the robbery component, the starting point should be identified with reference to the bands in the guideline judgment for sentencing for serious violent offending in Taueki, alongside the Mako factors. In Police v Zafiri, Ronald Young J used Taueki to assess culpability because the violence used in the robbery was more serious than the aggravated robbery itself.6 Ronald Young J considered it important to assess
where the violence would sit in the Taueki bands. He took this approach because
2 R v Donaldson (1997) 14 CRNZ 537, 550 (CA) at 549-550.
3 R v Muavae [2000] 3 NZLR 483 (CA) at [10] (citations omitted).
4 See also Sipa v R [2006] NZSC 52 at [9].
5 R v Taueki [2005] 3 NZLR 372 (CA).6 Police v Zafiri HC Auckland CRI-2010-404-316, 16 November 2010.
both aggravated robbery and GBH could be established on facts, and both carried the same maximum penalty. The Judge concluded “it can hardly be correct that a sentence for the same crime will vary widely depending upon the actual charge faced”.7
[10] Mr Harrison, for the respondent, says the Zafiri approach should not be followed in this case. He says that the offending covered by Taueki requires intention and aggravated robbery under s 235(a) of the Crimes Act 1961 does not.
‘Cross pollination’ in those circumstances was dangerous, he submitted.
[11] It is unnecessary for me to resolve that question in this case. Ronald Young J in Zafiri reasoned that: “identifying this case as a street robbery with some violence however missed the essential point of the extreme violence used to facilitate the robbery”. The violence in Zifiri was truly extreme. It involved the victim being attacked by two men, struck round the head with a wheel brace and kicked while on the ground. The offending in the present case is better characterised as a street robbery with some violence rather than massive violence to achieve a robbery. That is not, of course, to diminish the victim’s injuries in any way. But three punches is a level of violence materially lower than that in Zafiri. It is appropriate therefore to simply apply Mako. In my view, Mako provides ample basis to set sentences at appropriate levels on facts such as those in this case.
Classification in Mako
[12] The Court of Appeal’s decision in Mako lists a number of features that will increase culpability in aggravated robberies. Those argued by the Crown to be relevant here are:
(a) there is planning and premeditation; (b) actual violence is used; and
(c) victim impact is severe.
[13] The Court then went on to address some typical aggravated robbery situations, one of those being a street robbery:8
At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.
[14] The Crown suggests that this 18 month three year band is only appropriate where no actual physical violence results. That the Crown is correct seems reasonably clear from the judgment. Rather, violence is a feature that is treated by the court as seriously aggravating:9
Apart from the increased danger from the introduction of even minor physical force in the tension generated by robbery, actual violence on top of threats and intimidation takes the conduct into another dimension and must attract a considerably higher rating in overall seriousness. The extent of any violence and its consequences will be highly relevant either in assessing the robbery offence or, if the subject of an additional charge, the total criminality.
[15] A starting point above the ordinary street robbery scale of 18 months to three years’ imprisonment was required in this case. The degree of violence used in the robbery and its effect on the victim takes this case beyond the street robbery example employed in Mako where threats and intimidation are the core characteristics of the offending. What then is the appropriate starting point?
Comparable cases
[16] In R v Fidow, the respondent and an accomplice waited in the parking lot of a shopping complex until they saw a slightly built 82 year old woman leave a hair salon.10 Mr Fidow then approached her, pushed her to the ground, and stole her handbag. The victim sustained a broken hip, a broken wrist, facial bleeding and facial bruising. The Solicitor-General successfully appealed the sentence, and although no challenge was made to the three year and nine month starting point, the
court observed that a four year starting point could not have been criticised given the vulnerability of the victim, the extent of injuries caused and the lasting adverse impacts on the victim.11 That Court also confirmed the Mako approach to actual violence, stating that:12
Starting points between 18 months’ and three years’ imprisonment will be appropriate where the robbery occurs with bullying or menacing conduct, but there is no actual violence. Higher starting points are likely where, as here, there was physical enforcement of threats of violence in the course of the robbery.
[17] In Fidow, the main aggravating features were the vulnerability of the victim, and the use of actual violence causing a lasting adverse impact. Mr Harrison says that Fidow should not be followed because it was the involvement of two persons in the attack that resulted in the charge of aggravated robbery (s 235(b)). The GBH inflicted therefore became an aggravating feature of the robbery. He says this is clear from the judgment. I disagree. The Court of Appeal does not mention s 235(b), focusing primarily on the use of actual violence and the injuries inflicted rather than the involvement of a second offender.
[18] The Court in Fidow referred to two comparable cases involving elderly victims:
(a) In R v Ha’apai the Court of Appeal upheld as “stern” a six and a half year starting point for an aggravated robbery, which took into account Mr Ha’apai’s previous convictions.13 Mr Ha’apai had observed his victim receiving foreign currency and travellers’ cheques whilst they were standing at adjoining counters in a bank. The victim was an 85 year old woman who walked with the assistance of a walking frame. She was driven from the bank by her son, followed by Mr Ha’apai. Once she was out of her son’s car at her home, Mr Ha’apai pushed her
from behind whilst she was negotiating a concrete path to her door. He took her handbag which contained US$2,000 in travellers’ cheques and ₤1,500 cash, escaping with the aid of an associate who was in a
waiting vehicle. The victim sustained a fractured nose, a grazed and swollen forehead, two broken bones in her right hand and bruising and swelling in her left hand. She died six days after the attack whilst in hospital being treated for the injuries, but from a cause unrelated to the injuries.
(b)In R v Taimanu the offender observed a 74 year old man winning $150 from a gaming machine.14 She followed the man into the men’s toilets and, after he had emerged from a cubicle there, grabbed the man, thrust his head against the wall, snatched his wallet and ran away. The sentencing Judge had adopted a starting point of three years and nine months, and on appeal a starting point of two years nine months’ imprisonment was adopted.
Conclusion
[19] The guidance from Mako is clear. Where no actual violence is used, a starting point between 18 months and three years is likely to be appropriate. Actual violence will take the starting point above three years (as can high vulnerability with very limited actual violence and perhaps significant injury). The cases consistently reflect that assessment.
[20] The violence in this case was worse than in Fidow and Taimanu. It involved actual blows to the victim’s head (although the offender referred to an exchange of blows and there is no counter narrative to that). The consequences of the violence on Mr Cain and his family have been severe.
[21] On the other hand, while the victim was severely intoxicated (as was the respondent) he was also a fit and able-bodied male. He was obviously less vulnerable than the three victims from the comparable cases. Nor, contrary to the Crown’s argument, do I accept that planning and premeditation was a significant element in this offending. I agree with Mr Harrison that this offending was one step
above purely opportunistic.
14 R v Taimanu CA377/02, 20 February 2003.
[22] Nonetheless, in my view the sentence was manifestly inadequate in light of the considerable weight given to the use of actual violence and impact on the victim in Mako. Bearing in mind that the sentence should only be increased to the level which accords with the lower range of appropriate sentences,15 I think a starting point of four years is appropriate rather than the three imposed.
Discounts
[23] The Crown says the five per cent discount for remorse and previous good character was generous because:
(a) the remorse shown was limited and the offer of reparation was only for the value of the goods stolen; and
(b) the evidence of the respondent’s good character was limited to the
absence of previous convictions.
[24] Mr Harrison says that the respondent’s statement to the Police began with a formal apology both to the Police and everyone else present in the room and to the victim. During his sentencing, the respondent, via the interpreter, expressed his genuine remorse and regret to the family, and apologised.
[25] The Crown also argues the respondent should only have received a twenty per cent discount for his early guilty plea because of the strength of the Police case. Mr Harrison says the CCTV footage was indistinct and unclear and did not show the actual incident, only someone following the victim. He argues that the respondent helped the Police to fill in the gaps by making a statement and that this deserves the entire 25 per cent discount.
[26] I agree with Mr Harrison. There is no principled basis upon which to tinker with the guilty plea discount in the way the Crown suggests, even if tinkering was
appropriate.
15 Sipa v R, above n 4, at [9].
Disposition
[27] The appeal is allowed. The sentence of two years one month is set aside. A
sentence of two years ten months is substituted.
Williams J
Solicitors:
Crown Law, Wellington
Inangahua Chambers, Blenheim