R v Fanguna - [2009] NZCA 316

IN THE COURT OF APPEAL OF NEW ZEALAND
CA148/2009
[2009] NZCA 316
THE QUEEN
v
NIKOLA FANGUNA
Hearing:16 July 2009

Court:Chambers, Randerson and Keane JJ
Counsel:N P Chisnall and L M Marshall for Crown

K P Brosnahan for Respondent

Judgment:22 July 2009 at 11.45 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.
BThe appeal in respect of Mr Fanguna is allowed in part by the addition of a sentence of 200 hours community work.

____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1]       The Solicitor-General originally sought leave to appeal against sentences imposed on the respondent, Nikola Fanguna, and six others after they pleaded guilty to a series of violence and property offences committed in February 2007.
[2]       The respondents were all sentenced to varying terms of home detention by Judge Epati in the District Court on 16 February 2009. In addition, each respondent was ordered to pay reparation of $608.
[3]       When the application was filed, the Solicitor-General contended that sentences of imprisonment rather than home detention should have been imposed in each case. However, the effluxion of time since the filing of the application has caused the Solicitor-General to accept that the application should now proceed only in respect of the respondent Mr Fanguna.
[4]       In the case of two of the respondents (Messrs Afu and Va’a) sentences of four months home detention were imposed. Their sentences have now been completed with the consequence that, in terms of s 383(3) Crimes Act 1961, the application for leave to appeal has lapsed and is deemed to be dismissed for non-prosecution.
[5]       In respect of the respondents Messrs Fungavaka, Tapaevalu, Taufa and Vuna, sentences of home detention ranging between six and nine months were imposed. The Solicitor-General elected not to proceed with his application in relation to those four respondents. He recognised that their sentences were partially served; the Crown at sentencing had accepted that sentences of home detention were available; and the Crown had taken a neutral stance as to whether home detention should be imposed. The application for leave to appeal in respect of these four respondents was dismissed accordingly.
[6]       The matter therefore proceeded before us solely in relation to the respondent Mr Fanguna who was sentenced to 12 months home detention. The Solicitor-General contended that the starting point adopted by the Judge for his sentence was too low, the reductions allowed for mitigating factors were too great and that a sentence of home detention was not reasonably available. The Solicitor-General submitted that a sentence of imprisonment would have been appropriate and that this Court should now impose such a sentence in substitution for home detention. Alternatively, this Court should add a sentence of community work to the home detention imposed.
The circumstances of the offending
[7]       Mr Fanguna and the other respondents are or were members of a South Auckland youth gang. Mr Fanguna was 17 years of age at the time of the offending. He and the other…

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 Fanguna

Details

AGLC: R v Fanguna [2009] NZCA 316
Case: [2009] NZCA 316
Decision Date: 22 July 2009

CaseChat Overview and Summary

The case of R v Fanguna involved an appeal against the sentence imposed on Nikola Fanguna for his involvement in violent and property offences. The appeal was brought by the Solicitor-General, who sought to challenge the sentence of home detention imposed on Fanguna by the District Court. The Court of Appeal granted the application for leave to appeal and allowed the appeal in part, adding a sentence of 200 hours of community work to Fanguna's existing sentence of home detention. Fanguna and others were members of a South Auckland youth gang, and had committed two separate incidents of violence and property damage. Fanguna was sentenced to 12 months of home detention for his role in these incidents. The Solicitor-General argued that the sentence was too lenient and that Fanguna should have been sentenced to imprisonment instead. The Court of Appeal agreed that the sentence was inappropriate and that Fanguna should have been sentenced to a term of imprisonment. However, given that Fanguna had already served nearly half of his home detention sentence, the Court of Appeal decided not to impose a new custodial sentence at that stage. Instead, the Court added a sentence of 200 hours of community work to Fanguna's existing sentence. The Court emphasised that Fanguna should not expect further leniency if he reoffended in the future.

Orders