R v Finau - [2012] NZHC 3027

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2011-011-000590 [2012] NZHC 3027

THREE STRIKES WARNING

THE QUEEN

V

TALAIASI TIUETI KATA FINAU

Hearing: 16 November 2012

Counsel: TL Nicholls for Crown
RS Garbett for Prisoner

Judgment: 16 November 2012

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors: Marsden Woods Inskip & Smith, P O Box 146, Whangarei 0140 for Crown
Mr RS Garbett, P O Box 5006, Whangarei 0140 for Prisoner

R V TALAIASI TIUETI KATA FINAU HC WHA CRI-2011-011-000590 [16 November 2012]

Three strikes warning

[1] Mr Finau, given your convictions for sexual violation, for aggravated robbery and for disfiguring with intent to cause grievous bodily harm, you are now subject to the three strikes law. I am now going to give you a warning of the consequences of any serious violence convictions. You will also be given a written notice outlining these consequences which lists the serious violent offences.

[2] If you are convicted of any serious violent offence, other than murder, committed after this warning and if a judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[3] If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole, unless it would be manifestly unjust. In that event, the judge must sentence you to a minimum term of imprisonment.

Sentencing - introduction

[4] Mr Finau, you appear for sentence on two counts of unlawful sexual connection and counts of aggravated robbery and disfiguring with intent to cause grievous bodily harm. There are also summary charges of reckless driving and failing to stop when followed by red/blue flashing lights. You pleaded guilty to all charges in the District Court and have been remanded to this Court for sentence.

[5] The Crown has sought a sentence of preventive detention. The primary issue I am therefore required to consider is whether you should receive a sentence of preventive detention or whether a finite sentence will provide adequate protection to the community.

Facts

[6] The charges arise from your actions in suburban Dargaville in the early hours of the morning on 15 October 2011. You had been drinking and smoking cannabis since late the previous afternoon. You ended up at a party. You were on your way home at about 4 o’clock in the morning when you entered the garden of the house occupied by your victim. You tried the back door. Finding it locked, you walked around the side of the house, tripping over and falling into the swimming pool. You climbed out, found an unlocked ranchslider and entered the house.

[7] Once inside you removed your wet clothes and walked up the stairs. The victim, a 73 year old woman, woke to find you standing naked at her bedroom door.

[8] She was frightened, of course. She told you she had money in her purse which you could take. She directed you down the stairs and towards the…

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 Finau

Details

AGLC: R v Finau [2012] NZHC 3027
Case: [2012] NZHC 3027
Decision Date: 16 November 2012

CaseChat Overview and Summary

Talaiasi Tuieti Kata Finau was sentenced by the High Court of New Zealand for charges of unlawful sexual connection, aggravated robbery, disfiguring with intent to cause grievous bodily harm, reckless driving, and failing to stop when followed by police lights and sirens. Finau pleaded guilty to all charges, and the Crown sought a sentence of preventive detention. The primary issue was whether Finau should receive a preventive detention sentence or if a finite sentence would adequately protect the community. The attack on the elderly victim was brutal, involving both physical and sexual assault, and resulted in severe injuries to the victim. Finau's background revealed a history of alcohol and drug abuse, with previous convictions for assault while intoxicated. The court considered the aggravating features of the crime, including the level of violence, the use of a weapon, the vulnerability of the victim, and the extent of the injuries. The court found that Finau's crimes fell into band 3 for unlawful sexual connection, warranting a starting point of 12 years imprisonment. After applying discounts for Finau's guilty plea and lack of previous convictions, the court set a sentence of nine years, with a minimum period of 4½ years for the sexual offences. Finau was also sentenced to one month imprisonment for reckless driving and was disqualified from holding or obtaining a driver's licence for six months. The court decided against preventive detention, believing Finau's risk of reoffending could be managed through participation in treatment programs during his sentence.

Orders