The Queen v Faafetai Aiolupo

[2001] NZCA 459

IN THE COURT OF APPEAL OF NEW ZEALAND CA58/01

THE QUEEN

V

FAAFETAI AIOLUPO

Hearing:	21 June 2001
Coram:	Blanchard J Fisher J
Potter J
Appearances:	T M Saseve for appellant K Raftery for Crown
Judgment:	21 June 2001

JUDGMENT OF THE COURT DELIVERED BY POTTER J

[1]                   Faafetai Aiolupo was sentenced on 16 February 2001 to 3 years imprisonment on conviction for wounding with intent to cause grievous bodily harm under s.188(1) Crimes Act 1961, to which he pleaded guilty.  The appellant was  aged 19 years at the time of the offending.

Facts

[2]                   At about 9 p.m. on Friday 10 November 2000 the 16 year old victim in this matter was at a party at 34 Anderson Avenue, Glen Innes. He had a fist fight with a friend of the appellant, a Mr Vaatiuola who was himself 17. Mr Vaatiuola left, threatening to return with his “big brother”. He found the appellant at a different

address and sought his assistance. The appellant armed himself with a plastic handled paring knife with a 7½-cm blade which he placed in his pocket. While returning to the first address the pair found a length of plastic coated iron bar which the appellant picked up as a weapon. In Anderson Avenue the appellant secreted the iron bar in a hedge. They confronted the victim with an associate walking up Anderson Avenue. An exchange of words followed with the victim, then the appellant punched him in the head with a closed fist knocking him back towards the ground.  The victim tried to run away but the appellant followed, drew the knife  from his pocket and drove it into the victim’s back with an overhand stabbing action. The blade broke from the knife and fell to the ground. Vaatiuola discarded the knife handle as he and the appellant ran from the scene.

[3]                   The victim received a deep puncture wound in his back which caused his right lung to collapse. He was in hospital for five days. Subsequent analysis showed the blade of the knife was driven into the victim’s back at least 5½-cms.

Sentencing

[4]                   Following a guilty plea entered on 25 January 2001, the appellant was sentenced to 3 years imprisonment. The Judge acknowledged the appellant’s  remorse and noted that in accordance with Samoan custom the appellant’s family had made deep and sincere apologies to the victim’s family. He stated that if he had received an indication that the victim agreed to a restorative justice conference he would have deferred the sentencing to enable that to take place. In the absence of such consent he considered that with the assistance of the pre-sentence report and victim impact statement, sentencing should proceed.

[5]                   The Judge observed the very frank and straightforward statement made by  the appellant to the probation officer from which he quoted at length the appellant’s description of what had occurred.

[6]                   The Judge recorded the youth of the appellant, still only 19, and reports from his girlfriend and her family that he was quiet and well behaved and had never been in trouble before. He noted the appellant came to New Zealand for surgery for  severe heart problems.

[7]                   His Honour observed, however, that the injuries inflicted were life threatening and that when somebody is stabbed in the back as the appellant did the

victim, it could be done for no other purpose than to bring down the victim. He commented that this sort of violence is never acceptable.

[8]                   In imposing a sentence of 3 years he stressed that were it not for the youth and good record of the appellant a considerably higher sentence could have been appropriate.

Submissions for Appellant

[9]                   The appellant submitted that the sentence was manifestly excessive; that insufficient weight was given to the appellant’s youth, his ongoing health  difficulties, his previous unblemished record, and that a cultural apology by way of “Ifoga” had been carried out by the appellant’s family to the victim’s family, though the victim was not present. Counsel also submitted, that on the basis of the Police  job sheet on the day of the offence, the injuries were not life threatening, which contrasted with the Judge’s sentencing notes.

[10]               The submissions placed emphasis on what counsel described as a refusal by the sentencing Judge to adjourn the sentencing to allow a restorative justice conference to take place. Counsel submitted that the sentencing Judge placed little  or no value on the benefit of such a conference for the purposes of sentencing, and placed reliance on advice from the officer in charge that the victim did not want to take part in any proposed restorative justice conference. In fact a week after the sentencing the restorative justice conference facilitator Mr R Gardner advised by letter that the victim had been located and expressed willingness to take part in such a conference.

Memorandum of Judge F W M McElrea

[11]               For the assistance of this Court a memorandum was requested from the Judge who remanded the appellant following his guilty plea on 25 January 2000, to enable a restorative justice conference to take place.

[12]               In that memorandum Judge McElrea stated that he did not direct the holding of such a conference, but allowed an extra two weeks so that the possibility could be investigated and implemented if the victim wished to take part in such a process. He stated –

I would not have regarded that attitude as binding in any way on the sentencing Judge, and indeed any restorative justice conference report (had such conference taken place) would itself not have been binding in any way on the sentencing Judge. It would have been no more than a source of possibly helpful material for sentencing.

[13]               He further noted that there is nothing to prevent a restorative justice conference occurring post-sentencing.

Conclusions

[14]               It is clear from the Judge’s sentencing notes that he reminded himself specifically of the range of mitigating features upon which the appellant relies.  There is no indication that he failed to consider them, indeed the opposite is so, as is abundantly clear from his sentencing notes.

[15]               He was also aware of the possible initiative for a restorative justice conference, but when the matter came before him there was no indication that the victim consented.

[16]               The Judge referred to R v Hereora [1986] 2 NZLR 164 in which sentencing levels were discussed: impulsive violence with a weapon or an intent to inflict serious injury attracts 3-5 years; 5-8 years is reserved for cases exhibiting a combination of aggravating factors.

[17]               Treating the appellant’s act as impulsive, it falls within the first category in Hereora. While it can be said that the attack was not pre-planned, here there was certainly an aspect of premeditation and preparation in that the appellant agreed to accompany Mr Vaatiuola for the purposes of having a fight with the victim and armed himself with the knife in anticipation. Whether or not the injuries were life threatening, they were very serious, and could have had more serious consequences than they did.

[18]               The sentence imposed is at the lower end of the category of lesser offending in Hereora. We agree with the Judge that absent the mitigating factors of the appellant’s youth, health difficulties, and unblemished record, a sterner sentence might well have been justified.

[19]               As to the matter of the restorative justice conference, regardless of the outcome of any such conference, pursuant to s.5 Criminal Justice Act, a term of imprisonment was inevitable here and the term imposed by the sentencing Judge, in the circumstances of this case, was certainly not manifestly excessive. As noted by Judge McElrea in his memorandum, if the parties so desire, a restorative justice conference can yet be initiated, although a Police Job Sheet dated 21 June 2001 provided to the Court by the Crown, states that the offender is not interested in any meeting with the appellant

Result

[20]The appeal is dismissed.

Solicitors:       T. Saseve, Auckland, for appellant

Crown Solicitor, Auckland