The Queen v Fenauina Iona

[2003] NZCA 65

IN THE COURT OF APPEAL OF NEW ZEALAND

CA416/02

THE QUEEN

v

FENAUINA IONA

Hearing:26 March 2003

Coram:Keith J
Robertson J
Doogue J

Appearances:  D H La Hood for the Appellant

J C Pike for the Crown

Judgment:27 March 2003 

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

[1]       This is an appeal against an effective sentence of four and a half years imprisonment imposed in the District Court at Wellington on 1 November 2002.

[2]       The morning that his trial was due to commence on charges of wounding with intent to cause grievous bodily harm, male assaults female and unlawful possession of a pistol, the appellant entered pleas of guilty.  He was subsequently sentenced to four years imprisonment on the wounding count with a concurrent sentence of twelve months imprisonment for male assaults female and a cumulative sentence of six months imprisonment on the charge under the Arms Act.

[3]       The appeal is against sentence on the basis that the starting points were too high, and particularly that the complainant was of the view that the sentence imposed was excessive.

[4]       The complainant was the separated wife of the appellant’s brother.  There had been a relationship between her and the appellant which she wished to bring to an end.  In May 2002 the appellant showed the complainant a pistol which was a shortened Astra 12 gauge single barrel shotgun which he had hidden in the attic of his home.   It was still there when the Police went to his home following the next incident.

[5]       On 27 June 2002 the complainant received a message that the appellant wanted to see her. During the evening she picked him up in her car and they drove back to her house. He wanted to talk about their relationship being revived.  At 8.30pm that evening, she dropped him back at a friend’s home.

[6]       After midnight, the appellant telephoned the complainant’s address and spoke to her daughter.  When he learned that the complainant wasn’t home, he asked if she was seeing another man.  He was told that this was not the case and to phone back an hour later when it was anticipated the complainant would be home.

[7]       At about 1.30am on the morning of Friday 28 June 2002, the appellant turned up at the complainant’s address in Porirua.  He invited himself into the house when the door was opened by the complainant’s daughter.  She felt intimidated by his presence, telephoned a friend and arranged to be picked up. 

[8]       In the meantime, the appellant had gone into the kitchen, taken a knife which was approximately 22cm long and sat down at a coffee table with the knife on top of the table.  When the complainant’s daughter asked what he was doing he didn’t reply.  She tried to take the knife but he moved it and placed it underneath the leg of the seat on which he was sitting.

[9]       Shortly afterwards the complainant’s daughter left the address. During the next half hour the appellant went into the complainant’s bedroom and slashed her heart-shaped pillows with a knife.  When the complainant arrived home about 2am, on seeing that the appellant was at her home, she went straight to her bedroom.  The appellant, armed with the knife, followed her.  He began to yell and swear demanding to know where she had been and with whom.  He threw the knife down on the floor but continued to yell and intimidate the complainant forcing her on to the bed. 

[10]     There he began pushing the complainant about the body while again holding on to the knife.  He grabbed at her t-shirt and a chain around her neck was broken during the struggle.  In the course of this encounter the complainant sustained a knife wound across her left palm. 

[11]     Notwithstanding, the appellant continued to push the complainant and eventually slashed the complainant across her neck with the knife causing a 5cm wide wound to open on her neck. This began to bleed profusely.  About this time a friend of the complainant’s phoned. She realised something was wrong and drove to the house.  The appellant had attempted to stem the flow of blood with the t-shirt.  An ambulance and the Police were notified.

[12]     A deposition statement from a doctor indicated that the cut to the complainant’s throat was “very close to being a life threatening injury”.

[13]     In sentencing, the Judge noted:

The complainant has provided a victim impact statement in which she said that you were generous and protective of her, and her family, but you were also dominating, and possessive, and you refused to accept the end of the relationship.  The victim impact statement does not dwell on the physical injury.  The wound was sutured, and she has been very badly frightened, but there are no permanent physical affects except, I assume, some small scarring.

[14]     The Judge saw the aggravating factors as including that the appellant had entered the complainant’s home motivated by anger and jealousy obviously intent on intimidating behaviour at the very least.  He had obtained a knife and waited for her, threatened, assaulted and then wounded her when she was alone in her own home. 

[15]     In mitigation, the Judge accepted that the appellant was now very remorseful and had come to her aid immediately.  He took the view that this was offending within the third category of R v Hereora [1986] 2 NZLR 164, that is an impulsive act of violence involving the use of a weapon. Therefore a sentence within the bracket of three to five years in prison was appropriate.

[16]     The Judge, in our view rightly, concluded that, bearing in mind the persistent way in which the appellant had behaved over a period of a couple of hours, the offending was at the top of the third category and that it was purely fortuitous that the injury from the knife across the throat did not have much more serious consequences.

[17]     He took a starting point of five years, particularly having regard to the invasion of the security of her home.  As the appellant had pleaded guilty and was remorseful the effective sentence was four years imprisonment.

[18]     We are unable to see on what basis it could be said that there was any mistake in that analysis by the sentencing Judge.  This clearly was at the top end of that category and unquestionably a starting point of five years was within the available sentencing discretion.

[19]     The second aspect was the submission that, although a cumulative sentence in respect of the firearms charge could not be said to be inappropriate, six months was excessive.  As is demonstrated by what happened on the night of this offending, the potential for disaster with this appellant having such a weapon available cannot be underestimated.  His list of previous offences also gives cause for apprehension. 

[20]     It may be that another Judge would have imposed a shorter sentence on this particular charge and a longer sentence in respect of the other offending.  The critical question is the overall effective sentence and that is certainly not manifestly excessive.

[21]     In a supplementary submission, Mr La Hood made available to the Court a recent letter from the complainant in which she indicates her view that the sentence imposed was too long and she talked positively about future possibilities for the two of them. 

[22]     Counsel referred to R v H, CA248/02, 24 October 2002 where consideration was given to the weight and effect to be given to this sort of expression as mandated by the Sentencing Act 2002.

[23]     R v H is authority for the fact that the Court did not doubt the ability or in fact necessity of a Judge taking into account, as one of a number of factors, the views of a victim.  We are not persuaded that the new legislation is other than legislative enactment of the sort of factors which Judges have traditionally taken into account in determining appropriate sentences.  We do not accept that the views of a complainant have now been elevated to some new height.

[24]     In cases such as this where criminal offending occurs within a close relationship, there are innumerable pressures and conflicting emotions which will arise.  As s8 of the Act makes clear, any Judge has to have regard to a great number of factors.  We are satisfied that, in the sentence imposed, the Judge gave proper and sufficient weight to the attitude and response of the victim.

[25]     The sentence imposed was clearly within the properly available sentencing discretion and the appeal is dismissed.

Solicitors:

Sladden Cochrane & Co, Wellington for the Appellant
Crown Law Office, Wellington