The Queen v Siua Funaki
[2002] NZCA 97
•9 May 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA62/02 |
THE QUEEN
V
SIUA FUNAKI
| Hearing: | 2 May 2002 |
| Coram: | Keith J Hammond J Salmon J |
| Appearances: | J H Wiles for Appellant K Raftery for Crown |
| Judgment: | 9 May 2002 |
| JUDGMENT OF THE COURT DELIVERED BY HAMMOND J |
Introduction
Mr Funaki was charged with causing grievous bodily harm with intent to cause grievous bodily harm; several Land Transport Act offences; and disobedience of certain court orders. He pleaded guilty. On 8 February 2002, he was sentenced in the District Court at Auckland to seven and a half years imprisonment on the major charge, and on the lesser charges he was sentenced to six months imprisonment, cumulative, for an effective sentence of eight years imprisonment. He now appeals against his sentence.
The Facts
(a) Grievous Bodily Harm
Mr Funaki and the complainant, T, were married in August 2000. Some problems developed in the relationship. Mr Funaki moved out of the home he shared with T and her mother in law. Hence, at the time of the offence with which we are principally concerned, the appellant and T were not living together.
On 8 December 2001, Mr Funaki visited T. He stayed for several hours. He was then asked to leave, by T’s mother.
Mr Funaki and T then drove to a cousin’s home where they consumed alcohol. Subsequently, the appellant and T drove to a car park where they were consuming some food. They had an argument in the course of which T told Mr Funaki that she might leave him.
The appellant then asked T to activate the car boot release from the inside of the car. He told her that he wanted to get his shoes from the boot. Unbeknown to T, Mr Funaki in fact removed a hatchet type axe from the boot. He then walked up the side of the vehicle and struck T on the right side of her head, causing a deep laceration. She was then bundled into the rear of the car, where Mr Funaki straddled her and hit her three more times with the axe.
Mr Funaki then began to drive the car away from this scene. As he did so, he struck T twice more with the axe. One of these blows severed a portion of T’s ear.
The car stopped at an intersection. T managed to scramble out, and run to a nearby house for assistance. Mr Funaki chased T to this house, grabbed her by the arm, and a short physical altercation occurred.
Mr Funaki then returned to the car to retrieve the axe. In the meantime T ran 50 metres to a second address for assistance. There, an elderly man directed T into his house. Mr Funaki jumped the fence at this address; chased T into that house; and renewed his attack upon her. At this point the owner of the property returned with two other persons. Mr Funaki then left the house. He was located and spoken to by police. He admitted hitting T with the axe.
T was taken to Auckland Hospital and placed in the neurological department of that hospital for assessment of the multiple lacerations and fractures she had received to her head and skull respectively.
T’s condition was considered to be life threatening due to the large volume of blood she had lost as a result of the sustained attacks, and the effects of physiological shock. She had to be given two litres of blood at the hospital to stabilise her condition.
T’s injuries have been found to consist of multiple fractures to her skull. Plates have been screwed into her skull to hold the fractured parts in place. She has lost the sight in her right eye. She sustained five deep lacerations to the right temple and ear area of her head, which required numerous stitches. Part of her right ear was chopped off altogether. There was a deep laceration to her upper back, and wounds on her arms and fingers.
(b)The Other Offences
We have been given little in the way of facts on the other incidents. On their face, they are largely self explanatory, and Mr Funaki pleaded guilty to all of them.
The Charges
The precise charges against Mr Funaki were as follows:
(i)Causing grievous bodily harm with intent – s188(1) Crimes Act 1961
(ii)Failure to attend bail – s37 Bail Act 2000
(iii)Excess Breath Alcohol (1063) – s56(1) Land Transport Act 1998
(iv)Excess Breath Alcohol (675) – s56(1) Land Transport Act 1998
(v)Careless driving – s37 Land Transport Act 1998
(vi)Failure to stop after an accident – s35(1)(c) Land Transport Act 1998
(vii)Driving while disqualified - s32(1)(a) and s32(3) Land Transport Act 1998
(viii)Failure to report to periodic detention - s45(1)(a)(i)(d)) Criminal Justice Act 1985
The Pre-Sentence Report
Mr Funaki is 30 years old. He and T have no dependants. Mr Funaki has two children from a previous relationship who reside in Tonga. He had been employed as a plasterer in Auckland for two years before the assault.
Mr Funaki has a record of alcohol related offences, attempts to procure cannabis, failure to answer to District Court bail, and failing to supply particulars when required to do so.
The probation officer was concerned that Mr Funaki has a propensity for violence. His alcohol and drug problems also need to be addressed, and the officer considered relationship and anger management counselling would be beneficial to him.
The Sentence in the District Court
The sentencing Judge considered it appropriate to take a starting point of 10 years imprisonment on the GBH, and to then make a reduction of two and a half years for Mr Funaki’s remorse and guilty pleas.
In reaching this starting point, the Judge had particular regard to the leading authority and current tariff case of R v Hereora [1986] 2 NZLR 164. In that case, three bands of sentence in relation to offending under S.188(1) of the Crimes Act 1961 were identified:
(i)An impulsive act of violence involving the use of a weapon or intent to inflict serious injury (3-5 years).
(ii)Cases exhibiting a combination of aggravating features (5-8 years).
(iii)Cases exhibiting unusually grave aggravating features (8-12 years).
The Judge considered this case should properly be located in the middle of the third category, taking into account the prolonged and vicious nature of the assault.
The sentence of six months imprisonment for the Land Transport Act offences was then imposed on a cumulative basis. The Judge remarked “by any standard they are worth at least six months imprisonment ….”.
The Grounds of the Appeal
The appeal is put on four grounds, namely:
(a)The Judge erred in adopting a starting point of ten years and did not sufficiently take into account the factual circumstances and criteria identified in Hereora. The starting point adopted was higher than that suggested by the Crown at sentence. The Crown had submitted that the factual circumstances of this offending came within the upper end of the second category in Hereora.
(b)The Judge erred in drawing an analogy between this offending and sentences for sexual violation.
(c)The Judge erred in determining that the appellant was not entitled to a discount for his plea, but mainly for remorse.
(d)The Judge did not take into account the totality principle when he imposed a six months cumulative term of imprisonment for the other minor and unrelated offences.
Discussion
We begin by noting that the Hereora categories are not closed. The categorisation of offences should not fall foul of “scientism”. They represent working categories for dealing with an overall sentencing problem. At the end of the day, what is called for is a proper assessment of the seriousness of the particular conduct. Comparisons with other cases are of limited assistance. In R v Christie (CA 95/96, 25 July 1996), after traversing a number of authorities (including Hereora), this Court stated:
From a tariff point of view the three cases considered above are helpful for their adoption of the sentencing ranges followed in England. However, any further assistance obtainable is subject to two caveats. First, this Court has frequently emphasised that it gains limited help from the all too common practice of counsel of comparing the sentence under appeal with sentences imposed in other allegedly similar cases. More often than not, a comparison is inappropriate or difficult to make because the facts and circumstances of the cases invariably differ, and not all the information before the sentencing Judge in the other case is necessarily before this Court . . . Reference to Solicitor General appeals, other than for the purpose of referring to a principle of law or sentencing, is most unlikely to assist the Court. Reference to a series of such cases may give a misleadingly low impression of the appropriate sentencing level for offending of that kind (per Eichelbaum CJ).
This was a vicious and determined attack with an axe on a defenceless female victim to whom Mr Funaki was married. It could quite easily have brought about T’s death. The act was prolonged. It was continued (to the extent that Mr Funaki actually chased T onto two properties, and continued to attack her as she sought assistance). Mr Funaki desisted only when confronted by a number of persons. And our Courts must condemn domestic violence of any kind, especially at this horrific level.
It is therefore difficult to see how, in principle, this offending is not so serious in its totality that it would not come within the third category of Hereora. We are fortified in that view by reference to other cases of serious violence which have come to a similar view.
In R v Poki (CA 14/01, 24 May 2001) P, then 20 years of age, appealed against a sentence of 10 years imprisonment from an identical charge to that faced by Mr Funaki, and for aggravated robbery. Early one morning, P together with an associate, had lured a homosexual man into a secluded area and then viciously attacked him by punching and kicking him. The man was left for a while. The miscreants then returned and continued the attack. P then stole the victims wallet before leaving him in an unconscious state. The victim was clearly in a serious condition, with blood running from his head. He sustained brain damage and the quality of his life has been gravely diminished. P had had an unfortunate childhood, and had a number of previous convictions. He had served sentences of periodic detention and imprisonment. A sentence of 10 years imprisonment was upheld.
In R v Currie (CA 272/00, 28 September 2000), C appealed against a sentence of eight and a half years imprisonment imposed under s.188(1) of the Crimes Act 1961. C was a member of the Road Knights gang. One night, C was cruising in a van with two other gang members, when they began to exchange insults with a group of Maori and Polynesian youths. C and his associates began to chase the youths and eventually caught up with a 16 year old boy, who had given up trying to escape and had effectively surrendered. C and his associates began to beat the boy ferociously. They took turns to kick him and stomp on his head and body until he was unconscious. They walked away, then returned and administered some more stomping which included both feet being in the air at times before landing on his head. They eventually left the victim for dead with a fractured skull and bleeding within his skull. The victim was hospitalised for two weeks and could not return to school for two months. Without hospitalisation, he probably would have died. This court condemned the offending as “an outrageous attack with racial overtones permeated by arrogance and a total disregard for others by a group of vicious bullying, cowards perpetrated on a young and defenceless lad”. A denunciatory and deterrent sentence was appropriate. The starting point of nine years imprisonment was confirmed, with credit for six months discount for a late plea of guilty.
We record that other cases with a lesser degree of violence were referred to before us: R v Waine (CA 157/99, 27 July 1999); R v Pahi (CA 481/94, 7 February 1995).
In the result, we are quite clear that the sentence imposed in this case on the grievous bodily harm count by the District Court Judge, was appropriate. The starting point of ten years was open to him and the discount allowed was a proper one. In principle therefore, the sentence imposed was not manifestly excessive.
As to the unnecessary and perhaps unwise reference by the sentencing Judge to the desirability of increasing the sentence for rape, that observation was clearly an aside. The Judge made it plain that it had nothing to do with the sentence actually imposed in this case.
As to the minor offences, these were unrelated in time and circumstance. The imposition of a further six months sentence, cumulative, was not in our view open to criticism, having regard to Mr Funaki’s prior record. He will have to appreciate that offending of that character, on an ongoing basis, will inevitably attract incarceration.
The Position of the Victim
In the result, in the normal course of events we would have dismissed this appeal. However, T elected to attend the hearing of this appeal. We allowed her to produce a letter directed to the Court; and she addressed the court in person.
Fortunately, T has made a remarkable recovery from her injuries. And, she impressed us as an emotionally sturdy and independent woman with some real insight into Mr Funaki; and why he had done what he did. She stands by Mr Funaki; and wants the marriage to continue. She considers she is being punished by the enforced separation.
We have given this plea anxious consideration. This was a horrific attack, and it was appropriately dealt with by the sentencing Judge. But in the result, we have come to the view that some distinct further allowance should be made in light of the further information which is before us.
We therefore propose to allow the appeal against sentence on the grievous bodily harm charge, by setting aside the sentence of seven and a half years imprisonment. We substitute therefore a sentence of six years imprisonment on that count. The sentence of six months imprisonment on the other charges will stand, for an effective sentence of six and a half years.
In taking this course we would not wish the actual sentence passed in this instance to be taken as a guide to sentencing in other cases. The additional allowance we have made turns entirely on the particular facts of this case, and especially given the position taken by the victim.
In the result, the appeal is allowed. The sentence in the District Court on the grievous bodily harm count is set aside. We substitute a sentence of six years imprisonment. The cumulative sentence of six months on the other counts will stand.
Solicitors:
Crown Solicitors Office, Auckland for Crown
0
0
0