Walter Fitikefu v The Queen - [2015] NZSC 22

IN THE SUPREME COURT OF NEW ZEALAND

SC 2/2015
[2015] NZSC 22

BETWEEN	WALTER FITIKEFU Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and O'Regan JJ
Counsel:	Applicant in person M G Wilkinson for the Respondent
Judgment:	10 March 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Fitikefu pleaded guilty to one charge of aggravated robbery in the District Court. The sentencing was transferred to the High Court because the Crown was seeking a sentence of preventive detention.
In the High Court, Venning J imposed a finite sentence of four years and six months imprisonment with a minimum terms of two years and eight months.[1] He said that “by the narrowest of margins I consider that preventive detention is not required at this time”.[2]
[1]R v Fitikefu HC Auckland CRI-2010-004-17106, 5 July 2011 (Venning J) (HC).
[2]At [23].
Mr Fitikefu’s appeal to the Court of Appeal was dismissed on 27 March 2014.[3] He now applies for leave to appeal to this Court.

Background

[3]Fitikefu v R [2014] NZCA 99 (French, Ronald Young and Clifford JJ) (COA).

The aggravated robbery was of a Kiwibank Post Shop in Mt Eden in September 2010. Mr Fitikefu and one of his co-offenders went into the bank. A third co-offender stayed outside in the car which had been stolen that morning.
Once inside, Mr Fitikefu stayed near the door while his co-offender climbed over the security barrier and demanded cash from the tellers ($2,800 was taken). As Mr Fitikefu and his co-offender were making their way back to the getaway vehicle, Mr Fitikefu shouted threats at the bank staff.
Mr Fitikefu has been convicted in Australia of seven offences similar to aggravated robbery from 1997 to 2004.[4]

The application for leave

[4]He also has a total of 13 convictions in New Zealand since March 2008, mostly for property related offences: see COA at [9] and HC at [4].

Mr Fitikefu seeks leave to appeal on the basis that allegedly mitigating factors were not properly taken into account. The first factor he identifies relates to issues he had with Child, Youth and Family (CYF). The second is what he characterises as his “exceptional remorse”.[5]

Discussion

[5]Mr Fitikefu also makes a submission claiming that CYF was mistakenly informed on a number of occasions that he remained subject to a home detention order, even though the sentence had been completed on 29 June 2010 and he also asserts that there had been an unlawful detention in 2010. This is irrelevant to the sentencing at issue in this application and therefore is not a matter we can deal with.

Given Mr Fitikefu’s extensive criminal history, it was clearly open (as the Court of Appeal held) for the sentencing judge to “treat Mr Fitikefu’s claim of remorse with scepticism.”[6]
[6]COA at [18]. The sentencing judge did, however, take into account a letter written to the Court by Mr Fitikefu which he considered showed some insight on Mr Fitikefu’s…

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.

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Details

Case: [2015] NZSC 22
Decision Date: 10 March 2015

CaseChat Overview and Summary

Walter Fitikefu appealed against his sentence of four years and six months imprisonment, with a minimum term of two years and eight months, imposed by Venning J in the High Court, Auckland, for aggravated robbery. The Court of Appeal dismissed his appeal, and he now seeks leave to appeal to the Supreme Court of New Zealand. The case involves a robbery at a Kiwibank Post Shop in Mt Eden, where Fitikefu and his co-offenders stole $2,800. Fitikefu claims mitigating factors, such as his relationship with Child, Youth and Family (CYF) and his remorse, were not properly considered. He also claims there were errors in the Court of Appeal’s understanding of the CYF issues. The Supreme Court considered these claims but found that they did not constitute mitigating factors, particularly given Fitikefu's extensive criminal history. The Court found no error in the Court of Appeal's approach and dismissed the application for leave to appeal.

The legal issues before the court were whether the High Court and the Court of Appeal erred in not considering mitigating factors, such as Fitikefu's relationship with CYF and his remorse, and whether there was a risk of a miscarriage of justice. The court examined whether the Court of Appeal had properly assessed the mitigating factors and whether there was any risk of a miscarriage of justice. The court found that the Court of Appeal had appropriately considered Fitikefu's claims and that there was no risk of a miscarriage of justice. The court held that given Fitikefu's criminal history, the sentencing judge was justified in being sceptical of his claims of remorse. The court also found that any issues with CYF did not mitigate the offence.

The Supreme Court dismissed the application for leave to appeal. The court concluded that there was no error in the Court of Appeal's approach and that the appeal did not raise any issues of general or public importance. The Supreme Court held that the Court of Appeal had appropriately considered the mitigating factors presented by Fitikefu and found no risk of a miscarriage of justice. The court found that the High Court's decision to impose a finite sentence instead of preventive detention was justified given the circumstances. The application for leave to appeal was dismissed, and the original sentence stood.

Orders