IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA497/2018
 [2019] NZCA 290

	
BETWEEN	
KOVINANTIE FUKOFUKA
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
11 June 2019	

Court:	
Brown, Whata and Moore JJ	

Counsel:	
M N Pecotic for Appellant
J E L Carruthers for Respondent	

Judgment:	
8 July 2019 at 11.30 am	

JUDGMENT OF THE COURT

A	The appeal against conviction is dismissed.
B	The appeal against sentence is dismissed save for the order in respect of the MPI which is quashed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)
Introduction
[1]	At his trial in the District Court at Manukau, the Crown claimed that Kovinantie Fukofuka shot two men outside a local nightclub. He was charged with two counts of wounding with intent to cause grievous bodily harm.  
[2]	The two men did not know their attacker.  A few days after the shooting the Police undertook a formal identification procedure using a photographic montage.  One of the men, Valu Kolofale, picked out Mr Fukofuka as the man who had shot him and the other victim.
[3]	However, unbeknownst to the Police, Mr Kolofale had been referred to a YouTube clip featuring local rap artists.  He immediately recognised one of them as the gunman.  It was Mr Fukofuka.  
[4]	At his trial, Mr Fukofuka objected to the admission of Mr Kolofale’s formal identification.  He said it was tainted due to Mr Kolofale’s his earlier viewing of the YouTube footage.
[5]	Judge Bergseng ruled the evidence admissible.  The jury convicted Mr Fukofuka on both charges.  He was sentenced to eight years and four months’ imprisonment with a minimum period of imprisonment (“MPI”) of three years and four months.
[6]	Mr Fukofuka now appeals his conviction and sentence.
The offending
[7]	On 14 May 2017 Mr Fukofuka was at a Manukau nightclub with friends.  One of his friends was asked to leave because of his behaviour.  Mr Fukofuka left with him.  Once outside the nightclub Mr Fukofuka became involved in a number of physical skirmishes.  Two of the men he was fighting with were Manase Lasike and Mr Kolofale.  Part of what happened outside the nightclub was captured on CCTV.  This showed Mr Fukofuka being punched in the side of the head.  He fell to the ground where he was hit again.  
[8]	Mr Fukofuka then got to his feet and disappeared from view.  Twenty-six seconds later he returned.  But now he was armed with a .22 firearm.  Firing shots as he went, he first approached Mr Lasike.  He shot Mr Lasike through the right knee.  Then he turned his attention to Mr Kolofale.  He shot him through the right thigh.  In total he fired at least five shots.  Mr Kolofale and Mr Lasike were taken to hospital and treated.  Mr Kolofale was discharged later that day.  
The visual identification evidence
[9]	On 26 May 2017, 12 days after the shooting, Detective Kinsey took a statement from Mr Kolofale.  He showed him the montage which included a photograph of Mr Fukofuka.  There is no dispute that what was done amounted to a formal identification procedure for the purposes of s 45(3) of the Evidence Act 2006 (“the Act”).  
[10]	Mr Kolofale identified Mr Fukofuka as the man who had shot him.  
[11]	However, what the Police did not know at the time was that Mr Kolofale had already viewed an image of Mr Fukofuka on YouTube.  How that happened now follows.  
[12]	Shortly after he was discharged from hospital, Mr Kolofale was contacted by a friend who was the DJ at the nightclub on the night in question.  The DJ asked Mr Kolofale if he knew who his attacker was.  Mr Kolofale said he did not, but that he had a clear picture of the person in his mind.  The DJ suggested that Mr Kolofale search “Erase threes nation” on YouTube.  So Mr Kolofale did.
[13]	It was a music video.  It had been online since mid-2016.  It featured Polynesian-looking men engaging in a rap session.  One of the men featured prominently as the principal rapper.  Mr Kolofale immediately recognised this person as the one who had shot him.  
[14]	The first time Mr Kolofale told the Police about seeing the YouTube video was on 13 April 2018.  This was some 11 months after the shooting and just three days before the start of the trial.  It was the emergence of this information which prompted the defence to make an application under s 45(1) of the Act.  The argument was dealt with in the course of the trial by way of voir dire.  
District Court judgment
[15]	The Judge acknowledged there had “clearly been a degree of contamination” through Mr Kolofale viewing the YouTube footage.  He described the defence’s complaint in this way:
[17]	Regarding the issue of contamination [counsel for the defendant] submits that the intervening view of the YouTube music video by Mr Kolofale has clearly contaminated the subsequent formal procedure.  He submits that Mr Kolofale was told to look for the person who was the lead singer in the music video. That person is acknowledged as being the defendant. In the circumstances, he submits that this is a high degree of interference and would have clearly influenced Mr Kolofale in his later formal identification of the defendant.
[16]	However, the Judge identified other aspects of Mr Kolofale’s identification which supported its reliability.  These included:
(a)	the lighting outside the nightclub provided a reasonable degree of illumination; 
(b)	on four occasions Mr Kolofale was captured on CCTV fighting with Mr Fukofuka at close quarters in areas which were reasonably well lit.  This was not a case of a fleeting glimpse;
(c)	Mr Kolofale’s eyesight was good;
(d)	the formal procedure was carried out only 12 days after the shooting; and
(e)	Mr Kolofale was absolutely certain when he identified Mr Fukofuka in the montage.
[17]	Balanced against those considerations was the fact that Mr Kolofale did not know Mr Fukofuka.  He had also been drinking.  The Judge noted that the events were fast moving but that Mr Kolofale maintained he was alert and orientated.  
[18]	The Judge also identified four external factors which he said independently supported the reliability of Mr Kolofale’s identification.  These were:
(a)	The CCTV footage clearly showed Mr Kolofale fighting someone with tattoos on both arms.  That same person was the one who came back to shoot him.  While the detail of the tattoos could not be seen, they were consistent in size and placement with Mr Fukofuka’s own tattoos.  Mr Fukofuka was also wearing similar clothes as the gunman in the footage.
(b)	Mr Fukofuka admitted to being at the nightclub that night and becoming involved in a fight outside; he described being hit from behind which was consistent with what happened to the gunman in the CCTV footage.
(c)	Mr Lasike and his partner also identified Mr Fukofuka as the gunman in formal identification procedures undertaken on 15 May 2017.
(d)	When arrested by Police Mr Fukofuka acknowledged having some connection to the firearm and offering to hand it over to Police.
[19]	The Judge concluded:
[37]	… I bear in mind that more than one witness can be mistaken when it comes to identification.  However, in this case while some of the individual elements identified as being supportive of the accuracy of Mr Fukofuka's identification are on their own insufficient to support a claim of reliability, it is the combination of factors which make up the strands of the rope. This supports the Crown's submission that while there has been contamination, Mr Kolofale's identification evidence is reliable.
[38]	There are the physical factors that were present on 14 May 2017 outside the night club which meant that Mr Kolofale was able to acquire a clear picture in his mind of the person who shot him.  That suggestion of reliability is also supplied by the other evidence that I have noted. Accordingly, despite the need for caution and acknowledging the contamination and the unconscious influence that it would have had on Mr Kolofale, I am of the opinion that Mr Kolofale was a truthful, credible and reliable witness and that all the circumstances point to the reliability of his identification.
[20]	He ruled the evidence admissible.  
Grounds on appeal
[21]	For Mr Fukofuka, Ms Pecotic, who was not counsel in the District Court, repeated the arguments advanced by Mr Fukofuka before Judge Bergseng.  She submitted that Mr Kolofale’s identification was unreliable.  She said that had he been certain of his identification he would not have viewed the YouTube video; otherwise he would have advised the Police of these actions earlier.
[22]	Ms Pecotic observed that given the particular need for caution in cases of this sort, the evidence should have been excluded.
Relevant principles of law
[23]	We must allow the appeal if we are satisfied that there has been any error such that there is a real risk that the outcome of the trial was affected.
[24]	Visual identification evidence obtained as a result of a formal procedure will not be admissible if the defendant proves on the balance of probabilities that the evidence is unreliable.  In assessing the reliability of the identification for the purposes of s 45(1) of the Act, regard can be had to the circumstances in which the identification was made as well as other evidence which supports or raises concerns about the accuracy of the identification.
[25]	The Supreme Court in Harney v Police noted that the formal identification procedures in s 45 are primarily directed towards identifying strangers.  Despite that, the fact of contamination is just one of a number of factors relevant to a Judge’s decision as to reliability.  The nature and extent of the contamination (and all aspects relevant to that issue) must be weighed in the balance.
[26]	We agree with Mr Carruthers, for the Crown, that Mr Kolofale was clear that he recognised Mr Fukofuka from the night of the offending rather than from the YouTube video.  However, that in itself may not be determinative.  It is necessary to examine all the circumstances to make an assessment as to reliability.  In this case the reliability and accuracy of his identification was independently supported by other factors listed by the Judge.  Notably, two other witnesses independently identified Mr Fukofuka as the gunman.  Ms Pecotic did not suggest that either of these was mistaken or that there existed circumstances surrounding those identifications which cast doubt on their reliability.
[27]	We are satisfied the Judge approached his task correctly, save for one observation.  It does not appear that the Judge actually viewed the YouTube footage before making his decision.  This would have been the preferable course.  Viewing the footage would have enabled a full evaluation of any potential contamination of Mr Kolofale’s identification.  Despite this oversight, it is plain to us that justice did not miscarry.  We have viewed the YouTube clip which we are advised was the one viewed by Mr Kolofale.  Having done so, we are satisfied that the Judge’s analysis of reliability remains sound.
[28]	First, the Judge noted that it was for Mr Fukofuka to prove on the balance of probabilities that the formal identification undertaken by Mr Kolofale was unreliable.
[29]	Secondly, he accepted that the viewing of the YouTube clip by Mr Kolofale introduced a degree of contamination.  However, that contamination needed to be placed in context.  The clip, which we have viewed, features approximately 10 young Polynesian men.  According to Mr Kolofale he immediately recognised the principal rapper as the man who had shot him.  And while certainty is not, on its own, a sound guide to reliability, Mr Kolofale remained unshaken in his identification.  
[30]	Thirdly, the Judge examined the reliability of Mr Kolofale’s identification.  We cannot fault his reasoning under this head.  He examined and considered all of the relevant factors.  
[31]	Fourthly, the Judge reviewed the extrinsic independent evidence and compared the features of the gunman captured on CCTV with Mr Fukofuka’s own features, including the tattoos.  
[32]	Finally, the Judge cautioned himself that more than one witness could be mistaken. Then he observed that while some of the individual elements identified as being supportive of the identification were, on their own, insufficient to support a claim of reliability, it was the combination of factors which supported the conclusion that Mr Kolofale’s identification was reliable.  
[33]	Thus, save for the fact the Judge did not view the clip, his reasoning cannot be impeached.  In any event, we are satisfied that the identification was reliable and admissible.  Mr Fukofuka admitted he was involved in a fight outside the nightclub and was formally identified by two other witnesses as the gunman.  Mr Kolofale had seen the gunman in close proximity and in reasonable viewing conditions.  His subsequent identification is both consistent with and supported by this evidence.  The appeal against conviction is dismissed.
Sentence appeal
Grounds
[34]	Mr Fukofuka appeals his sentence on the basis it was manifestly excessive.  
[35]	In particular, it is claimed:
(a)	the starting point was too high;
(b)	the uplift for previous convictions was unfair;
(c)	discounts for various mitigating factors should have been included; and
(d)	the imposition of the MPI was unnecessary.
Sentence
[36]	The Judge adopted a starting point of eight years’ imprisonment.  In placing the offending in the middle of band two of R v Taueki the Judge noted the presence of three aggravating factors: 
(a)	the use of a firearm which was discharged five times in an area where numerous other people were present;
(b)	two victims were injured and were lucky not to sustain more serious injuries or suffer longer lasting physical effects; and
(c)	while the level of premeditation was limited it was plain Mr Fukofuka must have been travelling with a loaded firearm.
[37]	The Judge imposed an uplift of four months to account for Mr Fukofuka’s history of violence.  Mr Fukofuka was convicted of common assault in 2010 and 2011.  In 2016 he was twice convicted of injuring with intent to injure, that offending occurring in 2014 and 2015.  For the 2014 offending, which involved kicking a person while they were unconscious, Mr Fukofuka received a sentence of home detention.
[38]	The Judge noted that Mr Fukofuka had four children aged between 10 months and seven years.  He referred to a letter of support from the local bishop, highlighting how keenly Mr Fukofuka’s family felt his absence.  While recognising the “real impact” Mr Fukofuka’s detention had on his family, the Judge did not give a discount.  He also noted that Mr Fukofuka continued to deny his involvement in the offending and thus demonstrated no remorse.
[39]	In imposing the MPI of three years and four months, representing 40 per cent of the end sentence, the Judge commented:
[29]	You are still relatively young and I accept that what you did on this occasion was an immediate reaction to the situation that you found yourself in. Balanced against that is the fact that you clearly had access to a firearm at short notice.  There is no indication of this being anything other than your response to the situation that took place outside of the nightclub. It is not a situation involving gang fighting or retaliation.  It is simply a case of you retrieving a firearm and then being prepared to discharge it amongst a group of people, effectively, as your counsel has said, so as to get the upper hand.
[30]	I take into account your age, I also take into account that there is a degree of impulsivity, which hopefully will pass as you get older.  However, I also need to take into account that, as has been highlighted in the provision of advice report, that you pose a high risk of harm to the community, that you are on a course of being involved in escalated offending, your actions on this occasion are clearly seen in the CCTV and as I have noted earlier, to watch that is chilling.
Discussion
[40]	We must allow Mr Fukofuka’s sentence appeal if we are satisfied there is an error in the sentence appealed from, such that a different sentence should be imposed.  Ultimately, the focus is on the sentence imposed rather than the process by which it is reached.
[41]	Ms Pecotic agreed that the offending falls within band two of Taueki.  However, she took issue with the classification of the victims’ injuries.  She submitted the injuries were not serious and that the level of premeditation was at “the very bottom of the scale”.  She also said there was an element of provocation.  Given these factors, Ms Pecotic submitted that the Judge should have adopted a starting point of between seven and seven-and-a-half years.  We cannot agree.  
[42]	First, the injuries cannot be dismissed as anything other than serious albeit not life threatening.  Both victims were wounded in the right leg.  Although each was shot only once, the injuries involved both entry and exit wounds.  We agree with the Judge that given the nature of the offending the victims can regard themselves as fortunate not to have suffered more serious injuries.  
[43]	Furthermore, we do not consider that the level of premeditation was limited in the sense that it did not significantly aggravate the level of offending.  As the Judge observed Mr Fukofuka demonstrated a “particular mind set”.  This involved him travelling to the nightclub with a readily accessible and probably loaded firearm.  And while there may have been some level of provocation the gross disproportionality of Mr Fukofuka’s response removes this factor from serious consideration.
[44]	We are thus satisfied that the starting point, guided by other cases involving firearms, was well within the available range.  
[45]	As for the uplift for Mr Fukofuka’s history of violent offending, Ms Pecotic described it “purely punitive”.  Again, we cannot agree.  The pre-sentence report assessed Mr Fukofuka as being at high risk of re-offending.  And, as Ms Pecotic rightly accepted, the current convictions constitute a “marked escalation” in seriousness.  In these circumstances we are satisfied it was wholly reasonable for the Judge to impose an uplift.  
[46]	Additionally, we cannot agree that the Judge was wrong in not giving a discount in recognition that Mr Fukofuka also sustained injuries and that his strong family and community support reflect his elevated prospects for rehabilitation.  
[47]	Ms Pecotic argued that Mr Fukofuka’s incarceration will cause hardship to his young family.  When sentencing, the Court must take into account any particular circumstances which may make a sentence disproportionately severe.  It is an inevitable consequence of the sentencing process that serious criminal offending by a parent may result in hardship to their children.  But these outcomes are a common, if not inevitable, consequence.  Having said that, it is open to a sentencing Judge in appropriate cases to consider the impact a sentence may have on an offender’s family and make some adjustment.  Losing a primary caregiver will be a consideration of some significance.  But where the offending is serious and premediated, or where it covers a lengthy period, the impact of the sentence on the family of the offender plays little, if any, role in influencing sentence.
[48]	In this case, we do not think such a discount is appropriate.  The offending was serious.  Moreover, Mr Fukofuka is not the primary caregiver of his children.  Nor is there any evidence he was the main income-earner.  He was unemployed at the time of the offending.  Rather, any hardship to Mr Fukofuka’s family is an inevitable consequence of his serious offending.
[49]	Of course, Mr Fukofuka himself will no doubt suffer hardship from being dislocated from his family.  But that too is a natural consequence of serious criminal offending.  This Court has said that dislocation from one’s family, even in cases where the gulf of separation spans different countries, should only be taken into account if there is evidence that imprisonment will be disproportionately severe for a particular offender.  In Mr Fukofuka’s case, there is no such evidence.  It follows that no discount for this factor is available.
[50]	For these reasons we are not satisfied that the Judge was wrong nor, subject to our observations which follow on the MPI, the sentence was manifestly excessive.
The MPI
Should an MPI have been imposed?
[51]	The Court may impose an MPI if it is satisfied that the normal time for release under the Parole Act 2002 is insufficient for the purpose of holding the offender accountable for the harm done to the victim and the community by the offending, denouncing the conduct, deterring the offender and others from similar offending, and protecting the community from the offender.
[52]	In imposing a 40 per cent MPI the Judge accepted that the offending represented an immediate response on the part of a relatively young man to secure the “upper hand”.  However, the combination of the risk assessment in the pre-sentence report and the fact that the present offending represented an escalation in Mr Fukofuka’s history of offending led the Judge to determine that the protection of the community required the imposition of an MPI, albeit at a relatively modest level.  
[53]	We take a different view.  This is the first sentence of imprisonment Mr Fukofuka has received.  He will not be eligible for release until he has completed the appropriate programmes while in custody.  In this case the Parole Board is ideally placed to assess risk.  
[54]	Furthermore, at 26, Mr Fukofuka is relatively young.  It is plain that there are strong pro-social factors operating within his community which will be available to him on release. 
[55]	For these reasons we are satisfied that the purposes under s 86(2) of the Sentencing Act 2002 are adequately met by the standard one-third MPI.  
Result
[56]	The appeal against conviction is dismissed.
[57]	The appeal against sentence is dismissed save for the order in respect of the MPI which is quashed.  

Solicitors: 
Crown Law Office, Wellington for Respondent