IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-194 [2013] NZHC 2218

BETWEEN	KAPONO TAUKOLO FUNAKI Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	27 August 2013

Counsel:	R Brown for Appellant
EC Rutherford for Respondent

Judgment:	29 August 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 29 August 2013 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:	Public Defence Service (Manukau) for Appellant
Meredith Connell (Auckland) for Respondent

FUNAKI v POLICE [2013] NZHC 2218 [29 August 2013]

Introduction

[1]       Mr Funaki appeals his sentence of two years and two months’ imprisonment

imposed on him by Judge JC Moses in the District Court at Manukau on 13 June

2013.   The sentence was for assaulting Sione Uikilifi with intent to injure him, assaulting Nathan Pahulu  using a weapon,  and  assaulting  Lycia Pahulu  using a weapon.  The first charge carries a maximum penalty of three years’ imprisonment; the latter two charges carry a maximum penalty of five years’ imprisonment.   The appellant entered pleas of not guilty to all three charges and was convicted following trial.  The charges in respect of Mr Uikilifi and Mr Pahulu attracted sentences of two years two months’ imprisonment and the charge in respect of Lycia Pahulu resulted in a sentence of one year’s imprisonment; all sentences concurrent with each other.

[2]       The appeal proceeds on  the basis that the overall sentence is manifestly excessive.  The appellant argues that the District Court Judge erred in adopting his starting  point  (30 months)  and  in  giving  only  four  months  credit  for  personal mitigating factors.  In the appellant’s submission, the end sentence should have been two years or less and home detention should have been substituted.

Background

[3]       On 9 April 2012, the victims were at an address in Otahuhu socialising with family members.  The appellant and a group of his friends were gathered outside the address drinking. The appellant was heavily intoxicated.

[4]       At around 7:00 pm, Sione Uikilifi and his wife, Lycia Pahulu, decided to leave the address.  They went outside and put their young daughter into their car. One of the appellant’s associates began looking into the car, leading Mr Uikilifi to approach him.  At this point, the appellant and his associates rushed at Mr Uikilifi. The appellant was carrying a plank of wood, which he used to hit Mr Uikilifi on the top of his  head,  rendering him  unconscious.   The appellant  continued  to  strike Mr Uikilifi while he lay on the ground.  This attack gave rise to the charge of assault with intent to injure.

[5]       Mrs Pahulu attempted to intervene and the appellant struck her on her hands and body as she attempted to defend herself.  Nathan Pahulu, a 15 year old relative of Mrs Pahulu, also intervened to try to stop the attack.  The appellant struck him on the head with the piece of wood.  The two charges of assault with a weapon resulted from these attacks.

[6]       Mr Uikilifi  and  Mr  Pahulu  suffered  injuries  of  sufficient  seriousness  to require hospitalisation.  The District Court Judge heard the evidence and considered the injuries to be significant.  I note that the summary of facts is annotated, “proven at defended hearing 29/4/13 before Judge Moses”, and appears to have been signed by the Judge.  It records the injuries as follows:

Lycia Pahulu received bruising and swelling to the fingers and hands.

Nathan Pahulu received a small abrasion and swelling to the right eye and cheek and was taken to Middlemore.

Sione Uikilifi received a large gash to the top of his head and was rendered unconscious as a result of being struck on the head and was hospitalised at Middlemore.

The District Court sentencing

[7]       Judge Moses, in sentencing the appellant, did not accept his explanation that he had been so drunk on the evening that he did not remember what had occurred. In the Judge’s view, this was an attempt to avoid responsibility.  This had relevance later when the Judge considered a post-conviction offer to attend a restorative justice meeting.

[8]       The Judge was of the view that there were a number of aggravating features to  the  case.    He  identified  extreme  violence,  an  unprovoked  attack  on  several victims, and the inflicting of serious injuries to two of the victims which resulted in them being hospitalised.   He also referred to the use of the piece of wood as a weapon.  The Judge was aware that he should not double count that factor because it is an essential ingredient of two of the charges.   But he considered that he was entitled to take into account in respect of the charge of assault with intent to injure the way in which the piece of wood was used and the degree of force with which it was used.  The Judge also noted that there were attacks to the heads of two of the

victims and that there had been more than one attacker so far as Mr Uikilifi was concerned. The Judge then concluded:

In terms of the Sentencing Act 2002 I must hold you accountable.  You must realise that there are consequences for your actions.  I must also denounce your behaviour publically and deter you and others from this kind of unprovoked attack in the future.

[9]       The Judge set a starting point, for the totality of the offending, of two-and-a- half years’ imprisonment.   He did so by reference to Nuku v R,  a decision of the Court  of  Appeal  which  considered  the  application  of  R  v  Taueki   to  offences involving the infliction of violence other than those involving an intent to cause grievous bodily harm.  He considered that the offending fell within band 2 or in the overlapping portion of band 3 of that case.

[10]     The Judge considered factors personal to the appellant to decide whether the starting point should be increased or reduced.   He noted that the appellant has previous convictions but said that “they are relatively insignificant and they are not matters that warrant any uplift; but you are unable to have any reduction from that starting point because of your previous list of convictions”.

[11]     The Judge then said:

There are your matters contained in the pre-sentence report regarding your personal circumstances, and I am aware that you do have young children, two daughters, and your wife is pregnant.  For that reason I am prepared to reduce the starting point by four months to that of 26 months’ imprisonment.

[12]     Counsel for the appellant submitted to the District Court Judge that other matters should prompt a reduction of the starting point.  After the trial, the appellant had offered to have a restorative justice meeting with the victims.  This was rejected by the victims.  Accordingly, the Judge was not prepared to give him any credit for that offer.   The Judge did not consider there were any other matters which would
attract credit.  He did not refer to an offer of reparation of $50 per week which had

been offered by the appellant.   Nor did he refer to the letters of support that the appellant had received from members of his family and from his employer.

Starting point

[13]     Ms Brown for the appellant submits that the starting point of two-and-a-half years’ imprisonment is too high.   I disagree.   In my view, Nuku has significant relevance.  It provides guidance on how Taueki can be adapted to apply to offending involving intent to injure.   The Court said that the case would be applicable to offending under sections of the Crimes Act 1961 where charges involving that intent carry maximum penalties of five years and seven years’ imprisonment.  Assault with intent to injure (s 193) is not among them since the maximum penalty is three years. Nevertheless, I am satisfied that with respect to the offending against Mr Uikilifi a charge of injuring with intent to injure (s 189(2)) or wounding with intent to injure (s 188(2)) could equally have been laid.   It is just that the facts would put the appropriate penalty in the higher range of s 193 offending and at lower ranges for s 189(2) or s 188(2) offending.

[14]     It is clear that aggravating features as identified by the Judge existed.  The violence  used  against  Mr Uikilifi  was  serious.    He  was  rendered  bleeding  and unconscious and further assaulted while he was on the ground.  The violence used against him was unprovoked.  He received injuries which, while they could not be termed very serious, were certainly significant.  The violence against him involved the use of a weapon.  The photograph on the file shows a plank of wood in the nature of a fence paling.  It would make a significant club.  Further, the weapon was used to attack Mr Uikilifi’s head.   The District Court Judge also found as a fact that the appellant attacked Mr Uikilifi as part of a group.  It might be, as Ms Brown submits, that there was no evidence of an attack in concert, but the District Court Judge was entitled  to  take  into  account  that  in  attacking  Mr Uikilifi  the  appellant  had  the support of others.

[15]     On this charge alone, and having regard to the guidance in Nuku, the District Court Judge would have been justified in setting a starting point of at least two years’ imprisonment.

[16]     Then the charges of assault with a weapon have to be factored in.   These actually have a higher maximum penalty than the charge of assault with intent to injure, although it was appropriate to take the latter as the lead charge since the level of violence was more significant.

[17]     There  is  no  tariff  case  for  assault  with  a  weapon.    The  cases  cited  by

Ms Brown  for  the  appellant  show  starting  points  ranging  from  12 months  to

24 months’ imprisonment.      The  respondent  adds  that  where  offending  involves multiple victims, the starting point should rise.  I am referred to Tiplady-Koroheke v R,  where a starting point of two years was considered justified by the Court of Appeal in a case involving three victims but no weapon (the charges were assault with intent to injure and common assault).

[18]     Having regard to the totality principle, I conclude that the overall starting point of two years and six months’ imprisonment was within the range available to the District Court Judge.

Adjusting the starting point

[19]     The District Court Judge stressed the need for accountability, denunciation and deterrence.   He did not refer to the purpose of assisting in the appellant’s rehabilitation or reintegration.  In my view, this case called for specific consideration of that purpose.

[20]     The Judge regarded the appellant’s criminal record as precluding him from advancing previous good character as a mitigating factor, but he acknowledged that it was not of sufficient seriousness to justify an uplift of the starting point.  In most cases, a significant record of previous offending unrelated to the charges under consideration should have the effect the Judge recognised.   But in this case the
record was of minor offending, and not lengthy:

Result date	Offence date	Offence	Sentence
11/12/07	17/11/07	Disorderly behaviour	Fine - $200
Court Costs - $130
27/3/07	16/12/06	Fighting in public place	Fine - $150
Court Costs - $130
22/3/07	16/3/07	Breach of local liquor ban	Fine - $200
Court Costs $130

[21]     The appellant was 19 years old and 20 years old when these offences were committed. The most recent was four-and-a-half years before the present incident.

[22]     The appellant came before the District Court Judge as a married man with a young family and fulltime employment.  It was clear that he had an alcohol problem
– it was a precipitating factor in his offending.  Addressing that problem is in the interests of the community as a protective factor.

[23]     The appellant is not helped in his advancing of personal mitigating factors by the belated assumption of responsibility for his actions and his belated attempt to address his alcohol problem.  He acted only after he was convicted of the offending following trial.  Nevertheless, that does not preclude him from being given credit for his offers to attend a restorative justice meeting and make reparation.

[24]     Judges are often sceptical of the sincerity of mitigating steps taken after conviction following trial. And rightly so.  In this case the Judge was not prepared to give weight to the steps taken by the appellant.  Section 10 of the Sentencing Act requires the Court to take into account an offer to make amends – although weight is another matter.   Here, the Judge does not seem to have addressed the offer of reparation (which was noted in the pre-sentence report).

[25]     The respondent submits that regardless of these matters, the four months discount allowed by the Judge for the personal circumstances contained in the pre- sentence report was generous and sufficient to meet the requirements of the case.

[26]     There is no formula for calculating discounts for personal circumstances. They do not  always have to be given.   For example, where the  gravity of the offending   is   such   that   circumstances   personal   to   the   offender   are   simply

overwhelmed.  But where the punitive purposes of sentencing are not required to be given predominance, and where an offender’s potential for rehabilitation and the need for reintegration should be emphasised, then there is greater room for giving a significant discount.

[27]     In this case, I find that the Judge erred in regarding the appellant’s previous criminal history as precluding his character from being taken into account.  A more balanced  appraisal  is  that  the  history  is  minor  and  that  rehabilitation  and reintegration require greater emphasis.  Remorse, even belated remorse demonstrated by post-conviction offers of restorative justice and reparation, can then be given some weight.  The belated recognition that alcohol is a problem can also be viewed as an opening to awareness which should be encouraged for the future protection of the community.

[28]     The difficulty for the appellant is that, in my view, an appropriate discount giving all these matters due weight would still be no greater than six months.  This is
20% of the starting point.  It is generous, but it represents an approach – which I find to be appropriate in this case – which balances deterrence and denunciation with rehabilitation and reintegration.

[29]     This discount is only two months greater than the District Court Judge’s discount.   A further 6.7% reduction in the starting point.   I cannot say that this difference means that the District Court Judge’s sentence is clearly excessive. Especially given the element of subjective judgment necessary in sentencing. Different judicial minds can legitimately arrive at different sentences – although the gap should be relatively small.

[30]     I  have  taken  into  account  that  the  appellant  would  be  eligible  for consideration for home detention if my discount were to be applied.  But that cannot be a ground for holding a sentence which is within the available range to be clearly excessive or inappropriate.   Sentences should not be reduced artificially to bring them within the home detention range.

[31]     An appeal against sentence is an appeal by way of rehearing.  But that does not mean that I re-sentence the appellant.  I am not entitled to substitute my view of an appropriate sentence for that of the District Court Judge unless I conclude that the Judge’s sentence was clearly excessive or inappropriate.

Decision

[32]     I find that the sentence of two years and two months’ imprisonment is not

clearly excessive or inappropriate.  I dismiss the appeal.

Brewer J