FAKATAVA v NEW ZEALAND POLICE [2016] NZHC 1616

FAKATAVA v NEW ZEALAND POLICE [2016] NZHC 1616 [18 July 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-0000151[2016] NZHC 1616BETWEEN GEORGE FAKATAVAAppellantAND NEW ZEALAND POLICERespondentHearing: 18 July 2016Appearances: P Eastwood for AppellantS R Norrie for RespondentJudgment: 18 July 2016JUDGMENT OF VENNING JSolicitors: Kayes Fletcher Walker, ManukauCopy to: P Eastwood, Auckland[1] George Fakatava, also known as George Tupou, pleaded guilty to charges of driving whilst disqualified on a third or subsequent occasion, drunk driving on a third or subsequent occasion, reckless driving, breaching bail and male assaults female. He also pleaded guilty to a charge of failing to stop for flashing red and blue lights.[2] On 18 May in the District Court at Manukau Judge C S Blackie sentencedhim to two years' imprisonment with special release conditions.1[3] Mr Fakavata appeals against that sentence. He argues the sentence imposed was in breach of a legitimate expectation he had that a sentence of home detention would be the outcome.[4] It is also submitted that a reduction of a further month in the sentence is required.[5] The appellant through counsel filed a memorandum seeking to appear at the hearing. It is submitted that he may have been able to offer clarification to counsel and the Court in relation to aspects of the history of the matter and the time spent on EM bail. He also argues that s 25(e) of the New Zealand Bill of Rights Act 1990, minimum standards of criminal procedure, support his appearance. Section 326 of the Criminal Procedure Act 2011 applies. An appellant such as Mr Fakatava represented by counsel and in a hearing involving oral submissions such as this has no right of appearance. There are no special circumstances in the present case supporting leave being granted to him to appear either in person or by AVL. That application was declined.[6] Sentence indications are provided for under Part 3, Subpart 4 of the Criminal Procedure Act 2011. A sentence indication is binding on the judicial officer that gave it unless information becomes available to the Court after the sentence indication is given but before sentencing, that the judicial officer is satisfied materially affects the basis upon which the indication was given.21 New Zealand Police Fakavata (aka Tupou) [2016] NZDC 8905.2 Criminal Procedure Act 2011, s 116(2)[7] The sentence indication given by Judge Blackie in this case was (after taking account of the guilty plea to all charges) 24 months' imprisonment.3 The Judge then went on to say:[5] Twenty four months means that I could, if the Court was so minded, impose a sentence of home detention in place of imprisonment. However, I have to say in your case that might be difficult, having regard to the fact that you have been on electronically-monitored bail, which is the same as home detention in many respects, and that you breached the terms. Nevertheless Iwill leave that as an option.That indication was accepted by the appellant.[8] In remanding the appellant for sentence following the acceptance of that indication the Judge said:[6] It may well be that matters are presented in a pre-sentence report which reflect favourably on you and will justify a further reduction in the ultimate sentence. That remains to be seen.And later:[7] So, you are not losing any time by remaining in custody; it willbe taken into account when assessing your ultimate release date from prison if a custodial sentence is imposed or assessing the amount of a community- based sentence if that is what is appropriate. We will have to await a pre- sentence report and I will just make sure that I have on the file your letter that you have just written.[9] So in short the sentence indication was of an end sentence of 24 months. While the Judge referred to the possibility of home detention he indicated that thatmight be difficult in the appellant's circumstances. Nevertheless, the Judge held thatout as an option, but it was clearly dependent on a favourable pre-sentence report.As noted the Judge had expressly identified home detention as unlikely.[10] Counsel for the appellant, Mr Eastwood, has submitted the appellant had actually undertaken rehabilitative programmes and completed them whilst in prison. He had also indicated a willingness to engage in alcohol and drug programmes in the future. Further, he submitted that while it was not recorded in the pre-sentence report the appellant was prepared to meet with his former partner, the victim of the3 New Zealand Police v Fakatava District Court Manukau CRI-2014-092-4315, 22 March 2016.assault, for a restorative justice meeting but that she had been unable to be contactedfor such a meeting. Mr Eastwood noted that the proposed home detention addresswas deemed suitable and the appellant had the support of his family who hadsupported him in the District Court at sentence.[11] Mr Eastwood emphasised that even though the appellant had breached his conditions of EM bail, while in breach he had obtained employment and had settled down both at work and with a new partner.[12] Counsel suggested that rather than a lack of insight the appellant had actually taken responsibility for the assault by pleading guilty and little credit had been given to him for the aggressive behaviour of his ex-partner that had precipitated the incident.[13] One of the purposes of a pre-sentence report is for an experienced and independent probation officer to meet with and assess the prisoner prior to sentence. The pre-sentence report in this case was not particularly favourable to the appellant. The report writer recorded that the appellant had maintained his innocence and said he had just entered the guilty pleas as a plea bargain. He said the use of violence was in self defence and appeared dismissive of the offences. He minimised his absconding while on electronically monitored bail. The appellant was assessed as posing a medium risk of harm to others due to his willingness to use violence to resolve problems and his ability to rationalise and justify the use of violence in high risk situations.[14] The report writer noted that the appellant appeared to lack motivation to address issues relating to violence. The report also noted the appellant had anti-social associates who were friends in the vicinity of his parents' home. The report noted the appellant no longer felt alcohol was a problem and expressed a willingness to engage with an alcohol and drug rehabilitation programme. Finally the report writer noted the appellant had shown no remorse throughout the interview.[15] The Judge was entitled in the circumstances to find a lack of remorse given the comments made to the report writer. The offer of attending a restorative justiceconference can carry little weight given the recorded position of the appellant and as reflected in his instructions to counsel, that he continued to blame the victim of the assault for the offending. The appellant was unwilling to engage in any violence based programmes.[16] Having regard to the pre-sentence report the appellant's very bad history ofoffending, including past domestic violence, the past history of failure to answer bail, breach of Court sentences and the breach of the electronically monitored bail in this case, the Judge had little option other than to decline to impose home detention.[17] This was not a finely balanced case. Home detention was always unlikely as the Judge had indicated in the sentence indication. Given the clear words of the Judge the appellant could have had no legitimate expectation of a sentence of home detention. The sentence imposed was consistent with that indication. For the Judge to have imposed home detention would have required a substantial change in attitude from the appellant, which was not apparent in the pre-sentence report.[18] Given the extent of the offending in this case, including the violence which as the Judge recorded was not simply a simple slap, but rather a number of slaps and punches which caused a degree of injury to the complainant, the end sentence of 24 months was well within range. There is no basis to reduce it any further.Result[19] The appeal is dismissed.__________________________ Venning J