FIFITA v THE QUEEN [2016] NZHC 3013

FIFITA v THE QUEEN [2016] NZHC 3013 [13 December 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000354[2016] NZHC 3013BETWEEN MARYANE LOTUKALAFI FIFITAAppellantAND THE QUEENRespondentHearing: 12 December 2016Counsel: L Freyer for AppellantL Fraser for RespondentJudgment: 13 December 2016JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 13 December 2016 at 1 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Public Defence Service, Auckland.Meredith Connell, Auckland.The issue[1] This is a sentence appeal in relation to serious offending which includedviolence against three victims in the context of a home invasion. On 21 October2016, Judge Dawson sentenced the appellant to a term of 26 months' imprisonment.1The appellant contends the term is manifestly excessive. She submits the startingpoint is too high and the Judge erred in making inadequate discounts for her youth,pregnancy and guilty pleas. Judge Dawson granted the appellant bail pendingdetermination of the appeal.Background[2] On 18 July 2015 the victims held a party. The appellant was one of the guests. At approximately 5.30 pm she and her partner got into a fight. Othersintervened. This led to an altercation between the appellant and one of theoccupants. The appellant was told to leave. An occupant took her out of the house.This led to another altercation outside. The appellant shouted she would be backwith her brothers.[3] The appellant was true to her word. She returned approximately 20 minuteslater with her brother and two other offenders. The appellant knocked on the doorbut was told to leave. She smashed the glass door and then entered. The othersfollowed. So too serious violence. Four victims were assaulted, two with weapons(a bottle and an unidentified object). Two were rendered unconscious. All sufferedinjury and required medical attention.[4] The appellant kicked a female victim to the head while the victim was on the ground. The victim suffered facial bruising and swelling. The appellant was also aparty to assaults on two male victims. One was punched to the ground, thererepeatedly kicked and then struck about the head with an unidentified weapon. Theother was pushed into a bath and then punched to the face. He briefly lostconsciousness.1 R v Fifita [2016] NZDC 22109.[5] To Police, the appellant acknowledged returning to the house and assaultingthe female victim. But she said only she and her brother did so.[6] On 23 May 2016, the appellant pleaded guilty to charges of burglary, injuringwith intent (x 2), and common assault. A charge of aggravated burglary wasabandoned by the prosecution, as were two charges of wounding with intent to causegrievous bodily harm.[7] The appellant was sentenced on 21 October 2016. Judge Dawson consideredthe burglary charge was the lead charge. In relation to it, the Judge adopted astarting point of two years and six months' imprisonment. The Judge uplifted thatterm by 15 months for the balance of the offending (the violence charges), producingan overall starting point of three years and nine months' imprisonment.[8] The Judge then deducted nine months in recognition of the appellant's age(she was then 20 years old, as she was at the time of the offending), a relatively cleanhistory, her expression of some remorse, and the fact the appellant was pregnant.The appellant's guilty pleas resulted in an additional 10-month deduction—and so asentence of 26 months' imprisonment.The appellant's case[9] On behalf of the appellant by reference to Pokaia v Police,2 Ms Freyersubmits the starting point should not have exceeded three and a half years'imprisonment. In that case, two defendants assaulted a victim in the forecourt of apetrol station. The attack involved blows to the head while the victim was on theground. MacKenzie J upheld a starting point of two years' imprisonment.[10] Ms Freyer submits the discount for the appellant's age ought to have been greater, her pregnancy "alone should have attracted a discount in the region of 10%",and weight should now be given to the appellant's offer to pay reparation of $2,500.[11] Ms Freyer also submitted the Judge erred in affording only a 22 percentreduction for the appellant's pleas of guilty, when His Honour intended to afford2 Pokaia v Police [2015] NZHC 1718.25 percent. This point need not be considered further because Judge Dawson appliedthe discount at a point earlier than His Honour should, when it is clear fromHessell v R the reduction is made last, and as a percentage of what would otherwisebe the applicable sentence.3 And, 25 percent at the correct juncture would have beenone month less than the discount afforded by the Judge.Analysis[12] There are dangers in analysing starting points by reference to cases of somefactual similarity, but which omit important ingredients of the index offending.Pokaia has little similarity as it did not involve home invasion, the core componentof this case. The better approach is to examine the individual components of thesentence and then ask how they might have been combined to produce an overallstarting point.[13] So, starting with the offence of burglary first, no guideline judgment exists.However, the Court of Appeal has held the burglary of a home at the lower end of thescale can attract a starting point of between 18 months and two and a half years'imprisonment.4 Burglary, of course, is frequently committed with an intention tocommit theft. But in this case, that was not what the appellant intended; she wasintent on violence. It follows an appreciably higher starting point would be required.[14] The offence of injuring with intent to injure can attract three bands. InNuku v R,5 the Court of Appeal held band three comprises a broad range of two yearsto the statutory maximum when three or more of the aggravating features are presentand their combination is particularly serious. The Court also observed if the caseinvolves a high level of violence or prolonged violence; it will attract band threecategorisation even if there are few other aggravating features.[15] Plainly, this is a band three case. It involved premeditation (or an element atleast), the administration of significant violence, use of weapons, attacks to the head,multiple attackers and a home invasion. It should not be overlooked the appellant3 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].4 Arahanga v R [2012] NZCA 480 at [78].5 Nuku v R [2012] NZCA 584.assaulted one victim and was a party to an assault on two other victims. Consequently, whether approached as a serious instance of burglary with violence as a significant aggravating factor, or as violent offending involving a home invasion, astarting point of 39 months' imprisonment was open to the Judge.[16] Two matters underscore this conclusion. First, in Hewes v Police,6 Gendall Jupheld a starting point of three to three and a half years' imprisonment in relation tobroadly similar offending. In that case, the defendant broke into his former partner'shome, punched and kicked her to the face (breaking her nose), and stole money andtobacco. The victim was a solo mother, who had obtained a protection order againstthe defendant. Contravention of that order was obviously a seriously aggravatingfactor, so too victim vulnerability. But here there were several victims, groupviolence and use of weapons. A higher starting point was open. Second, while thecharge of aggravated burglary was abandoned, the appellant's offending (on theagreed summary of facts) meets all of the ingredients of that offence.7 And, if thatcharge had been sustained, the authorities are clear starting points range betweeneight and 11 and a half years' imprisonment.8[17] I reach the same conclusion in relation to mitigating features. Deductions for matters such as youth are not automatic—and never have been. A Court must be satisfied the mitigating factor is engaged on the facts of the case, and the defendant'sculpability thereby diminished. So, in the context of youth, such a discount istypically applied when a young person acts spontaneously and recklessly. Thereason for this is obvious: this is how young people sometimes behave because oftheir age. However, even then, Courts tend to consider if the defendant is remorsefuland whether there is an associated prospect of reform. There is nothing new in anyof this.9[18] To return to the facts, the appellant was 20 years old and not as such, a youth.However, the same principle could still admit some discount, at least in conjunction6 Hewes v Police [2015] NZHC 1718.7 Crimes Act 1961, s 232(1)(b).8 O'Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302.9 Mako v R [2000] 2 NZLR 170 (CA), (2000) 17 CRNZ 272 at [65]–[66].with her relatively good record. But here, theory and practice part company. The appellant chose to return to the victim's home. An element of premeditation attachedto her offending. Moreover, the appellant was the ringleader. She had been evictedfrom the party, and said she would return with others. She did just that. Theappellant kicked the door in. And she entered the home first. Her actionsencouraged serious violence. She engaged in that too: she kicked a female victim tothe head while the victim was on the ground. The Judge gave modest discount underthis head. On the facts, that approach was open.[19] Pregnancy. Unless the appeal is allowed and home detention substituted, the appellant will give birth in prison. This is her first child. Ms Freyer submits greater weight should have been afforded to this factor. Giving birth in a penal institution is far from ideal, and no Judge wants to impose a sentence which leads to thatconsequence. However, case law does not support Ms Freyer's proposition; at least in the absence of exceptional circumstances or clear evidence the sentence will be appreciably more severe because of pregnancy or childbirth.10 Neither factor was advanced, at least with reference to applicable evidence. In the absence of either, the issue is a matter for the Department of Corrections as one affecting sentence administration.11 Again, the Judge did not err.[20] No offer of reparation was made to the District Court. On appeal, Ms Freyersubmitted the appellant's offer to pay reparation of $2,500 was mitigating.12 Shesubmitted no money had been available at the original sentencing. I accept thissubmission, but it carries little weight. The appellant minimised the offending to theprobation officer, expressed surprise Police had been called, and said the use ofviolence was "acceptable". She did, however, express regret "things got out ofhand". This is understatement.10 R v Curd (1992) 10 CRNZ 78 and Neilson v Police [2015] NZHC 2502.11 See Corrections Act 2005, ss 81A-81C.12 The appellant also sought leave to tender fresh testimonial evidence. Ms Freyer properly accepted the material was not fresh and a miscarriage of justice would not arise in its absence. I declined to admit it, but the result would not have changed had I done so. The testimonials speak to the appellant being a good employee, and to her remorse. The latter sits awkwardly with the pre-sentence report.[21] The issue of home detention is not reached. And nor should sentences beconstructed with that outcome in mind. But even if the jurisdictional threshold hadbeen crossed, home detention would not be commensurate with the gravity of theoffending. I acknowledge Judge Dawson imposed that sentence upon the appellant'sbrother "by the narrowest of margins". But Mr Fifita faced one fewer injuringcharge. And, critically, he was not the ringleader.[22] In any event, there is now a clear line of authority the parity principle doesnot permit the reduction of an otherwise proper sentence to match a less thanadequate sentence in relation to a co-offender.13 The disparity is not "gross" either.14[23] The appeal is dismissed and bail rescinded. The appellant must presentherself to the Criminal Registry of the Auckland High Court by 10 am on Wednesday14 December 2016...Downs J13 Osman v R [2012] NZCA 32 at [42].14 R v Rameka [1973] 2 NZLR 592 (CA) at 594.