FAKAVA v NEW ZEALAND POLICE [2016] NZHC 753

FAKAVA v NEW ZEALAND POLICE [2016] NZHC 753 [21 April 2016]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCRI-2016-454-000013[2016] NZHC 753BETWEEN SEMISI FAKAVAAppellantAND NEW ZEALAND POLICERespondentHearing: 21 April 2016 (via AVL at Wellington)Counsel: J A Younger for AppellantN J Wynne for RespondentJudgment: 21 April 2016JUDGMENT OF COLLINS JSummary of judgment[1] I am allowing Mr Fakava's appeal from a sentence of four months'imprisonment imposed by Judge Ross in the Palmerston North District Court on 14 April 2016 in relation to one charge of assault.[2] I am allowing the appeal because the sentence imposed was manifestlyexcessive. The sentence of four months' imprisonment is quashed and substituted with a sentence of one month's imprisonment. All other orders made by Judge Rossremain in force.Background[3] On 7 March 2016, Mr Fakava pleaded guilty to one charge of assault, laid under s 196 of the Crimes Act 1961 (the Crimes Act).1 This was a substituted charge. Previously, Mr Fakava had been charged with male assaults female, laid1 Maximum sentence is one year imprisonment.under s 194(b) of the Crimes Act. That charge carried a maximum sentence of twoyears' imprisonment.[4] The summary of facts to which Mr Fakava pleaded guilty states that on the morning of 21 November 2015, Mr Fakava was at an address then occupied by himself, the victim (who was at the time Mr Fakava's partner) and their 10 monthold baby. The victim found a broken glass pipe, which she believed belonged to Mr Fakava. The victim accused Mr Fakava of using drugs and an argument ensued. The victim was holding their baby and a cell phone. She was threatening to call the police. Mr Fakava told the victim to sit down and grabbed the victim by her hair with sufficient force to dislodge some of her hair from her scalp. The pair continuedto "tussle" in their bedroom, where Mr Fakava took the victim's cell phone. Thevictim, carrying the baby, went to the kitchen and got a house key and attempted to unlock the front door. Mr Fakava went over to her and grabbed the key from her hand. The victim went to a kitchen window and called for help. Mr Fakava went into the kitchen and shut the window. A neighbour heard the commotion and called the police.[5] Ms Younger, who represented Mr Fakava in the District Court and on appeal, advised that there were initially discussions with the police about Mr Fakava being diverted. The police however determined Mr Fakava was not eligible for diversion.[6] In the meantime, Mr Fakava commenced a family violence counselling course.[7] Unfortunately, Mr Fakava struggled to adhere to the terms of bail which had been imposed. He breached the terms of his bail on 8 and 25 January 2016, 15 February 2016 and 2 March 2016 when he made contact with the victim. Ultimately, a protection order was made in favour of the victim pursuant to s 123B of the Sentencing Act 2002. Mr Fakava breached other conditions of his bail on 21 March 2016 and 9 April 2016 when he attended rugby training and failed to notify police of changes to his work hours. On the last occasion he breached the terms of his bail, Mr Fakava was remanded in custody until he was sentenced on 14 April 2016.[8] Mr Fakava has just three previous convictions. Those convictions all relatedto a driving incident on 23 March 2011. He was sentenced to one month'simprisonment for that offending.[9] In the District Court, Ms Younger submitted that the appropriate course wasto sentence Mr Fakava to six months' supervision. Judge Ross did not agree and sentenced Mr Fakava to four months' imprisonment.[10] Judge Ross also imposed a special release condition, which required Mr Fakava to undergo and complete a Family Violence or Men Against Violence Programme as directed by a probation officer. That programme was to be for aperiod of six months from the expiration of Mr Fakava's sentence.District Court decision[11] Judge Ross adopted a starting point of six months' imprisonment. Hecredited Mr Fakava with a 25 per cent discount to reflect his guilty plea and approximately a two week discount to reflect the counselling course which had been completed up to the time of sentencing.[12] Judge Ross analysed Mr Fakava's offending by treating it as comprising fourelements:(1) The grabbing of the victim's hair with sufficient force "so that some of her hair came out".2(2) "Tussling" with the victim to get hold of her cell phone.3(3) Grabbing the cell phone from the victim.4(4) Grabbing the key from the victim's hand with some force.52 New Zealand Police v Fakava [2016] NZDC 6630 at [2].3 At [3].4 At [4].5 At [4].[13] Judge Ross examined the consequences of Mr Fakava's offending. Heexplained how Mr Fakava was required to attend a family violence counselling Programme but that Mr Fakava did not attend all counselling sessions because he failed to comply with the terms of his bail. Judge Ross identified five bail breaches. Most of those breaches related to Mr Fakava making contact with the victim.[14] Judge Ross explained that in his assessment Mr Fakava had entirely misunderstood the reason why he was to engage in family violence counselling and that he had failed to take advantage of the opportunity which had been afforded tohim to achieve a quicker and a "smoother resolution" to the charge.6[15] Judge Ross said Mr Fakava's offending was prolonged and serious. He said Mr Fakava's offending required a sentence that denounced the offending, particularlyas Mr Fakava was a physically strong and energetic man.7Grounds of appeal[16] In this Court Ms Younger submitted that the sentence imposed on Mr Fakava was manifestly excessive.[17] Ms Younger's submission was based on the following four points.[18] First, Ms Younger submitted that when viewed objectively, Mr Fakava'sactions were at the lower end of the spectrum of assaults. Ms Younger's submissionswere based on the fact that the summary of facts discloses Mr Fakava:(1) pulled the victim's hair with some force;(2) tussled with the victim when trying to take her cell phone; and(3) grabbed a key from the victim.[19] Second, Mr Fakava has no relevant previous convictions.6 New Zealand Police v Fakava, above n 2, at [9].7 At [11].[20] Third, Mr Fakava pleaded guilty to an amended charge as soon as the original charge of male assaults female was amended to the charge of assault laid under s 196 of the Crimes Act.[21] Fourth, Mr Fakava is remorseful.[22] Ms Younger further submitted that Judge Ross should not have sentenced the appellant on the spot to a term of imprisonment without a full pre-sentence report.Crown case[23] Ms Wynne, counsel for the Crown, submitted the sentence imposed by Judge Ross was within the range available and was not manifestly excessive. Ms Wynne submitted the circumstances of the offending were serious and highly aggravated by the fact the victim was holding her 10 month old baby at the time.The assault occurred in the victim's home where the victim was entitled to feel safe.Ms Wynne emphasised it was obviously a distressing and frightening experience for the victim because she opened a window and yelled for help.Legal principles[24] Mr Fakava's appeal is governed by s 250 of the Criminal Procedure Act 2011.That section provides:250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.[25] In Tutakangahau v R,8 the Court of Appeal confirmed the test for allowing an appeal against sentence under s 250 of the Criminal Procedure Act 2011 incorporates the concept of whether the sentence was "manifestly excessive".Analysis[26] Judge Ross did not need to obtain a pre-sentence report because Mr Fakava waived the need for such a report so as to enable Judge Ross sentence him on 14 April 2016.9[27] I have carefully examined the summary of facts to which Mr Fakava pleaded guilty. In my assessment, the assault occurred when Mr Fakavau pulled the victim's hair with sufficient force that some of the victim's hair came out. The assault also included the incident when Mr Fakava "tussled" with the victim in their bedroom.[28] The summary of facts does not say Mr Fakava touched the victim when he took her cell phone and key. The relevant parts of the summary of facts states:The defendant grabbed the mobile phone from the victim and went to the lounge.The defendant went over to her and grabbed the key from her hand.[29] These portions of the summary of facts do not say Mr Fakava assaulted the victim when he took her cell phone and key. Accordingly, Judge Ross erred when heanalysed the assault as being "prolonged".[30] I also conclude Judge Ross placed too much emphasis on Mr Fakava'sbreaches of the terms of bail when sentencing him. The breaches of bail included anincident when Mr Fakava took a present to the victim's home for his daughter.Mr Fakava should not have breached the terms of his bail. However, the incidents appear to be at the minor end of the scale of breaches of bail.8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].9 New Zealand Police v Fakava, above n 2, at [7].[31] Mr Fakava's assault of the victim when he pulled her hair was serious andundoubtedly caused the victim and their child considerable distress.[32] It was, however, incumbent upon Judge Ross to impose a proportionatesentence, which recognised that Mr Fakava's offending was at the lower end of thespectrum of assaults.[33] Normally, offending of the kind in this case would be dealt with by way of a non-custodial sentence. A sentence of supervision would, in the circumstances of this case, have satisfied the purposes and principles set out in the Sentencing Act 2002. In particular, a sentence of supervision would have:(1) held Mr Fakava accountable for his offending;10(2) promoted in Mr Fakava a sense of responsibility and acknowledgement of the harm caused by his offending;11(3) provided for the interests of the victim;12(4) denounced Mr Fakava's offending;13 and(5) been the least restrictive appropriate outcome in the circumstances of this case.14[34] I have given careful consideration to the appropriate course of action to take. In my assessment, the interests of justice are best served by quashing the sentence offour months' imprisonment and substituting that sentence with one of one month'simprisonment. I believe that outcome is the appropriate course, rather than substituting a prison sentence with a sentence of supervision at this juncture.10 Sentencing Act 2002, s 7(1)(a).11 Section 7(1)(b).12 Section 7(1)(c).13 Section 7(1)(e).14 Section 8(g).Conclusion[35] The sentence of four months' imprisonment imposed in the Palmerston North District Court on 14 April 2016 is quashed.[36] A sentence of one month's imprisonment is imposed.[37] The post-release condition imposed by Judge Ross remains in force.____________________D B Collins JSolicitors:Jacinda Younger, Palmerston North for AppellantCrown Solicitor, Palmerston North for Respondent