Fonua v Police

[2015] NZHC 2360

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2015-454-18 [2015] NZHC 2360

BETWEEN

AMANAKI FONUA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	24 September 2015
Counsel:	F D Steedman for Appellant N J Wynne for Respondent
Judgment:	29 September 2015

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      Mr Fonua appeals a sentence of two years and three months’ imprisonment imposed in relation to seven convictions for burglary and three for attempted burglary.1

Facts

[2]      Mr Fonua is now 23 years old.   He committed the first of these burglaries four years ago when living in Auckland. The balance of the offending is more recent and occurred in the Palmerston North area – three in August/September 2013, and

the other six in November 2014.

1      NZ Police v Fonua [2015] NZDC 9752.

[3]      The relevant characteristics of the offences are that:

(a)       they were of residential properties, many of them in close proximity to where Mr Fonua lived.  Indeed two were immediate neighbours;

(b)      some houses were targeted more than once;

(c)       there was a mixture of day time and night time offending;

(d)      the total value of goods taken was low (total reparation of less than

$3,000);

(e)       damage  was  limited  to  the  means  of  entry,  generally  by  forcing windows.

[4]      Mr Fonua has no convictions other than for this spate of offending.  He says that he was being pressured by a gang to obtain property for them.   Prior to sentencing Mr Fonua had attended a Limited Service Volunteer’s course at Trentham Military Camp.   He did well and seemingly found it a significantly changing experience.    He  received  a  most  favourable  report  from  the  course  organiser. Mr Fonua also attended a positive restorative justice meeting with the victims from two of the burgled properties.

[5]      The sentencing Judge took a starting point of four years.  Whilst there was a reference to the well known case of Senior v Police the sentencing remarks do not detail the method by which this figure was reached.2    From this starting point the Judge reduced the sentence by a year to reflect Mr Fonua’s remorse, his steps to address his issues, and the restorative justice process.   A 25 per cent guilty plea discount was then applied, leaving a final sentence of two years and three months.

[6]      The issues on appeal are related – whether the starting point of four years was too high, and, if so, whether that was off-set by a reduction of more than 40 per cent.

2      Senior v Police (2000) 18 CRNZ 340 (HC).

Assessment

[7]      I  accept  Mr Steedman’s  characterisation  that  the  situation  is  somewhat unusual.  Mr Fonua was a 23 year old man who had never appeared in court before, yet he was being sentenced on offending encompassing primarily the preceding

18 months but stretching back four years.  There were numerous burglary offences, and the fact that there was offending against two properties on repeat occasions is a particularly aggravating feature.  On the other hand, the total value taken across all the burglaries is as low as one will often see in a single burglary.

[8]      Counsel  agreed  that  in  terms  of  the  categories  in  Senior  v  Police,  the offending fell most comfortably within the concept of a spree.  In Makene v R, the defendant had committed eight burglaries of residential properties in a five week period.3   The value of goods taken exceeded $30,000.  A three year and six months’ imprisonment starting point was assessed as within range.  Swinburne v R involved four burglaries of residential property.4   The value of the goods is not clear but seems to be around $10,000. Again a starting point of three and a half years was approved.5

[9]      It is important not to elevate these decisions to any sort of tariff guidance but they do suggest a four year starting point here was out of the available range.  Even given the greater numbers of burglaries and the repeat targeting, it is difficult to see this case as being any more serious than those.   Accordingly I consider that four years was excessive, and three and a half years more in line with earlier decisions.

[10]     One then turns to matters of mitigation.   Recognition over and above the guilty plea credit was definitely required, but the additional 25 per cent figure taken by the Judge cannot be justified.  It is inconsistent with the range usually given for such matters, and occurs in a case which is not exceptional.   Mr Fonua had been offending across a four year period.  I am of the view that a total reduction after all mitigating factors of one third is the most that could be justified.   That would produce a sentence of two years and four months, which is more than the present

sentence.  It follows the appeal must be dismissed.

3      Makene v R [2013] NZCA 178 at [14].

4      Swinburne v R [2010] NZCA 568.

5 At [15].

Conclusion

[11]     The starting point was too high, but so was the amount of credit given.  The ultimate issue is always the end sentence and it has not been shown a sentence of two years and three months’ imprisonment is manifestly excessive.  The appeal is

accordingly dismissed.

Simon France J

Solicitors:

Broadway Legal, Palmerston North

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North