THE QUEEN v VAFAATAMALII SIONE [2001] NZCA 271 (7 November 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca265/01

THE QUEEN

V

VAFAATAMALII SIONE

Hearing:	1 November 2001
Coram:	Blanchard J Ellis J Potter J
Appearances:	V C Nisbet for Appellant G J Burston for Crown
Judgment:	7 November 2001

judgment of the court DELIVERED BY ELLIS J

[1] The appellant was convicted by a jury on two counts of injuring with intent to injure.He was sentenced to two years imprisonment.He appealed against his conviction and sentence, but before us only the appeal against sentence was pursued.

[2] The evidence before the jury was that the appellant and the two complainants Mikha Paese and Terry Tuiloma were present at the Zoo Bar in Newtown Wellington on the evening of Saturday 25 March 2000.They were drinking, playing billiards and watching rugby on television.The complainants went downstairs and were at the bar when the appellant came up to Mr Paese and without warning punched him in the eye.The punching continued and others joined in.Mr Paese was also kicked and hit with a bottle on the head.When Mr Tuiloma saw this, he tried to intervene to extract Mr Paese, but he himself was hit too.The two men managed to escape, but suffered significant injuries. The trial Judge summed up what took place and the injuries sustained when he sentenced the appellant.He said:

[2] The initial assault was a most serious one on Mr Paese.I heard the evidence and I am satisfied that it was a deliberate attack, that it was pre-meditated in the sense that in the few moments before you struck him you decided to strike him and I accept the evidence that you, in effect, made sure by what you said to him that he was a sitting target for the blow that you struck him.You struck him that first blow very hard.From that time on he was crouched over, trying to protect himself and you continued to hit him by punching while that happened.I accept also the evidence of Sa'o Mariner that you kicked him while he was on the ground.

[3] There was evidence from one witness that you struck him also with a bottle of beer.He says that he was struck by a glass object.I am satisfied that he was struck by a bottle or a glass during the time he was being assaulted but I am not fully convinced that you were the one who hit him in that way, that is with a glass or a bottle and I intend to deal with you on the basis that I am satisfied, after hearing the facts, that you were responsible for punching him hard that first time.In my view, that caused his major injury, continued punching of him and kicking him.I am satisfied that you were very much the primary offender in what became an attack by more than one person on Mr Paese.

[4] As far as the second count is concerned, you hit Terry Tuiloma very hard in the left eye as well.I understand you have read the victim impact statements and perhaps you now have some understanding of how hard you hit him and what serious and continuing effects were caused by your blow to him.That happened when he tried to intervene.In my view, you were not acting to protect yourself from a threat from him to you, but rather you were acting in order to keep him out of it so you could continue the assault on Paese.He was trying to intervene to stop that.

[5] As I say, the injuries suffered were quite serious ones.It bears repeating some parts of the victim impact statement.Mr Tuiloma from the moment he was hit, his vision was cloudy and he was dizzy.He could not see out of his eye.He went to Wellington Hospital.His eye was so swollen and bruised it was closed shut.He spent six hours in A & E then.He continued to have headaches, had double vision, he had a broken nose.He then had to go to Hutt Hospital and have an operation to fix his eye which required some bone to be taken out of his hip and put into his broken eye socket.He also had a sore hip.He was in hospital for two days and had to have a general anaesthetic obviously for that operation and he was not able to go back to work until mid-May.The effect on him has not only been those physical effects which continue by way of headaches, but also the effects on family and social life brought about by the consequences and the feelings aroused by this assault.He suffered emotional effects as well as the physical ones as a result of both the injuries and the consequences on his family relationships and consequences on his general social relationships.

[6] Mr Paese also was hit very hard in the eye.He had to go to hospital.He also had serious cuts which were no doubt caused by the glass, either bottle or glass which was used on him but which I do not attribute to you.He had to get stitches to his lip and his head.One of his front teeth was broken and had to be taken out and he had to have work on other teeth.His dental treatment cost $700 alone.He also has had continuing social effects as a result of this.I have read the letter from your sister and it may be that the reason why you attacked Paese was some build up of resentment against him because of what you considered may have been his past conduct.None of itis any excuse for that deliberate and serious attack on him, let alone the attack on Mr Tuiloma who, if anything, has suffered possibly worse injuries.

[3] The victim impact statements describe the injuries, their ongoing effects and the adverse financial impact on each of the victims.The Judge's assessment is not criticised and was plainly available on the evidence.

[4] The Probation Report records that the stance taken by the appellant at trial that he was not the instigator and was somehow justified in his actions, had not altered since verdict.The report shows that the appellant, now aged 40, has three previous convictions for assault in Australia and New Zealand, the most recent being in 1997.It was a manual assault and was visited by a sentence of 120 hours community service.He has other convictions including three for driving with excess breath alcohol levels.However, he told the Probation Officer he did not have an alcohol problem.The Probation Officer concluded that he had a propensity for violence and a problem with alcohol that required appropriate interventions.

[5] On the positive side, he presented as a mature person with a good work record, stable employment, his own home and a valuable contributor to his rugby club.The appellant's sister wrote a letter to the Judge explaining a social background to the incident.She had previously lived with the victim Mr Paese and was expecting his child.They were no longer living together and the tensions this created led to the attack.As the Judge observed, this letter gave reasons but no excuse for the offending.The appellant was willing to participate in a meeting with the victims, but they have declined.The Judge was urged to impose a sentence short of imprisonment and in particular counsel suggested a substantial fine with an order for payment of part to the victims.

[6] The sentencing Judge inevitably found that this was a case involving serious violence and in accordance with s5 of the Criminal Justice Act 1985, a prison sentence must be imposed unless there are special circumstances.He found there were no such special circumstances and imposed concurrent sentences of two years imprisonment.He rejected a plea for a suspended sentence and refused leave to apply for home detention.Mr Nisbet accepted that the sentence imposed was within the range open to the sentencing Judge, and we agree.It could even be said to be lenient in view of the unprovoked nature of the attacks and their serious consequences.However, he asked us to reconsider the existence of special circumstances and either impose a non-custodial sentence or a suspended one.He suggested periodic detention, supervision subject to special conditions, and a fine including reparation payment.

[7] The factors that weigh with us, as they did with the Judge, are first the appellant did not admit the offending and still does not.Second he does not accept he has a problem with violence and alcohol.The third is the significance of the reason for the assaults.While we accept there were social pressures, these are not uncommon in society and should not be elevated to special circumstances as envisaged by the Criminal Justice Act.While Mr Nisbet emphasised the value of recompense to the victims which could be achieved by imposition of a fine, the nature of the offending and the responses of the appellant make it inappropriate to proceed other than by way of a finite sentence of imprisonment.

[8] For these reasons, the appeal against conviction and sentence is dismissed.

Solicitors:

V C Nisbet, Wellington for Appellant

Crown Solicitor, Wellington