THE QUEEN v SIONE MAKANESI [2001] NZCA 34 (26 February 2001)

IN THE court of appeal of new zealand

ca367/00

THE QUEEN

V

SIONE MAKANESI

Hearing:	26 February 2001 (at Auckland)
Coram:	Blanchard J Anderson J Paterson J
Appearances:	J Haigh QC for Appellant M R Heron for Crown
Judgment:	26 February 2001

judgment of the court delivered by blanchard j

[1] The appellant was convicted of one charge of wounding with intent to cause grievous bodily harm under s188(1) of the Crimes Act 1961 and one charge of wilful damage under s298(4).An appeal against conviction was abandoned and is dismissed.The appeal is against sentence: an effective term of four years imprisonment, being three years for the s188(1) conviction and a cumulative one year for the s298(4) conviction.
Facts
[2] The appellant is a Tongan living in South Auckland. A level of unrest had existed between different factions of Tongans, which culminated in the relevant incident at the Tivoli bar in Mangere in October 1998. It was the Crown's case, which must have been accepted by the Jury, that the appellant, along with others, had armed themselves with pieces of wood and a metal bar and went to the bar to cause trouble.The appellant was carrying a piece of wood.He hit Mr Lesoa, the bar manager, on the forehead and smashed fittings, furniture and chattels.There were two wounds to the victim that the doctor described as a "two flap laceration over the right forehead". The victim was knocked unconscious.He needed medical attention at an outpatient clinic.In addition, significant property damage occurred from the group's actions, which was quantified by the victim at around $40,000.
The Sentencing
[3] Guided by the decision of this Court in R v Hereora [1986] 2 NZLR 164, the sentencing Judge took a starting point of between three and five years imprisonment for the s188(1) conviction.He considered that the case clearly fell within s5 of the Criminal Justice Act 1985.He referred to the passage in Hereora where the Court said:
...this case is marked by another totally unacceptable aggravating feature the danger and arrogance of gang warfare. (p170)
[4] While the Judge recognised that the present case might not truly be considered gang warfare, he was conscious that the sentence should act as a deterrent to group violence that fell "little short of urban terrorism".
[5] In addition, not only were the injuries to the victim serious, but there had been scope for significantly greater harm, especially considering the appellant's significant physique. The property damage was also significant at around $40,000. The owner of the bar said there were smashed glasses, a damaged bar, damaged tables, smashed windows and smashed bar fridges.
[6] The Judge referred to the appellant's previous convictions but noted that the one for violence, namely assault on a female, in fact occurred after the present event. The other matters were relatively minor.
[7] The appellant's continuing stance of maintaining his innocence, while certainly open to him, limited the Court's ability to consider mitigating factors, such as remorse or other similar matters.
[8] The Court also heard from the appellant's employer under s16 of the Criminal Justice Act 1985. She spoke about the appellant's good work over time and, like others who provided references, considered the appellant to be "a gentle bear of a man". His behaviour on this occasion was out of character. But the Judge, however, observed that the Probation Officer made the comment that the risk of reoffending was high, although the Judge does not appear to have given this any weight.
The Appeal
[9] For the appellant, Mr Haigh QC submitted that a three year sentence for wounding with intent to cause grievous bodily harm was manifestly excessive for this particular appellant who had no previous criminal history other than very minor matters and for whom a lengthy prison sentence would be crushing.
[10] Furthermore, whether or not the Court accepted that view, the addition of one year led to a total sentence which was not appropriate to the criminality and may have involved some double penalty because the property damage was taken into account as an aggravating circumstance in relation to the grievous bodily harm sentence. It was not an appropriate case for cumulative sentencing as the offences arose out of the same incident and involved similar criminality in the chaos of the brawl.Counsel also said that the Court had failed to take account its obligation under s7(2) of the Criminal Justice Act to impose a sentence as short as was consonant with promoting the safety of the community.
[11] Mr Haigh argued that the Judge was wrong to equate the present conduct, which took place in a pub brawl, with the systematic gang warfare in Hereroa which involved a retaliatory gang raid with firearms and knives.
[12] It was also argued that the Judge took inadequate account of the appellant's personal circumstances including his good employment history and prospects, his abstention from alcohol and drugs and his stable domestic relationship.
Submissions for Crown
[13] On behalf of the Crown it was said that the Judge arrived at the overall sentence of four years imprisonment applying the totality principle so that there was no double counting.It was serious violence involving the victim being struck twice in the head - an inherently dangerous act - during a deliberate attack by a group of men intent on causing damage and injury.It was a premeditated group attack, not merely a spontaneous brawl in a bar.The weapon used was clearly capable of causing serious harm.The attack was unprovoked.The victim was unarmed.The attack occurred in the presence of the victim's wife and daughter.He suffered relatively serious injury.The damage to property was extensive.
[14] Crown counsel submitted that the sentencing Judge did not appear to have placed any real weight on the appellant's convictions but that, in any event, it would in the circumstances be unrealistic to disregard the fact that subsequently Mr Makanesi had committed further offending.He should not have been treated as if he enjoyed an impeccable and untarnished character or on the basis that the offence was an aberration and unlikely to happen again (R v Barrett [1999] 1 NZLR 146, 150).
[15] Crown counsel also submitted that it was clear from the sentencing notes that the Judge had taken into account the appellant's personal circumstances. A clear difficulty for the appellant was that he continued to maintain his innocence.His prospects of rehabilitation had to be assessed in light of that denial of responsibility and of subsequent events.
Decision
[16] There is something to be said for Mr Haigh's contention that the wilful damage sentence should have been imposed concurrently rather than cumulatively, as it arose out of the same incident which involved an attack on both the person of the complainant and his property.However, it is clear that the sentencing Judge believed that a sentence of four years imprisonment was, in his words, "an overall reflection of the incident".The particular method of imposing the sentences with one cumulative upon another was just his way of arriving at the total figure.Therefore the real question is whether four years can be said to be manifestly excessive for the totality of this violent offending where there was no guilty plea.
[17] We consider that it was not.Although the injury to the complainant did not prove to be serious - it did not require hospitalisation - it was still a dangerous act to hit the complainant over the head with a piece of wood.The particularly aggravating feature was that this occurred during the course of a planned attack on the premises managed by the complainant, which seems to have been some form of retaliatory raid arising out of enmity between two Tongan factions.The appellant and his co-offenders decided to target the complainant's bar because it was frequented by the other Tongan faction.This was not a spontaneous pub brawl.The level of violence was lower than in Hereora but the victims in that case were members of the gangs which were fighting one another and some were themselves intent on violence.Here the complainant, who is Samoan, had not been involved in any conduct which had led to the attack.He was set upon by the appellant while he was attending to the running of his business.Members of the public were present, as were members of his family.Violence of this kind, particularly when it is accompanied by very significant deliberate damage to property, with the apparent motive of discouraging him from having the other faction as his customers or warning them off must be strongly denounced and must give rise to a substantial sentence.
[18] Against this, there was, as the Judge said, little by way of mitigating circumstances.Mr Haigh has mentioned the fact that the appellant was virtually a first offender with some favourable personal circumstances.These matters might have been given significant weight but for two factors.First, he appears even now to show no acceptance of his wrongdoing and, secondly, his supposed good character has been put in doubt by subsequent events.We agree with Mr Heron it would be unrealistic to pay no heed to the fact that prior to the sentencing there had been subsequent offending involving violence, although of a different character.
[19] In the circumstances, although the sentence may be thought stern, we think that that it was justified by the circumstances of the offending and was not manifestly excessive.
[20] The appeal against sentence is accordingly dismissed.
Solicitors
Crown Law Office, Auckland