THE QUEEN v SIAKI (JACK) UFAGALILO [2001] NZCA 364 (5 December 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca299/01

THE QUEEN

V

SIAKI (JACK) UFAGALILO

Hearing:	5 December 2001
Coram:	McGrath J Doogue J Gendall J
Appearances:	D La Hood for Appellant F E Guy for Crown
Judgment:	5 December 2001

judgment of the court delivered by mcgrath j

Introduction

[1] The appellant was convicted after pleading guilty part way through his trial to a charge of disfiguring with intent to cause grievous bodily harm pursuant to s188(1) of the Crimes Act 1961. He was sentenced to three years three months imprisonment.He now appeals against that sentence on the ground that it was manifestly excessive.

Background facts

[2] The circumstances giving rise to the charge were that on 5 August 2000 the appellant was drinking at a local tavern in Kilbirnie, Wellington, with a group of friends.Over the course of the evening he consumed large quantities of alcohol so that at about 9.30pm he was refused service due to his level of intoxication.The appellant became upset about not being served and abused the bar staff, causing them to ask him to leave the premises.He refused to do so. At that point the victim, who was an off-duty bar assistant at the tavern, and who knew the appellant, approached him and made a further request that he leave.The appellant began to argue with the victim and then picked up an empty half-pint glass from a table, smashed it against the side of the table and struck the victim in the face with the jagged remains.

[3] The police were called but the appellant had left the bar before they arrived.When eventually traced by the police the appellant was charged with disfiguring with intent to cause grievous bodily harm.Initially he pleaded not guilty to the charge and went to trial.Part way through the trial, after the victim had given evidence, the appellant changed his plea to one of guilty.

[4] The victim suffered severe lacerations to his cheek and eye.The wound caused to his lower cheek divided the cheek muscle almost to the level of the lining of the mouth and nicked his jawbone.The wound caused to the victim's left eye penetrated the muscle and went down to the level of the cheekbone. The injuries were so serious they required the victim to be transferred to a plastic surgery ward. He required approximately forty stitches.Glass was also removed from one of the victim's eyes.

Sentencing

[5] On sentencing the Judge referred to the personal circumstances of the appellant noting that he was a first offender at the age of 47 and that he was otherwise well respected in the community.She also took into account in mitigation the fact that the appellant was a solo father with four children, three of whom were still living with him at the time of the offending and still dependent on him.The Judge accepted that the appellant was remorseful but his expression of remorse and apology to the complainant in both the pre-sentence report and through counsel, were belated.Only minimal credit could be given for his late change in plea. The Judge also recorded that the appellant had asked for a restorative justice meeting but that the victim did not wish to meet with him.

[6] The Judge noted that s5 of the Criminal Justice Act applied and that, in her opinion, there were no special circumstances by reference which he could avoid imposing a term of imprisonment.She took a starting point of four years imprisonment having considered the applicable categories of offending set out by this Court in R v Hereora [1986] 2 NZLR 164.In fixing that starting point the Judge took into account that there was one single blow and that it involved an impulsive act of violence using a broken glass as a weapon.She concluded that there was no provocation at all, that the injuries were serious and that they would leave the victim with permanent facial scarring.She indicated that the sentence had to reflect society's rejection of the use of gratuitous violence and to that end invoked the sentencing principle of general deterrence.

[7] In light of the mitigating factors as set out above the Judge made an allowance of nine months and sentenced the appellant to three years three months imprisonment.

Submissions

[8] In this Court Mr La Hood argued that the starting point should have been lower than four years and a greater discount than 9 months allowed.He emphasised the spontaneous and impulsive nature of the single blow involved in the violence.He suggested also there was "some evidence of provocation" by reference to use of the racist term "coconut".He also argued there was no permanent disability as opposed to facial scarring.He referred the Court to a number of recent sentencing decisions in cases of wounding or disfiguring with intent to cause grievous bodily harm.

Decision

[9] The leading case on sentencing for this type of offending is R v Hereora [1986] 2 NZLR 164.In that case this Court indicated that a sentence within the bracket of three and five years was appropriate for cases involving wounding with intent to cause grievous bodily harm by impulsive acts of violence involving use of a weapon. Five to eight years was considered appropriate for those cases which involved a combination of aggravating features.We regard this case as falling into the former category.

[10] In R v Clotworthy (1998) 15 CRNZ 651, 655 this Court expressed this caution in applying the Hereora approach saying:

Within which category an individual case falls, and where within the band applicable to that category, are matters of judgment depending on all of the relevant circumstances of the case. While categories and bands are useful guides in the sentencing process, the question of what sentence is appropriate to the individual case is ultimately a matter of judgment on the basis of all relevant factors. Care must be taken not to let the categorisation result in too rigid or mathematical an approach.

[11] We do not accept the appellant's submission that the victim has suffered no permanent disability as a result of the attack on him. The victim has been left with facial numbness which affects his speech. He also has two permanent scars on his face, one measured at nine centimetres and the other at two centimetres.It is plain from the victim impact report that he continues to feel pain, inconvenience and social embarrassment as a result of his injuries.

[12] Even though the appellant submits that there is some evidence of provocation the Judge, who heard the complainant give evidence, found that there was no provocation at all. Significantly it was not suggested otherwise to the complainant during cross-examination.The appellant accepts that his own recollection of events is almost non existent and we cannot put weight on his belief concerning provocation as conveyed by his counsel today.He was of course highly intoxicated at the time of the offending. Accordingly we see no reason to depart from the Judge's finding on absence of provocation.

[13] We acknowledge the appellant's remorse and accept that his offending was completely out of character.As the Judge observed this is a very sad case for both the parties involved. The appellant is a solo father who at the time of offending was receiving the Domestic Purposes Benefit who as a result of his conviction and sentence leaves behind three dependant children aged 19, 18 and 16 years and the impact on them of the imposition of a custodial sentence on the appellant is also severe.However this was particularly violent offending aggravated by first smashing the glass and then using it as a lethal weapon by jabbing the jagged remains into the victim's face.It had the very serious consequences for the victim we have already described.

[14] We have considered the cases cited to us by Mr La Hood.Two are of particular relevance.In R v Donnison CA259/87, 11 December 1987, the appellant was convicted of the lesser offence of wounding with intent to injure (s188(2) of the Crimes Act).The blows, which included striking the victim with a glass jar, caused deep cuts but no permanent injury.On that account a reduced effective sentence of 3 years imprisonment was imposed.The present case involves significantly more serious injuries.In R v Henderson CA250/86, 15 December 1986, there were continuing blows with a glass after it broke at the outset of the assault.The injuries however were not as grave as those in the present case.Indeed the victim was not greatly hurt.A sentence of three years imprisonment was upheld.

[15] We regard the attack by the appellant in the present case as more serious than in either of those mentioned in view of the smashing of the glass in order to use it as a weapon.As well the injuries in the present case were more severe.The circumstance of intoxication does not of course excuse what the appellant did.To set a starting point in this case of four years, at the middle of the range in Hereora, cannot in our view be criticised.The 9 months discount, given the lateness of the guilty plea, fully reflected the appellant's good record as a parent and his contributions to the community.In short the sentence was appropriate for the serious offending involved.The appeal must accordingly be dismissed.

Solicitors

Sladden Cochrane, Wellington, for Appellant

Crown Solicitors, Wellington