The Queen v Finau [2003] NZCA 129; (2003) 20 CRNZ 333 (30 June 2003)

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA422/02THE QUEEN

v

ENEASI FINAU

Hearing: 18 June 2003

Coram: Blanchard J Tipping J Anderson J

Appearances: W C Pyke for Appellant
F E Guy for Crown

Judgment: 30 June 2003

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] Eneasi Finau appeals against his conviction for attempted murder and the total sentence of 12 years imprisonment imposed upon him on that charge, and on a linked charge of aggravated robbery, to which he pleaded guilty. The grounds of his appeal against conviction are the lack of an intoxication direction and further evidence said to have a bearing on whether he formed the necessary intent to kill. We will examine these grounds in turn after a brief sketch of the factual background.
[2] On 27 October 2001 Mr Finau, then aged 21 years, attacked a Hamilton taxi driver whose services he had engaged, and stole his wallet. The events took place in the early hours of the morning. Mr Finau used a broken bottle as a weapon and caused severe injuries to the victim’s face and neck. According to the taxi driver, whose evidence the jury must have accepted, Mr Finau said more than once during the attack that he was going to kill him. Mr Finau pleaded guilty to wounding the victim with intent to cause grievous bodily harm. The Crown was not prepared to accept that plea and proceeded with the count of attempted murder which Mr Finau denied on the basis that he did not intend to kill.
[3] Intoxication did not form any part of the defence case. No criticism can be levelled at trial counsel on that account. Although there was evidence to the effect that Mr Finau had been drinking prior to the offending, and had consumed one “P” tablet, he himself said, in relation to the latter, that it had not affected him “that much”. It was also clearly implicit from Mr Finau’s evidence that he was claiming not to have been intoxicated by alcohol to any significant extent. His evidence was, in effect, that although he intended to cause grievous bodily harm, he did not intend to kill. He was therefore asserting that he had sufficient control and perception to be able to make that distinction. It was therefore in his interests to take the stance that his alcohol and drug consumption had not detrimentally affected his ability to think and act with clarity, and with some degree of precision.
[4] Against that background any direction by the Judge on intoxication would hardly have been consistent with Mr Finau’s case. Indeed it would have cut across it, even if presented on an alternative basis, naturally not advanced by counsel. Mr Pyke did his best in these unpromising circumstances to persuade us that an intoxication direction should nevertheless have been given. In the light of the defence case, and Mr Finau’s own evidence, we do not consider there was a sufficient foundation to make it obligatory for the trial Judge to direct on intoxication. That is only necessary, and then subject to the nature of the defence case if, on the evidence as a whole, there is a reasonable possibility that the intent or state of mind necessary to constitute the crime may have been lacking through intoxication: see for example R v Craig CA142/02, 11 December 2002 at paragraph [44]. In our view the evidence did not reach the necessary threshold. This ground of appeal therefore fails.
[5] The second ground relied upon the evidence of Dr Shaw, a neuropsychologist. It appears that when Mr Finau was 15 years old, he received a blow or blows to the head with a baseball bat. He did not mention this to his trial counsel and so nothing was made of the matter at the trial. However, in support of his appeal he tenders Dr Shaw’s evidence to propound the view that he may have received a brain injury as a result of being struck with the baseball bat. Dr Shaw’s evidence, which we have fully considered but which we do not propose to traverse in detail, is to the effect that Mr Finau suffers from cognitive impairment. She adds:

It is likely that the cause of his cognitive impairment is a combination of brain trauma and the effects of sustained alcohol and drug use. If determination of the cause of his impairment were the issue then further testing might be useful.

[6] Elsewhere in her evidence Dr Shaw says that Mr Finau functions within the “borderline impairment“ range of overall intellectual abilities. Approximately 4% of the population can be expected to perform at or below this level. It is thus apparent that Mr Finau had limited mental ability. Nature, substance abuse, and possibly the baseball bat injuries, have contributed to this misfortune, which unhappily is shared to a greater or lesser extent by a number of people who are convicted of crimes of violence.
[7] We are of the view that the evidence of Dr Shaw, if admissible at all, is insufficiently cogent to render the verdict unsafe. It is highly unlikely that her evidence would have affected the jury’s conclusion. Mr Finau’s objectively proved conduct, coupled with his contemporaneous statements that he was going to kill the taxi driver, raised a strong inference that, at the crucial time, he did indeed mean to kill. Dr Shaw’s rather inconclusive evidence concerning brain injury and its potential effects is most unlikely to have influenced the conclusion which the jury drew from the evidence presented to them. We do not consider this to be a case where justice requires the appellant to receive a new trial to enable cogent fresh evidence to be considered. As this ground of appeal must also fail, the appeal against conviction is dismissed.
[8] The principal basis for the appeal against sentence was Mr Finau’s low level of mental ability. Mr Pyke argued that this factor had not been sufficiently recognised in the 12 year sentence. The Judge cannot be criticised for that, if it be so, because the necessary material to support the argument addressed to us was not before him.
[9] The seriousness of the offending is self evident. This was a near fatal attack on a taxi driver in the middle of the night. The motive was robbery and Mr Finau succeeded in stealing the victim’s wallet. Taxi drivers are very vulnerable to this sort of attack. They deserve as much protection as the Courts can reasonably give them. That protection can be achieved only by the imposition of deterrent sentences. Not only was the crime committed by Mr Finau very serious, the effects on the taxi driver have been serious too. The injuries to his neck exposed the jugular vein and came within 5mm of being fatal. He is scarred for life, both physically and emotionally. The laceration scar on his neck is 300mm in length. The victim’s facial nerves are damaged and he has the most embarrassing problem of spilling drink and food and being unaware that this is happening. He was off work for 10 weeks and suffered substantial loss of earnings as a result of the gap between his normal earnings and ACC payments. He estimates he has lost $6500.00 on this account. As a result of the attack the victim has found it necessary to change his job and now works during the day rather than at night. The attack has also had significant effects on the victim’s partner.
[10] Against the harm he has caused and the seriousness of his offending, we turn now to look at Mr Finau’s circumstances. At 21 he has previous convictions but none of them approach the present ones in seriousness. As well as Dr Shaw’s evidence concerning his mental problems we have the pre-sentence report and a psychiatric report, both of which were before the Judge. The probation officer identified as key factors in the offending a propensity to violence, alcohol and drug abuse and criminal associations. Mr Finau himself did not agree he had a propensity for violence and it must be noted that he has no previous convictions involving violence other than for fighting in a public place.
[11] Mr Finau came to New Zealand from Tonga when he was 11. He left school without any formal qualifications and has remained largely unemployed with some seasonal jobs of a manual kind. He could not tell the probation officer how much he had drunk before committing the crime, but in stark contrast to his evidence at the trial, he said that the amount was “exorbitant” and that some hours before the offending he had felt “exceedingly intoxicated”. The probation officer’s overall conclusion was that the violence used on this occasion was fuelled by Mr Finau’s drug and alcohol addiction. He proffered some hope that Mr Finau might be ready to address this problem, while noting that he did not benefit from addiction counselling arranged for him by his father when he was 17.
[12] The psychiatrist concluded that Mr Finau had no symptoms of psychiatric illness. He was not mentally disordered and there were no psychiatric issues regarding the offending. He too noted that the risk Mr Finau posed in the future depended very much on whether he could conquer his addiction. The psychiatric report contained an assessment made by Mr Finau himself that he was an average student at school. The psychiatrist did not speak of the level of Mr Finau’s mental functioning, other than to observe that he showed no abnormal movements or behaviour, his speech was normal as were his “thought processes” and his mood.
[13] The broad effect of Dr Shaw’s evidence is of course that Mr Finau functions in the bottom 4% of what might be regarded as the normal range and, as noted earlier, he is on the borderline of being mentally impaired. On that basis we do not consider Mr Finau’s mental state reduces the culpability of his offending to any substantial extent. There is no suggestion he was incapable of forming an intention to kill and the evidence before the jury leaves little room for doubt that this is exactly what he did. Dr Shaw deposed that it was most likely Mr Finau would "act on impulse without a great deal of forward planning or thought to the consequences of his actions”. That unfortunately can be said of many, if not most, people who commit crimes of serious violence.
[14] Dr Shaw further said that his “behaviour will be guided largely by primitive impulses, instincts and emotions rather than by conscious deliberation”. The Judge accepted that Mr Finau had not originally planned to kill the taxi driver. His original plan was to rob; but when the victim put up some resistance Mr Finau then decided to try and kill him. This sequence of events cannot be regarded as particularly unusual in crimes of this kind. What inhibitions Mr Finau originally had were obviously insufficient to prevent him from trying to kill the taxi driver when he did not initially succeed in his plan to rob.
[15] It is true that the Judge did not have Dr Shaw’s evidence before him when he decided what level of sentence to impose. We will therefore examine this aspect independently. The need for that approach is reinforced by our difficulty with the Judge’s reference to starting points in the following passage in his remarks:

The starting point for sentencing you on a charge of this nature is I take to be 10 years for the Attempted Murder charge. On the Aggravated Robbery charge the starting point would be in the range of 4-5 years.

[16] There is also difficulty with a reference by the Judge to alcohol and illicit substances being an aggravating factor. Certainly these matters were not mitigating but it is not conventional to regard them as justifying an uplift from a properly determined starting point; albeit with respect, we are not sure on what basis the Judge reached his starting point for either of the two offences.
[17] For these reasons we approach the sentencing issues in this case afresh. We can start by saying that we agree with and adopt the Judge’s encapsulation of the sentencing principles which apply. He said:

Mr Finau, I am required by the Sentencing Act 2002 to have regard to the purposes and principles of sentencing which are set out in that Act. There are a number of principles and purposes which I think carry particular weight in your case. They are these:

[a] First, I need to hold you accountable for the harm that you have done to [the victim] and to the community generally for what you have done.

[b] Secondly, I need to promote a sense of responsibility and acknowledgement for that harm.

[c] Third, I need to provide for the interests of the victim.

[d] Fourth, I need to denounce your conduct in the strongest possible terms.

[e] Fifth, I need to be aware of deterring others from committing such offences.

[f] Sixth, I must endeavour to protect the community from you until you are a fit and proper person to be released back into it.

[18] The Judge went on to observe:

I must take into account the gravity of the offending, the seriousness of this particular offence by reference to the maximum penalty imposed by law and I must impose a penalty near to the maximum if the offending is near to the most serious. I must take into account the interests of the victim and impose the least restrictive outcome which, in all the circumstances, is appropriate.

I regard this case as one which is, in fact, close to the worst of its type. Here is a case in which you have deliberately set out to rob a taxi driver. You have then broken a bottle to gain a jagged edge to an implement to challenge the taxi driver. You have then used that and exposed the internal jugular vein in doing so. I cannot conceive of a case where death may have been closer as a result of an attempted murder of this type. You are entirely fortuitous that you are not today facing sentence on a charge of murder. That was pure luck, nothing else. You are callous. I apprehended from your evidence that you had little or no remorse in respect of the offence, and like Mr Douch, I express scepticism as to whether any remorse now shown is because of the fate which awaits you rather than because of what you did to [the victim].

[19] In assessing whether this case is indeed close to the worst of its type, it is desirable to develop the point a little further. At the highest level of generality the case involves attempted murder in the course of an aggravated robbery. Both offences carry maximum sentences of 14 years imprisonment. It is obviously inappropriate for present purposes to aggregate the maximum to 28 years but one must not lose sight of the fact that both dimensions of the offending are serious. The inherent seriousness of attempted murder lies always in the necessary intent to kill. But that said, some attempts come much closer to success than others; and some leave the victim with much more serious physical consequences than others. In both respects the offending here was at the upper end of potential seriousness. The taxi driver was very nearly killed and is left with serious physical and emotional scarring and a degree of physical impairment.
[20] On the aggravated robbery front, the principal aspect of seriousness not already taken into account as part of the attempted murder, is the fact that the victim was a taxi driver, innocently carrying on his business in the middle of the night. The need to protect this vulnerable class of citizens had already been mentioned.
[21] When one adds together both dimensions of the case it can fairly be said that, if one confines the sentencing parameters to one maximum sentence, ie. 14 years, there cannot be much doubt that on any view the present offending is near or at the most serious level. Of course it is possible to conceive of more serious combinations of attempted murder and aggravated robbery, but in such cases the Court might not limit the maximum reasonably available to simply one term of 14 years.
[22] Parliament has indicated to the Court that, in the words of s8(d) of the Sentencing Act 2002, it must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.
[23] This instruction must be firmly borne in mind. It can of course be tempered, if appropriate, by reference to the offender’s personal circumstances; as for example where the offender has diminished intellectual capacity or understanding: see s9(2)(e) of the Sentencing Act. But the extent to which the sentence can be so tempered will depend on the weight of the mitigating factor or factors, when viewed against the level of seriousness which brought the case within s8(d) in the first place.
[24] The Judge said that there was little or nothing he could find by way of mitigation. That was said without reference to Dr Shaw’s evidence. What Dr Shaw has said of Mr Finau does not, in our view, provide much in the way of mitigation for crimes of this seriousness. Obviously Mr Finau is not very bright. That in itself, especially when coupled with alcohol and drug addiction is something of a two-edged sword. Potentially, at least, Mr Finau is a danger to society. He has proved himself willing to rob and to try and kill in the process of doing so. The safety of the community is a very important aspect in determining an appropriate sentence. To the extent that Mr Finau’s mental deficit can be regarded as a mitigating factor we do not consider it can weigh very heavily. No discount is available for a plea in relation to the attempted murder charge, albeit Mr Finau did plead guilty to the charge of aggravated robbery. In all the circumstances we consider that the combined seriousness of the two crimes requires a starting point (ie. before any mitigation allowance is made) of 13 years imprisonment.
[25] No more than 2 years can properly be deducted for the plea to the aggravated robbery, Mr Finau’s age and the mental deficit to which we have referred. That results in a total sentence of 11 years imprisonment.
[26] The minimum non parole period of 60% of the head sentence, as now adjusted, was not independently attacked. It will stand subject to slight variation on the following basis. We observe, in this respect, that it is preferable to express a minimum non parole period in years and months rather than as a percentage. 60% of 11 years (132 months) is 79.2 months, ie. 6 years 7.2 months. That is a very awkward period. Two-tenths of a month of say 30 days is 6 days. The period actually imposed by the Judge amounted to 7 years 2 months and 12 days and the adjusted period is 6 years 7 months and 6 days, again a very awkward period.
[27] For the reasons given the appeal is allowed. The sentence of 12 years imprisonment imposed on the attempted murder charge is quashed. We substitute a sentence of 11 years imprisonment. The concurrent sentence of 6 years imprisonment imposed on the aggravated robbery charge will stand. The minimum non parole period imposed on the attempted murder charge at 60% of 12 years is quashed. We substitute a period of 6½ years.

Solicitors:
Crown Law Office, Wellington