THE QUEEN v FALEATA TUILETUFUGA [2003] NZCA 229 (25 September 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA205/03

THE QUEEN

v

FALEATA TUILETUFUGA

Hearing: 23 September 2003

Coram: Anderson J

Rodney Hansen J

Salmon J

Appearances: M J Faleauto for Appellant

K Raftery for Crown

Judgment: 25 September 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]	This is an appeal against conviction and sentence following trial before a District Court Judge and jury on one count of assaulting a constable with intent to obstruct him in the execution of his duty, contrary to s192(2) of the Crimes Act 1961, and one count of assault with a weapon, contrary to s202C of the Crimes Act.
[2]	The charges arose following the investigation by Constables L Grace and R Naidoo of a complaint that windows in a house had been broken by pellets from an air rifle fired from an adjoining property.On approaching the premises from which the pellets had been fired the constables first heard another pellet discharged and then saw the appellant holding an air rifle, which the constables instructed the appellant to put down.The appellant complied and Constable Grace made the air rifle safe by discharging a pellet in the breech into the ground.
[3]	The appellant was in the company of another man, Mr F Lavea who, it transpired, along with the appellant, had been discharging the air rifle and possibly an air pistol at lemons attached to a clothesline.
[4]	Constables Grace and Naidoo asked the appellant and Mr Lavea for their names, which the two in possession of the firearms were obliged to give by virtue of s40(1) of the Arms Act 1983.Although Mr Lavea appeared willing to comply, the appellant preferred to berate the police officers with profane and aggressive language.When the appellant said he wished to contact a lawyer the police officers were agreeable to his doing so and he went through a ranch-slider door into the dwelling, followed by Mr Lavea who drew the ranch-slider shut.That act caused some concern to the police officers.They had a general anxiety about what the two men might be getting up to, such as decamping (as either would have been entitled to do, as they were not under arrest) or getting up to some other unspecified, but possibly undesirable, activity.That led the police officers to decide to arrest the men on a charge of wilful damage.We remark that there seemed scant evidential basis for such a charge but there was evidence of an arrestable offence under s48 of the Arms Act for discharging an airgun, without reasonable cause, in or near a dwelling house so as to endanger property.The men were subsequently charged with and pleaded guilty to that offence.And in any event, the appellant was amenable to arrest pursuant to s40(2) of the Arms Act should he have persisted in declining to give his name after a caution.Given the circumstances, nothing turns on the particular charge that was mentioned as the basis for arrest, and Mr Faleauto responsibly accepted that position when arguing the appeal.
[5]	The police officers entered the dwelling, informed the appellant he was under arrest and required him to submit to being handcuffed.After a cuff was applied to one hand the appellant turned around and adopted the fighting stance of a boxer, which he in fact happens to be.Constable Grace decided to subdue the appellant and immediately used a capsicum pepper spray which, incidentally, was deposited on the face of both the appellant and Mr Lavea.What happened then is succinctly described in the Judge’s sentencing notes as follows:

[10] Rather than accepting that he should submit to the requirement to be handcuffed at this point, Tuiletufuga became enraged and with brute strength he picked up a gas heater containing within it a gas bottle and deliberately threw it at Constable Grace.This was seen not only by the constables but by a girl watching from a neighbour’s property.Constable Grace managed to side-step and the heater fell to the floor.As a result of that throwing of the heater, Tuiletufuga was found guilty of assault with a weapon, namely the heater.

[11] The police at that point decided to use their police batons in addition to the spray which appeared not to be working.As a result, Tuiletufuga appeared to submit to their requirements and bent down close to a couch, facing the couch and with his back towards the police officers.Constable Grace proceeded at that point to again try and complete the handcuffing process.He was standing close behind Tuiletufuga when Tuiletufuga hurled his body around with extreme violence, flinging his arm back and knocking Constable Grace to the ground.He spun around and pounced on top of the constable, straddling him with his body.He then proceeded to rain a series of blows to Constable Grace’s defenceless head and shoulders with, in my view, all the strength he could muster.

[6]

Mr Lavea intervened in the proceedings and was subsequently convicted on two charges of common assault constituted by grabbing Constable Grace’s arms and hands to prevent the arrest of the appellant, getting between Constable Naidoo and the appellant and pushing Constable Naidoo away to stop the arrest, throwing Constable Naidoo across the lounge and manhandling him out the door.He was also convicted of assaulting Constable Naidoo using that officer’s capsicum spray as a weapon.In the affray Constable Grace suffered some eye damage which was the subject of a charge against Mr Lavea but the jury was plainly not satisfied as to intent in respect of that injury.It accordingly fell to be treated as an accident.

[7]

The appellant was sentenced to four years five months imprisonment, made up of a sentence of two years eleven months for aggravated assault, one year five months for assault with a weapon and one month for the Arms Act offence, all such sentences to be cumulative.In addition, the Judge ordered a minimum non-parole period of 22 months in respect of the aggravated assault.Mr Lavea was sentenced to four years imprisonment for the assault with a weapon, namely the capsicum spray, one year for common assault and one month in respect of the firearms offence, all to be served concurrently.The Judge ordered a minimum non-parole period of 20 months in Mr Lavea’s case.

Reasons for sentence

[8]	The Judge found little in the way of mitigating factors, there being no guilty pleas or expressions of remorse and although there was some explanation in terms of the appellant’s background factors, the Judge found the conduct nevertheless inexcusable because “...there are many people that have a bad start in life...”
[9]	The Judge noted the following as aggravating factors:

[39] The following, in my view, are the aggravating factors that apply in this case: first of all, these assaults occurred on constables carrying out their proper duty and acting within their duty; secondly, they occurred in an isolated position, namely inside a dwellinghouse, away from public view from which more immediate help might have been expected; thirdly, it was an extremely unequal contest with the two youngish and much lighter-weight constables having to face the strength of two fit young men who were professional boxers; fourthly, it was a prolonged incident that occurred over a period of about fifteen minutes – that may sound short when stated to that effect but I am sure, in terms of the constables involved, it must have felt like an eternity; fifthly, there was the fact that weapons were used, namely the heater and capsicum spray; sixthly, there is the traumatic effect on the victims themselves; seventhly, there is the list of previous convictions against both of them for offences involving violence and resisting police; eighthly, there is the important fact that the assault on Constable Naidoo, especially with the pepper spray, prevented him coming to the assistance of a fellow officer who was in dire need of that assistance.It was, therefore, an assault that had consequences not just for the person assaulted but for the other who was being assaulted mercilessly by Tuiletufuga.Those are the eight aggravating factors.

[10]

Regard was had to the appellant’s lengthy criminal record which included several offences both in Australia and New Zealand for offences of resisting, obstructing or assaulting the Police.It is to be observed that generally the offences are of an anti-authoritarian, moderately serious nature which have attracted fines, community service, periodic detention, and occasionally imprisonment measured in terms of months.The Judge was plainly unimpressed with the appellant’s aggressive response to the initial inquiries by the Police, which seem to have been carried out with an unreciprocated courtesy and restraint at the outset.

[11]

The Judge reminded himself of the terms of s7 of the Sentencing Act 2000 which require an offender to be held accountable for harm done, provision for the interests of victims who were, in the Judge’s view, “entitled to feel vindicated by a heavy sentence” and denunciation of the conduct as well as deterrence and community protection.As to s8 of the Sentencing Act the Judge considered the offending was at the very top end of the scale for its type.In the Judge’s view the totality of the offending could not be adequately dealt with in terms of the maximum offence for aggravated assault, which is three years imprisonment.The throwing of the heater was considered a separate incident which seriously aggravated the total situation and could not be encompassed by the three year maximum sentence for aggravated assault.Further, in the Judge’s view, a possible release on parole at one-third of the overall sentence would not adequately express the purposes of denunciation and deterrence for the sufficiently serious circumstances of the offence to which s86 of the Sentencing Act is generally directed.

Appellant’s arguments on appeal

[12]

The essential argument in support of the appeal against conviction was that the Judge failed to put self-defence to the jury.A sufficient evidential basis to support that defence was to be inferred from the use of pepper spray on the appellant and the striking of him with Police batons whilst he was blinded and incapacitated by the spray.But there are two insurmountable impediments to that argument.We think it expedient to express them in disposal of the conviction appeal at this stage.The first is that not only did the appellant deny punching and striking Constable Grace, and therefore inferentially eschewed any defensive intent, but the nature of the force used in connection with the aggravated assault count could not sensibly be regarded as reasonable.The second impediment, relating specifically to the charge of assault with a weapon, is that the appellant denied ever touching the heater.Not only the police officers but an independent observer testified to the fact of the appellant having thrown the heater and in the circumstances no evidential basis for defensive intent existed.

[13]

Mr Faleauto gave a more appropriate emphasis to the appeal against sentence.In an argument which lost nothing through its succinctness and focus Mr Faleauto emphasised the context in which his client had acted.Having been permitted by the Police to consult a lawyer, he was informed before he could carry out that step that he was under arrest and going to be handcuffed.He then suffered the excruciating consequences of being pepper sprayed and reacted to the Police in a state of physical and emotional distress.The heater was thrown but caused no injury and the punching of Constable Grace occurred after the appellant was beaten with a baton following the application of the pepper spray.Further, in counsel’s submission, the Judge was wrong in principle to impose cumulative sentences for what was essentially an extended but multi-faceted offence.

Crown arguments on appeal against sentence

[14]	Mr Raftery submitted that the context of the appellant’s conduct was a concerted attack by two men on the Police who had attended the address to inquire into the discharge of a firearm into a neighbouring property.He pointed out that attacks on police officers acting in the execution of their duty have always been viewed seriously by the Courts, as indicated, for example, in R v Williams CA177/96, 20 August 1996 and R v Levi CA104/97, 16 June 1997.There are, however, no tariff cases specific to aggravated assault nor indeed specific to assault with a weapon.
[15]	The appellant expresses no remorse nor can point to any personal matters of mitigation.To the contrary, there are 80 previous convictions, 14 of which are for resisting, obstructing or assaulting police or prison officers and a further 10 for violence of one sort or another.In fact, on 19 March 2002, the appellant had been sentenced to four months periodic detention for obstructing the Police, shoplifting, common assault, failing to answer Police bail and resisting the Police.Significantly, the present offending occurred a few days before the expiry of the term of periodic detention.In such circumstances, submitted counsel, the Judge was left with little alternative but to apply the full severity of the law in relation to the facts as he found them.
[16]	With respect to the appellant’s submission that the Judge erred in principle in accumulating the sentences, Mr Raftery argued, in our view correctly, that the orders for accumulation were merely the mechanism by which the Judge achieved an ultimate sentence which in the Judge’s view adequately reflected the totality of culpability.
[17]	Mr Raftery submitted that in the event that this Court should reduce the sentence it should not reduce it below the level of Mr Lavea’s sentence of four years imprisonment because that would create an unjust disparity in relation to Mr Lavea whose offending was seen by the trial Judge as not quite as serious as the appellant’s.

Discussion

[18]	Notwithstanding the advantage of the trial Judge in being able to form an assessment of culpability on the basis of evidence presented to his Court, we have no doubt that both the sentence imposed and the order for a minimum period of imprisonment were manifestly excessive.Although we have not been referred to precedents dealing specifically with ss192 and 202C, the Crown has assisted us with reference to the cases mentioned above which, in terms of their facts and result as well as their reasoning, provide some useful comparisons of culpability.R v Williams, for example, involved an attack on a lone policeman at night in a country area.The offender inflicted 13 stab wounds to the front, back and head of the constable, using a chisel, caused bruising and abrasion to the body and at one stage applied a headlock to the constable preventing him from breathing.Having pleaded guilty to a charge of wounding with intent to cause grievous bodily harm the offender was sentenced to seven years imprisonment which this Court described as being “at the upper end of the sentencing Judge’s discretion”.In the course of the judgment the Court referred to R v Hereora [1986] 2 NZLR at 164, where Cooke P had said, at p170, that in considering wounding or causing grievous bodily harm with intent, an impulsive act of violence involving the use of a weapon or intent to inflict serious injury will attract a sentence within the bracket of three to five years.
[19]	The offence of wounding or causing grievous bodily harm with intent carries, of course, a maximum penalty of 14 years imprisonment whereas aggravated assault carries a maximum of three years and assault with a weapon a maximum of five years.We do not regard the present offending as comparable to wounding or causing grievous bodily harm with intent to do so.
[20]	In R v Levi the offender had pleaded guilty to one count of assault with intent to injure, pursuant to s193 of the Crimes Act and one of common assault, pursuant to s196.Cumulative sentences amounting to a total of two years nine months imprisonment were imposed.The facts were that two police officers, in response to a telephone call from the offender’s partner, attempted forcibly to remove the offender from a domestic premises.This led to a struggle in the course of which the offender grabbed a policewoman by the head, rammed her face twice into the corner of a door frame and threw her to the floor.When she tried to get up, the offender jumped on her, forcing her to the ground and tearing her uniform before punching her in the head, grabbing her by the head and again ramming her face into a door frame.A male police constable received bruising and a dislocated finger, whilst the policewoman sustained bruising, abrasions and swelling to her face, lost several clumps of hair and had a severe headache over the next several days.She temporarily lost her sight and was in fear of her life in the course of the assault.There were mitigating features such as remorse and motivation to change.The appeal against sentence succeeded to the extent that concurrent, rather than cumulative sentences were substituted, amounting in total to two years imprisonment.
[21]	In R v McMillan CA317/01, 31 October 2001 an offender was convicted on his plea of guilty to assault with a weapon contrary to s202C.He was sentenced to two years and nine months imprisonment in circumstances where the offender closed a metal gate on the victim, catching the victim’s head between the gate and a brick post, before striking the victim about the head with a long piece of wood.At the time of the offence the victim was known to the offender already to be injured.
[22]	This Court noted in R v McMillan thatthere have been few recorded decisions on sentencing under s202C but there are a number of cases where offences of wounding or injuring involve facts including use of weapons and therefore had some value as comparators.In a particular case the appellant who had previous convictions, some involving imprisonment, and gang association, succeeded on his appeal against a sentence of two years nine months imprisonment following a guilty plea.This Court held that before making allowance for a guilty plea two years imprisonment would have been an adequate response to conviction after a defended trial and having regard to the guilty plea the appropriate sentence, which was substituted, was 18 months imprisonment.
[23]	We will turn to the features identified by the Judge as aggravating but before doing so we remark that we cannot, with respect, agree with the Judge’s comment that the victims were “entitled to feel vindicated by a heavy sentence”.That observation was made with reference to s7(1)(c) of the Sentencing Act which specifies the sentencing purpose “to provide for the interests of the victim of the offence”.To interpret that purpose as an indication that heavy sentences should be imposed so the victims may, personally, feel vindicated cannot have been the legislature’s intent.Vindication of the law is inherent in the statutory purposes of accountability, promotion of a sense of responsibility and acknowledgement of harm by an offender, denunciation and deterrence.
[24]	Turning now to the eight matters of aggravation we note as follows.It is the case that the assaults were inflicted on constables but the offence described by s192(2) of the Crimes Act requires that the person assaulted be a constable, or a person acting in aid of a constable, or any person in the lawful execution of any process.Accordingly the status of the victim is accounted for in the description of the offence and the maximum penalty of three years imprisonment.As to the isolated position, that is merely contextual and not the product of deliberation.One matter identified as aggravating was that a weapon was used in the assault but that also is an ingredient of the offence under s202C.We take no issue with other matters mentioned as aggravating except to point out that Mr Lavea’s use of pepper spray on Constable Naidoo, without any proof of encouragement or complicity on the part of the present appellant, scarcely adds to the latter’s culpability.
[25]	The Judge was not prepared, at all, to recognise any mitigation in the fact that the appellant reacted under the acute distress of pepper spray.There was evidence before the Court of the pain such a form of Police restraint causes and it is evident that the appellant’s anger and aggression was contributed to by the anguish of being sprayed with a toxic substance.To treat reaction to or under that stimulus as no different from gratuitous violence is, with respect, inappropriate.
[26]	In summary, the sentence of four years five months imprisonment is manifestly excessive when compared to the more serious categories of offending examined by the authorities mentioned above.Some of the matters seen as aggravating are inherent in the offences themselves and therefore captured by the maximum sentences; other features seen as aggravating do not have the significance or application that the learned sentencing Judge attributed to them.And, as we have mentioned, we think it wrong in principle to impose heavy sentences in order to vindicate the feelings of victims.In our view the maximum sentence warranted by the incidents in question is three years imprisonment.That result can be achieved by ordering the sentence of one year five months to be served concurrently with, not cumulative upon, the sentence of two years eleven months.
[27]	We accept that the incident, as a whole, was sufficiently serious to invoke the jurisdiction under s86 of the Sentencing Act to impose a minimum term of imprisonment and we do impose it in respect of the charge of aggravated assault.The minimum term will be 15 months imprisonment, a period which is proportional to the original term, having regard to the reduction in the overall sentence.

Result

[28]

The appeal against sentence is allowed to the extent that the sentence of one year five months imprisonment imposed in respect of assault with a weapon is ordered to be served concurrently with the sentence of two years eleven months imprisonment imposed for aggravated assault. The sentence of one months imprisonment imposed under the Arms Act will remain cumulative to the other two sentences, resulting in a total sentence of three years imprisonment.The order for a minimum term of imprisonment of 22 months is quashed and there is substituted an order for a minimum sentence of 15 months imprisonment which attaches of course to the sentence of two years eleven months.

Solicitors:

Crown Solicitors, Auckland