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PALENAPA v R [2005] NZCA 48 (15 March 2005)

Last Updated: 20 April 2005



IN THE COURT OF APPEAL OF NEW ZEALAND

CA375/04
CA386/04
CA414/04


THE QUEEN



v



ENELIKO NIKOLAO
OVALA TUMAU PALENAPA
FA'ASINA PALENAPA


Hearing: 8 March 2005

Court: Anderson P, Heath and Doogue JJ

Counsel: I S Sapolu for Nikolao and F Palenapa
C B Hirschfeld for O T Palenapa
H D M Lawry for Crown

Judgment: 15 March 2005

JUDGMENT OF THE COURT
A The applications by Fa’asina Palenapa and Ovala Tumau Palenapa for leave to appeal are granted.

B All three appeals are dismissed.

REASONS

(Given by Doogue J)


Introduction

[1]Eneliko Nikolao and Fa’asina Palenapa, who are husband and wife, and Ovala Tumau Palenapa were all convicted in the District Court at Manukau of wounding with intent to cause grievous bodily harm. Fa’asina Palenapa was sentenced to three years and six months imprisonment and the other two to three years imprisonment by McAuslan DCJ. Fa’asina Palenapa and Ovala Tumau Palenapa seek leave to appeal out of time from those sentences. Eneliko Nikolao appeals against his sentence.
[2]As there is no objection to the applications for leave to appeal out of time and the delays involved were short with reasonable explanations the applications for leave to appeal out of time are granted.
[3]All three appeals are upon the basis that the sentences are manifestly excessive. They rely primarily upon common grounds, namely, that there is a lack of parity between the sentences and other sentences imposed for similar offending, particularly those of co-offenders and that the Court did not in the view of the appellants give proper weight to the mitigating factors said to relate to them.

Background

[4]The appellants and some of their co-offenders are related. They are members of the Palenapa family. That family had an ongoing disagreement with another family that attended their church. There was a meeting between a number of the co-offenders on the evening of 14 May 2003 when an attack was planned on members of the other family, both male and female. As a result, some of the co-offenders and the appellants set about obtaining weapons to use in such an attack.
[5]The following morning there were further discussions. People from the meeting and a number of others travelled in a convoy of three vehicles to the Otahuhu flea market. The declared intention was a confrontation with the victim and his family. The three appellants were part of the group. Members of the group had weapons including metal poles, broken off pieces of concrete, a piece of wood with a nail sticking out and a baseball bat.
[6]The victim, a 48 year old male, was setting up his stall in the market with his family.
[7]The evidence at trial was that Mrs Fa’asina Palenapa had two large broken off pieces of concrete, one in each hand, and on arrival at the market she confronted the victim’s wife, swearing at her in Samoan before throwing the concrete at the victim. Mr Samuel Palenapa, who, it is accepted, was the principal offender, then struck the victim with a pole.
[8]Mr Ovala Tumau Palenapa was said to have been armed with pieces of concrete and to have thrown a piece of the concrete at the victim, striking him on the forehead and causing significant injuries. Mr Eneliko Nikolao was said not to have been armed but to have punched the victim when he was already seriously injured.
[9]The attack by the appellants and their co-offenders was brutal and unprovoked. It was said to have lasted for about three minutes, only ceasing when the attackers were advised that the police were coming. The victim sustained severe injuries that were believed to be life threatening. He was hospitalised for five days and underwent surgery to relieve pressure on his brain.
[10]When interviewed Mrs Fa’asina Palenapa acknowledged that she had been present during the attack and at the meeting the previous evening, but denied assaulting the victim directly or confronting his wife. Mr Ovala Tumau Palenapa admitted that he had thrown the concrete but denied that he had carried or used any other weapon. Mr Eneliko Nikolao accepted that he drove the group to the market and punched the victim during the attack. Both of the two males denied taking part in the planning of the offending.
[11]Mr Ovala Tumau Palenapa pleaded guilty to the offence prior to trial but close to it. Both the other two appellants were found guilty after trial before McAuslan DCJ and a jury in the Manukau District Court in June 2004.
[12]McAuslan DCJ, who had the benefit of being the trial Judge, sentenced the three appellants and Mr Samuel Palenapa, who had pleaded guilty prior to trial to causing grievous bodily harm with intent and also to a second offence of assault with a weapon. Mr Samuel Palenapa was sentenced to five years imprisonment and to a concurrent sentence of 18 months imprisonment for the lesser offence. It seems reasonably clear the Judge took this as the lead sentence and adjusted all other sentences to reflect what she saw as the appropriate sentences in relation to that sentence. Unfortunately she did not indicate for any offender what she saw as the starting point for the appropriate sentence and what adjustments she thought appropriate for either aggravating or mitigating circumstances relating to the individual offenders. She merely imposed the final sentence. However, it is clear she endeavoured to achieve appropriate parity between the various offenders she was sentencing, as to an extent she compared the respective roles of the offenders.
[13]The Judge in her sentencing notes dealt with the circumstances of the offending. She identified the aggravating features of the offending as being numerous, including that the offence involved actual violence, the use of weapons, the pack attack by at least seven people, a sustained and frenzied attack upon the defenceless victim, a premeditated attack of a vigilante nature and the significant harm suffered by the victim. The Judge in sentencing the appellants relied upon the decision of this Court in R v Hereora [1986] 2 NZLR 164. She touched upon the provisions of the Sentencing Act. The Judge also dealt with the circumstances of each individual case referring to the mitigating circumstances of each of the offenders being sentenced.
[14]It is simplest to deal with the mitigating and aggravating circumstances and issues of parity when discussing the cases of the individual appellants. As is noted for the Crown, the test for disparity is as stated by this Court in R v Lawson [1982] 2 NZLR 219, 223 namely:
Whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
[15]The test will only be made out where the disparity is gross and unjustifiable.

Appeal by Eneliko Nikolao

[16]Mr Eneliko Nikolao was born on 25 April 1972 and aged 32 years at the time of sentence. He is married to Mrs Fa’asina Palenapa. They have four young children aged, at the time of sentencing, 12, 11, 7 and 6 years. He was in employment. He has no previous offending.
[17]In sentencing Mr Nikolao the Judge noted that Mr Nikolao’s position was that he had not taken part in the planning either the evening before or on the morning, notwithstanding that he was present in the morning when the attack was discussed. Mr Nikolao accepted that he was one of the drivers in the convoy to the market. He accepted that he had punched the victim with a closed fist when the victim was already bleeding from the face and when there was no need for him to act in that fashion. His explanation for holding the appellant down was that it was to protect him from Mr Samuel Palenapa, but the jury clearly rejected that. The Judge accepted that Mr Nikolao could not be described as one of the main offenders and that he was ashamed of what he had done and accepted full responsibility for his part in it. The Judge noted, however, that there were fewer mitigating factors in his case, although he had written a letter of apology to the victim expressing remorse, which the Judge accepted was genuine. The Judge rejected the suggestion in the pre-sentence report and the defence submissions that the appropriate sentence was one of community work.
[18]The essence of the appeal on behalf of Mr Nikolao is that the Judge failed to take sufficiently into account the mitigating circumstances relating to him, particularly his previous unblemished record and the effect of the sentence on his four young children and their grandparents. The children had to be cared for by the grandparents and, with the death of the grandmother, have to be cared for by the grandfather and the extended family. Mr Nikolao’s culpability was said to be less as he used no weapons and accepted responsibility. It was urged upon us that when these features were given due weight in the light of the relevant provisions of the Sentencing Act a lighter sentence had to follow. Thus, it was submitted the sentence is disparate in relation to the co-offenders. It was submitted the appropriate sentence would have been two years imprisonment with leave to apply for home detention.
[19]The Crown submitted that it was inherent in the jury’s verdict that this appellant was part of the group responsible for causing grievous bodily harm to the victim with intent to do so. Although the appellant denied being involved in the planning of the attack he was present at the house on the morning of the attack when it was discussed. He drove one of the vehicles in the convoy and, although unarmed, he participated in the attack by kicking and punching the victim when he had no need to do so and holding the victim down so others could assault him. It is clear, it was submitted for the Crown, the jury rejected the defence that the appellant’s actions were in the belief that the victim was going to hurt a co-accused.
[20]The Crown further submitted that the Judge noted the appellant’s remorse and his family situation. It was submitted that the Judge appropriately considered R v Hereora [1986] 2 NZLR 164 and the issues raised on behalf of the appellant under the Sentencing Act 2002. The Crown submitted that the Judge reduced the sentence which would otherwise have been appropriate to take into account this appellant’s lesser involvement and the mitigating circumstances relating to him and that the ultimate sentence cannot be said to be manifestly excessive.

Appeal by Ovala Tumau Palenapa

[21]Mr Ovala Tumau Palenapa was born on 16 February 1968 and was 36 years of age at the time of sentencing. A marriage, from which there were three children, came to an end in 2001. At the time of trial and sentence he lived with a woman with seven children of her own. There was one child of the new relationship. He is also a first offender.
[22]This appellant pleaded guilty. The Judge noted that he admitted being involved, stating that he felt he had to become involved because Mr Samuel Palenapa had told him to be. He denied carrying or using a weapon but did acknowledge that he had thrown a large piece of concrete, which had hit the victim’s head, causing the victim to stay on the ground. He denied taking part in any planning but stated that he had been told on the morning of the attack that he had to help in the fight and accordingly he did so. He was at the time living with the Palenapa family. He had significant health difficulties. It was submitted for the appellant that because of those difficulties it would have been far harder for him to resist involvement in the particular offending. The Judge noted that the appellant was not considered to be of a violent nature despite his involvement in the crime. His partner said she had never seen him lose his temper or threaten to do so. The Judge recorded the submissions for the appellant that the offending was out of character, he was at a low risk of re-offending and deeply remorseful.
[23]It was submitted for the appellant that the sentence of three years imprisonment imposed upon him was manifestly excessive, although it was accepted that it was "at the lower end" of manifestly excessive.
[24]It was submitted for the appellant that the combination of mitigating circumstances was of such magnitude that it justified the sentencing Judge departing significantly from what would otherwise have been the appropriate tariff in terms of Hereora.
[25]It was further submitted for the appellant that the sentence passed on him (especially taking into account his guilty plea, remorse, acceptance of responsibility, first offending, low risk of reoffending and ill health) does not reasonably impose the least restrictive outcome that is appropriate in the circumstances in terms of s 8(g) Sentencing Act 2002. It was then submitted that the sentence imposed did not sufficiently distinguish the inherent differences between the cases of the co-appellants, sentenced to three and three and a half years imprisonment after trial, and the appellant who pleaded guilty, albeit close to trial. It was submitted that the sentence should have been less than three years and perhaps closer to two years imprisonment. It was, indeed, submitted that two years imprisonment would have been an appropriate sentence.
[26]The latter submission was made upon the basis that the sentencing Judge did not give adequate allowance for the totality of the mitigating circumstances both in respect of the appellant’s culpability and his personal circumstances, together with the plea of guilty.
[27]The Crown response to these submissions for the appellant noted that the sentencing Judge took all the circumstances now stressed on behalf of Mr Ovala Tumau Palenapa into account. The Crown submitted that there is no basis for the submission that the sentence was manifestly excessive and that it was in keeping with the sentences imposed upon the co-offenders. Although it was the same sentence as that imposed upon Mr Eneliko Nikolao, who did not plead guilty, that appellant did not use weapons in the attack whereas this appellant had.

Appeal by Fa’asina Palenapa

[28]Mrs Fa’asina Palenapa was born on 6 December 1973 and was 30 years of age at the time of sentencing. Like her co-appellants she is of Samoan birth and, as already noted, is married to the appellant Mr Eneliko Nikolao. It appears that she was in part time employment and taking a course in respect of other employment. The pre-sentence report noted that her risk of reoffending was assessed as low but that as she was adamant she played no active role in the offending she was assessed as having a low level of motivation to address the factors contributing to her offending. Like the other appellants she was a first offender.
[29]The sentencing of this appellant was on a later date than that of her co-offenders. The Judge noted the sentences imposed on the co-offenders. She further noted that parity of sentencing was the most important principle for the Court to consider.
[30]The Judge recorded that the evidence at trial was that this appellant was heard to call out during the attack "Kill him now" and "Kill". The victim’s evidence was that he heard the appellant say that and that he also saw her throw a rock at him and that it hit him on his backside. The appellant was also seen to kick the victim and throw a rock at him by his daughter.
[31]The Judge accepted the Crown submission that this appellant’s culpability was in fact greater than that of her husband.
[32]In support of the appeal for this appellant it was submitted that the sentence of three and a half years imprisonment was manifestly excessive, because there was a disparity of sentence between that and the sentence imposed upon the co-appellant Mr Ovala Tumau Palenapa and an inadequate weighting of the circumstances of the offender in the light of the provisions of the Sentencing Act 2002.
[33]In particular, it was submitted that the sentencing Judge undervalued the limited nature of the appellant’s culpability and the following particular and exceptional circumstances of the appellant, namely, that her husband was also sentenced to jail and accordingly the four children would have no parental support. For the reasons already mentioned above the children cannot be looked after just by their surviving grandparent.
[34]It was further submitted that in respect of the appellant’s mother she had died subsequent to sentence and that this was accordingly a new feature that this Court is entitled to take into account.
[35]It was further submitted for the appellant that restorative justice might have occurred had the Court been invited to adjourn sentencing for that process. It was also submitted that reparation was not considered at sentencing.
[36]For the appellant it was submitted that a final sentence of two years imprisonment with leave to apply for home detention is the appropriate response to the appellant’s appeal. This is in particular because of the personal and family circumstances of the appellant, the fact that her husband is in custody, her willingness to pay reparation to the victims and her willingness to undertake restorative processes in order to provide for the interests of the victim.
[37]The Crown submitted that it is clear that this appellant took an active role in the offending. The Crown further submitted that the sentencing Judge did take into account all the mitigating factors relating to the appellant and that it was because of this that there was a significant reduction in the sentence that otherwise would have been imposed. It was noted that the co-appellant Mr Ovala Tumau Palenapa pleaded guilty and was not involved in the planning of the event to the same extent as the appellant. The Crown case was always that the appellant’s liability was greater than that of her husband who received a three year term of imprisonment. The appellant’s violence, it was submitted, was severe in that she was not only involved in the planning stages but she incited members of her group to "kill" the victim, threw concrete as part of the attack and at no time accepted her responsibility in respect of what had occurred.
[38]The Crown submitted that the sentencing Judge did take into account the purposes of s 8 and otherwise of the Sentencing Act 2002. It was submitted that restorative justice appears to be raised for the first time on this appeal and that the sentencing Judge cannot be criticised for not having expressly referred to such an alternative when it was not raised during the sentencing process. It was noted that the victim impact statement showed unwillingness by the victim to be involved in any such process.
[39]It was submitted that the fact that the appellant’s mother, who was the primary caregiver for the children, has subsequently died is not an exceptional circumstance justifying a change of sentence. The sentencing Judge was well aware of the domestic difficulties involved in the case, especially since both parents were being imprisoned for the same offending. At the sentencing the appellant’s mother said she did not wish to take responsibility for the appellant’s children, as she was unwell. The sentencing Judge recorded "It is a very large family and one can only hope that other family members will assist your mother with the difficulties that she is now going to face". Therefore it was submitted that this is not a new and sufficient circumstance to justify any alteration to a sentence which it was submitted was well within the sentencing Judge’s discretion. It was submitted that the sentence at the level now proposed of two years imprisonment would be a quite insufficient response to the seriousness of the offending.

Discussion

[40]We can deal with the appeals together. While there are different points made for each appellant the essence of all appeals is similar with the only true distinguishing feature being that relating to the children of Mr Eneliko Nikolao and Mrs Fa’asina Palenapa.
[41]The issue for us is simply whether the sentences under appeal are manifestly excessive. Despite everything urged upon us for all the appellants we are satisfied they are not. Indeed, the appellants are perhaps fortunate they are relatively merciful sentences taking into account all the matters urged upon us and more. This was premeditated offending, carried out with weapons by a group determined to seriously injure the unsuspecting victim in a public place, without regard for the victim or the effects upon him. All the appellants actively participated in that criminality. Their involvement might have been different, but the sentencing Judge has carefully and appropriately distinguished between them having regard to their different roles and the different mitigating and aggravating circumstances. In terms of Hereora she could well have imposed heavier sentences notwithstanding that the appellants were first offenders and that Mr Ovala Tumau Palenapa pleaded guilty.
[42]It is in particular clear that the Judge factored in the position relating to the children of Mr Eneliko Nikolao and Mrs Fa’asina Palenapa. The consequences for the children are indeed sad but they are a direct consequence of their parents’ deliberate violent offending.
[43]However the sentences under appeal are approached, they were sentences properly available to the Judge, given the respective culpability of each of the appellants and the different circumstances, aggravating and mitigating, applicable to them.

Result

[44]As already noted the applications by Fa’asina Palenapa and Ovala Tumau Palenapa for leave to appeal are granted. However, all three appeals are dismissed.

Solicitors:
Sapolu Law for Nikolao and F Palenapa
Crown Solicitors, Auckland


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