Fitikefu v R [2014] NZCA 99 (27 March 2014)

Last Updated: 1 April 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA356/2013 [2014] NZCA 99
BETWEEN	WALTER FITIKEFU Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2014
Court:	French, Ronald Young and Clifford JJ
Counsel:	R A B Barnsdale for Appellant P D Marshall for Respondent
Judgment:	27 March 2014 at 10.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1] On the morning of 21 September 2010, a car was parked near the Kiwibank Post Shop in Mt Eden. Mr Fitikefu and two cooffenders were in the car, which had been stolen earlier that morning. Mr Fitikefu and one of his cooffenders got out of the car and went into the bank. Both men had the hoods of their sweatshirts pulled up, covering their heads. Mr Fitikefu stayed at the door. His cooffender leapt over the security barrier and demanded the tellers empty their tills of cash. Two thousand eight hundred dollars was taken. Mr Fitikefu yelled threats at the staff as the two men ran to the getaway vehicle, where the final co-offender was still waiting. The men drove off. Shortly afterwards the Police stopped the car and Mr Fitikefu was arrested.
[2] Mr Fitikefu entered an early guilty plea to one charge of aggravated robbery in the District Court but the Crown told the District Court Judge that they were seeking a sentence of preventive detention. The sentencing was transferred to the High Court.
[3] In the High Court, Venning J refused the Crown’s application for a sentence of preventive detention. He imposed a sentence of four years and six months’ imprisonment with a minimum period of imprisonment of two years and eight months.^[1]
[4] Mr Fitikefu seeks to appeal this sentence. He submits:

• (a) the starting point was too high;
• (b) the Judge failed to adequately take into account remorse; and
• (c) the Judge failed to take into account the background circumstances that gave rise to the offending.

[5] Mr Fitikefu says the result of these errors is that the final sentence is manifestly excessive.

Extension of time

[6] Mr Fitikefu requires an extension of time because the appeal was filed approximately 22 months out of time. The Crown opposes an extension given the significant length of the delay and the fact that the delay has not been adequately explained.
[7] The reason for the delay arises from Mr Fitikefu’s complaint about the actions of the Corrections Department and Child, Youth and Family (CYF) relating to access to his child. This same issue also forms the basis of Mr Fitikefu’s claim that his sentence should be reduced because of the background circumstances giving rise to his offending. We therefore consider the merits of the appeal before returning to consider whether an extension of time should be granted.

The sentencing in the High Court

[8] The Crown case at sentencing in support of its submission that preventive detention was appropriate was based on Mr Fitikefu’s long history of robbery offending (primarily in Australia) and the claim that he was at high risk of reoffending in a similar way.
[9] Mr Fitikefu was convicted in Australia of seven offences similar to aggravated robbery. They were:

• (a) armed robbery (1997);
• (b) robbery in company (1998);
• (c) robbery while armed with dangerous weapons (1998);
• (d) robbery being armed and in company (1998);
• (e) aggravated robbery (1998);
• (f) aggravated breaking and entering and committing a serious indictable offence – armed (2001); and
• (g) aggravated robbery (2004).

[10] In considering preventive detention the Judge concluded: Mr Fitikefu was likely to commit another qualifying offence if released at the sentence expiry date, particularly given his past record; reports from a psychologist and psychiatrist did not indicate an indeterminate sentence would be required; and some hope existed that with intensive treatment relating to substance abuse the likelihood of reoffending would be reduced. The Judge said that “by the narrowest of margins I consider that preventive detention is not required at this time”.^[2]
[11] In looking at the appropriate finite sentence, the Judge considered R v Mako and concluded that given this was planned offending that targeted a bank, a starting point of five years and four months was justified.^[3] Taking into account aggravating and mitigating factors personal to Mr Fikitefu, the Judge imposed an end sentence of four years and six months’ imprisonment.

Starting point too high

[12] The first ground of appeal is that the starting point adopted by the Judge was too high. This Court in R v Mako, in relation to this type of offending, said:

[54] Different combinations of the features of the offending in the present case can be taken by way of example to indicate appropriate starting point levels. The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more. ...

[13] The appellant says that a more fitting example of the current facts can be found in the following passage from R v Mako:

[56] A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.

[14] The relevant factors here were:

• (a) This was planned offending. A car was stolen, an attempt made to disguise appearance and each offender had a defined role in the offending (a getaway driver, a lookout and a principal offender).
• (b) A bank was the target. This was a robbery of commercial premises where members of the public would inevitably be present.
• (c) There was no evidence of any weapons, but threats were made to members of the public and bank staff by Mr Fitikefu.
• (d) There were multiple offenders.

[15] As to Mr Fitikefu’s claim that the facts here more appropriately fit with this Court’s comments at [56] of R v Mako, the events here were more serious than the robbery of a small retail shop by demanding money from a till. Here, there were three offenders, a bank was robbed when a number of people were present and several thousand dollars was stolen.
[16] This Court’s comments at [54] of R v Mako illustrate starting points of six years and upwards are appropriate for this type of robbery. The starting point of five years and four months in the High Court reflected the fact that no weapons were carried and was otherwise consistent with this Court’s observations in R v Mako. We reject this ground of appeal.

Guilty plea and remorse discount

[17] The Judge gave a discount of almost 30 per cent for Mr Fitikefu’s guilty plea. While the sentencing was conducted after the Supreme Court decision in Hessell v R, which limited guilty plea discounts to 25 per cent,^[4] the Judge considered that in fairness to Mr Fitikefu the Court of Appeal’s guilty plea discount approach in R v Hessell should be applied here, given the timing of Mr Fitikefu’s plea.^[5] Mr Fitikefu, therefore, could not have expected a greater discount than 30 per cent for his guilty plea.
[18] The Judge rejected giving any further discount for Mr Fitikefu’s claimed remorse. The Judge was entitled to treat Mr Fitikefu’s claim of remorse with scepticism given his long history of very serious offending of a similar type. We consider no error has been shown in the Judge’s approach to Mr Fitikefu’s guilty plea and remorse.

Background circumstances and mitigation

[19] The final ground of appeal relates to what Mr Fitikefu says were the background circumstances that gave rise to his involvement in the robbery. He says that this important feature of the case was never the subject of submissions to Venning J.
[20] The circumstances that Mr Fitikefu says should have been taken into account by the Judge arose prior to the offending. Mr Fitikefu had returned from Australia and had a new family: a partner and a child. He was serving a period of home detention and post-detention supervision. During that time it seems that an incident occurred, and a probation officer contacted CYF and suggested that Mr Fitikefu had previous convictions for sexual offending. As a result, Mr Fitikefu’s supervising officer became concerned about the welfare of his daughter because of the alleged sexualised behaviour he displayed towards her.
[21] The accusation that Mr Fitikefu had previous convictions for sexual offending was untrue. Mr Fitikefu says that this false accusation affected his relationship with his partner and daughter. He says he then travelled to Auckland to obtain financial assistance from an uncle. However, that help did not eventuate and he was left penniless. It destabilised him and left him destitute. He then made an unwise decision to participate in the aggravated robbery of Kiwibank. Mr Fitikefu complains that the sentencing Judge was not made aware of his difficulties with CYF.
[22] The submissions of counsel for Mr Fitikefu at sentencing in the High Court and the information contained in the psychological and psychiatric reports made available to the Judge meant that the Judge was well aware of the circumstances surrounding the allegation of sexual misconduct made against Mr Fitikefu and his concern about the false accusation of sexual convictions.
[23] However, the Judge was entitled to reject Mr Fitikefu’s explanation for the robbery. The Judge had before him reports from the psychologist and psychiatrist that expressed doubt about Mr Fitikefu’s claim that his offending on this occasion was triggered by his difficulties with CYF.
[24] We are satisfied the Judge understood that Mr Fitikefu was angry about the false accusation that he had convictions for sexual offending. However, the Judge was entitled to reject these events as amounting to mitigating circumstances in relation to Mr Fitikefu’s criminal offending. It was not clear why Mr Fitikefu needed financial assistance to respond to the allegation against him. His decision to travel to Auckland unsurprisingly put him in a poorer financial position. And so by the time of the robbery there was little connection between the alleged false allegations and his claim that he was destitute. We reject this ground of appeal.
[25] Finally, as the Judge remarked in the High Court, Mr Fitikefu might be considered fortunate to have avoided a sentence of preventive detention. The Judge gave Mr Fitikefu full credit for the rehabilitative efforts he had made and in the end these efforts appear to have tipped the balance between an indeterminate sentence of preventive detention and the finite sentence actually imposed.

Result

[26] We are satisfied that the sentence was not manifestly excessive and was well within the range available to the Judge to impose here. We grant an extension of time to appeal but dismiss the appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Fitikefu HC Auckland CRI-2010-004-17106, 5 July 2011.

^[2] At [23].

^[3] R v Mako [2000] 2 NZLR 170 (CA).

^[4] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

^[5] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.