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Court of Appeal of New Zealand |
Last Updated: 8 December 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
JUDGMENT OF THE COURT
B The appeal is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
[1] On 20 June 2012 Cody James Fane pleaded guilty in the High Court at Rotorua to charges of causing grievous bodily harm, unlawful possession of a firearm and possession of cannabis for the purpose of sale. He was sentenced by Heath J to 10 years’ imprisonment for that offending, with a minimum period of imprisonment of five years.[1]
[2] Mr Fane’s notice of appeal was filed on 11 February 2015. He applies for an extension of time to appeal. He raises the following issues in respect of the sentence:
- (a) There was a failure of the High Court to take into account Mr Fane’s personal, family, whānau, community and cultural background under s 8(i) of the Sentencing Act 2002.
- (b) The Judge erred by not asking under s 27 of the Sentencing Act if there were any family or community members that wished to speak on Mr Fane’s behalf.
- (c) There were other mitigating factors, in particular the remorse of the appellant and provocation, which should have been taken into account.
Relevant background
[3] At the time of the offending Mr Fane was 21 years old. Through his mother he is of Te Arawa and Tainui heritage. He had been living with the victim’s stepdaughter for approximately four years. She was of the same age and also identifies as Māori. They have two children.
[4] Their first child, a daughter, was born prematurely while Mr Fane was in prison. Not long after the child had come home from Starship Hospital she was taken to emergency services with breathing problems. It was decided that the child had received a non-accidental head injury. This was always denied by Mr Fane and his partner.
[5] The child was then placed with Mr Fane’s partner’s parents. His partner’s stepfather, the child’s step-grandfather, is the victim. Under a Child Youth and Family (CYF) care and custody arrangement Mr Fane and his partner maintained close contact with the child while she was with the grandparents. Their second child was removed by CYF at birth and was being raised in a separate household by Mr Fane’s aunt.
[6] On the day of the offending Mr Fane and his partner were visiting his partner’s parents’ home in Rotorua. Their daughter was present. The victim wanted to take her with him to hospital to visit his other daughter who had just given birth to her second child. Mr Fane did not want the victim to take his daughter to the hospital. The victim and Mr Fane argued about this in the kitchen. The argument soon escalated to the point where Mr Fane challenged the victim to go outside with him to “sort it out”.[2] The victim agreed and they went out onto the driveway and began to physically fight, throwing punches at each other.
[7] On hearing noise outside Mr Fane’s partner ran outside while her mother attempted to comfort the children inside the address. Mr Fane’s partner got between her stepfather and Mr Fane in an effort to stop them fighting and as a result they were unable to land effective blows against each other. They continued to circle each other trading insults.
[8] In the end the victim turned and walked away and back towards the house. Mr Fane and his partner walked quickly past him entering the house before the victim. Mr Fane and his partner went into their bedroom. Mr Fane took possession of a sawn-off pump action shotgun and fired one shot into the bedroom wall.
[9] At about the same time the victim entered the room. Mr Fane pointed the shotgun at him. Mr Fane’s partner screamed at him not to do it, but he ignored her and fired a second shot. The shot hit the victim on the left side of the face. This caused him to collapse to the floor immediately. Mr Fane then fled the address taking the firearm with him. He was observed running along the road holding the gun. He discarded the firearm, tried to conceal it and then left the area.
[10] The police were called and they examined Mr Fane’s bedroom. They found a can with a removable lid containing five piece of tinfoil, each rolled into a cylinder-type shape and each containing an amount of cannabis. This mode of containment is commonly referred to as a “tinnie” and sells for approximately $20 each. They also located a glass jar containing $240 in cash made up of $20 notes and documentation relating to financial transactions referred to as a “tick list” recording money owed for drug purchases.
[11] As a result of the shooting the victim suffered severe facial injuries. These were summarised by his doctor in a statement quoted by Heath J in his sentencing notes.[3]
[12] The doctor said the victim had been a happy, cheerful and healthy family man who was confident and a positive contributor to society in general. He enjoyed his family and work life and was financially secure. The doctor was shocked and saddened by the way the injury had affected the victim both physically and mentally. He had lost his savings and the ability to buy a new house as he had planned. He had had five operations to repair the extensive gunshot wound, to wire his jaw which had been fractured, to remove shot and blood clots, and to create a tracheostomy in his neck to allow him to breathe while his injuries healed. The plastic and reconstructive surgeons had to use a flap of muscle to carry out skin grafts. He had complications after surgery and developed blood clots which needed ongoing treatment. His left ear had been permanently injured leaving him with hearing problems.
[13] At the time of sentencing, 17 months after the medical treatment, he was still suffering significant medical problems, which were likely to become permanent. He had ongoing chronic pain in the head and neck area and suffered from ongoing physical fatigue and headaches. He could not sleep lying down as it put pressure on his face and head, and he found personal care such as brushing his teeth and combing his hair difficult and painful. It was considered that he would require more reconstructive surgery in the future.
The decision
[14] Heath J summarised the facts and injuries and observed that Mr Fane was lucky not to be facing a charge of murder. In the course of sentencing Heath J stated:
[15] In my view, it was a cowardly act to go out and get a gun and shoot someone in that situation. You are not entitled to any credit for any degree of provocation that you might think was involved.
[16] This was a vicious, unprovoked attack. In sentencing you I am required to denounce the conduct in which you were involved, to deter you and others from behaving in this way, to hold you accountable for what you did and to protect the community from acts of this type.
[15] The Judge considered that there were four significant aggravating factors being the use of a potentially lethal weapon, the gun; the extreme violence inherent in the shooting of the gun; the shooting towards the head of the victim; and the serious injuries that were inflicted.[4] He considered that other than the guilty pleas there were no mitigating factors. Guilty pleas were entered not long before the trial was due to take place so he allowed approximately a 15 per cent discount, rounded up to two years. Heath J said the addition could take account of any cooperation with the police and any degree of remorse that Mr Fane expressed.[5]
[16] Heath J found in the end that the offending was towards the lower end of the highest band of the guideline sentencing decision of R v Taueki and that 11 years’ imprisonment was the appropriate starting point.[6] He uplifted that sentence by three months for previous convictions, and by a further nine months for the cannabis offending. He observed that the cannabis offending in itself would have justified a sentencing starting point in the region of two years. That left him with a starting point of 12 years’ imprisonment from which he deducted two years for the guilty pleas, leaving an end sentence of 10 years’ imprisonment.
Further evidence and extension of time to appeal
[17] Mr Fane has this year sworn and filed an affidavit in support of this appeal, and also filed affidavits from his mother Donna Fane, his father Glenn Fane, his uncle Stephen Nicholas, and a law clerk Elizabeth Peina.
[18] Ms Peina’s affidavit explains the delay in the appeal. Mr Fane has been seeking to challenge the sentence since shortly after it was imposed on him. He has been in contact with the Legal Services Agency, but for various reasons it was not until this year that Ms Sykes was briefed and was able to file the notice of appeal.
[19] The Crown accepts that Mr Fane has been taking active steps to appeal and does not oppose the granting of an extension of time. We grant an extension of time to appeal.
[20] As to the other affidavits, the Crown does not object to their filing. We are prepared to accept and consider those further affidavits.
Grounds of appeal
[21] It was accepted by Ms Sykes for Mr Fane that the starting point chosen by Heath J of 11 years’ imprisonment was within the range of available starting points, adopting the approach of R v Taueki.[7] The four seriously aggravating factors identified by Heath J were not challenged. Nevertheless it was submitted that there was inadequate account taken of provocation as a mitigating factor, and remorse, as well as more general background factors.
[22] In particular, Ms Sykes submitted that the Judge failed to place weight on Tikanga Māori in sentencing Mr Fane, either in dismissing the submission that he was provoked or more generally as a mitigating factor. She says that the dispute that led to the firing of the shotgun was sparked by the perception on Mr Fane’s part that his parental rights were being denied. She submitted that in Māori culture children are taonga and form an integral link in the chain of whakapapa, which is the foundation of the structural framework of Māori society. When Mr Fane was denied access to his children he was being denied access to his whakapapa. This “denial of mana in Tikanga Māori terms” has a huge impact on people of Māori descent, such as Mr Fane, to the extent that the assertion of mana by the victim over Mr Fane’s child would have been perceived as “a takahi mana in [his] emotional psyche”. Ms Sykes sought not to excuse Mr Fane’s actions but to highlight to the Court the broader context in which the offending took place.
[23] In support of these submissions, the affidavits filed by Mr Fane and his mother, father and uncle provide further detail about Mr Fane’s heritage, family structure, and the frustrations he felt after CYF took his children away from him. They state that Mr Fane was under pressure because his children were in the care of CYF. Mr Fane did not understand why he had lost his children and was being ignored in the decision making processes relating to them. While he, and possibly his partner, were being held to blame for what happened to their child, there had been no charges laid and he was helpless to resist CYF and get back the care of his children. He wanted his family reunited.
[24] Emphasis was placed on the difficulties of Mr Fane’s background, in particular the effect on him when his parents separated, and his connection with his whānau. Mr Fane saw the firing of the gun as a result of the pressure and frustrations he felt regarding his children.
Section 27 of the Sentencing Act 2002
[25] Ms Sykes submitted that these issues were not properly ventilated at the sentencing because the Judge failed to ask if there were any family or community members that wished to speak on Mr Fane’s behalf. She referred to s 27 of the Sentencing Act, which provides that if an offender appears before a court for sentencing he or she may request the court to hear any person called by the offender to speak about, among other things, the personal, family, whānau, community and cultural background of the offender,[8] and the way in which that background may have related to the commission of the offence.[9] The court must hear a person so called unless the court is satisfied there is some special reason that makes this unnecessary or inappropriate.[10] If a court declines to hear a person called by the offender under this section the Court must give reasons for doing so.[11]
[26] Section 27(5) provides:
- Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender
...
(5) If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1).
[27] We have asked for and obtained submissions presented to the High Court at the time of sentence. It is clear that no request was made by Mr Fane’s then counsel, or by Mr Fane, for the court to hear any persons under s 27.
[28] Notwithstanding this it is suggested on behalf of Mr Fane that the Court should have of its own initiative suggested to Mr Fane that it might be of assistance to the Court to hear from persons in relation to the matters specified in s 27(1).
[29] We are not able to accept this submission. Mr Fane was represented by experienced and responsible counsel, who made no such suggestion. The Judge had an unusual quantity of material before him, as in addition to the sentencing submissions for the Crown and defence he had a full pre-sentence report and a comprehensive psychiatric report commissioned under s 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
[30] The pre-sentence report set out in some detail Mr Fane’s cultural background. The probation officer had spoken to his mother and one of his whāngai parents, who both described the pain Mr Fane experienced in having his children taken from him. There was no suggestion to the probation officer that there would be any benefit in the officer or the Judge speaking to anyone else.
[31] In addition, the psychiatric report had been prepared by a senior and respected consultant psychiatrist, Dr Rees Tapsell. He recorded in detail Mr Fane’s feelings about the loss of custody of his children, his developmental history and his mental state.
[32] Further, Mr Fane had presented his own three-page handwritten statement to the Judge in which he took responsibility for what had happened and expressed his sorrow and shame. He did not ask that anyone else be allowed to speak for him.
[33] While there will be cases where the particular context makes it appropriate to invoke the discretion to hear a person or persons, s 27(5) does not place a duty on a judge. The court, if it takes the view that it “may” be of assistance to hear from the person or persons mentioned at s 27(1), “may” suggest that the offender call these persons. As we have set out, there was nothing before the Judge to suggest that he would have benefitted from further material of the type that has now been provided on appeal.[12] He would not have learned more of relevance to the sentencing than he already had before him.
[34] This ground of appeal fails.
Provocation
[35] It is established that where the offender has been provoked that may justify a lower starting point. The sentencing judge will need to be satisfied that there was serious provocation and that it was an operative cause of the violence inflicted by the offender, remaining an operative cause throughout the commission of the offence.[13]
[36] This Court considered the approach to provocation in murder cases after the removal of the partial statutory defence of provocation in Hamidzadeh v R.[14] It is no longer essential to establish that the provocative conduct of the victim would have deprived an ordinary person with the attributes of the defendant of the power of selfcontrol.[15] However, loss of control is still a factor relevant to culpability. It is relevant whether the offending occurred through fear rather than anger.[16]
[37] As we understand Ms Zwaan’s submission, she is not suggesting that provocation can be used in this way in this sentencing. She submitted that rather than it being a mitigating factor relating to the culpability of the offending leading to a reduced starting point, it could nevertheless be taken into account as a mitigating factor personal to the offender.
[38] We are not satisfied that provocation could have reduced either the culpability of the offending or have been taken into account as a mitigating factor. The Sentencing Act requires the court to take into account “the conduct of the victim” to the extent applicable in the particular case when it is sentencing.[17] Here the victim had not done anything which could be regarded as provocative. The proposal to take the child to the hospital following the birth of a cousin was not unreasonable or confrontational. While the victim did go outside at Mr Fane’s invitation and exchanged blows, he stopped when his daughter intervened and proceeded to walk back to the house. Mr Fane then proceeded to walk quickly past him, uplift the shotgun and in anger fire a shot into his head. His action was entirely disproportionate to any actions on the victim’s part that might have upset him.
[39] There have been a number of cases where it has been held that the threshold of mitigating provocation has not been crossed because of the disproportionality of the reaction.[18] The Judge’s conclusion that Mr Fane was not entitled to any credit for any degree of provocation is consistent with those cases, and was in our view entirely justified.
[40] We record that Ms Sykes’ general submission that the Judge failed to place weight on Tikanga Māori does not lead us to change our assessment of provocation. There was nothing in the material presented to us that showed Mr Fane’s violence to be any more proportionate and understandable. His partner’s stepfather wanted to take Mr Fane’s daughter to see her newly born cousin. The new material did not suggest that in terms of Tikanga Māori this proposed action was in any way wrong or offensive. The placing of Mr Fane’s daughter with her grandparents was not in itself an error by CYF, or culturally insensitive. Nothing has been adduced that might explain Mr Fane’s actions. Rather a more accurate explanation is that referred to by Dr Tapsell in his report. He recorded:
Mr Fane describes a long standing problem of impulsive and overwhelming outbursts of anger, associated with feelings of paranoia and some, difficult to describe, perceptual disturbance. These experiences appear to be much more related to the combination of his personality, his overwhelming anger and perhaps his heavy drug abuse, rather than reflective of any underlying mental illness, per se.
[41] This ground of appeal cannot succeed.
Mitigating factors
[42] Section 8(i) of the Sentencing Act requires a court to take into account an offender’s personal, family, whānau, community and cultural background in imposing a sentence with a partly or wholly rehabilitative purpose.
[43] We have considered Ms Sykes’ submission that Mr Fane’s cultural and family background was a mitigating factor in his offending, either generally or under s 8(i). In doing so we have taken into account all the material that we have received, including the further affidavits filed. We understand that it is this sort of material that Ms Sykes proposes would have been presented to the Court if s 27 had been invoked by the Judge.
[44] As we have already observed in relation to s 27, we think that if the material was before the Judge it would not have altered his approach to sentencing or the end sentence. In his sentencing notes the Judge noted Mr Fane’s concern about the circumstances which had occurred, and his frustration at being separated from his child.[19] The stress of the separation and the frustrations of Mr Fane were plain and recognised, and it would not have assisted to have a number of people come forth and say the same thing in their own words. The affidavits would not have added to the relevant knowledge of the Court in a material way.
[45] The Judge acknowledged the background to the offending, but rightly considered that this could not affect his decision given the serious nature of the offending. The new affidavits do not address the issue that Heath J faced, which was how to respond to Mr Fane’s extraordinarily dangerous and violent act of firing a shotgun at close range at his partner’s stepfather’s head, and the terrible long term consequences for the victim. The Judge was aware of the background, explained in more detail in the new affidavits before us, but rightly emphasised the purposes of the sentence, namely to denounce Mr Fane’s act, the need to deter Mr Fane and others from behaving in that way, to hold him accountable for what he had done, and protect the community from such acts.
[46] A nexus between Mr Fane’s cultural background and his serious and unprovoked attack is not established, and accordingly it cannot mitigate his culpability for this offending. While the further affidavit evidence is obviously sincerely given, we conclude that it cannot provide a significant mitigating factor justifying an independent discount from the starting point adopted.
[47] We also do not accept Ms Sykes’ submission that the Judge should have considered Mr Fane’s “co-operation”. Mr Fane initially tried to avoid the police and only entered a guilty plea at a late point. Further, there was no co-operation in the sense of helping the police in an investigation. There was nothing that warranted a discount for co-operation.
Remorse and guilty pleas
[48] Mr Fane did not express significant remorse when interviewed by the probation officer. He was reluctant to admit that the shooting incident meant his behaviour was violent. He told the probation officer that there were two sides to the story and he had not told his side, which was a “family issue”. The probation officer assessed his motivation to address his anger issues and tendency to employ extreme violence as low.
[49] The unmistakable impression is that with the probation officer Mr Fane was seeking to justify and indeed excuse his actions on the basis of family issues. Although he did write a letter to the Court in which he expressed remorse, he described himself as a “confused young father with a broken heart”, and gave a lengthy explanation about the family circumstances, rather than addressing the great harm he had done to the victim. In those circumstances there was no basis for giving any discount for remorse.
[50] We observe that the uplift of three months for previous convictions involving a non-aggravated robbery, and a nine-month uplift for the cannabis offending, were both appropriate. The 16.6 per cent discount for the guilty pleas was generous, given the late entry of the guilty pleas and the strong case against Mr Fane.
Result
[51] The application for an extension of time is granted. The appeal is dismissed.
Solicitors:
Kathy Ertel
& Co, Rotorua for Appellant
Crown Law Office, Wellington for
Respondent
[1] R v Fane [2012] NZHC 1807 [sentencing notes].
[2] Sentencing notes, above n 1, at [5].
[3] Sentencing notes, above n 1, at [10].
[4] At [17].
[5] At [23].
[6] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [34] and [40].
[8] Sentencing Act 2002, s 27(1)(a).
[9] Section 27(1)(b).
[10] Section 27(2).
[11] Section 27(3).
[12] RS (CA21/2014) v R [2014] NZCA 484 at [18].
[13] R v Taueki, above n 6, at [32](a).
[14] Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369.
[15] At [60].
[16] At [63].
[17] Sentencing Act, 9(2)(c).
[18] Eldershaw v R [2013] NZCA 374 at [12]; Brown v R [2014] NZCA 93 at [9]; and Wairau v R [2015] NZCA 215 at [42].
[19] Sentencing notes, above n 1, at [3].
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