Feau v R [2019] NZCA 72 (28 March 2019)

Last Updated: 2 April 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA216/2018 [2019] NZCA 72

	BETWEEN	DALLY LINTON FEAU Appellant
	AND	THE QUEEN Respondent

Hearing:	27 February 2019
Court:	French, Dobson and Brewer JJ
Counsel:	M W Ryan for Appellant M H Cooke for Respondent
Judgment:	28 March 2019 at 10 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Feau was convicted following a jury trial in the District Court of injuring with intent to injure.^[1] The presiding Judge, Judge Zohrab, sentenced him to a term of imprisonment of two years and three months.^[2]
[2] Mr Feau now appeals his sentence.

Background

[3] Mr Feau punched a bouncer in the head outside a bar. The bouncer was trying to intervene to stop a scuffle. The punch knocked him unconscious and broke his jaw. He could not talk or eat normally for a month. He was in a great deal of pain and had to take six weeks off work as a builder and 12 weeks off his part time job as a security guard. As a result, he lost earnings of approximately $5,500.

District Court sentencing

[4] Judge Zohrab identified the aggravating features of the offending as being an attack to the head, serious injury, the fact the victim was doing his job trying to break up a fight and the fact the victim was vulnerable due to being distracted by what was going on in the street and also because of the size disparity as between him and Mr Feau.^[3] In light of those aggravating features, the Judge considered the offending lay within band two of the guideline decision of Nuku v R (starting point of up to three years’ imprisonment) and adopted a starting point of two years and three months’ imprisonment. ^[4]
[5] The Judge then uplifted that starting point by three months on account of Mr Feau’s prior convictions for violence,^[5] before allowing a three month discount in recognition of 13 months spent on electronically monitored (EM) bail.^[6] Those adjustments resulted in an end sentence of two years and three months’ imprisonment.
[6] This meant that home detention was not available.^[7] However, Judge Zohrab noted that even if it had been, it would have been inappropriate because of Mr Feau’s previous history of violence, the cowardly nature of the attack and the fact that Mr Feau had called his brother to give false evidence that he and not Mr Feau was the assailant.^[8]

The appeal

[7] Mr Feau’s counsel Mr Ryan argued that the sentence was manifestly excessive and that, in all the circumstances, the appropriate sentence was home detention.
[8] In support of those general contentions, Mr Ryan submitted that the Judge’s emphasis on the bouncer’s vulnerability was wrong and that this led to an excessively high starting point. He referred us to the High Court decisions of Burton v Police,^[9] and Elizalde v Police.^[10] Like the present case, the latter also involved a one punch assault and yet the starting point was only 21 months.^[11]
[9] Mr Ryan did not challenge the uplift on account of previous convictions but submitted the discount of three months for EM bail was manifestly inadequate. Citing the decision of this Court in Hohipa v R,^[12] he contended that at least six months’ discount should have been given. In Hohipa, a 12 month discount was given for 14 months spent on EM bail.
[10] We do not accept these submissions. In particular, we do not accept that the fact the victim was a trained security guard meant he could never be treated as vulnerable for the purposes of the Sentencing Act 2002. In any event, apart from vulnerability there were still sufficient aggravating features to justify the case being placed within band two of Nuku. Further, as the Crown points out, this Court has on multiple occasions noted there is little to be gained by citing High Court decisions on sentence appeals except where there is a paucity of appellate authority. We would not therefore place the weight on Elizalde that Mr Ryan sought. In addition to Nuku, other decisions of this Court (Hala v R and Kauvai v R) show that Judge Zohrab’s starting point of two years and three months’ imprisonment was well within range.^[13]
[11] As regards EM bail, the curfew conditions of Mr Feau’s bail were for most of the 13 month period a curfew between 5 pm and 8 am seven days a week, though initially there was a 24 hour curfew. Mr Feau was granted various absences including five days to allow him to go on holiday with his family to a spa resort. Mr Feau never breached his conditions.
[12] We accept that another judge may have given a larger discount than three months. However, the size of the discount is a matter of discretion. There are no rules or mathematical formulae and in our view the decision the Judge made was open to him. We note too that this Court has observed that Hohipa appears out of step with the more recent decisions of this Court.^[14]
[13] Ultimately what matters on appeal is of course the end sentence rather than the component parts. We are satisfied that the end sentence was within range and that appellate intervention is not warranted.
[14] We also agree for the reasons articulated by Judge Zohrab that home detention would not have been appropriate even if available.

Outcome

[15] The appeal against sentence is dismissed.

Solicitors:
Crown Law, Wellington for Respondent

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^[1] Crimes Act 1961, s 189(2).

^[2] R v Feau [2018] NZDC 7004 [Sentencing Decision] at [36].

^[3] Sentencing Decision, above n 2, at [10] and [14].

^[4] At [27]–[28]; Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

^[5] These included a conviction for aggravated robbery in 2008 and in 2014 a conviction for injuring with intent to injure. Mr Feau is 34 years of age.

^[6] At [30].

^[7] At [30].

^[8] Sentencing Decision, above n 2, at [34]–[35].

^[9] Burton v Police [2017] NZHC 664.

^[10] Elizalde v Police [2015] NZHC 959.

^[11] At [21].

^[12] Hohipa v R [2015] NZCA 485.

^[13] Hala v R [2013] NZCA 237; and Kauvai v R [2017] NZCA 241.

^[14] R (CA528/2015) v R [2017] NZCA 210 at [14]. See also Parata v R [2017] NZCA 48; and Chea v R [2016] NZCA 207.