Elisaia v R - [2015] NZCA 516

IN THE COURT OF APPEAL OF NEW ZEALAND

CA743/2014
[2015] NZCA 516

BETWEEN	GEOFFREY ELISAIA Appellant
AND	THE QUEEN Respondent

Hearing:	19 October 2015
Court:	Harrison, Heath and Collins JJ
Counsel:	L C Ord for Appellant Z R Johnston for Respondent
Judgment:	5 November 2015 at 10 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

The appeal

Mr Elisaia pleaded guilty to one count of wounding with intent to cause grievous bodily harm and one of unlawfully taking a motor vehicle following an unprovoked attack on the driver of a stationary motor vehicle on 31 December 2012.
On 25 November 2014, he was sentenced, in the North Shore District Court, by Judge Pippa Sinclair.[1] Mr Elisaia was sentenced to an effective term of five years and three months’ imprisonment.
[1]R v Elisaia DC North Shore CRI-2013-090-4934, 25 November 2014.
At the time of sentencing, Mr Elisaia had already received a first-stage warning under the “three strikes” regime. As a result of the grievous bodily harm conviction, he was given a second-stage warning. That means that he must serve the full period of imprisonment imposed, without parole.[2] There is no jurisdiction for a sentencing or appellate Court to mitigate that consequence.
[2]Sentencing Act 2002, s 86C(4).
Mr Elisaia appeals against the end sentence imposed on grounds of manifest excess.

Background facts

On the evening of 31 December 2012, at 7.50 pm, the victim was travelling in his car to an address in Glen Eden. A female friend was with him. Mr Elisaia and his co-offenders Mr Moki and Mr Natua were among the people at the address.
After the vehicle stopped, the victim was separated from his friend and the car was surrounded. A vicious attack followed, in which Mr Elisaia, Mr Moki and Mr Natua participated. The assault was recorded on a cellphone by an associate. Mr Elisaia was not identified as a participant until after the cellphone came into the possession of the police, some time later. The evidence of the role played by Mr Elisaia in the attack comes from the video record.
Initially, Mr Elisaia entered the front passenger door of the vehicle. He sat next to the victim, leaving that door open. Mr Elisaia proceeded to punch the victim in the face, approximately 18 times. The victim tried to escape through the driver’s door. He was prevented from doing so by Mr Natua, who held the door shut from outside.
While Mr Elisaia continued his assault, Mr Moki walked to the driver’s side of the car and punched the victim 10 times to his face, through an open window. When Mr Moki stopped, Mr Natua punched the victim in the face a further five times.
Mr Moki then opened the driver’s door and punched the victim a further six times to the face. As he did this, Mr Elisaia kicked the victim twice and punched him another two times from the passenger seat.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elisaia v R

Details

AGLC: Elisaia v R [2015] NZCA 516
Case: [2015] NZCA 516
Decision Date: 5 November 2015 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against the sentence imposed on Geoffrey Elisaia, who had pleaded guilty to charges of wounding with intent to cause grievous bodily harm and unlawfully taking a motor vehicle. The attack, which took place on 31 December 2012, involved multiple assailants and resulted in serious injuries to the victim. Elisaia was sentenced to an effective term of five years and three months' imprisonment by Judge Pippa Sinclair in the North Shore District Court, following a prior warning under the "three strikes" regime, which mandated that Elisaia serve the full sentence without parole.

The appeal centred on two main grounds: first, that the starting point for sentencing was too high, and second, that insufficient credit was given for mitigating factors, including Elisaia's youth, remorse, and efforts at rehabilitation. The Crown argued that the sentence was appropriate and that the mitigating factors had been adequately considered. The appeal court examined the starting point in light of the guideline judgment R v Taueki, noting that the attack involved multiple assailants, serious violence without weapons, and multiple blows to the victim's head. The court found that the starting point of seven years was appropriate, reflecting the seriousness of the attack.

Regarding mitigating factors, the court observed that while youth is a significant mitigating factor, Elisaia's extensive criminal history offset this. The court also noted that Elisaia had expressed remorse and shown attempts at rehabilitation, for which a credit was appropriately given. The appeal court concluded that the sentence was not manifestly excessive and dismissed the appeal.

Orders