Elisaia v R
[2015] NZCA 516
•5 November 2015 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA743/2014 [2015] NZCA 516 |
| BETWEEN | GEOFFREY ELISAIA |
| AND | THE QUEEN |
| Hearing: | 19 October 2015 |
Court: | Harrison, Heath and Collins JJ |
Counsel: | L C Ord for Appellant |
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.
Mr Natua entered the vehicle and put the victim in a headlock for 10 seconds, before releasing him. The victim was pulled from the car, restrained, and headbutted by Mr Moki seven times to the side of his face. Mr Elisaia then punched the victim once to his face, before getting into the victim’s car, reversing down the driveway and driving off. The victim continued to be assaulted by the others. The car was later recovered by police from a nearby reserve.
The victim was found by police and taken to hospital. He suffered a severely blackened right eye socket, a 5 cm wound beside his right eye, a fractured eye socket, a fractured cheekbone, a small gash to his upper lip and bruising and cuts to his facial area.
Grounds of appeal
Ms Ord, for Mr Elisaia, promoted two grounds of appeal. They were:
(a)The starting point taken by the District Court Judge was too high. She contended that the sentencing Judge had misapplied the guideline judgment of this Court, R v Taueki.[3]
(b)Too little credit was given for mitigating factors; in particular, Mr Elisaia’s youth at the time of the offending, his remorse and his attempts at rehabilitation.
In her written submissions, Ms Ord also challenged the sentence on grounds of unjust disparity. At the time her submissions were prepared, she had not seen the sentencing notes for each of the co-offenders, Mr Moki and Mr Natua. Both had been sentenced before Mr Elisaia. Mr Moki was sentenced on 17 January 2014, while Mr Natua was sentenced on 17 October 2014.[4] The sentencing notes make it clear that there was no unjustly disparate sentencing involved. Responsibly, Ms Ord did not pursue this ground of appeal.
[3]R v Taueki [2005] 3 NZLR 372 (CA).
[4]R v Moki DC Waitakere CRI-2013-063-2950, 17 January 2014 and R v Natua DC Auckland CRI-2013-090-5242, 17 October 2014.
Ms Johnston, for the Crown, supported the sentence imposed by the Judge. She submitted that the starting point was in range and that there was no reason why any additional credit should be given for mitigating factors.
Sentencing in the District Court
Mr Elisaia was charged with the two offences on 2 September 2013, some eight months after the offending occurred. He first appeared in the Waitakere District Court on that day. It appears that a sentence indication was sought in December 2013. At that stage, Mr Elisaia also faced some summary charges that were independent of the offending in issue on appeal. They were factored into the sentence indication.
Judge Sinclair gave an indication on 6 December 2013 in these terms:
[1] The offending falls [in the] middle band of R v Taueki … because it involved in my view a small amount of premeditation, attack on the victim’s head, it was prolonged, there were multiple attackers and multiple blows to the victim, with the added aggravating feature that the victim’s car was taken.
[2] I set a starting point of seven years’ imprisonment. There will be an uplift of six months for the remaining summarily laid matters to take into account the totality principle. There will be no uplift for Mr Elisaia’s previous convictions but there will also be no reduction because of his age as in the circumstances both really balance each other out. There will be a reduction of 25 percent for a guilty plea and there will be a second strike warning.
Although the Court record is not entirely clear, it appears that a plea of guilty was entered to the charges soon after the indication was given. However, sentencing did not proceed immediately because Mr Elisaia wished to await the outcome of pre‑trial evidential applications made by co-offenders before determining whether to apply to vacate the guilty pleas.
Eventually, Mr Elisaia appeared for sentence before Judge Sinclair on 25 November 2014. The Judge referred to the sentencing indication she had provided the previous year, saying:
[2] In December last year, I provided a sentencing indication as follows. I set a starting point for the wounding with intent charge, coupled with the unlawful taking charge, of seven years’ imprisonment. I indicated there would be an uplift of six months for the remaining summarily laid matters to take into account the totality principle. I indicated that I would not provide an uplift for your previous convictions, but I also noted that there would be no reduction because of your age, as in the circumstances both of those cancel each other out. I indicated that there would be a reduction of 25 percent for guilty pleas on the charges and a second strike warning would be given.
The sentencing Judge set out the background to, and the nature of, the additional charges that were before her. We do not consider it necessary to go into the nature or extent of that offending, for the purposes of dealing with the present appeal.[5] The sentences imposed for that offending increased the effective period of imprisonment to be served by six months.
[5]See [26] below.
Judge Sinclair referred to Taueki, and identified five aggravating features of the grievous bodily harm offending:[6]
(a)Serious violence, albeit without weapons.
(b)A prolonged and unprovoked attack.
(c)Multiple blows to the head.
(d)Holding the victim around the neck.
(e)Premeditation.
[6]R v Elisaia, above n 1, at [19].
The Judge was alive to the need to ensure that there was no double counting when assessing aggravating factors by reference to the level of violence inflicted and the seriousness of the injuries resulting from it.[7] She acknowledged that the complainant did not suffer life-threatening injuries but, nevertheless, regarded the injuries as “serious”.[8]
[7]At [20].
[8]At [19] and [20].
The Judge held that the offending fell in the mid-range of Band 2 Taueki, having the “hallmarks of a concerted street attack … albeit without weapons”.[9] She considered that the “prolonged and sustained nature of the offending and the injuries sustained” left it within that mid-range.[10]
[9]At [22].
[10]At [22].
Taking denunciation, deterrence and the protection of the community as the lead sentencing goals,[11] Judge Sinclair set a starting point of seven years’ imprisonment for the lead offending, with an additional six months for the unrelated charges that were laid summarily.[12] In doing so, she took into account the statutory injunction to impose the least restrictive outcome in the circumstances.[13]
[11]At [23].
[12]At [25]–[26].
[13]At [23].
Judge Sinclair considered Mr Elisaia’s youth as a potential mitigating factor.[14] She considered that Mr Elisaia’s previous offending tempered any credit that could be given. She observed that Mr Elisaia was “no stranger to the courts and [could not] be treated in the same way as a youth of 18 years with no previous convictions”.[15] On that basis, Judge Sinclair took the view that the previous convictions and youth cancelled each other out, for sentencing purposes.[16]
[14]At [28], referring to Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 and Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868.
[15]At [28].
[16]At [29].
The Judge was prepared to give a reduction of four months’ imprisonment for remorse.[17] This was evidenced both in expressions of remorse and a desire to engage in restorative justice procedures.
[17]At [30].
Notwithstanding the delay between the sentence indication and the time of sentencing (close to one year), the Judge allowed a full credit of 25 percent for the guilty pleas.[18] That left a final sentence of five years and three months’ imprisonment.[19] The sentence imposed on the other charges on which Mr Elisaia appeared for sentence is subsumed within that.[20]
Analysis
(a) Was the starting point too high?
[18]At [31], applying Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
[19]At [30]–[32].
[20]At [26].
Although the sentence imposed reflected that given at a sentence indication almost one year earlier, the right to appeal against sentence on grounds of manifest excess remains intact.[21] The protection against abuse of the appeal right is the ability of an appellate court to impose a more severe sentence (if considered appropriate) without any obligation to allow an appellant to withdraw his or her guilty plea.[22]
[21]Criminal Procedure Act 2011, s 245. More generally, see Nepia v R [2015] NZHC 1226 at [19]–[28].
[22]Section 252.
The appropriateness of the starting point taken by Judge Sinclair must be measured by reference to R v Taueki.[23] Although not being prescriptive, in that case this Court identified a number of factors likely to be relevant to setting a starting point for offending involving an intent to cause grievous bodily harm.[24] The Court also identified factors that might reduce the seriousness of such offending, as well as those that should not be seen as doing so.[25]
[23]R v Taueki, above n 3.
[24]At [31].
[25]At [32] and [33].
In cases where three or more of the aggravating features identified by the Court exist, a starting point of between nine and 14 years’ imprisonment should be taken.[26] The assessment of a starting point is undertaken in the context of the maximum penalty of 14 years’ imprisonment prescribed by the statute.[27]
[26]At [34], [40]–[41].
[27]Crimes Act 1961, s 188(1).
Judge Sinclair identified five aggravating features. Ms Ord criticised that conclusion by suggesting that the Judge’s assessment overstated the extent of the violence and involved double-counting various factors that substantially overlapped.[28]
[28]See [18]–[22] above.
We make two points immediately. The first is that the starting point taken by Judge Sinclair represents 50 percent of the maximum penalty available. The second is that the Judge recognised that the five factors could not be treated as truly independent of each other. That is reflected by her Honour’s assessment that the offending fell within the mid-range of Band 2 in Taueki.
Band 2 is described as appropriate for grievous bodily harm offending in which two or three of the aggravating factors applied. In Taueki, examples are given to assist sentencing judges. They include: concerted street attacks; assaults on a police officer; and premeditated domestic assaults.[29] Similar examples are given for Band 3, but the nature of the attacks described is more serious.[30]
[29]At [39](a)–(c).
[30]Compare [38]–[39](a)–(c) with [40]–[41](a)–(c).
If anything, we consider that Judge Sinclair understated the seriousness of the offending. Reflecting what was said in Taueki:
(a)We consider that there was a degree of premeditation involved in the attack. While there is no evidence of planning, it is difficult to characterise what happened as either provoked or impulsive. The prolonged nature of the attack and the gratuitous nature of the violent behaviour involved is sufficient to regard what occurred as “extreme violence”, for the purpose of the Taueki analysis.[31]
(b)While, somewhat fortuitously, the victim did not suffer life‑threatening (or disabling) injuries,[32] the attack did cause serious injury. Given the nature and extent of the violence inflicted, and the fact that the offenders attacked the victim’s head, it was pure luck that long-term brain injury or death did not result.
(c)This was a case involving multiple attackers. Three people set upon the victim intending to do serious injury. The victim was prevented from leaving his vehicle while a good deal of the attack was undertaken. As a result, he was unable to repel his attackers when taken from the car.[33] In our view, those factors bring into play the aggravating features of multiple attackers and vulnerability of the victim, to which Taueki refers.[34]
[31]At [31](a) and (b).
[32]See [20] above.
[33]See [5]–[10] above.
[34]At [31](h) and (i).
From what we have said, we consider that the Crown was generous to concede that the offending came squarely within Band 2 of Taueki. In our view, it fell on the cusp of Bands 2 and 3 which could have justified a starting point for sentence of nine years’ imprisonment. It follows that Ms Ord’s complaint that the starting point was too high is ill founded.[35]
(b) Was enough credit given for mitigating factors?
[35]See R v Connolly [2008] NZCA 550 and Skilling v R [2011] NZCA 463.
Given our view on the starting point issue, a significant amount of additional credit would be required to describe the end sentence of five years and three months’ imprisonment as manifestly excessive. On the facts of this case, that could not be done. Nevertheless, we offer some brief views on the points raised.
There is no doubt that a sentencing judge should give significant weight to the youth of an offender. This Court has made it clear that can be regarded as a significant mitigating factor.[36] In this case, Judge Sinclair declined to give specific credit because she considered any that might otherwise be available was off-set by a personal aggravating factor, namely Mr Elisaia’s prior criminal history.
[36]See generally R v Churchward, above n 14, at [50]–[55] and [76]–[92]. Leave to appeal to the Supreme Court was refused: Churchward v R [2012] NZSC 25.
For a youth aged 19 years at the time of the offending, Mr Elisaia’s prior criminal history makes disturbing reading. Having previously appeared on a number of occasions in the Youth Court, between 2011 and 2013, Mr Elisaia appeared frequently in the District Court. More recently, he has been sentenced to imprisonment on no fewer than 12 occasions, though some sentences were served concurrently. The first-strike warning was given for a charge of aggravated robbery for which he was sentenced on 13 March 2012, about nine months before the incident in issue in this appeal.
In those circumstances, Mr Elisaia must be regarded as someone from whom society needs protection. The Judge did not err in failing to give a discrete credit for youth.
The Judge did give a credit of four months’ imprisonment to recognise Mr Elisaia’s attempts to engage in restorative justice (the victim declined to participate) and expressions of remorse. The Judge also acknowledged that Mr Elisaia appeared to be developing a level of maturity and could now acknowledge the seriousness of his offending.[37] In our view, that credit was appropriate.
[37]R v Elisaia, above n 1, at [30].
A discrete credit for remorse is given when a sentencing judge considers that factor is not adequately captured in the credit allowed for acceptance of responsibility for offending acknowledged through the entry of a guilty plea. Judge Sinclair gave a credit of 25 percent to reflect the guilty pleas.
The 25 percent credit could legitimately have been reduced to take account of the period between the sentence indication and the sentencing hearing when Mr Elisaia appeared to be hedging his position to await the outcome of pre-trial evidential challenges made by co-offenders. A decision to await the outcome of such procedures, with a view to making an application to vacate a plea of guilty, does not sit easily with the concept of acceptance of responsibility.
The credit given for mitigating factors was adequate; if anything, it was more generous than what otherwise might have been given.
Result
We are not satisfied that the end sentence was manifestly excessive. The appeal against sentence is dismissed.
Solicitors:
Ord Legal, Wellington for Appellant
Crown Law Office, Wellington for Respondent
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