Leisi v Police HC Auckland CRI-2011-404-24

[2011] NZHC 496

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-24

BETWEEN  MICHAEL JOSHUA LEISI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 May 2011

Counsel:         H Talbot for Appellant

N Wilde for Respondent

Judgment:      18 May 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 18 May 2011 at 4:45 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Public Defence Service (Manukau) for Appellant

Meredith Connell (Auckland) for Respondent

LEISI V POLICE HC AK CRI-2011-404-24 18 May 2011

[1]      Mr Leisi  appeals  against  his  sentence  of  two  years  and  three  months’

imprisonment for aggravated robbery.

The facts

[2]      At about 3:50 am on 10 April 2010, the appellant and a Mr Fotu purchased food at premises forming part of the Mobil petrol station in Mangere.  The appellant at that time was 17 years old with no previous convictions.

[3]      During the meal Mr Fotu took milk from a refrigerator and drank it without attempting to pay for it.   When the appellant and Mr Fotu attempted to leave the service station the victim approached Mr Fotu and asked him to pay for the milk. Mr Fotu refused and argued with the victim.   The appellant then approached the victim and delivered a “king hit” to the side of his face, causing the victim to fall to the ground.

[4]      Mr Fotu then proceeded to kick the victim three times in the head and body while he was lying on the ground.  During this period the appellant took bottles of soft drink valued at $11 from a nearby shelf before going to the main doors to wait for Mr Fotu.

[5]      The victim suffered bruising to his head, right cheek and thumb, and received scratches and bruising to his left elbow.

[6]      Mr Fotu was 21 years old, with previous convictions, and was further charged with other offending connected to events immediately after the incident described. He plays no further part in this appeal.

[7]      The  appellant  was  charged  originally  on  16 June  2010  with  aggravated assault and theft.  He pleaded not guilty to these charges.  On 31 August 2010, the informations   were   withdrawn   and   replaced   with   indictably  laid   charges   of aggravated  robbery and  kidnapping.    Full  Police  disclosure  in  relation  to  those charges was received by Defence counsel on 15 October 2010, legal aid was granted to the Public Defenders Office on 21 October 2010 and on the same date the Police

agreed to withdraw the kidnapping charge and to re-write the summary of facts.  A

plea of guilty was intimated immediately afterwards and the plea itself entered on

27 October 2010.

[8]      For the purposes of this appeal against sentence, I intend to take it that the plea of guilty was entered at the first available opportunity.

[9]      Ms Talbot for the appellant submits that Judge LH Moore, in sentencing the appellant in the District Court at Manukau on 21 January 2011, adopted a starting point that was too high given the circumstances of the case and did not reduce it sufficiently to take into account the appellant’s age, genuine remorse and plea of guilty.

[10]     The Crown submits, essentially, that the District Court Judge was correct in all respects.

[11]     This appeal proceeds by way of rehearing.[1]   However, I should not interfere with the sentence imposed by the District Court Judge unless I form the view that it is clearly excessive or inadequate, or inappropriate.[2]

R v Mako

[1] Summary Proceedings Act 1957, s 119.

[2] Ibid, s 121.

[12]     It is common ground that the leading authority in this area is the Court of

Appeal’s judgment in R v Mako.[3]   Judge Moore discussed that case as follows:[4]

[3] R v Mako [2000] 2 NZLR 533.

[4] R v Leisi DC Manukau CRI-2010-092-9123, 21 January 2011 at [7]-[9].

This does not quite fit either of the two categories they have been talking about, which are those described in paras 59 and 54 of that judgment.  But, let us be realistic.  This is not to be compared with the stand over job for a pair of shoes or a back pack or a hat.  That is the lowest category.  This is a small retail shop, there were members of the public present.  There were two offenders; there was actual violence – and you started it; and it was to the head. There was a small amount of stuff taken.

This really is not, in the true sense, a crime committed for profit.  In terms of what we see on the streets of South Auckland everyday this is a couple of arrogant young drunks saying we control what happens. Well you do not.

I think the approach of the Crown is the proper one: that it does not quite come within the category where the Court of Appeal says we have got to start with at least four years’ imprisonment, but it is far closer to that than it is to the street stand-over job.

[13]     With respect, I agree with the District Court Judge that the facts of this case do not fit within the first category of Mako, nor in all respects into the second category.  While the starting point of three-and-a-half years’ imprisonment could be seen to be at the higher end of the scale available to the District Court Judge, I cannot say it is clearly excessive or inappropriate.

[14]     The issue in this appeal, really, is the extent to which credit was given for mitigating  factors.   The  District  Court  Judge  accepted  that  he  had  to  take into account the youth of the appellant, the remorse shown by him, and the fact that he pleaded  guilty.    Taking  those  matters  into  account  as  a  whole,  he  reduced  the sentence by 15 months.

[15]     Judge Moore clearly was influenced by the need to protect public safety, to deter offenders in similar circumstances, to denounce the conduct of the appellant and  to  hold  him  accountable.    He  expressed  his  clear  frustration  with  the  fact situation  before  him  because  of  its  prevalence  in  the  Manukau  district  and  the linkage of this sort of offending with drunkenness.

[16]     In my view, however, where an offender is 17 years old and has no previous convictions, then a sentencing Court should give all reasonable prominence to the purpose of assisting the offender’s rehabilitation and reintegration.[5]   The principle of imposing the least restrictive outcome appropriate in the circumstances must, of course, be taken into account.[6]  The best way of promoting public safety in respect of a young, first time offender is to do what can be done reasonably to reduce the risk of him re-offending.

[5] Sentencing Act 2002, s 7.

[6] Ibid, s 8(g).

[17]     In this case, I have formed the view that the District Court Judge did not give adequate attention to the mitigating features.

[18]     Given that three-and-a-half years was an available starting point, my view is that the youth and good character of the appellant entitled him to a nine months reduction in the sentence. That would have brought it to two years, nine months.

[19]     The appellant entered his plea of guilty while the regime established by the Court of Appeal decision in R v Hessell was in force.[7]   I think it fair that he should get the benefit of that regime, acknowledging that the factor of remorse was considered to be part of the discount for an early guilty plea.   I have reached this view bearing in mind the submissions of Ms Talbot that, contrary to the view taken by the District Court Judge, the correspondence between the appellant and others after his entry of guilty pleas shows remorse to a degree which might have meant that the Supreme Court Hessell regime might have been more generous to the defendant.[8]  Applying the one-third discount reduces the sentence to 22 months.  The appellant could then be considered for home detention.

[7] R v Hessell [2010] 2 NZLR 298

[8] R v Hessell [2011] 1 NZLR 607.

[20]     Home detention is available as a sentence only if the purpose for which it is imposed  cannot  be  achieved  by  any  less  restrictive  sentence  and  a  short-term sentence of imprisonment would otherwise be imposed.[9]

[9] Sentencing Act 2002, s 15A(1).

[21]     In this case the main purpose of a sentence of home detention would be to best promote the offender’s reintegration and rehabilitation.   Deterrence and denunciation can also be achieved since home detention is a sentence which gives effect to those purposes.[10]

[10] R v Iosefa [2008] NZCA 453 at [41]-[42].

[22]     At the date of sentencing there was no address suitable for a home detention sentence.   That is still the case.   The Court may not sentence someone to home detention unless it is satisfied that there is a suitable residence.[11]    However, if the Court would, save for this factor, have imposed a sentence of home detention then it

must make an order granting the offender leave to apply to the Court of first instance

for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence becomes available.[12]

[11] Sentencing Act 2002, s 80A(2)(a)(i).

[12] Ibid, s 80I

[23]     In my view, the sentence of imprisonment imposed on the appellant was inappropriate and clearly excessive.  In the absence of a suitable address the District Court Judge should have left open the prospect of home detention.

Conclusion

[24]     The  appeal  is  allowed.    The  sentence  of  two  years  and  three  months’

imprisonment is quashed and a sentence of 22 months’ imprisonment is substituted.

[25]     Mr Leisi is granted leave to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a

suitable residence is found.

Brewer J

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