Lisipa v The Queen
[2021] NZCA 341
•27 July 2021 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA48/2019 [2021] NZCA 341 |
| BETWEEN | SALEMONA BRAD LISIPA |
| AND | THE QUEEN |
| Hearing: | 20 May 2021 |
Court: | Cooper, Simon France and Edwards JJ |
Counsel: | K H Maxwell for Appellant |
Judgment: | 27 July 2021 at 3 pm |
JUDGMENT OF THE COURT
A The application to admit fresh evidence on appeal is granted.
B The appeal against sentence is allowed.
C The four concurrent sentences of 14 years’ imprisonment are quashed.
DFour concurrent sentences of 12 years and 10 months’ imprisonment are substituted.
E The minimum period of imprisonment is quashed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Mr Lisipa appeals an overall sentence of 14 years’ imprisonment, and the accompanying minimum period of imprisonment (MPI) of nine years and three months. The sentence relates to three charges of aggravated robbery, an attempted aggravated robbery charged as assault with intent to rob, and a collection of other charges including burglary, resisting arrest, and two charges each of theft and dangerous driving.[1]
[1]R v Lisipa [2019] NZDC 2370 [District Court judgment].
There are three matters advanced in support of the appeal:
(a)a challenge to an uplift of two years’ imprisonment which covered past offending, and being on bail at the time of the offences;
(b)a challenge to the need for an MPI; and
(c)a submission that factors in Mr Lisipa’s background and upbringing merit some level of discount.
Concerning the third ground, fresh evidence in the form of a report prepared under s 27 of the Sentencing Act 2002 by Ms Shelley Turner is proffered. Although s 27 reports should not be produced for the first time on appeal,[2] the Crown does not oppose the Court receiving it and having considered it we are satisfied it should be admitted.
Offending
[2]Carroll v R [2019] NZCA 172 at [8].
Mr Lisipa is 31 years of age with an already formidable history of serious offending prior to the series of offences now described. The current offences occurred primarily in June and July 2017.
The most serious offending was a sequence of four events occurring within a short period:
(a)aggravated robbery of a mobile phone store using a hammer. Mr Lisipa smashed a cabinet and took nine mobile phones;
(b)assault with intent to rob which involved entering a bank armed with a shotgun. Mr Lisipa pointed the gun at the tellers but security screens were deployed and he left without anything;
(c)aggravated burglary of a TAB premises. Mr Lisipa used a hammer to smash a window. It was after hours. The workers still present locked themselves in a room and called for assistance. Mr Lisipa took $2,000 from the cash register; and
(d)aggravated robbery of another TAB premises. Mr Lisipa had a screwdriver, threatened the workers and made off with over $16,000.
Transportation to these events was by way of stolen vehicles. The period of offending ended with two occasion of dangerous driving, one of which also led to a charge of resisting arrest. Within this overall period of offences there was also an unproductive burglary of the same TAB premises from which Mr Lisipa later obtained the $16,000. Mr Lisipa was unsuccessful in obtaining money from the TAB.
Sentencing
Judge Gibson identified the bank offence as the lead offence and took a starting point of six years’ imprisonment.[3] All other offending attracted an uplift of the same amount leaving a base starting point of 12 years’ imprisonment. The Judge then added 18 months for past offending and six months for offending while on bail and while under sentence.[4] This took the starting point to 14 years.
[3]District Court judgment, above n 1, at [26].
[4]At [27].
There were no mitigating factors. Mr Lisipa was described as a “dangerous criminal” with little prospect of change and a clear risk of reoffending.[5] The maximum MPI of two-thirds of the sentence was imposed.[6]
Information about Mr Lisipa
[5]At [28].
[6]At [29]; and Sentencing Act 2002, s 86(4)(a).
At sentencing the Court had the standard pre-sentence report and of course Mr Lisipa’s record of past offending. Concerning that, the first offending noted for Mr Lisipa is a Youth Court notation when he was 15 years of age. It related to a car theft and burglary when he had just turned 14. Over the next two years there appear to be a further two Youth Court appearances dealing with a large number of matters including aggravated robbery and assault with intent to rob. These led to supervision in a social welfare residence.
Mr Lisipa first appeared in the adult court in November 2006 for what appears to be four aggravated robberies, two robberies and other offences. He was by then 17 years of age, and was sentenced to a term of imprisonment of two years and six months. After release, through 2008 and 2009, relatively minor offences were committed which attracted short terms of imprisonment totalling seven months.
In August 2010, just before his 21st birthday, Mr Lisipa was sentenced in relation to theft of a vehicle, three aggravated robberies and a further robbery. The aggravated robberies all involved weapons and the overall sentence was seven years and six months’ imprisonment with an MPI of three years and nine months.
Mr Lisipa was released in September 2016. The aggravated robberies then occurred in June and July of 2017, but there had been earlier offences in February 2017 (burglary and theft) for which Mr Lisipa was on bail. It appears he was taken into custody on the aggravated robberies charges in late July 2019. The reality therefore is that Mr Lisipa has spent most of his life since he was 17 years old in jail.
As noted, for the purpose of the appeal a specialist report prepared under s 27 of the Sentencing Act is submitted.
Mr Lisipa’s parents came to New Zealand from Niue in 1970 and 1980 respectively. The parents’ wider families have done likewise such that New Zealand is the family base. The parents were employed in low-income occupations and Mr Lisipa’s upbringing was stable.
It appears that from intermediate level at school he displayed behavioural issues which saw him expelled from more than one school and eventually placed by the Ministry of Education in an alternative education environment. He did poorly there and ended up in “the care and protection” environment. The background to this would seem to have been that Mr Lisipa, from around the age of 10, began mixing with a group of similar age that formed their own street gang. Mr Lisipa then sought attachment to an established gang, the Cripps. Two of his siblings were already in that gang.
The report advises that Mr Lisipa in his early teens was moved into boys’ homes and then, as noted, into youth justice residences.
Discussions with Mr Lisipa led the report writer to conclude what might be seen as inevitable — Mr Lisipa is, and feels, institutionalised. He knows no other real life and in his short periods of release he struggles to cope. His life history has left him with limited skills to assist. He has become separated from his family, and at the time of the latest offending had become a methamphetamine user. On his self‑reporting, it was a significant habit at the time.
The report suggests that Mr Lisipa is beginning to gain insight into what all this means. This insight includes remorse for victims but also awareness of what he personally has missed out on. There is said to be some awareness of a need to change. Mr Lisipa’s parents remain supportive and would welcome him home, albeit if he agrees to a relatively strict regime.
Analysis
As noted, three grounds of appeal are raised.
We address first the challenge to the uplift. Eighteen months is a stern uplift for past offending, and the need to avoid repunishing is a recognised concern.[7] However, objectively, Mr Lisipa’s repeated offending is serious, involves the use of weapons, creates risks to people and on this occasion occurred shortly after his release from a lengthy term of imprisonment for similar offending. We do not consider the uplift was excessive.
[7]See for example Blackmore v R [2014] NZCA 109 at [12]–[13].
Standing alone the same could be said for the six-month uplift for offending while on bail, but when added to a stern prior offending uplift, and an already significant jail term, we consider it is excessive, and accordingly we quash that aspect.
The other two grounds of appeal are related. The fuller information about Mr Lisipa, his journey to the situation in which he now finds himself, the emergence at age 31 of some realisation of where he is at and of what the cost has been both to others and himself, and the existence of ongoing family support lead to a clear view that the MPI should be quashed.
Mr Lisipa served the full term of his previous sentence. There is a chance he will do so again since a risk of reoffending is so obviously demonstrated by his past actions. That safety valve of serving the full term remains in place regardless of an MPI being imposed. However, there is as noted the prospect that Mr Lisipa may be seeking a different future and it would be unfortunate if access to assistance with that transition were blocked by an MPI. Faced with a person as plainly institutionalised as Mr Lisipa, and presented with some prospects of change, we consider it correct to foster that opportunity, albeit against the background of what remains a necessarily lengthy sentence.
Mr Lisipa had a loving family and stable background and there is no suggestion of violence or deprivation at the hands of his parents. But for whatever reason from a very young age he became involved with gangs. His life went on a criminal trajectory as a result of wrong choices made when very young. We consider, given the recent indications that he has developed more insight into the consequences of his offending both for those affected by it and himself, the appropriate response to the s 27 report is to apply a discount of five per cent (eight months) and to quash the MPI.
Conclusion
The application to admit fresh evidence on appeal is granted.
The appeal against sentence is allowed.
The four concurrent sentences of 14 years’ imprisonment are quashed.
Four concurrent sentences of 12 years and 10 months’ imprisonment are substituted.
We quash the MPI.
Solicitors:
Crown Law Office, Wellington for Respondent