Lisipa v The Queen - [2021] NZCA 341

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA48/2019
[2021] NZCA 341

BETWEEN	SALEMONA BRAD LISIPA Appellant
AND	THE QUEEN Respondent

Hearing:	20 May 2021
Court:	Cooper, Simon France and Edwards JJ
Counsel:	K H Maxwell for Appellant M R L Davie for Respondent
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.

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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…

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 Lisipa v The Queen

Details

AGLC: Lisipa v The Queen [2021] NZCA 341
Case: [2021] NZCA 341
Decision Date: 27 July 2021 at 3 pm

CaseChat Overview and Summary

In the case of Lisipa v The Queen, the appellant, Salemona Brad Lisipa, appealed against his sentence of 14 years imprisonment, along with the accompanying minimum period of imprisonment (MPI) of nine years and three months. The appeal related to multiple charges including aggravated robbery, attempted aggravated robbery, burglary, resisting arrest, and dangerous driving. The court was required to decide on the challenges to the uplift for past offending and being on bail at the time of the offences, the need for an MPI, and whether factors in Lisipa’s background and upbringing merited some level of discount.

The court found that the uplift for past offending was not excessive, but the uplift for offending while on bail was excessive. It also found that given Lisipa's institutionalised background, the emergence 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, the MPI should be quashed. The court granted the application to admit fresh evidence on appeal, allowed the appeal against sentence, and substituted four concurrent sentences of 12 years and 10 months’ imprisonment. The court also quashed the MPI.

Orders