Lo v The King - [2024] NZCA 359

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA475/2023
[2024] NZCA 359

BETWEEN	JOEL LO Appellant
AND	THE KING Respondent

Hearing:	4 July 2024
Court:	Courtney, Collins and Hinton JJ
Counsel:	H G de Groot for Appellant N J Wynne for Respondent
Judgment:	1 August 2024 at 11 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of life imprisonment with an MPI of 12 years is quashed and substituted with a sentence of imprisonment of 12 years.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

On 6 March 2024, we granted Mr Lo an extension of time to file an appeal against a sentence of life imprisonment with a minimum period of imprisonment (MPI) of 12 years following his conviction for the murder of Mr Tupe on 29 September 2012.[1]
[1]See Kriel v R [2024] NZCA 45 [leave decision] at [111]–[116]. The MPI is the minimum time that Mr Lo must serve in prison before he is eligible to be considered for parole.
At the time of Mr Tupe’s murder, Mr Lo was 17 years old. He was 19 years old at the time he was sentenced by Fogarty J on 23 May 2014.[2]
[2]R v Lo [2014] NZHC 1117 [sentencing decision].
The primary offender, Mr Adams, was 15 years old at the time of Mr Tupe’s murder. He was sentenced to life imprisonment with an MPI of 14 years.[3]

Background

[3]At [23].

On the night of 30 September 2012, Mr Tupe left an address in Mt Wellington after expressing concern about the safety of his vehicle, which was parked in Ōtara. At some point on his journey, Mr Tupe met Mr Adams in McLennan Road, Mt Wellington. They did not know each other.
For no apparent reason, Mr Adams began to severely assault Mr Tupe by punching him and, in the words of the Judge, “kicking his head like a football”.[4] At trial, a witness gave evidence that at this stage, Mr Tupe was unsteady on his feet and expressing a desire to go to sleep. Shortly thereafter, Mr Adams walked Mr Tupe up Panama Road towards Sophia Close. During this time, Mr Adams held Mr Tupe with his arm around either Mr Tupe’s body or neck.
[4]At [3].
Upon arrival at Sophia Close, the assault continued. Fogarty J observed that the evidence was less clear as to the severity of the assaults at Sophia Close.[5] Occupants of the Sophia Close address came outside and encountered Mr Adams, who had his arm around Mr Tupe’s neck and was making statements to the effect that he was the "master” and that Mr Tupe was his “bitch”. By this time, Mr Tupe was observed as having swelling and bruising to his face and appearing intoxicated.
[5]At [3].
After several minutes, Mr Adams walked Mr Tupe from Sophia Close to Hillside Road. As they turned into Hillside Road, Mr Lo and Mr Hohepa Adams, who had been at Sophia Close,…

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 Lo v The King

Details

AGLC: Lo v The King [2024] NZCA 359
Case: [2024] NZCA 359
Decision Date: 1 August 2024 at 11 am

CaseChat Overview and Summary

Joel Lo appeals against his sentence of life imprisonment with a minimum period of imprisonment (MPI) of 12 years for the murder of Mr Tupe. The Court of Appeal allowed the appeal and substituted the sentence with imprisonment of 12 years. The case involved the murder of Mr Tupe, who was brutally assaulted by Mr Adams and then Mr Lo and his associate, Hohepa Adams, on the night of 30 September 2012. Mr Tupe died from blunt force trauma, and the cause of death was attributed to the assault.

The primary issue for the Court was whether the sentence of life imprisonment with an MPI of 12 years was manifestly unjust. The Court assessed Mr Lo's role in the murder and his personal circumstances. Mr Lo played a limited role in the attack and it was possible that Mr Tupe was dying when Mr Lo joined the assault. Additionally, Mr Lo's personal circumstances, including his youth, significant social deprivation, and lifelong exposure to violence, contributed to his offending. The Court found that the 12-year MPI and the prospect of lifetime parole were significantly out of proportion to Mr Lo's offending and his personal circumstances.

In assessing Mr Lo's culpability, the Court determined that an appropriate starting point for his finite sentence was 16 years' imprisonment. The Court deducted 20% to reflect Mr Lo's youth and cognitive immaturity and another 20% for his social deprivation and mental health conditions, resulting in a provisional sentence of nine years and seven months' imprisonment. The Court uplifted the provisional sentence by four months to reflect Mr Lo's previous offending, resulting in an overall sentence of nine years and 11 months' imprisonment. However, the Court increased the sentence by two years and one month to adequately reflect the gravity of Mr Lo's offending. The Court concluded that imposing an MPI was unnecessary as Mr Lo had already served approximately 10 years of his sentence.

The Court allowed the appeal and substituted the sentence of life imprisonment with an MPI of 12 years with a sentence of 12 years' imprisonment.

Orders