Lo v The King
[2024] NZCA 359
•1 August 2024 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA475/2023 [2024] NZCA 359 |
| BETWEEN | JOEL LO |
| AND | THE KING |
| Hearing: | 4 July 2024 |
Court: | Courtney, Collins and Hinton JJ |
Counsel: | H G de Groot for Appellant |
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.
____________________________________________________________________
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, ran after them. They knew Mr Adams, but they did not know Mr Tupe. At the corner of Sophia Close and Hillside Road, Mr Lo hit Mr Tupe hard in the mouth. The blow caused Mr Tupe to fall to the ground. Mr Adams and Mr Lo then punched, kicked and stomped on Mr Tupe’s head and prone body.
Hohepa Adams yelled at Mr Adams and Mr Lo to stop attacking Mr Tupe. Mr Lo walked away, but Mr Adams continued to assault Mr Tupe before he withdrew. Hohepa Adams tried to assist Mr Tupe by lifting him to his feet and telling him to run. Mr Tupe did manage to run a short distance before Mr Adams chased him down and knocked him to the ground. Mr Adams continued to assault Mr Tupe. Mr Lo accepts that he joined in again for a short period. Mr Adams continued to assault Mr Tupe before eventually leaving him alone.
Hohepa Adams checked on Mr Tupe, who was “snoring” and non-responsive, and went elsewhere to telephone emergency services. When police arrived at about 11.15 pm, they found Mr Tupe’s dead body lying in a grass reserve near the intersection of Panama and Hillside Roads. It is unclear whether others were also involved in the attack.
The post-mortem, performed by forensic pathologist Dr Garavan, revealed that the cause of Mr Tupe’s death was blunt force trauma. In addition to having sustained multiple bruises and cuts to his face, head and neck, Mr Tupe had suffered a significant bleed within his cranial cavity which pushed the right side of his brain towards the left side of his brain. The expanding haematoma then pushed his brain centrally and down into the spinal cord. Bleeding had also restricted Mr Tupe’s airways.
Dr Garavan indicated it was possible that Mr Tupe was suffering from a fatal subdural haemorrhage from the kicks and blows administered to him by Mr Adams when he and Mr Tupe were at McLennan Road. However, he said it was not possible to identify which of the numerous blows sustained by Mr Tupe had caused the haemorrhage.
In his first police interview, Mr Lo initially denied any involvement in the attack on Mr Tupe. However, in that same interview, he subsequently told police he punched Mr Tupe once in the face. He now accepts that he was also involved in assaulting Mr Tupe on Hillside Road.
Sentencing decision
Fogarty J identified that Mr Adams was the “most serious offender”, and that there could be “no doubt” that he killed Mr Tupe. The Judge sentenced Mr Adams on the basis that his offending engaged s 104(1)(e) of the Sentencing Act 2002, because the prolonged assault on Mr was “brutal, cruel and highly callous”.[6] As a consequence, Mr Adams was liable to be sentenced to an MPI of at least 17 years unless the court was “satisfied that it would be manifestly unjust” to impose such a sentence.[7]
[6]Sentencing decision, above n 2, at [5]; and Sentencing Act 2002, s 104(1)(e).
[7]At [7]; and Sentencing Act, s 104(1).
The factors that persuaded the Judge to impose an MPI of 14 years, rather than 17 years or more,[8] were:
(a)Mr Adams’ age at the time he murdered Mr Tupe (15 years old);[9] and
(b)the fact that Mr Adams was remorseful.[10]
The Judge expressly stated that he could not directly give Mr Adams a discount because of his deprived background, which included a life-long exposure to violence, an antisocial lifestyle and significant substance abuse.[11]
[8]At [23].
[9]At [13].
[10]At [14]–[15], [18] and [22]–[23].
[11] At [16]–[17], [19] and [23].
When sentencing Mr Lo, the Judge stated he could not be sure that the jury were persuaded beyond reasonable doubt that Mr Lo’s participation was to such a degree as to cause Mr Tupe’s death.[12] The Judge thought it was “quite possible that the killing blow was landed at McLennan Road before Mr Lo was on the scene, by Mr Adams kicking [Mr Tupe’s] head like a football”.[13] However, the jury was sure that his conduct engaged the party liability provisions of s 66(1) of the Crimes Act 1961.[14]
[12]At [29].
[13]At [28].
[14]At [29]–[30].
The Judge said that although Mr Lo’s conduct was “brutal, cruel and callous”, it did not reach the threshold required by s 104(1)(e) of the Sentencing Act and that Mr Lo was not “as culpable as Mr Adams”.[15]
[15]At [31] and [32].
The Judge said that a sentence of life imprisonment with an MPI of 12 years reflected Mr Lo’s culpability compared to that of Mr Adams.[16]
[16]At [37].
In sentencing Mr Lo, the Judge placed to one side Mr Lo’s previous conviction for aggravated robbery, where he was involved in the stealing of cigarettes, for which he was sentenced to two years and nine months’ imprisonment in June 2013.[17]
[17]At [36].
Although the pre-sentence report made reference to Mr Lo’s extensive exposure to violence, the Judge did not address this topic when sentencing Mr Lo. As we have noted, the Judge did place weight on similar considerations when sentencing Mr Adams. For completeness we record that the pre-sentence report writer said:
Mr Lo is of Tongan descent and described his upbringing as typically Polynesian in reference to the physical abuse he endured for most of life at the hands of his father. He reflected on the abusive manner in which he was disciplined as being a regular feature of his upbringing and lamented a lack of understanding from his European peers on the suffering he had to endure as a youngster. He related that the beatings were severe and brutal and often unprovoked. This appears to have had a significant impact on his inability to empathise with victims, which may give rise to [psychopathic] tendencies.
Mr Lo is the unfortunate product of a lifestyle premised on aggressive behaviour and domineering values which have become entrenched by his affiliation with the Crypts gang, an association which has been cemented by his patched status. He indicated that his links with the gang began when he was 12 and 13 years of age and that after he turned 14 his association became more pervasive. He confirmed that his father forced him to leave the family home when he was 15 years of age and that since then he has been largely independent of his immediate family. …
Mr Lo told the pre-sentence report writer that:
… “If my Dad didn’t give me so many hidings then I wouldn’t have gapped it.” He indicated that apart from a two month stay with his aunt he has spent most of his teenage years living and socialising with his associates and that, by and large, he has led a transient lifestyle. …
The pre-sentence report writer also recorded:
Mr Lo indicated that when the current matter unravelled he had been “coming down from some crack shit” referring to the methamphetamine he had consumed, and that he smoked cannabis prior to assaulting the victim. He accepts that he will require some form of intervention to address his issues with substance abuse and indicated that he will engage with the [drug treatment] programme he has already been referred to.
The information about Mr Lo’s social deprivation has now been confirmed by Dr Lokesh, a psychiatrist who assessed Mr Lo for the purposes of the leave hearing. Dr Lokesh states:
4.Mr Lo had an extensive substance abuse history before offending, from 12-13 years old. He could not address his substance abuse issues until recently within the Corrections facility. He has been abstinent from illicit drugs for almost five years.
5.Mr Lo has had a significantly troubled and dysfunctional upbringing with significant conflict, intracultural and within the family. He was subject to harsh physical discipline to the extent that he left home as a teenager and resorted to living with his peers, who often had a negative impact.
6.Consequently, Mr Lo seems to have developed several psychological deficits and associated personality and behavioural difficulties in the background of his trauma exposure. Other factors that exacerbated his vulnerability include significant attachment disruptions, lack of parental role models, and using substance abuse as a maladaptive way of coping with unhealthy emotions to block out his negative experiences.
Dr Lokesh said Mr Lo fulfils the criteria for post-traumatic stress disorder, and developmental trauma disorder or complex post-traumatic stress disorder. Dr Lokesh also said that Mr Lo had previously suffered from periods of depressive and manic episodes, mostly interrelated with his substance abuse.
Reasons for allowing Mr Lo’s application for leave to appeal out of time
Mr Lo’s application for leave to appeal his sentence out of time was considered at the same time as similar applications from four other offenders, all of whom had been convicted of murder and sentenced to life imprisonment with MPIs ranging from 10 to 13 years. Unlike Mr Lo’s case, the other applicants’ offending triggered s 104 of the Sentencing Act.[18]
[18]Leave decision, above n 1.
This Court granted Mr Lo’s application because:[19]
(a)Mr Lo had suffered significant social deprivation which likely contributed to his offending;
(b)his age at the time of the offending; and
(c)although serious, Mr Lo’s offending did not engage s 104 of the Sentencing Act.
[19]At [112].
The Court observed that Mr Lo’s case was akin to the three appellants in Dickeyv R.[20] In that case, this Court quashed the sentences of life imprisonment and 10‑year MPIs imposed on three teenagers who had been convicted of murder. The Court substituted those sentences with finite sentences of imprisonment and MPIs ranging from six to seven and a half years.[21]
[20]At [113], citing Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405.
[21]Dickey, above n 20, at [253]–[255].
In the leave decision, this Court also said the nine-year delay between Mr Lo’s sentencing and the filing of his application for leave to appeal weighed heavily against his application.[22] We said, however, that:
[115] Ultimately, although it is a finely balanced conclusion, we accept that the overall interests of justice merit allowing Mr Lo the opportunity for this Court to consider an appeal against the sentence imposed. In reaching this conclusion we are mindful of the fact that although friends and relatives of Mr Tupe will be concerned that Mr Lo is being afforded the opportunity to appeal his sentence, even if he is successful, Mr Lo is likely to be sentenced to a very long finite term of imprisonment.
No appeal against conviction
[22]Leave decision, above n 1, at [114].
Although Fogarty J stated there was “room” for the jury to find that Mr Lo’s participation contributed to Mr Tupe’s death, the Judge’s expressions of uncertainty as to whether the jury could be persuaded beyond reasonable doubt that Mr Lo caused Mr Tupe’s death may have provided grounds for appeal against conviction.[23] Mr de Groot was alert to this possibility and took instructions from Mr Lo, who is adamant he does not wish to appeal his conviction and that he accepts responsibility for his offending. That is a reassuring indication that Mr Lo has matured since the night of Mr Tupe’s murder.
Grounds of appeal
[23]See sentencing decision, above n 2, at [29].
Mr de Groot submitted that comparisons can be drawn between Mr Lo’s case and with those we considered in Dickey. In relation to Mr Lo’s offending, Mr de Groot emphasised:
(a)Mr Lo played a limited role in the offending; and
(b)there was no evidence that he had ever intended to cause Mr Tupe’s death.
In relation to Mr Lo’s personal circumstances, the following points were stressed by Mr de Groot:
(a)Mr Lo was an immature 17 year old at the time of the offending. His offending disclosed “themes of impulsivity, engagement in risky behaviour, peer influence and a failure to properly evaluate risks”, all referred to in Dickey as being characteristics that often are found in young persons who become embroiled in serious criminal offending;[24]
(b)Mr Lo was raised in a culture of violence without secure attachments;
(c)Dr Lokesh has now explained that Mr Lo has suffered and continues to suffer from mental health conditions; and
(d)Mr Lo’s increased insight and progress in custody is cause for optimism in relation to his prospects for rehabilitation and reintegration.
[24]See Dickey, above n 20, at [76]–[87].
Mr de Groot submitted that although Mr Lo did not plead guilty, he could realistically challenge the foreseeability of death.
When urging us to quash Mr Lo’s sentence of life imprisonment, Mr de Groot suggested that a finite starting point of around 15 years’ imprisonment was available, and that an MPI “will almost certainly be appropriate”.
Crown’s position
In her comprehensive submissions, Ms Wynne said that Mr Lo does not present with the combination of substantial mitigating factors that warrant a departure from the presumption of life imprisonment for murder.
Ms Wynne submitted that while Mr Lo’s limited involvement in the murder of Mr Tupe mitigates his culpability, he was nevertheless involved in what was a brutal and prolonged attack against a complete stranger.
Ms Wynne argued that by the time Mr Lo joined in the attack, Mr Tupe was visibly injured, having already received a severe beating from Mr Adams.
Ms Wynne accepts Mr Lo had a deprived upbringing but, she submitted, it was not nearly as unfortunate as the backgrounds of the appellants in Dickey, and that, unlike the appellants in Dickey, there is an absence of obvious causative factors capable of reducing Mr Lo’s culpability.
The Dickey methodology
The principal issue in Dickey was whether sentences of life imprisonment were manifestly unjust in respect of three appellants who were teenagers when they committed murder.[25]
[25]Dickey, above n 20, at [1]; and Sentencing Act, s 102(1).
Ms Dickey, aged 16, and Mr Brown, aged 19, were both parties to the murder of Mr McAllister. They participated in planning the murder of Mr McAllister — which involved luring him to a stadium. Ms Dickey believed that Mr McAllister had sexually offended against her on a previous occasion, and she was “the ringleader in a planned vigilante action” against him.[26] Although Ms Dickey did not herself kill Mr McAllister, she helped the principal offender by initially restraining Mr McAllister whilst he was being stabbed. Ms Dickey was also instrumental in getting Mr Brown to participate in the attack on Mr McAllister, although he played a “peripheral” role in the murder.[27] Ms Dickey pleaded guilty to murder. Mr Brown went to trial but was found guilty of murder by the jury.
[26]At [202].
[27]At [202] and [216].
The third appellant in the Dickey appeal was Ms Epiha, who stabbed Ms Nathan to death with a knife in an unrelated incident. The Crown accepted Ms Epiha did not intend to murder Ms Nathan and that she stabbed Ms Nathan with reckless disregard as to whether or not death would ensue.[28] Like Ms Dickey, Ms Epiha pleaded guilty to murder.
[28]At [39], citing Crimes Act 1961, s 167(b).
In Dickey, this Court explained that, generally, youth alone is not enough to justify departing from a sentence of life imprisonment for murder.[29] Rather, in order to displace a sentence of life imprisonment, it is necessary to first assess the seriousness and culpability of the offending.[30] The court should then assess the combined effect of mitigating factors, including youth, in order to be satisfied that a sentence of life imprisonment would be manifestly unjust.[31] We accept, however, that although the circumstances of the offending and the offender will normally both be assessed, “one element might dominate the analysis in favour of dispensation under s 102”.[32]
[29]At [177].
[30]At [171].
[31]At [173].
[32] Van Hemert vR [2023] NZSC 116, [2023] 1 NZLR 412 at [57] per Glazebrook, O’Regan, Ellen France and Kós JJ.
In the case of all three appellants in Dickey, this Court accepted that a sentence of life imprisonment was manifestly unjust after assessing their respective roles in their offending and their personal circumstances.[33]
[33]Dickey, above n 20, at [204], [218] and [233].
In Ms Dickey’s case, the Court adopted a starting point of 22 years’ imprisonment to reflect her culpability.[34] The Court then made deductions for her personal circumstances including her youth, her assistance to authorities and her guilty plea,[35] before reaching an end sentence of 15 years’ imprisonment with an MPI of seven and a half years.[36]
[34]At [207].
[35]At [208].
[36]At [211] and [215].
In Mr Brown’s case, the Court adopted a starting point of 18 years’ imprisonment,[37] before making deductions that took into account his age, his “profound” mental health issues and his deprived background.[38] Mr Brown’s end sentence was 12 years’ imprisonment with an MPI of six years.[39]
[37]At [219].
[38]At [221]–[227].
[39]At [230].
In Ms Epiha’s case, the Court adopted a starting point of 20 years’ imprisonment.[40] The Court then made deductions to reflect Ms Epiha’s personal factors which included her guilty plea and her extreme social deprivation.[41] The end sentence for Ms Epiha was 13 years’ imprisonment with an MPI of seven years.[42]
[40]At [235].
[41]At [237]–[244].
[42]At [246]–[247].
One of the features of the Dickey methodology was that in each case, after making tentative deductions for mitigating factors, the Court ended up with a provisional sentence that did not reflect the gravity of the appellant’s offending. The Court therefore adjusted the sentences upwards when reaching the final sentences imposed.[43]
Analysis
Is life imprisonment manifestly unjust in this case?
[43]At [211], [228] and [246].
When we assess Mr Lo’s role in the murder of Mr Tupe and his personal circumstances, we are satisfied that a sentence of life imprisonment is manifestly unjust.[44]
[44]Sentencing Act, s 102(1).
As we shall explain when setting the finite sentence, Mr Lo played a limited role in the prolonged assault leading to Mr Tupe’s death, and it is possible Mr Tupe was in the process of dying when Mr Lo joined the attack.
We shall also explain the features of Mr Lo’s personal circumstances which lead to the conclusion that a sentence of life imprisonment is manifestly unjust. In summary, those factors are:
(a)Mr Lo’s immaturity at the time of his offending. His age explains why he acted impulsively in response to seeing one of his peers attacking Mr Tupe. Mr Lo lacked the capacity to properly evaluate the risks of his conduct.
(b)Mr Lo’s significant social deprivation and lifelong exposure to violence.
(c)The 12-year MPI, the impact of a life sentence, and the prospect of lifetime parole are significantly out of proportion to Mr Lo’s offending and his personal circumstances.
A finite sentence
Mr Lo’s culpability
There is no doubt Mr Lo is less culpable than Mr Adams and that he may not have inflicted the injuries that killed Mr Tupe. Nevertheless, he participated in an unprovoked attack upon Mr Tupe which included kicks and punches to the victim’s head.
There was no premeditation on the part of Mr Lo. To that extent, he is less culpable than Ms Dickey and Mr Brown who, as we have explained, participated in the planning of Mr McAllister’s murder and played roles in restraining Mr McAllister while he was being stabbed. We also accept Mr de Groot’s submission that Mr Lo’s culpability was also less than that of Ms Epiha, who was directly responsible for the death of Ms Nathan. When we make comparisons between the culpability of the appellants in Dickey with that of Mr Lo, we conclude an appropriate starting point for Mr Lo’s finite sentence is 16 years’ imprisonment.
Personal circumstances
(a) Youth
As we have noted, Mr Lo’s offending reflects many of the characteristics seen in young people who commit grave crimes. He acted impulsively and his offending was influenced by a peer. He clearly did not assess the risks of his conduct. We would therefore provide Mr Lo with a deduction of 20 per cent to reflect his youth and cognitive immaturity.
(b) Social deprivation
The pre-sentence report and Dr Lokesh’s more recent report, demonstrate that Mr Lo was brought up in a culture of unprovoked violence and that he was frequently subjected to brutal attacks by his father. This in turn lead to Mr Lo leaving his family home when he was about 15 years of age and adopting a transient lifestyle. We are satisfied that Mr Lo’s social deprivation was a factor that contributed to his participation in the attack upon Mr Tupe. It may not have been the proximate cause of Mr Lo’s offending but there Mr Lo’s prolonged exposure to violence had a “causative contribution” to his behaviour towards Mr Tupe.[45]
[45]Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109] per Winkelmann CJ and William Young, Glazebrook and Williams JJ.
Consistent with the approach that we took with Mr Brown and Ms Epiha we deduct 20 per cent from the starting point to reflect Mr Lo’s social deprivation as well as his mental health conditions.
This produces a provisional sentence of nine years and seven months’ imprisonment.
(c) Uplift for previous offending
As we have noted, in 2013 Mr Lo was sentenced to two years and nine months’ imprisonment for his role in an aggravated robbery. Fogarty J correctly reasoned that was not a matter which should be taken into account when setting an MPI where he had sentenced Mr Lo to life imprisonment. It is, however, a factor that can properly be assessed when substituting a sentence of life imprisonment with a finite sentence. We propose to do so by uplifting the provisional sentence by four months to reflect Mr Lo’s previous offending.
Overall assessment
Consistent with the Dickey methodology, we have assessed whether or not an end sentence of nine years and 11 months’ imprisonment adequately reflects the seriousness of Mr Lo’s offending. We are of the view that the provisional sentence needs to be increased by two years and one month (12 years) to adequately the gravity of Mr Lo’s offending.
MPI
Ordinarily, we would have no hesitation in imposing an MPI of 50 per cent (six years). Mr Lo’s case however has one very unusual feature, namely he has already served approximately 10 years of his sentence. In these circumstances, we do not think it is necessary to impose an MPI pursuant to s 86 of the Sentencing Act. Any MPI will already have expired. No useful purpose would therefore be served by imposing an MPI.
Result
The appeal is allowed.
The sentence of life imprisonment with an MPI of 12 years is quashed and substituted with a sentence of 12 years’ imprisonment.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
3
4
0