| 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.
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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,…
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- AGLC
- Lo v The King [2024] NZCA 359
- Case
- [2024] NZCA 359
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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