Luatua v The Queen - [2011] NZCA 199

IN THE COURT OF APPEAL OF NEW ZEALAND

CA142/2011
[2011] NZCA 199

BETWEEN VAIULA LUATUA
Appellant

AND THE QUEEN
Respondent

Hearing: 16 May 2011

Court: Harrison, Simon France and French JJ

Counsel: G A Anderson for Appellant
B D Tantrum and F Cuncannon for Respondent

Judgment: 19 May 2011 at 2.30 pm

JUDGMENT OF THE COURT

Appeal dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Vaiula Luatua appeals against a sentence of eight years and six months imprisonment imposed upon him in the High Court at Auckland following his guilty pleas to charges of causing grievous bodily harm with intent and aggravated robbery.[1] He does not appeal against the imposition of a minimum term of imprisonment of four years and six months.
[1]R v Luatua HC Auckland CRI-2008-044-9035, 4 February 2011.
Mr Luatua’s counsel, Mr Anderson, submits that the sentence was manifestly excessive because Winkelmann J sentenced on the premise of what Mr Tantrum for the Crown accepts was a factual error. The question is whether that error was material to the end sentence.

Facts

Mr Luatua was one of five men jointly sentenced by Winkelmann J following convictions for their participation in the attack on the owner of a kebab shop in Glenfield one evening in May 2008.[2] There was a sixth offender, the prime mover, a Ms Azziz. She pleaded guilty to one charge of causing grievous bodily harm and was earlier sentenced by Ellis J to seven years imprisonment with a minimum term of four years and six months.[3] However, Ellis J was then unaware that a weapon had been used in the assault.
[2]Two of Mr Luatua’s co-accused, Messrs Reddy and Ah-Chong, appealed against their convictions and sentence. In a judgment delivered on 13 May 2011 this Court allowed their appeals in part but the results are not directly relevant to Mr Luatua’s appeal: Reddy v R [2011] NZCA 184.
[3]R v Aziz HC Auckland CRI-2008-044-9035, 6 August 2010.
Winkelmann J outlined the circumstances of the offending as follows:
[6] As to the circumstances of the offending, in May 2008 the victim, who was known as Bryan Johnson throughout the trial, bought a kebab shop situated in a multi-store development on Auckland’s North Shore. When he did so he kept on two of the existing employees of the business, which unfortunately for him included a Ms Azziz. Ms Azziz had conceived the idea of organising a serious assault on her employer with the hopes that once he was in hospital she would be able to take over the lease of the store.
[7] Sometime prior to Friday 28 August 2008 she engaged you Mr Luatua to carry out that assault. You were a doorman at the nearby Passport Bar, and a security guard or provided security at the liquor store. That liquor store was across the arcade from the kebab shop. You asked one of your friends, Mr Suifua, to assist in that assault. You Mr Suifua in turn spoke to…

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 Luatua v The Queen

Details

AGLC: Luatua v The Queen [2011] NZCA 199
Case: [2011] NZCA 199
Decision Date: 19 May 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Vaiula Luatua against the sentence of eight years and six months imprisonment imposed upon him by the High Court at Auckland. Luatua had pleaded guilty to charges of causing grievous bodily harm with intent and aggravated robbery. The appeal does not challenge the imposition of a minimum term of imprisonment of four years and six months. Luatua's counsel argued that the sentence was manifestly excessive because the sentencing judge based the sentence on a factual error. The legal issue was whether this error was material to the final sentence.

The Court of Appeal found that the sentencing judge had taken into account four particular factors in increasing the base starting point of ten years adopted by the sentencing judge in a previous case. Luatua's use of the tyre iron was no more than one of those factors and did not account for the 18 months uplift. The Court of Appeal was satisfied that the sentencing judge's error was immaterial for two reasons. First, Luatua was involved in the attack on the victim knowing that the tyre iron was being used by one of his co-assailants. All three participants were equally culpable. Second, the offending was at the most serious end of the scale of violence. The Court of Appeal concluded that an end sentence of eight years and six months imprisonment could not possibly be viewed as manifestly excessive.

The Court of Appeal dismissed Luatua's appeal against sentence. The final orders of the Court of Appeal were not stated in the text.

Orders