Luatua v The Queen
[2011] NZCA 199
•19 May 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA142/2011 [2011] NZCA 199 |
| BETWEEN VAIULA LUATUA |
| AND THE QUEEN |
| Hearing: 16 May 2011 |
| Court: Harrison, Simon France and French JJ |
| Counsel: G A Anderson for Appellant |
| 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 your friend, Mr Ah-Chong. The three of you agreed to act together to assault Mr Johnson. Prior to the attack Mr Luatua, you also spoke to Mr Shaw who worked at the liquor store. Mr Shaw, you knew about the plan to assault Mr Johnson, but you were not, initially, part of the plan.
[8] Ms Azziz agreed to pay you Mr Luatua $3000 for carrying out the assault. A detailed plan about how to carry out the assault was conceived between Ms Azziz and Mr Luatua and then in turn between you Mr Luatua and Mr Suifua and Mr Ah-Chong. This included the time of day to carry out the attack and the location of the surveillance recording device within the store. It was also settled that Mr Luatua you would not take part in the initial attack because you were known to the victim. You would rather wait until he was rendered unconscious, and then join in with the assault.
[9] At about 10 pm on the day of the assault, Mr Johnson was alone at work and he was in the process of leaving the store. After turning off the lights he walked towards the front entrance to leave. As he placed his key in the lock to secure the premises he was confronted by you Mr Suifua and you Mr Ah-Chong. Mr Luatua you stood in front of the Liquorland store opposite the kebab shop, initially acting as a look-out.
[10] Mr Suifua you made the initial attack on Mr Johnson, punching him in the head with as much force as possible and pushing him backwards into the store. The punch resulted in him falling to the floor. When he tried to get up from the floor he was punched by Mr Ah-Chong and again fell to the ground having been knocked out. Mr Suifua you then dragged Mr Johnson into the kitchen area of the shop. When he tried to get up he was punched by the two of you. At that point when Mr Johnson was unconscious Mr Luatua you left your position as look-out and asked Mr Shaw to take your place. Mr Shaw positioned himself outside the main entrance to the arcade where the kebab shop was located.
[11] Mr Luatua you then entered the shop and walked through to the kitchen. You then joined in the assault on Mr Johnson which by that stage involved punching, kicking and stomping. All of this was centered on Mr Johnson’s head. The assault continued for a prolonged period of time. The victim was also hit with a tyre iron by you Mr Luatua. Throughout this time you Mr Shaw continued to maintain your post as a look-out. Mr Luatua and Mr Suifua you stole cash and a satchel from Mr Johnson. Mr Ah-Chong and Mr Suifua you also removed the computer hard drive which contained the in-store surveillance footage and you took that away with you when you left the store.
[12] You left Mr Johnson in the kitchen area of the shop bleeding profusely and with extensive head injuries.
[13] You then left the kebab shop and went to the rear carpark passing Mr Shaw and telling him that you were leaving. The three of you, Mr Luatua, Mr Suifua and Mr Ah-Chong then got into Mr Luatua’s car. You drove around to the front of the building where Mr Luatua you got out of the vehicle and spoke to Mr Reddy.
(Emphasis added.)
Winkelmann J summarised the effect of the attack on the victim as follows:
[16] As a result of the attack, Mr Johnson suffered blunt force fractures to most of the bones in his face, fractures of the skull, and displacement of his eye socket. He required facial reconstructive surgery which lasted 15 hours. He was in hospital for three to four weeks following the attack, before being transferred to another hospital for treatment of people with brain injuries.
[17] He continues to suffer as a result of the attack. He has reduced sight in one eye; loss of feeling in his gums and face; loss of sense of smell and taste; he has an on-going brain injury which causes memory impairment. His facial appearance has been disfigured because it is now asymmetrical because of the damage to his facial bones. He is unable to work. He now lives in Australia with his parents as he does not feel safe in New Zealand. He says that as a consequence of the attack he lost his business and he believes that the trauma of the attack also contributed to his family breakdown.
[18] At the time of completing his victim impact statement in August last year, Mr Johnson had still not been able to return to work, and that is some two years following the attack.
The Judge addressed each of the five accused in turn. When dealing specifically with Mr Luatua, she said this:
[35] It is also an aggravating feature of the offending that you used a weapon. You hit Mr Johnson with a tyre iron. All of the attacks were aimed at his head and face. He was punched, kicked, stomped and struck in the head with great force. There were multiple attackers. There were three of you on one person. Mr Johnson was vulnerable, not only because he was so outnumbered but because he was in a small shop on his own late at night. He had no way of defending himself against the attack. He had also effectively been isolated from the assistance that he might have expected from nearby shopkeepers because you had recruited one of those shopkeepers to your cause.
...
[37] I also take into account the sentence which has been imposed upon your co-offender Ms Azziz. In that case the sentencing Judge adopted a starting point of 10 years. Ms Azziz was one of the two ringleaders I would say along with you because she was the one who came up with the plan and offered you the money. Alongside you she is the most culpable. But there are some points which distinguish your offending from hers and I am satisfied that they justify a higher starting point. The sentencing Judge was not aware at the time she sentenced Ms Azziz that a weapon had been used in the assault. Moreover, it was you who went and recruited effectively a gang to commit this assault.
[38] So in sentencing you I take into account that you were one of the two instigators of this offending. You accepted Ms Azziz’s request to commence a serious assault on Mr Johnson, inflicting injuries which would result in lengthy hospitalisation and that was the plan. You did it for financial gain and recruited others. Your offending is at the most serious end of the spectrum. Therefore weighing the parity principles as I must, I am still satisfied that a starting point of 11 years 6 months imprisonment is justified for the grievous bodily harm. I take into account your use of a weapon and your role as the recruiting officer for this group.
(Emphasis added.)
Appeal
Before sentencing, the Crown realised that its summary of facts omitted to record its assertion that it was Mr Luatua who struck Mr Johnson on the head with a tyre iron. However, Mr Luatua denied the allegation. Counsel then requested Winkelmann J’s indication as to the weight likely to be attached to this particular fact. Following a telephone conference with the Judge, counsel agreed that a disputed facts hearing was necessary.
Counsel were subsequently able to resolve the dispute and filed a joint memorandum advising that:
... Mr Luatua accepts that he is jointly responsible for all offending that took place during the attack. Consequently, Mr Luatua accepts that it is appropriate to amend the summary of facts as tracked in the attached copy. The result of this approach is that use of a weapon is an aggravating factor in relation to each of Mr Luatua, Mr Suifua and Mr Ah-Chong.
The summary of facts tendered before sentencing was amended in this way:
Luatua entered the shop and walked through the kitchen area. Once there the three accused Suifua, Luatua and Ah-Chong began punching, kicking and stomping the complainant in the head. The complainant was also hit with a tyre iron. The assault continued for a prolonged period of time. During this time Shaw continued to maintain his post as a lookout.
(Emphasis added.)
Mr Anderson submits that Winkelmann J wrongly increased the starting point on the grievous bodily harm charge by 18 months – from ten years to eleven years six months – on account of this error. (The Judge had further increased the starting point by another six months, to a total of twelve years, to take account of the aggravated robbery charge). However, an analysis of the Judge’s remarks shows that she started from the premise that Mr Luatua and Ms Azziz were the two ring leaders and the most culpable of the offenders. She was satisfied that Mr Luatua was more culpable than Ms Azziz for these reasons:
(a)He was responsible for recruiting a gang to commit the assault;
(b)he accepted Ms Azziz’s request to instigate the serious assault on Mr Johnson, resulting in lengthy hospitalisation as was specifically planned;
(c)he acted for financial gain – a promise of payment of $3,000; and
(d)he used a weapon which inflicted the most serious injuries on Mr Johnson.
Thus it is apparent that the Judge took account of four particular factors in increasing the base starting point of ten years adopted by Ellis J when sentencing Ms Azziz. Mr Luatua’s use of the tyre iron was no more than one of those factors; it did not of itself account for the 18 months uplift. And Winkelmann J expressly acknowledged that Ellis J was unaware of the use of a weapon.
We are satisfied that Winkelmann J’s error was immaterial for two reasons. First, as Mr Tantrum submits for the Crown, Mr Luatua was involved in the attack on Mr Johnson knowing that the iron bar was being used by one of his two co-assailants. All three participated in the assault with the common intention of causing grievous bodily harm by various means including the use of a lethal weapon. All three attackers were equally culpable, whether as primary or secondary parties. It did not matter for sentencing purposes which one of them actually used the weapon.
Second, this offending was at the most serious end of the scale of violence. Winkelmann J identified the particularly aggravating features as follows:
[32] ... There was extreme violence. It was an unprovoked attack and it was prolonged. Mr Johnson was assaulted in his shop and then dragged back into his kitchen. As the Crown emphasises, it lasted approximately 12 minutes and was separated into two distinct phases. The severity of the beating that you three men administered is demonstrated by the appalling injuries that Mr Johnson suffered and which continue to plague his life to this very day.
It is difficult to envisage a more extreme case of causing grievous bodily harm with that intent, compounded on the totality principle by the related offence of aggravated robbery. Each charge carried a maximum sentence of 14 years imprisonment. Section 8(d) of the Sentencing Act 2002 provides that the Court must:
impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate ...
Even if he did not use the tyre iron, the circumstances of Mr Luatua’s offending were such that Winkelmann J would have been justified in adopting a starting point which placed his sentence significantly closer to 14 years imprisonment. Mr Luatua was allowed a discount of three years from the adjusted starting point of 12 years to reflect his pleas of guilty; but he may also be viewed as a fortunate in being allowed an additional discount of six months imprisonment because he had been subject to bail on very restrictive conditions including a 24 hour curfew under electronic monitoring. An end sentence of eight years and six months imprisonment could not possibly be viewed as manifestly excessive.
Result
Mr Luatua’s appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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