Lufe v R - [2018] NZCA 327

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA191/2018
[2018] NZCA 327

BETWEEN	UNALOTO KI POLUTU TONGA LUFE Appellant
AND	THE QUEEN Respondent

Hearing:	31 July 2018
Court:	Asher, Brewer and Thomas JJ
Counsel:	R Slade and G Vear for Appellant E J Hoskin for Respondent
Judgment:	28 August 2018 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed in part.
BThe minimum period of three years is quashed and a minimum period of imprisonment of two years and three months is substituted.
CThe sentence of six years’ imprisonment stands.

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REASONS OF THE COURT

(Given by Brewer J)

Introduction

Judge Treston sentenced Mr Lufe to a total of six years’ imprisonment on a charge of injuring with intent to cause grievous bodily harm and two related charges of attempting to pervert the course of justice and breaching release conditions.[1] The Judge imposed a minimum period of imprisonment of three years. Mr Lufe now appeals his sentence on the ground that six years is manifestly excessive. He appeals also the minimum term of imprisonment. He submits Judge Treston wrongly included in his calculation the sentences imposed on the two related charges.
[1]R v Lufe [2018] NZDC 4955.
Our task is to determine whether there is an error in Judge Treston’s sentence such that a different sentence should be imposed. There will be such an error if the sentence is manifestly excessive. There is no contest that Judge Treston erred in his calculation of the minimum term of imprisonment, and we will have to correct that.

Background

At the beginning of his trial, Mr Lufe pleaded guilty to the charges of attempting to pervert the course of justice[2] and breaching release conditions.[3] He contested the charge of injuring with intent to cause grievous bodily harm and was convicted by a jury.[4]
[2]Crimes Act 1961, s 117(e); Maximum penalty: seven years’ imprisonment.
[3]Sentencing Act 2002, s 96(1); Maximum penalty: imprisonment for a term not exceeding one year or a fine not exceeding $2,000.
[4]Crimes Act, s 189(1); Maximum penalty: 10 years’ imprisonment.
Mr Lufe and the victim were well known to each other. They had what has been called an on-again and off-again relationship. The relationship has been characterised by violence. Mr Lufe has previously been convicted of assaulting the victim.
The attack for which the jury convicted Mr Lufe occurred on 20 February 2017. The victim was six months’ pregnant. There was an argument and Mr Lufe grabbed the victim around the neck with his hands and squeezed her neck tightly, strangling her. He then stopped. Shortly afterwards he strangled her again, causing her to lose consciousness. When the victim regained consciousness, she saw that her face was all purple with pores coming out of her face, her eyes were small, bloodshot and looked like they were popping out.
The charge of breach of release conditions arises because Mr Lufe had been released from prison on 15 August 2016 after…

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 Lufe v R

Details

AGLC: Lufe v R [2018] NZCA 327
Case: [2018] NZCA 327
Decision Date: 28 August 2018 at 9.30 am

CaseChat Overview and Summary

Unaloto Ki Polutu Tonga Lufe appealed against his sentence, arguing that the six years' imprisonment was manifestly excessive and that the minimum term of imprisonment should not have included the sentences imposed on the related charges. The Court of Appeal agreed that there was an error in the calculation of the minimum term of imprisonment, which should have applied only to the four years and six months' sentence imposed on the charge of injuring with intent to cause grievous bodily harm. The Court of Appeal substituted a minimum period of imprisonment of two years and three months and upheld the six years' imprisonment sentence. The Court of Appeal found that the sentence was within the range available to the Judge and towards the lower end of the range. The Court of Appeal considered the aggravating features of the case, including the extreme and repeated violence of the two strangulations, the victim's vulnerability, and the attack occurring in the victim's home. The Court of Appeal found that a starting point of five years' imprisonment or longer could readily be justified. The Court of Appeal also found that a minimum period of imprisonment was appropriate because the offending was so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community. The Court of Appeal quashed the minimum period of three years and substituted a minimum period of imprisonment of two years and three months. The Court of Appeal upheld the six years' imprisonment sentence.

Orders