Namulauulu v The Queen - [2011] NZCA 555

IN THE COURT OF APPEAL OF NEW ZEALAND

CA499/2011
[2011] NZCA 555

BETWEEN ROBERT NAMULAUULU
Appellant

AND THE QUEEN
Respondent

Hearing: 1 November 2011

Court: Harrison, Miller and Asher JJ

Counsel: S Tait and H Kim for Appellant
M D Downs for Respondent

Judgment: 4 November 2011 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

This is an appeal against a sentence of two years and four months imprisonment imposed on the appellant, Robert Namulauulu, for his role in a violent attack on two victims at their home in which he used a shotgun to threaten them.[1]

Facts

[1] R v Namulauulu DC Manukau CRI-2010-092-10802, 5 August 2011.

On the evening of 11 July 2010 Robert and his brother Mano had been drinking at a party. They returned to their home at Otara with an associate. There they chose to confront the neighbours, allegedly because they believed the neighbours had been dealing drugs. They have been sentenced on the assumption that they may genuinely have held that belief.
Robert and Mano went to the neighbours’ house and knocked on the door. A father and son were within. The father answered the door. They demanded to know where the drugs were. The father shut the door on them. They shouted at him, then damaged his car and smashed a laundry window. The father ran outside and told them to leave or he would call the police. Mano punched him several times about the head, causing him to fall to the ground, where Mano continued to punch him. The man’s son rescued him, but was himself struck on the head by a bottle thrown by the associate. The offenders walked down the drive, shouting that they would get the victims.
Robert then returned to his own address and fetched what was described as a short-barrelled shotgun. About 30 seconds later it went off. At sentencing the Judge inferred that Robert must have loaded it, but he noted a submission by Robert’s counsel that the discharge was accidental.
It was not in dispute that after the gun was fired Robert ran back to the victims’ house with the gun. There he raised the gun and ordered the victims to come out. The Judge observed that one might well wonder what had happened had they done so. The police then arrived, and the offenders fled.
Both victims were very shaken, and they suffered some cuts and grazes and bruises.

District Court

Robert faced two charges of unlawful possession of a firearm, two of intentional damage, one of assault (as a party), and one of possessing explosives (the ammunition). He had two previous convictions for possessing offensive weapons. Mano faced one of unlawful possession of a firearm (as a party), two of intentional damage and one of assault with intent to injure. He had no relevant previous convictions. Both men pleaded guilty at a relatively late stage, in May 2011.
The pre-sentence…

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.

Keep reading for free

Create a free CaseChat account to read Namulauulu v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NZCA 555
Decision Date: 4 November 2011

CaseChat Overview and Summary

In the New Zealand Court of Appeal case of Namulauulu v The Queen, the appellant, Robert Namulauulu, appealed against his two-year and four-month imprisonment sentence for his involvement in a violent attack on two victims at their residence. The attack involved the use of a shotgun to threaten the victims, and it was alleged that the attack was motivated by the belief that the victims were dealing drugs. The appeal was heard by Harrison, Miller, and Asher JJ on 1 November 2011, and the judgment was delivered on 4 November 2011. Counsel for the appellant was S Tait and H Kim, while M D Downs represented the respondent.

The primary legal issue that the Court had to decide was whether the sentence imposed on the appellant was manifestly excessive. The Court considered the appellant's argument that the discharge of the shotgun was accidental and that the weapon was empty when used to threaten the victims. However, the Court found that the appellant was the principal offender in a serious firearms offence, involving an attack on the victims in their own home at night and the use of the gun to intimidate them. The Court held that even if the weapon was discharged accidentally and was empty when used to threaten the victims, a starting point of more than three years was available for the overall offending. The Court also noted that the overall discount of eight months was adequate to reflect the mitigating factors.

The Court dismissed the appeal, finding that the sentence imposed on the appellant was not manifestly excessive. The Court observed that the difference between the sentences imposed on the appellant and his co-offender, Mano, was not sufficient to warrant adjustment to the appellant's sentence. The Court held that the appellant chose to fetch the gun and use it to threaten the complainants and that he had relevant previous convictions.

The Court's decision highlights the importance of considering the severity of the offending and the need for a deterrent sentence when imposing a sentence for firearms offences. The Court also emphasises the significance of the offender's role in the offending and the need to consider previous convictions when determining an appropriate sentence.

Orders