Otufangavalu v R

[2010] NZCA 585

IN THE COURT OF APPEAL OF NEW ZEALAND

CA658/2010
[2010] NZCA 585

BETWEENLATU OTUFANGAVALU

Appellant

ANDTHE QUEEN

Respondent

Hearing:17 November 2010

Court:Glazebrook, Chisholm and Miller JJ

Counsel:P H B Hall for Appellant

N P Chisnall for Respondent

Judgment:3 December 2010 at 4pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1]        Mr Otufangavalu appeals against Judge Radford’s refusal of home detention following his guilty plea to a single charge of robbery in the District Court at Christchurch.

[2]        At about 2am on the morning of Thursday 24 December 2009 the victim struck a jackpot on a pokie machine in a Christchurch bar.  The appellant and his three male associates observed a staff member hand the victim $840 in cash.

[3]        The victim was followed to another bar about two hours later.  When he left that bar at about 5.30am the appellant and one associate were waiting for him outside.  They walked with him for some time then set upon him, punching him in the head and knocking him to the ground.  He was kicked in the head and knocked unconscious, remaining in that state for some four to six hours.  Luckily he sustained no serious or lasting injuries.

[4]        The appellant and his associate stole the victim’s cap, his wallet and cellphone.  Only the cellphone was recovered.  The victim impact statement was described by the Judge as mature and forgiving.

[5]        The pre-sentence report disclosed that the appellant was 19, with one previous conviction for drinking and driving.  In recent times the appellant had obtained a good employment record, but he had problems with alcohol and displayed limited insight into the causes of his offending; in particular, he did not link his offending to his pattern of excessive alcohol consumption.  His reoffending risk was medium.  However, there was evidence of genuine remorse.  His family suggested he was of generally good character.  Home detention was recommended. 

[6]        Sentencing the appellant on 3 September 2010, Judge Radford adopted a starting point of three years, having regard to the degree of violence, the number of attackers and the element of premeditation.  He did not treat the previous conviction as an aggravating factor.  Turning to mitigating factors, he did not attach much weight to the appellant’s expressed remorse, noting that reparation had been offered but the appellant had been working since the attack and had paid nothing to date.  Credit of six months was given for the appellant’s age and previous record.  With a full discount of thirty per cent for the early guilty plea, the Judge arrived at 20 months imprisonment. 

[7]        The Judge rejected the probation officer’s home detention recommendation, although the Crown did not oppose it.  He emphasised protection of the public and denunciation and deterrence.  It was also emphasised that it was necessary to impose the least restrictive outcome that was appropriate in the circumstances, rather than simply the least restrictive outcome.

[8]        On appeal, Mr Hall accepted that the starting point was within the available range and the end sentence of 20 months imprisonment was not manifestly excessive.  The only factual finding of the Judge with which issue was taken was the finding that there was significant premeditation in that the appellant “stalked” the victim.  He contended that there was no evidence to support the proposition that the appellant and his associates formulated any plan to commit the robbery at any time earlier than when the appellant’s associate punched the victim in the eye.  We reject that submission.  The inference was plainly available to the Judge on the accepted summary of facts that the appellant and his associates stalked the victim.  We also reject the submission that the violence was not “excessive” in that no weapons were used.  The victim was kicked in the head and rendered unconscious for a considerable period.  It is the appellant’s good fortune that grave injury was not done.  Whether principal or party, he must accept responsibility for the level of violence used in the pursuit of the agreed objective of robbery.

[9]        Mr Hall next argued that the Judge focused on gravity and denunciation and deterrence to the exclusion of other relevant factors including the need to generate income to pay reparation, the support that the appellant could expect from his wife and family and the Tongan community, and the seriousness of home detention in terms of deterrence and loss of liberty.  He argued that the Judge failed to address the principle that offenders should be kept in the community so far as practicable.  The Judge did order reparation, but if the appellant was to pay it he needed to remain in employment.  Mr Hall emphasised too that the appellant offered to engage in a restorative justice meeting with the victim, and that the appellant is both remorseful and motivated to address his alcohol abuse.  Finally, there was material that was not before the sentencing Judge;  a letter to the Court from the appellant, a letter of apology which he had sent to the victim, and a copy of the appellant’s management notes from the prison indicating that he is quiet and compliant.

[10]      The Crown acknowledges that the nature of the appellant’s offending, coupled with his personal circumstances, placed him on the cusp of home detention, but emphasised that in such cases the Court ordinarily defers to the assessment of the sentencing Judge.[1]  Each of the factors that the appellant relies on was expressly or by implication addressed by Judge Radford;  he noted that the appellant had been in employment but had yet to pay reparation, and recorded that he had read counsel’s submissions and noted that the appellant was of otherwise good character and enjoyed community support, he recognised that the least restrictive sentence must be applied, and he expressly considered the appellant’s prospects of rehabilitation.  He did not refer to the appellant’s offer to participate in a restorative justice meeting, but it cannot be said that a bare statement of willingness to engage in such a process ought to have tipped the balance in favour of home detention. 

[1]     R v D [2008] NZCA 254 at [66].

[11]      In the end, three factors lead us to the view that the Judge was right to refuse home detention.  The first is the sinister nature of the offending, with the appellant and his associates planning and pursuing the robbery over a period of some hours.  Second is the degree of violence involved in this group attack.  Third is the appellant’s failure to appreciate or do anything about the link between his alcohol abuse and his offending. 

[12]      We reject Mr Hall’s submission that significant weight must be attached to an offer of reparation although the offender might have taken steps to pay it earlier.  Nor is it necessary to attach much weight to professed remorse where the offender might have demonstrated it in a tangible way, but did not.  The appellant might have tipped the balance in favour of home detention had he taken advantage of the extended period on remand to do something to address the causes of his offending, or to pay reparation, or to name his co-offender, who remains at large, but he chose to do none of these things.

[13]      The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington