R v Luatua HC Auckland CRI 2008-044-9035

[2011] NZHC 31

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-044-9035

THE QUEEN

v

VAILUA LUATUA VINCENT SUIFUA AUGUSTUS AH-CHONG KAIN SHAW

KUNAL REDDY

Hearing:         4 February 2011

Appearances: W Wharepouri and F Cuncannon for Crown

Mr Anderson for Mr Luatua

Mr Levett for Mr Suifua Mr Duff for Mr Ah-Chong Mr Thinn for Mr Shaw

Mr Moroney for Mr Reddy

Judgment:      4 February 2011

SENTENCE OF WINKELMANN J

R v LUATUA & Ors HC AK CRI 2008-044-9035 4 February 2011

[1]      Vaiula  Luatua  and  Vincent  Suifua  you  both  appear  for  sentence  having pleaded guilty to one charge of causing grievous bodily harm with intent to cause grievous bodily harm in contravention of s 188(1) of the Crimes Act 1961 and one charge of aggravated robbery in contravention of s 235(1)(b) of the Crimes Act, the latter relating to the robbery of a satchel and some cash.  Mr Luatua, you pleaded guilty to the charges on 3 March 2010 and Mr Suifua you pleaded guilty to the charges on 28 July 2010.

[2]      Mr Ah-Chong you were found guilty by a jury following a trial in November

2010 on one charge of causing grievous bodily harm with intent to cause grievous bodily harm and one charge of aggravated robbery, the latter relating to the robbery of a computer hard drive.  You were found not guilty by the jury in respect of the satchel and the cash.

[3]      Mr Kain Shaw you appear for sentence on one charge of causing grievous bodily harm with intent to cause grievous bodily harm.

[4]      The maximum penalty for causing grievous bodily harm with intent to cause grievous bodily harm is a term of imprisonment of 14 years.  The maximum penalty for aggravated robbery is 14 years imprisonment.

[5]      Mr Kunal Reddy you appear for sentence on one charge of being accessory after the fact.  The maximum penalty for being an accessory after the fact to causing grievous bodily harm with intent to cause grievous bodily harm is five years imprisonment.

Factual background

[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.

[14]     Mr Reddy you were the co-owner of the Passport Bar which is located in the same building as the kebab shop.  You noticed blood on Mr Luatua’s jeans and once he had driven away, you sent him a text telling him that there was blood on his jeans. Mr Luatua had previously spoken to you about the plan to assault Mr Johnson and when you saw the blood you knew that the attack had been carried out.  I infer that you did not say anything at the time Mr Luatua was there because there were others around.

[15]     Some time passed before Mr Shaw and his co-worker at the liquor store went to Mr Johnson’s assistance.  Mr Shaw got towels for Mr Johnson and an ambulance was called.

[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.

[19]     In sentencing you I am going to first deal with the general approach I will take in sentencing before moving to sentence each of you individually.

[20]     In the case of you Mr Suifua, Mr Luatua and Mr Ah-Chong you have been convicted of both causing grievous bodily harm with intent to cause grievous bodily harm and aggravated robbery.  I intend to take the grievous bodily harm with intent to cause grievous bodily harm as the lead offence because in the particular circumstances, that is the most serious offending.  You have heard counsel today talk

about a case called R v Taueki[1] and that is a decision of our Court of Appeal which

[1] R v Taueki [2005] 3 NZLR 373.

describes different types of seriousness of such offending.  It sets out three bands of grievous bodily harm offending.  In the third band it suggests sentences of 9 to 14 years imprisonment as a starting point where there is a serious offending where three or more of the aggravating features that the Court of Appeal identified are present

and when that combination of aggravating factors is particularly grave.

[21]     Many of the factors that the Court of Appeal  identified in that case are present here.  Factors identified by the Court of Appeal which apply in this case are extreme violence, premeditation, serious injury, use of weapons, attacking the head, multiple  attackers  and  the  vulnerability  of  the  victim.     By  reason  of  these aggravating factors this offending clearly sits within band 3, although I accept that the individual culpability of each of you varies.

[22]     Although I take the conviction for grievous bodily harm as the lead offence, the sentence I impose must also reflect the totality of your offending.  In the case of each of  you Mr Luatua, Mr Suifua and Mr Ah-Chong that includes  aggravated robbery.   I consider that there should be some uplift in respect of each of you to reflect that additional offending, although I accept that it was really a subsidiary part of your overall plan to carry into effect the very serious assault on Mr Johnson.

[23]     Relevant to all sentences also is the sentence already imposed upon your co- offender Ms Azziz.   She pleaded guilty to one charge of causing grievous bodily harm with intent to cause grievous bodily harm.  The sentencing Judge characterised the offending Ms Azziz instigated as involving extreme violence, noting the serious injury, significant premeditation, multiple offenders, kicking and punching to Mr Johnson’s head.  At the time the Judge sentenced Ms Azziz the fact that a weapon had also been used in the attack was not before the Judge.  The Judge dismissed the submission by Ms Azziz’s counsel that she should be treated more leniently than her co-offenders on the basis that it was not her decision to attack the complainant’s head, nor that there would be more than one person involved in the attack.  She said that in order to put someone in hospital for a number of months, which was Ms Azziz’s aim, it must have been her intention that severe violence be inflicted.  The Judge adopted a starting point of 10 years imprisonment with regard to a number of comparable  cases  and  then  after  taking  into  account  the  guilty pleas  and  other mitigating factors settled on a final sentence of 7 years imprisonment.  She imposed a minimum period of imprisonment of 4 and a half years.

[24]     The  Sentencing Act  requires  that  I  take  into  account  the  desirability  of consistency  so  that  similar  offenders  who  commit  similar  offences  in  similar

circumstances receive similar sentences.   That principle must be given particular weight when sentencing co-offenders.

[25]     I now come to sentence each of you.  As I do that I am not going to ask you to stand through the whole sentencing process.  I will tell you when to stand.  As I sentence each of you, I am going to ask that you then be taken down to the cells.

Vaiula Luatua

[26]     Mr Luatua I come to you first.  I have in front of me a pre-sentence report about you.   You are 30 years of age and you identify as Samoan.  You have two daughters aged 10 and 9 from a previous relationship but you also have a 3 year old son with your current partner.   Before this offending you were employed both as security for various establishments, and during the day you were employed in the warehouse department of an apparel company.   I note that you do have medical issues  that  will  need  to  be attended  to  in  prison.   You  have  diabetes  which  is managed by medication.  Although you have many previous convictions, most are for driving related offending but you also have one conviction for common assault and 5 convictions for theft over $1,000.

[27]     The  probation  officer  describes  you  as  experiencing  regret  rather  than remorse for your offending during interview, regret in the sense that you are in prison and are likely to get a further prison sentence.   He also records that you portray yourself as a hero on the basis that at the height of the assault you intervened to stop a co-offender from continuing to kick Mr Johnson. You are assessed as being at medium risk of reoffending and posing a high risk of harm to others.   A supplementary pre-sentence report recommends that you would benefit from completing a departmental medium intensity rehabilitative programme.

[28]     The Crown submits that a starting point of 12-13 years imprisonment should be adopted in respect of you with an uplift of six months to 12 months imprisonment to take into account your role as a ringleader of the attack and your decision to recruit young people to assist you who had not previously offended.  In relation to the aggravated robbery the Crown accepts that a concurrent sentence is appropriate

for the aggravated robbery count.  Concurrent means a sentence that runs alongside and does not add to the main sentence.  It also accepts that no uplift is necessary to reflect your previous offending.

[29]     It says as to mitigating factors that the only one that I can take into account in respect of you is your early guilty plea, and accepts you should receive a discount of

25% on the starting point for that.  It therefore submits a final sentence in the range of 9 years, 4 months to 10 and a half years imprisonment.  It asks that I impose the same minimum term of imprisonment as was imposed on Ms Azziz on the basis that that is necessary for the purposes of holding you accountable for your offending, denouncing your conduct and deterring you and others from similar offending.

[30]     Your counsel, Mr Anderson, submits that a starting point of 10  years is appropriate  in  light  of  the  starting  point  adopted  in  respect  of  Ms Azziz.    He emphasises the importance of parity in sentencing.   He suggests that there is no necessity to adjust for aggravating factors and that an allowance should be made for an early guilty plea of 25%.   He argues for a further reduction on account of the remorse,  arriving  at  a  suggested  final  sentence  of  6  years,  5  months.    He  has provided a letter from you in which you apologise to Mr Johnson and his family and record your commitment to your family, and ask that I take your family into account when imposing sentence.  You have also provided letters from friends, co-workers and a church leader that speak of the positive aspects of your personality, and your commitment to your family.

[31]     In sentencing you I take into account that you were one of the two instigators of this offending, you were a ringleader. You accepted Ms Azziz’s request to commit a serious assault on Mr Johnson, inflicting injuries which would result in lengthy hospitalisation.  You did it for financial gain.  You recruited others to the enterprise. You also obtained the assistance of Mr Shaw.   I know from your counsel and the presence  of  your  family  in  court  today  that  you  are  well  supported.     But unfortunately in sentencing you I have to deal with the fact that you committed a very serious crime, which is going to take you away from your family for a lengthy period of time.

[32]     In terms of the offending itself, the aggravating features identified in Taueki as follows were present.  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.

[33]     The extent of the premeditation involved is also a significant aggravating factor.  There was a lengthy period of planning for this attack.  You even went to the scene on one previous occasion but were unable to carry out the attack because of the presence of your victim’s family.  You spoke to others about the plan and had plenty of time to re-consider your involvement but you continued with your plan. What you planned to do included removing evidence of the attack and concealing your identity from Mr Johnson.  It seems also likely that part of this was making the attack look like a robbery, with stealing the sums of money and a satchel.

[34]     Another aggravating feature is the seriousness of the injuries inflicted by the attack.   Injuries to Mr Johnson’s facial structure and skull were such that it is a matter of chance or good fortune that he survived the attack.  But he has been left with long lasting physical and psychological injuries.

[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.

[36]     It is also an aggravating factor that you and your co-offenders were in part motivated to carry out the attack for financial gain.

[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.

[39]     In sentencing you I also take into account the need to reflect the fact that you also committed an aggravated robbery during the course of your offending.   But I accept that robbery was part and parcel of the plan to commit this serious assault and avoid detection, so I uplift only a further six months to reflect the other offending to which you have pleaded guilty, namely the aggravated robbery.  I note that Ms Azziz was not convicted of that offence.

[40]     There  are  no  mitigating  factors  to  take  into  account  in  respect  of  the offending,  other  than  your  plea  of  guilty  and  for  that  a  discount  of  25%  is appropriate.  Your counsel submitted that remorse could be taken into account but the indication in the pre-sentence report is that you have not fully accepted responsibility  for   your   offending  and   continue  to   attempt   to  minimise   the significance of your role.  I have read your letter of apology, but I have to attach little weight to it given the late point at which it is offered, especially when that is taken alongside your attempts to minimise the seriousness of your involvement.

[41]     For the early guilty plea a reduction of around 25% is appropriate, which takes the sentence down to 9 years.  I do however consider that a further reduction should be made on account of the lengthy period that you spent on very restrictive bail conditions.   You spent well over a year on effectively 24 hour curfew under electronic monitoring.  I consider that the sentence should be reduced a further six months to reflect that fact.   That brings it to an effective sentence of 8 years, 6 months in respect of the offence of causing grievous bodily harm with intent to cause grievous bodily harm.

[42]     I then turn to consider whether a minimum period of imprisonment is appropriate.  Your counsel has submitted that it is not.  He says that a stern sentence of imprisonment of the order I have imposed is sufficient for the purposes set out in the Sentencing Act.  The Crown says that the minimum period otherwise applicable under the Parole Act is not sufficient to hold you accountable for the harm done to Mr Johnson, or for the purposes of deterrence.   I accept that submission.  As was imposed on Ms Azziz I impose a minimum period of imprisonment of 4 years, 6 months.

[43]     I must also sentence you in respect of in respect of the offence of aggravated robbery for which you were convicted.   I adopt a starting point of 6 years imprisonment and then reduce that around 25% on account of your guilty plea which gives a sentence of 4 years imprisonment for the count of aggravated robbery.  That sentence is to be served concurrently which means it is not added on top of the sentence for grievous bodily harm.  So your effective sentence is 8 years, 6 months with a minimum term of imprisonment of 4 years, 6 months.

[44]     I want to make clear that the fact that the minimum term of imprisonment does not mean that that is all you will serve.   How long you serve remains at the discretion of the parole authority, but you will serve at least 4 years, 6 months.  Stand down.

Vincent Suifua

[45]     Mr Suifua, I have information about you from the pre-sentence report.  You are 26 years of age and of Samoan descent.  You have a 9 month old son with your fiancé and your fiancé is present in court today to support you, as are other members of your family.  You attended Rutherford High School where you were deputy head boy in 2001.  After completing high school you took up a job at Telecom where you became team leader, and in 2008 you became a manager at Ticketmaster.   Whilst awaiting trial for the current offending you completed a diploma in business at Unitech.

[46]     At the time of the offending you say you were a heavy drinker.  You claim that when Mr Luatua commenced assaulting Mr Johnson you moved away because you were squeamish about blood.  You also say that you wanted to intervene and stop the assault but felt intimidated by Mr Luatua.   You are remorseful for your involvement in the attack.  You have no previous convictions.  You say that you will use your time in prison completing a course in management, computing or accounting.  I should record that the probation officer assesses you as being of high intelligence and capable of completing tertiary studies.  You are assessed as being at low risk of reoffending in light of your lack of previous offending, a supportive family environment and the good level of insight you have into your offending.

[47]     The Crown asks that I adopt a starting point of 12-13 years imprisonment.  It recognises that you pleaded guilty at an early opportunity, although not the first available opportunity and it suggests a discount of 15-20% for that.  It says a further discount of 15-20% is appropriate to recognise the assistance you have provided to the police and the prosecution in particular, giving evidence at the trial of your co- offenders.  It also accepts that a further discount is appropriate on account of your previous good character.

[48]     Your counsel has put before the Court many letters of support for you.  It is clear that prior to this offending you were a person of good character.  It is a tragedy that you involved yourself in offending of this nature, and I say this in respect of Mr Ah-Chong as well.  What is apparent is that you were both men of good character

with considerable promise who were well supported by your family and were important to your community, but you have squandered alot of that promise and no doubt alot of the trust that others have placed in you.  It is very disturbing when you come, as a Judge, to sentence people for such serious offending when you see how much promise they had before the offending, and you read letters telling you that these people are of good character.  It is a very disturbing thing to read and I have no doubt that you are aware of the distress and shame that you have brought to the people who support you.

[49]     Your family acknowledge in  their letters  the harm  done by  you  to  your victim.   There is also a letter from your partner, from church leaders and from a group facilitator from Man Alive, which is a programme that you have attended to learn non-abusive ways to address issues and situations arising everyday in life.  I also have letters from you to me, and to Mr Johnson and his family expressing your remorse.  I understand from the Crown that these were provided to them and were held on the Crown file, so they were provided prior to your guilty plea.

[50]     Your counsel Mr Levett emphasises your previous good character, your pleas of guilty, the assistance that you provided and your remorse.  He stresses that whilst the  evidence  presented  at  trial  may justify  a  variation  in  sentence  between  the different prisoners, you do not seek to minimise your responsibility.  He asks that I take into account a number of mitigating factors but particularly your admission of guilt,  your remorse,  your co-operation and  assistance, the steps  you have taken towards rehabilitation, the time you have been waiting for sentence and the extended period on electronically monitored bail, and finally your character and personal circumstances.

[51]     In relation to the electronically monitored bail I understand that you were on very restrictive bail conditions from December 2008 until July 2010. Although there was a 24 hour curfew you were able to move from your home to pursue your studies.

[52]     I assess your role in the offending as being less culpable than either that of Mr Luatua or Ms Azziz.  You were not the ringleader, you were rather led by your older associate Mr Luatua.  But notwithstanding that, you were old enough to know

better Mr Suifua and you had many advantages that others do not have so you should have known that what you were about to do was very wicked.  Notwithstanding that you involved yourself in a most serious assault and aggravated robbery.

[53]     In sentencing you I take into account the principles of parity. A starting point of 10 years imprisonment was adopted for Ms Azziz who was a ringleader.   She however did not plead guilty to the charge of aggravated robbery.  So I have to take all of these different weighing factors into the mix.  I have taken into account that you were a follower not a ringleader, but that you also committed an aggravated robbery. When I take into account those matters I adopt a starting point of 10 years 6 months imprisonment.  That includes an uplift for the aggravated robbery.  I allow a reduction of approximately 20% to reflect the assistance you provided to the police, around a further 10% to reflect both your previous good character and your remorse which found palpable expression in the letters that you have provided.  I give you credit for that because it is not something that has just occurred at the time of sentence.  You took the time to express that remorse at a much earlier stage when it was not simply self-serving.  I also allow around a further 20% in relation to your guilty plea.   Prior to taking into account the matter raised by your counsel of the restrictive bail conditions, that gives you a total reduction in sentence of around

50%.

[54]     I then allow a further reduction of six months to take into account the time spent on electronic bail.  When I undertake those various exercises that leaves me with a finite sentence of 5 years imprisonment in respect of the offence of causing grievous bodily harm with intent to cause grievous bodily harm.

[55]     The Crown submitted that given your age and remorse, a minimum term of imprisonment is not necessary and I accept that submission so I do not impose a minimum term of imprisonment on you.   That means your effective sentence is 5 years imprisonment.

[56]     I also have to sentence you in relation to the aggravated robbery offending. For  that  I adopt  a  starting  point  of  6  years  and  impose  a  sentence  of  3  years

imprisonment. As with Mr Luatua, that is a concurrent sentence which means it does not add on top of your sentence.

[57]     So to recap then Mr Suifua.  You are sentenced to 5 years imprisonment in respect of the grievous bodily harm offending and a concurrent sentence of 3 years in respect of the aggravated robbery.  Stand down.

Augustus Ah-Chong

[58]     I come to sentence you Mr Ah-Chong.   You are 21 and again of Samoan descent.  Prior to your offending, as with Mr Suifua, you were successful in most things you attempted in life.   You were a promising rugby league player and you represented a New Zealand based Pacific Island team in recent times in that sport. You had completed a diploma in computer engineering and I understand you did that in triple quick time.  You had secured full time employment as a technical analyst. Since your offending you have now commenced a computer science degree with a view to majoring in information systems and communications and have completed two semesters so far.   You say that your involvement in this offending has had a devastating affect on your family.   You have not previously appeared before the Court.   You are assessed as being intelligent and articulate.   You have expressed remorse and appear to have some empathy for your victim.   On the basis of your strong christian values, your willingness to undertake rehabilitative programmes, your strong family support and lack of previous convictions you are assessed as being at low risk of reoffending.

[59]     The Crown submits that a starting point of 12-13 years imprisonment be set for you.  It identifies no aggravating factors.  It then submits that a total discount of between 15-30% may be appropriate to recognise your lack of previous convictions and good character, your youth at the time of the offending at which time you were only 19 years old, and your expressions of remorse.  A final sentence in the range of

8-11 years imprisonment is sought.

[60]     Your counsel, Mr Duff, submits that for the lead charge of causing grievous bodily harm with intent to cause grievous bodily harm I could regard your offending

as falling within band 2 of Taueki and adopt a starting point of 8 years imprisonment, particularly when regard is had to the starting point adopted by the sentencing Judge who sentenced Ms Azziz.  He submits that in assessing your culpability that there was no evidence that you were aware of the presence of the tyre iron or the extent of the injuries to be inflicted on Mr Johnson.  He therefore says that the presence of a weapon in the assault is not an aggravating feature relevant to you.

[61]     As  to  mitigating factors  Mr Duff  refers to  the  fact  that  you  have never previously offended, your good character which is apparent from the many letters of support that he has referred to me and to your youth at the time of the offending, and I take into account that you were young at the time of the offending, 19.

[62]     He  also  asks  that  you  be  given  credit  for  remorse.    The  letters  that  he provided for sentencing today include a letter from you.   You say that you had wanted to apologise at an earlier point but you felt that you couldn’t because of the bail conditions.  He emphasises the support you have from your family and your real prospects of rehabilitation.   He suggests that you were skilfully and wilfully manipulated by Mr Suifua to participate in the attack and that to some extent you were  also  manipulated  by Mr  Luatua.   Taking  those  matters  into  account  your counsel submits that it is open to me to arrive at an end sentence in the region of 4-7 years imprisonment.

[63]     I have considered these submissions carefully, but I am not satisfied that there is any basis to distinguish your role from that of Mr Suifua so I intend to adopt the same starting point for you which was 10 years 6 months.  Like Mr Suifua you were not a ringleader but you both involved yourselves in a plan which on its face had terrible consequences.  You say you did not know that serious injury was likely but I find that frankly implausible given the time you spent together with your co- offenders, and the nature of the plan which was to render Mr Johnson unconscious so that Mr Luatua would then join in with the attack.  I accept that you did not know the tyre iron was present, but that does not mean that you are entitled to be sentenced without that aggravating feature.  Mr Suifua’s evidence at trial was that you wielded a chair at Mr Johnson, although you used it to strike his torso.

[64]     You denied using a chair or stomping when you gave evidence at trial but I found  Mr  Suifua’s  evidence  more  convincing.   Although  Mr  Suifua  was  a  co- offender which I must take into account in weighing his evidence, the nature of his evidence was such that it was not self-serving.  Some of the evidence that he gave was to his own detriment in the sentencing process.   I also take into account that when he was initially interviewed by police he seemed to want to protect you from the consequences of your involvement.   That desire to protect you is inconsistent with your suggestion that he exaggerated your role when he gave evidence in this Court.

[65]     Quite apart from your use of a chair, that the use of a weapon was entirely foreseeable in the circumstances as known to you which was a plan to seriously injure Mr Johnson.  In the course of giving evidence you minimised your role.  You said you landed only a couple of punches. Again, I prefer the evidence of Mr Suifua that you were actively involved in a serious assault including use of your feet.

[66]     You counsel asks me to take into account that you had been manipulated into the offending by Mr Suifua, but I did not find any evidence which suggested that Mr Suifua was manipulating you in such a way as to make you the fall guy for the offending.

[67]     He also asks that I give you credit for your remorse as evidenced by your apology and the fact that you made a statement to the police early on.  But unlike Mr Suifua you did not plead guilty and your remorse comes at a late point.  Your bail conditions  did  not  prevent  you  taking a course like Mr Suifua to express  your remorse, either by pleading guilty or by entering into some arrangement with the Crown to place on record your remorse.  So I find that your remorse expressed at this point is self-serving.  I do not give you credit for that.

[68]     But I do accept you are entitled to a substantial discount on account of the fact that you had no previous convictions and you were of good character up to that point.  You have good prospects of rehabilitation and when you come out of prison you also have real promise to achieve something.   I therefore intend to give you credit of approximately 25% for those factors.   When I give you credit for that I

come to a point of 8 years imprisonment prior to taking into account the restrictive bail conditions.  As with Mr Suifua and Mr Luatua I give you credit for that of 6 months, which takes us down to a sentence of 7 years 6 months imprisonment for the grievous bodily harm offending.  Again, as with Mr Suifua I do not consider it is necessary to impose a minimum term of imprisonment.

[69]     I also have to sentence you in relation to the offence of aggravated robbery. In respect of that I adopt a starting point of 4 years and reducing that to take into account your age and previous good character, I arrive at a sentence of 4 years 6 months.  As with the other offenders, to be served concurrently so it does not add to your sentence.  Your effective sentence is 7 years 6 months for the grievous bodily harm with no minimum term of imprisonment.  Stand down.

Kain Shaw

[70]     I now turn to sentence you Mr Shaw.  You were convicted of the offence of causing grievous bodily harm with intent to cause grievous bodily harm.  The pre- sentence report tells me that you are 32 years of age, you are in a relationship and have 3 young children with your partner.  You also have two older children.  You have a considerable parenting responsibility which because of your own actions I am afraid you are not going to be able to meet in the near future.  Your older children live with their maternal grandmother in Kaitaia, but you are in regular contact with them. You have been unemployed for some time, but you were in employment at the time of offending.  You have recently been receiving counselling for alcohol abuse and since August last year you have been alcohol free and I commend you for that.

[71]     Your  probation  officer  assessed  that  you  did  not  fully  appreciate  the seriousness of the offending prior to agreeing to take part in it, and you got caught up in something that was beyond your control.  You do however feel some degree of responsibility for your actions and feel guilty for not talking to the police sooner. You feel that the current charge is not reflective of your level of involvement and you will be appealing for a lesser conviction.

[72]     You have a criminal history with 34 convictions over the last 12 years but they  are  predominantly  related  to  driving  and  breaches  of  community  based sanctions, but you also have been involved in offending involving drugs and dishonesty.  You have previously been sentenced to community based sanctions and fines, but your compliance with which has been poor.

[73]     The Crown acknowledges that your offending was less culpable than that of your co-offenders.  It accepts that it is relevant that you were not part of the original planning or the attack itself and that you were coaxed outside the Liquorland store so as to enable Mr Luatua to go inside the kebab shop.  It also accepts that the attack was underway before you began to act as lookout.  Therefore although you knew the attack was taking place and you helped Mr Luatua join the attack by looking as lookout, yours was not the participation of a classic lookout who is part of the plan and fulfils an agreed role as part of a joint enterprise.

[74]     The Crown also accepts that you were not motivated by personal rewards as were your co-offenders.   It suggests adopting the same starting point as the other offenders but applying a 70-90% discount to your sentence.   It does not seek any uplift in respect of your previous convictions because none of them are for violent offending  and  I certainly  do  not  intend  to  uplift  your  sentence  to  reflect  those previous offences.  It seeks a final sentence in the range of 14 months to 3 years, 10 months imprisonment.

[75]     Your counsel, Mr Thinn, emphasises for you the limited involvement that you had in the offending as the Crown has noted.  He also emphasises that you received no payment and that you likely became involved because you were afraid of Mr Luatua.   Although he accepts a starting point in the region of 10-13 years imprisonment is appropriate for the principal offending, he says your culpability is such that that should be halved to 6 and a half years, then take into account the fact you became involved because you were afraid.  He says that finally a sentence of 2-4 years is appropriate.   Although you continue to deny that you are guilty of the offence of which you have been convicted, your counsel emphasises that you do feel sympathy for the victim and also that you arranged for help for Mr Johnson on the night in question, running and getting towels and calling an ambulance.

[76]     I have received letters in support of you, including one from your partner.  I have also received a letter from you in which you apologise and say how sorry you feel for Mr Johnson and his family.   I note that present in court today are your parents.

[77]     I intend to adopt a slightly different approach to a starting point than the Crown suggested.  I am going to adopt a starting point which reflects the criminality involved in your offending and your particular culpability.

[78]     You did have a limited involvement in the offending, and for that reason I adopt a starting point of 3 years imprisonment.   You acted as lookout once the offending was underway, although as reflected in the jury verdict you willingly involved yourself in an assault which you knew was likely to be serious, involving as it did multiple assailants with the intention of causing serious harm.

[79]     What is truly shocking in this case is the number of people who knew that this assault was planned to occur, but took no steps to notify the police or tell Mr Johnson.  Some of those people who knew about the planned assault are not before the Court and that is because they did not take the additional step you took Mr Shaw, of involving yourself in the commission of the offence.

[80]     I am satisfied there are no mitigating factors to be taken into account.  You rendered assistance but you waited some time before doing so.  You say you were frightened and that is why you became involved, but there is no evidence that you were frightened of Mr Luatua.  I accept that you have expressed at this late point an apology and remorse but that really is too late in the piece to allow you any credit for it.

[81]     Accordingly I impose a sentence of imprisonment in respect of the one count of causing grievous bodily harm with intent to cause grievous bodily harm of 3 years imprisonment.  The Crown does not seek and I do not impose a minimum period of imprisonment.

Kunal Reddy

[82]     Finally, I come to your sentence Mr Reddy.  You involved yourself in this offending after it had been committed. Your involvement was to assist Mr Luatua by destroying CCTV footage that had been captured at the bar at which you were working.

[83]     I have a pre-sentence report in respect of you which tells me you are 27 years old of Fijian Indian ethnicity.  You currently live with family and your father and uncle are present in Court today to support you.  After being unemployed for one year following this offending you are currently employed as a real estate agent.  You are a first time offender but you continue to deny your offending.  You are assessed as being at low risk of further offending and the probation officer suggests that a sentence of community detention and community work is appropriate.

[84]     The Crown cites several cases which it submits are very similar to your situation.    Emphasising  the  importance  of  deterrence  the  Crown  submits  that  a starting point of 12 months imprisonment is warranted in the circumstances.  It says there are no aggravating factors, but nor are there any mitigating factors other than your lack of previous convictions for which it says you are entitled to a discount of

5-10%.   The Crown seeks a final sentence in the range of 10-11 months imprisonment.

[85]     Your counsel, Mr Moroney, asks me to take into account that you have no previous criminal history and that this offending is an isolated incident that is highly unlikely to occur again.  He has put before me quite extensive letters of reference in support of you which speak of the fact that you are trustworthy, you are obviously a highly intelligent and skilled person, you are well educated and people speak of you as being honest.  But when I weigh that material up I also have to take into account the offence of which you have been convicted.  Consistent with the jury’s verdict of guilt, your conduct consisted of destroying evidence by deleting CCTV footage for the purpose of helping Mr Luatua avoid being arrested or convicted of the offence of causing grievous bodily harm with intent to cause grievous bodily harm.  Although there was no evidence of what was on that CCTV footage because it had been

destroyed, the jury plainly drew the inference that it contained evidence that could have been helpful to the Crown case, that on the basis that you destroyed it after you had been requested by the police to hold it and also on the basis of the other acts of assistance you provided to Mr Luatua on that night, namely the text you sent him to warn him about the blood on his trousers.

[86]     Again, as with Mr Shaw there was disturbing evidence at trial that at least one other person who is not before the Court today sent a text to Mr Luatua to warn him.  But again you took the matter one step further than that person in that you took the additional step of destroying the CCTV footage.  That is why you are before the Court today.

[87]     I have given consideration to the authorities referred to me by both your counsel and counsel for the Crown.  I do consider that your offending is toward the more serious end of the spectrum.   It was assistance given some time after the offence - it was not in the heat of the moment.  You had the opportunity to reflect upon the significance of you actions.  The police had asked you to hold that tape  but you wilfully intermeddled in the investigation in the face of that request.  Nor do you have  the  mitigating  factor  of  close  family  connection  to  the  person  you  were assisting, and nor do you have the excuse of extreme youth on your side.

[88]     Your counsel suggested that you were afraid of Mr Luatua and that is why you acted in this way, but the facts do not support that conclusion, particularly in the light of the other acts of assistance you rendered to him.  You sent him two texts on the night telling him about the blood on his trousers which suggests you were eager to help your friend out.

[89]     Taking those matters into account I consider that a starting point of 9 months imprisonment is appropriate which recognises the seriousness of the offending which you involved yourself in.  I also consider that you are entitled to some reduction in sentence on the basis that you have never previously offended and have a good character.   I allow a reduction of one month’s imprisonment on account of your previous good character.

[90]     The next issue for me since I have imposed a sentence of only 9 months duration is whether to impose a sentence of home detention, rather than imprisonment.  I consider that a sentence of home detention is not appropriate in this case. As Chisholm J said in R v Graham:[2]

[2] HC Christchurch CRI-2004-009-2224, 14 September 2004

... imprisonment is generally the outcome for being an accessory after the fact to a serious crime.  This is because deterrence is a key consideration. Accessories complicate the hunt for criminals and add to the burden of the police...

[91]     In this case deterrence is the overwhelming consideration Mr Reddy.   You have nothing to mitigate or explain your intermeddling.  You were not particularly young, you were not tied to the person you assisted by deep ties of affection.   I consider that deterrence and denunciation require that I impose a sentence of imprisonment upon you of 8 months.   I do not impose any conditions upon your release.

Winkelmann J