R v Maposua

[2004] NZCA 212

IN THE COURT OF APPEAL OF NEW ZEALAND

CA131/04

THE QUEEN

v

BERNARD MAPOSUA

Hearing:25 August 2004

Coram:Chambers J
Williams J
Panckhurst J

Appearances:  J C Pike for the Crown

S D Cullen for Respondent

Judgment:3 September 2004 

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Solicitor-General’s appeal

[1]       The Solicitor-General seeks leave to appeal against a sentence imposed by Rodney Hansen J on Bernard Maposua, the respondent.  Mr Maposua had pleaded guilty to the manslaughter of Victor Purcell.  Rodney Hansen J sentenced Mr Maposua to two years’ imprisonment.  He granted him leave to apply for home detention.  (We were told that the Parole Board has not so far been prepared to grant Mr Maposua’s application.)

[2]       The Solicitor-General seeks to appeal on the basis that the sentence was manifestly inadequate.  Mr Pike, for the Solicitor-General, submits that the sentence should have been at least three years’ imprisonment. 

[3]       The real challenge is to the judge’s starting point before considering mitigating factors.  It is not absolutely clear what starting point the judge adopted, but it would appear to be about four years’ imprisonment.  It seems he then halved that to reflect mitigating circumstances.  Mr Pike submits that the starting point should have been at least six years’ imprisonment.  Mr Pike does not quarrel with a 50% reduction for mitigating factors.  He thereby reaches a three year term.  So the issue is: what should the starting point have been? 

The facts

[4]       We take the essential facts from the judge’s sentencing notes:

You and Victor worked for the same firm, Avondale Blasting and Coatings.  You were a supervisor in the workshop and Victor was one of the employees who worked under you.  He was seventeen and known to you not just as a workmate but as a friend.  Your two families, as I understand it, have known one another for many years and Victor, in fact, frequently visited your home.

On 12 December 2003, you became annoyed by Victor’s behaviour.  You thought he was being cheeky and insolent towards you.  This culminated, as I understand it, in what you saw to be a deliberate refusal on his part to wear safety gear when he was painting.  You picked up a heavy broom which is used to sweep the workshop floor.  It has a 30 millimetre thick wooden handle and a very heavy wooden head.  You swung the broom above your head and you struck Victor a blow on the top of his head.  The blow was struck with such force that the handle broke.  Victor fell unconscious to the ground.  He suffered a severe laceration to the left side of his head which exposed the bone underneath.  He was taken to Auckland Hospital where he underwent emergency surgery to relieve brain swelling.  However, he had suffered irreversible brain damage and he died two days later.

[5]       It is agreed that one minor qualification to those facts is required.  The handle of the broom did not break.  Rather, the head of the broom came off on impact. 

The starting point

[6]       There is comparatively little discussion in the judge’s sentencing notes about the appropriate starting point.  That appears to be because the starting point was not really in issue at sentencing.  Rodney Hansen J records that the Crown had submitted to him a starting point of “somewhere between four and six years”.  What Mr Cullen, for Mr Maposua, submitted as the starting point is not recorded in the sentencing notes.  Probably that means either he did not dissent from the Crown submission or he did not choose to make a submission on that specific topic.  The judge’s starting point (“four or five years”) was accordingly within the range submitted by counsel representing the Crown at that time.  On appeal, Mr Cullen supported the judge’s starting point “range”.

[7]       Mr Pike, when submitting in effect that the judge’s starting point was manifestly inadequate, was adopting a stance different from that taken by the Crown at sentencing.  He freely acknowledged that.  The question arises whether the Crown should be permitted, on appeal, to adopt a stance different from that taken at first instance.  That is a topic which was carefully considered by this court in R v Tipene (2000) 18 CRNZ 311.  The answer given there was that the Crown is not debarred, on appeal, from taking a stance different from that taken at first instance.  This court went on to say (at [11]):

However the fact that the Crown has taken a particular stance, with which the sentence imposed is not inconsistent, is relevant to the appearance of justice when the appropriateness of the sentence is considered on appeal.  There may be occasions when, notwithstanding a perception of injustice on the part of the Crown in changing its stance, an appellate Court may be unable to avoid the conclusion that there is an even greater perception that justice has gone wrong because the sentence imposed is so manifestly inadequate. 

[8]       This is such an occasion.  The starting point adopted by the judge, and the sentence to which it then led, were manifestly inadequate.  Mr Pike submitted that six years was the minimum starting point that could have been adopted.  There is much force in that submission, particularly in light of comments made in the leading authority of R v Leuta [2002] 1 NZLR 215 (CA) and in light of suggested penalties in R v Hereora [1986] 2 NZLR 164 (CA), dealing with violent offending where death does not ensue. If Rodney Hansen J’s starting point was in truth four years, then he must have allowed himself to be influenced by the mitigating circumstances when fixing the starting point, with the consequence that the mitigating factors were either double counted or given too much weight. Alternatively, if the judge adopted a starting point of five years, then he, in making a 60% reduction for mitigating features, was too generous.

[9]       In the end, we adopt a starting point of five years’ imprisonment.  In adopting that starting point, we take into account the fact that this is a Solicitor-General’s appeal, with the consequence that the sentence must be adjusted no more than the minimum extent necessary to remove the element of manifest inadequacy.  We have also taken into account the fact that the Crown did at sentencing advocate a lower starting point than has been contended for on appeal.  A six year starting point, or an even higher starting point, could well have been justified but for the special features mentioned.

[10]     We need say little about the mitigating circumstances, as we are prepared to agree with the 50% reduction which Mr Pike suggested and which the judge applied (if one assumes he adopted a four year starting point).  The mitigating circumstances were truly exceptional.  Mr Maposua pleaded guilty at the earliest opportunity.  In addition he had expressed remorse, which Rodney Hansen J described, we are sure accurately, as “clearly genuine and heartfelt”.  In addition, Mr Maposua’s family and Mr Purcell’s family had undergone the Samoan cultural practice of ifoga.  As a result of that $12,800 was paid by Mr Maposua’s family to the Purcell family.  Of that sum, $3,700 was paid by Mr Maposua and his wife, and apparently represented their entire savings.  The balance was contributed by Mr Maposua’s parents and his wife’s parents.  We accept that that was a substantial payment for Mr Maposua and his family. 

[11]     At the same time it is important that the concept of ifoga not be given undue weight in sentencing.  Mr Purcell, Victor’s father, addressed us, with the consent of counsel.  He explained how the concept of ifoga works and its purpose.  (In addition, we had a research paper on the topic.)  He explained that, even in Samoa, ifoga is not the complete punishment.  He also made the point that, when he and his family came to New Zealand, they recognised that they were coming to a different society.  Mr Purcell said that “he put on new clothes, he put on a tie”.  As Mr Pike submitted we must recognise the concept of ifoga in New Zealand society as best we can, but Mr Purcell “still wanted, and was entitled to, the protection of the law for his family”.  We agree with those submissions.  The correct approach to ifoga was set out by this court in R v Talataina (1991) 7 CRNZ 33 at 35-36.  Those principles have been endorsed by Parliament in s 10(1) of the Sentencing Act 2002.

[12]     For the reasons given, we have adopted a starting point of five years’ imprisonment, and we support and adopt the judge’s 50% discount for mitigatory features.  The sentence now substituted remains an extremely merciful one, but it is appropriate in all the circumstances.

Result

[13]     We grant the Solicitor-General’s application for leave to appeal.  We are satisfied that a different sentence should have been passed.  Accordingly, in terms of s 385(3) of the Crimes Act 1961, we quash the sentence passed in the High Court and we substitute a sentence of two and a half years’ imprisonment. 

[14]     While the Solicitor-General’s application has been successful, we wish to note the excellence of Mr Cullen’s submissions to us.  He represented Mr Maposua with real skill on the appeal, as obviously he did at the sentencing itself.

Solicitors:
Crown Law Office, Wellington