Samoa v The Queen
[2004] NZCA 173
•4 August 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA85/04
THE QUEEN
v
JOSEPH SAM SAMOA
CA138/04
THE QUEEN
v
WILLIAM LOGAN JOHANSSON
Hearing:22 July 2004
Coram:Anderson P
William Young J
Chambers JAppearances: R M Mansfield for Samoa
C P Comesky for Johansson
S J E Moore and N E Walker for Crown
Judgment:4 August 2004
JUDGMENT OF THE COURT DELIVERED BY ANDERSON P
[1] These appeals against sentence are directed to minimum periods of imprisonment imposed in respect of two counts of murder of which the appellants were found guilty on their trial. They were members of a criminal gang which, between 17 December 2001 and 15 May 2002, carried out ten armed robberies in the area of greater Auckland.
[2] In May 2002 one of the criminals, Ese Junior Faleali’i, shot in the head and killed two people in the course of robberies. The first victim was Mr Marcus Doig a student who was working at the Pizza Delivery Company at Pakuranga when Faleali’i entered and threatened him and the owner of the business, Mr John Bell, with a cut-down rifle. Faleali’i ordered Mr Doig to lie down on the ground and, when this order had been followed, Faleali’i shot him in the head. He died instantly. The murderer then fired at Mr Bell but missed.
[3] Just one week later Faleali’i entered the ASB bank at Mangere, threatened staff with the sawn-off rifle and ordered a teller, Mr John Vaughan, and another teller, to fill a bag with money. The tellers co-operated. They placed about $5,800 in the bag which Mr Vaughan handed over to Faleali’i. As the tellers stood behind the counter, their hands raised in surrender, Faleali’i shot Mr Vaughan in the head causing fatal injuries from which the victim died a few hours later.
[4] The appellants had recruited Faleali’i to their criminal enterprise only about two weeks before the first murder. They provided him with a .22 Ruger rifle, cut-down to pistol proportions to facilitate its use in armed robberies. They also planned the robberies, selecting targets and providing transport and lookout support. Between 22 April and 7 May 2002 Faleali’i committed six robberies in each of which the firearm was used to threaten victims and on one occasion was discharged at a person employed at the target premises. That victim felt the rush of air displaced by the projectile as it passed close to his head. On 5 May in the course of an aggravated robbery of the Lucki Bar and Casino at Otahuhu Faleali’i pointed the weapon at the head of the victim and pulled the trigger but the gun did not fire. Johansson subsequently said that he had removed the ammunition from the firearm out of concern over Faleali’i’s behaviour.
[5] Johansson was not dissuaded however from joining with Samoa in the planning of the Pizza Delivery Company robbery only two days later. These three criminals drove in Samoa’s car to a car park near the targeted premises and sent Faleali’i in to carry out the robbery. He was armed with the cut-down rifle and, in the testimony he gave for the Crown at the trial of the present appellants, he said that they had told him of a previous attempt by them to rob Mr Bell. The proprietor had thwarted them on that occasion by shutting the till and their advice to Mr Faleali’i, according to his evidence, was that if the owner tried that again Faleali’i was to shoot him, “blow him away”.
[6] The Crown’s case, significantly dependent on the Queen’s evidence given by Faleali’i, was founded on the law as to parties and, in respect of the charges of murder and attempted murder in particular, on s66(2) Crimes Act 1961 which provides as follows:
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
[7] There is ample evidential and legal justification for the guilty verdicts and no appeal has been brought in respect of them. Condign finite terms were imposed on all counts except the two murders for which sentences of life imprisonment were imposed. The murders were such as to attract minimum periods of imprisonment of more than ten years, pursuant to s103(3) of the Sentencing Act 2002, and it has not been contended otherwise by counsel for the appellants. The issue is whether the minimum terms, in Samoa’s case 22 years and in Johansson’s case 23 years should be reduced.
[8] This Court, in R v Bell CA80/03, 7 August 2003, gave judgment in an appeal against a minimum non-parole period of 33 years imposed on a multiple murderer who had killed three people in the course of an armed robbery. A 30 year minimum non-parole period was considered appropriate in that case. Also on 7 August 2003 this Court delivered its judgment in R v Howse CA444/02. A minimum non-parole period of 25 years was imposed on a murderer who had killed his two young step daughters with remorseless brutality. Randerson J plainly had those cases in mind and he referred specifically to R v Howse. He imposed on Samoa a minimum period of imprisonment of 22 years. In the case of Johansson the period was increased to 23 years because he had a previous conviction for homicide, having pleaded guilty in 1996 to manslaughter following the death of a youth set upon by Johansson and others. He had subsequently demonstrated his propensity to violence in other ways which had brought him before the Court in the past.
[9] It was accepted by counsel for the appellants that having regard to this Court’s decisions in Bell and Howse the minimum periods of imprisonment imposed in this case could not reasonably be characterised as manifestly excessive in themselves. The substance of the argument in each case was that they were manifestly excessive when compared to the minimum period of imprisonment of 17 years 9 months earlier imposed on Faleali’i by another Judge. In that case, Potter J had adopted a starting point of 20 years but it is to be noted that she sentenced Faleali’i on 19 July 2002, a year earlier than this Court’s guiding judgments in Bell and Howse.
[10] Randerson J was of course aware of Potter J’s reasons for sentence and he was conscious also of the need to avoid any unjust disparity between the sentences he was to impose and that imposed on Faleali’i. He said at [98] of his sentencing notes:
If I were considering your sentence in the absence of the prior sentencing of Mr Faleali’i, I would have imposed a minimum period of imprisonment of approximately 25 years. However, I accept that I should have some regard, for parity reasons, to the sentence imposed on Mr Faleali’i so that there is no unjustified perception of disparity between all those involved. In the end, what is important is that there is a proper sense of proportion between the minimum periods of imprisonment ultimately imposed in all three cases.
[11] The sentencing principle which seeks to avoid unjust disparity is founded on the need to preserve public confidence in the administration of justice by treating in a manifestly even-handed manner criminals who commit similar offences in similar circumstances. But because there will often not be an exact coincidence of all relevant circumstances of offences and offenders there will often not be an exact coincidence of penal consequences. That is why this Court in R v Rameka [1973] 2 NZLR 592, 594, having considered English and New Zealand cases, said:
Having regard to these and other authorities dealing with disparity of sentence, this Court wishes to say that it will in special cases have regard to disparity as a ground of appeal against sentence, but only when the disparity appears unjustifiable and is gross.
[12] This Court elucidated the principle further in R v Lawson [1982] 2 NZLR 219, 223, as follows:
It is not merely whether the offender thinks he has been unfairly treated, but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
[13] A reasonably minded independent observer of the cases of Faleali’i and the present appellants would be struck by at least two very significant matters of differentiation. The first is that Faleali’i, who had been arrested shortly after the second murder, pleaded guilty within a few weeks of his arrest. The present appellants, on the other hand, pleaded not guilty and were subsequently convicted on their trial. The aptness of appreciable reductions in sentence for prompt and remorseful pleas of guilty is demonstrated by this case where the anguish of the victim’s family and friends as they waited more than a year for closure on the question of guilt is readily understood. Those who advance closure for victims by prompt and appropriate pleas of guilty will have their conduct acknowledged in a real way.
[14] Another significant point of ready differentiation is that Faleali’i gave very valuable assistance to the Crown in the prosecution of co-offenders. He had indicated his willingness to do so before he was sentenced by Potter J, and he lived up to his word.
[15] In the face of those two obvious features counsel for the appellants felt obliged to take an ingenious tack. They argued that Randerson J should have been guided by Potter J in relation to the starting point of 20 years which she adopted. And further, they argued that Randerson J was influenced by an erroneous perception that the appellants were more culpable than Faleali’i in respect of the murders. The Crown had submitted at sentencing that the appellants’ culpability was at least as high as that of Faleali’i and could be viewed as higher. At one point in his sentencing notes, [49], Randerson J said that he regarded the appellants as at least equally culpable with Faleali’i but at a later point in the sentencing notes, [96] he said that he regarded their culpability as higher than Faleali’i’s. Matters relevant to the issue of relative culpability were examined by Randerson J at [46]-[49] inclusive of the sentencing notes which state:
[46] A good deal of attention during the evidence at trial was focused on the relationship between Mr Faleali’i and those who were assisting him. The Crown accepted that Mr Faleali’i was not a pawn who simply did what he was told by his accomplices. It was accepted that Mr Faleali’i had a previous criminal record, that he knew what he was doing, that he went into the premises alone, and that it was he alone who had used the weapon to shoot innocent people. The Crown do not seek in any way to excuse Mr Faleali’i’s actions but he is not for sentence today.
[47] However, the Crown case was that there were substantial differences in Mr Faleali’i’s education, age, and life experience when compared to you Mr Samoa, Mr Johansson and indeed Mr Savaiinaea. Mr Faleali’i was 18 years of age at the time while your ages were between 24 and 26 years. It was obvious during Mr Faleali’i’s evidence (and he was in the witness box for a very substantial period of time at trial), that he was unsophisticated and of relatively low intelligence.
[48] There was nothing to suggest that he was the ringleader. Indeed, all the evidence shows that you Mr Samoa and Mr Johansson, and to a lesser extent you Mr Savaiinaea, were the ones who provided him with access to firearms and ammunition, knowledge of the areas and premises involved, most of which you had some previous connection with or knowledge of, and that you had the motor vehicles to transport him to and from the scenes of the robberies. As well you provided him with the necessary disguises and advice as to how he should carry out the robberies. I accept his evidence that he was told how to use the weapons aggressively and in a threatening manner, when and where he was to carry out the robberies, and where he was to run to afterwards to make his getaway. He could not possibly have carried out these robberies on his own and I am satisfied that these robberies were a joint enterprise in which all of the participants on each occasion were involved.
[49] I regard you Mr Samoa and Mr Johansson, as at least equally culpable with Mr Faleali’i. The Court of Appeal has made it clear on more than one occasion that the ring leaders and planners may be just as culpable as the gunmen: R v Mako [2000] 2 NZLR 170 at paragraph [64] and R v Mahaki and Te Moni (CA309/87, CA287/97, 8 April 1998).
Discussion
[16] We did not need to call on the Crown to make oral submissions before us. We had had the benefit of extensive written submissions and in any event counsel for the appellants were unable to persuade us, ultimately, that there was the least merit in these appeals. The proposition that Randerson J should have ignored the guidance given by this Court in R v Bell and R v Howse and instead taken his cue from an earlier decision of the High Court simply cannot be accepted. Further, leaving aside the diffidence which this Court would obviously have in attempting to substitute a view on relative culpability derived from the papers for an evaluation of culpability derived by the trial Judge after a lengthy and intensive trial, the appeals would fail even if equal culpability were assumed. This is because the differences in the minimum period of imprisonment imposed on Faleali’i on the one hand, and those imposed on the appellants on the other, are manifestly and reasonably explicable on the basis of Faleali’i’s prompt guilty plea, obvious remorse and willingness to assist the Crown in bringing the other criminals to justice.
[17] In short, the minimum periods of imprisonment are not inherently excessive, as counsel for the appellant responsibly acknowledged, minimum imprisonment periods of 22 and 23 years fixed by Randerson J were entirely open to him in view of this Court’s relevant decisions, and the disparity of sentences is entirely appropriate.
[18] We conclude with a brief reference to the argument advanced on behalf of Johansson that he should have received a sentencing credit for removing the ammunition from the firearm shortly prior to the Lucki Bar and Casino armed robbery on 5 May 2002. Such conduct merely serves to show that Johansson was entirely aware of the menace represented by Faleali’i in committing aggravated robberies with the firearm. Notwithstanding, he and Samoa drove Faleali’i to the Pizza Delivery Company three days later knowing that Faleali’i was armed and indeed advising him to commit murder. And only seven days after that brutal killing they again set Faleali’i up for an armed robbery in which Mr John Vaughan was murdered by the same man with the same firearm. This point, also, is without merit.
[19] For these reasons the appeals against sentence are dismissed.
Solicitors:
Crown Solicitors, Auckland
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