Sasulu v Police
[2024] NZHC 1470
•5 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-152
[2024] NZHC 1470
BETWEEN EDWARD SASULU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 May 2024 Appearances:
M W Budler for Appellant
O J Southern for Respondent
Judgment:
5 June 2024
JUDGMENT OF BOLDT J
[Sentence appeal]
This judgment was delivered by me on 5 June 2024 at 3 pm
Registrar/Deputy Registrar
Solicitors:
Public Defence Service, Auckland for Appellant Crown Solicitor, Manukau for Respondent
SASULU v NEW ZEALAND POLICE [2024] NZHC 1470 [5 June 2024]
[1] On 7 March 2024, the appellant, Edward Sasulu, was sentenced to 14 months’ imprisonment, with leave to apply for home detention, on two charges of assault on a person in a family relationship.1 The victim was the appellant’s then-partner; he and the victim had been in a relationship for about 15 months. They have a son, who was three months old at the time of the offending.
[2] The appellant appeals against his 14-month sentence, contending it is manifestly excessive and that the sentencing Judge gave insufficient weight to three mitigating factors, namely his youth, his remorse and his challenging personal background as outlined in the PAC report.
Background
[3] I adopt the succinct statement of the underlying facts in the remarks of the sentencing Judge, Judge N R Dawson:2
[2] At about 9 pm on 14 September 2023, you were both at your home address in Clendon. You awoke from a nap to find the victim looking at your phone in your bedroom. She questioned you about women you were following on Instagram, and that turned into an argument between you. You became angry, and whilst she was sitting on the bed, you kicked her once in the back, causing her to become winded for a few seconds. You were asked to leave the address and you took your son with you and ran to the end of the driveway before being stopped by family members and returned to the home address.
[3] The victim was in her mother’s bedroom, feeding the baby on a mattress on the floor, when you came to the doorway. She asked you to leave. You refused and called her a bad mother. While she was still seated, you grabbed her by the hair and pulled her down, causing her head to move backwards, and then you headbutted her in the head. She continued to tell you to leave, and the police were called. You were arrested at the address. The victim has sustained tenderness, a burning sensation, and a mild headache. Her back is sore from the kick.
[4] At the time of the assault, the appellant was three weeks short of his 23rd birthday. He has an extensive criminal history. Judge Dawson noted the appellant had accrued six convictions for violence and seven for other offending since
1 Crimes Act 1961, s 194A. Maximum penalty of two years’ imprisonment.
2 New Zealand Police v Sasulu [2024] NZDC 6932.
his deportation from Australia in February 2020.3 The appellant also had at least 21 convictions, including some for very serious offending, in Australia.4
[5] The appellant was sentenced to 16 months’ imprisonment in 2022 on a raft of charges, including assault on a person in a family relationship, assault with a blunt instrument, male assaults female and injuring with reckless disregard.
[6]The PAC report is not encouraging. It includes the following passages:
The frequency and severity of [the appellant’s] offending reflects a continuation of his previous behaviours which are highly impulsive, violent and involve intimate partners and children. This is illustrated by his attempt to leave with his child and matters escalating when family members of the victim tried to stop him. In 2022, Mr Sasulu took his child in a vehicle unrestrained in an agitated state after an incident with his then partner where he was later convicted of Male Assaults Female.
…
Mr Sasulu’s offending related factors are assessed as — propensity for violence, unhealthy relationships, gambling and drug and alcohol use, all of which have contributed to his poor decision making, impulsivity, and a lack of consequential thinking.
His risk of harm to others is assessed as high and considers the presence of violence in his offending history and matters before the Court. In terms of rehabilitation programmes, Mr Sasulu does not meet the criteria for Department programmes based on his static risk, however, an override can be completed in consultation with a Department psychologist given his history of offending in Australia.
[7] The report writer noted elements of insight on the appellant’s part — the appellant said he was remorseful, recognised he needs help, expressed a willingness to do a drug and alcohol course and parenting programme, and recognised that he did not have good parental role models so did not know how to be a good father. He acknowledged the need to get his violence under control “and learn how to not do it anymore”. The appellant also acknowledged that he is a heavy drinker and a regular user of methamphetamine, and he recognised the role methamphetamine played in his past and current offending. The report noted the appellant is “likely to be dependent” on methamphetamine.
3 At [4].
4 The Australian convictions include robbery, armed robbery, contravening family violence intervention orders and aggravated burglary.
[8] On the other hand, the appellant denied he headbutted the victim, saying he “pleaded guilty to it so this will not drag on”. That ongoing denial echoes his comments when first spoken to by Police — the summary of facts records that the appellant “denied the assault and stated that it was an argument only.”
[9] The victim impact statement records that the victim suffered from a sore back and a burning sensation to her forehead as a result of the attack, but, perhaps more importantly, she expressed a sense of violation given the relationship she and the appellant had had. The victim impact statement recorded:
I have never seen Edward like this, and it has made me feel really unsafe. I don’t want my children being brought up in this kind of environment. I would like a protection order in place. I feel sad that he felt like he could treat me like this.
[10] The appellant wrote a letter to the victim. It was dated the same day he was sentenced, and read as follows:
To my victim
I would like to take this time to apologise for my violent behaviour which I know needs to be addressed and has been a problem for me before. To my victim I’m deeply sorry for the fear I have caused you and for also letting it get physical. I am trying to seek the help I need so I won’t have to put another person through what I have put you through.
District Court sentencing
[11] Judge Dawson adopted a starting point of 15 months’ imprisonment, which he uplifted by three months in light of the appellant’s criminal history. From that, the Judge deducted 20 per cent in recognition of the plea of guilty and a further four per cent to recognise “a combination of remorse you have expressed and your youth, such as it is”.5 The Judge imposed a final sentence of 14 months’ imprisonment and granted the appellant leave to apply for home detention.6
5 New Zealand Police v Sasulu, above n 2, at [10].
6 At [11].
The appeal
[12] Mr Budler recorded that the appellant takes no issue with either the Judge’s starting point or the uplift for his criminal history. Similarly, the appellant takes no issue with the 20 per cent reduction in recognition of his guilty plea.
[13] Mr Budler does submit, however, that the Judge ought to have assigned greater weight to the appellant’s youth and remorse — he contends that a combined four per cent discount was insufficient to recognise those factors. In addition, he submits the Judge should have given a further discount to reflect the deprivation the appellant experienced in his upbringing and his (likely) drug addiction, as outlined in the PAC report.
Discussion
[14] I do not accept that the appellant should have received greater credit for his youth and remorse. He is not particularly youthful, nor has he shown much real remorse. The appellant was only three weeks from his 23rd birthday when he assaulted the victim. A review of the sentences he has received over the years shows several which were designed to divert him away from criminal offending. It is fair to infer that his earlier sentences were all influenced by his youth to a greater or lesser extent.
[15] Mr Budler referred to the well-recognised neurological differences between young people and adults, and noted that young people often experience difficulty with impulse control until the age of around 25. Even in cases where offending is not impulsive, offenders have sometimes received a discount for youth despite being well into their 20s.7
[16] At the age of nearly 23, the appellant is near the upper limit at which recognition of youth might be appropriate.8 In this case, the Judge acknowledged the appellant’s age as a relevant factor, but plainly considered it warranted little weight,
7 For example, in Woodlock v Police [2023] NZHC 2675, a case of prolonged and serious relationship violence, on appeal the appellant received a discount of 10 per cent for his youth, despite being aged between 22 and 24 at the time of his offending.
8 See Huata v R [2013] NZCA 470 at [34].
especially as the appellant had been sentenced on several other charges of domestic assault as recently as 16 March 2022. I cannot fault the Judge’s assessment.
[17] In any event, I suspect the appellant’s heavy use of methamphetamine plays a greater role in his ongoing difficulties with impulse control than his age. It is imperative he embraces the rehabilitative opportunities which will be offered to him upon his release. The alternative may well be further, and longer, sentences of imprisonment as the courts prioritise the need to protect the community.
[18] As to remorse, there is a good argument the appellant should not have received any discount at all. It is easy to claim to be remorseful, but the Court must be satisfied expressions of remorse are genuine before credit is extended.9 Actions will generally speak louder than words. The appellant initially denied and minimised his offending, describing the assault as “just an argument”. Even when awaiting sentence, he denied the headbutt, despite having pleaded guilty to a charge arising from it. His remorse letter was brief, impersonal, and plainly written for the benefit of the sentencing Judge. As van Bohemen J noted in Woodlock v Police, “[l]etters of remorse are often written at sentence. Many are formulaic and do not indicate much personal engagement with the reality of the offending.”10
[19] The appellant’s unwillingness to take unequivocal responsibility for the assault and its seriousness is disappointing, because his comments to the writer of the PAC report do indicate at least some level of insight. Nonetheless, it does not appear he fully recognises or acknowledges the seriousness of the attack, which included a blow to the victim’s head in her own home in front of their infant child.
[20] It is true that the PAC report describes a grim personal background. It records that the appellant “went to the street” at the age of nine. He was expelled from high school twice and went to Juvenile Detention for the first time at the age of 13. While he has some extended family members in New Zealand, the appellant’s relationship with his father is described as irreparable, and his deportation from Australia means he can communicate with his mother only via video calls. He is an associate of the
9 See Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
10 Woodlock v Police, above n 7, at [49].
Head Hunters East Chapter; the PAC report notes that this is a matter of concern given his minimal family connection.
[21] I agree with Mr Budler that it may have been open to the Judge to offer a further discount based on the matters outlined in the PAC report, as long as he was satisfied they could be causally linked with the attack on the victim.11 That said, even the additional 10 per cent discount Mr Budler suggested would have made little difference to the appellant’s final sentence. As Mr Southern noted, using the approach mandated by the Court of Appeal in Moses v R,12 the appellant’s 14-month sentence involved an element of rounding down. An additional 10 per cent discount would, on a strictly mathematical basis, reduce the appellant’s sentence to a fraction under 13 months.13 A difference of a single month does not signal a sentence that is manifestly excessive. To interfere would be tinkering.
[22] Finally, I agree with Mr Southern that it is right for the courts to register their condemnation of relationship violence of this kind.14 Judge Dawson observed that the appellant had been a bully, and that it was important to impose a sentence which would “get the message home … that there are severe consequences if you offend in this way”. I agree. The 14-month sentence properly recognised the seriousness of the assault, the interests of the victim, and the breach of trust that always accompanies violence in a domestic relationship.
Result
[23]The appeal against sentence is dismissed.
Boldt J
11 There was no report under s 27 of the Sentencing Act 2002. That said, if the Judge had considered the matters in the PAC report to be sufficiently compelling it would have been open to him to consider them under s 9(4)(a).
12 Moses v R, above n 9, at [46].
13 The raw figures are 14.4 and 12.9 months respectively.14 See, for example, the comments of the Court of Appeal in Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 at [27].
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