Satoa v The King
[2023] NZHC 3650
•12 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000573
[2023] NZHC 3650
BETWEEN PETER SATOA
Appellant
AND
THE KING
Respondent
Hearing: 12 December 2023 Appearances:
J Holden for Appellant
A Archibald for Respondent
Judgment:
12 December 2023
ORAL JUDGMENT OF VENNING J
Appeal against sentence
Solicitors/Counsel:
Meredith Connell, Auckland J Holden, Barrister, Auckland
SATOA v CROWN LAW [2023] NZHC 3650 [12 December 2023]
[1] On 25 October 2023, Peter Satoa, having pleaded guilty to two charges of injuring with intent to injure in relation to two separate complainants was sentenced by Judge S Bonnar KC to two years’ imprisonment with leave to apply for home detention if an appropriate residential rehabilitation facility became available.1
[2] Mr Satoa appeals the sentence. He says the Judge failed to give sufficient discounts for factors identified in the s 27 report and for Mr Satoa’s remorse which has resulted in a manifestly excessive end sentence. Mr Satoa seeks a sentence of between 19 and 22 months.
Background
[3] In sentencing Mr Satoa to 24 months, the Judge described the background to the offending as:
[1] … [o]n the evening of 29 October of 2022, the two complainants, Mr Lee and Mr Thompson-Rangi, were at a kebab shop in Queen Street in Auckland. You were outside the shop with two other known alleged offenders
- they have not yet been dealt with - and a fourth unknown person. After Mr Lee walked out of the kebab shop the unknown man confronted him and started asking him whether he had a problem. Your unknown associate continued to confront Mr Lee and became aggressive. Mr Lee began walking away, trying not to engage. One of your alleged co-offenders, Mr Langi, then referred to the second complainant, Mr Thompson-Rangi, who was holding an 18-box of beer and started saying: “Shall I take it, shall I get it now?” referring to the beer.
[2] Mr Thompson-Rangi moved away from Mr Langi and you and stood near Mr Lee. The unknown man then punched Mr Lee in the head with a closed fist, causing him to fall to the ground. Mr Thompson-Rangi dropped the box of beer he was holding in an attempt to come to Mr Lee’s aid. He swung a punch at the unknown man which did not land. Mr Langi then punched Mr Thompson-Rangi in the face with a closed fist, causing him to also fall to the ground.
[3] You ran over, grabbed Mr Thompson-Rangi and punched him in the head while the unknown man continued to kick him in the legs. Mr Thompson-Rangi got to his feet and tackled you. The third alleged co- offender, Mr Ah-Keni, then got involved. He lifted Mr Thompson-Rangi up from you and began punching him in the face. The unknown man picked up a glass beer bottle and swung it down on Mr Thompson-Rangi’s back. Mr Ah- Keni pushed Mr Thompson-Rangi to the ground and continued to wrestle with him.
1 R v Satoa [2023] NZDC 23479.
[4] By this time, Mr Lee had got up off the ground and he tried to come to Mr Thompson-Rangi’s aid. You ran up to him and punched him in the head, knocking him to the ground again. While he was on the ground, you punched and kicked him in the head, three to four times.
[5] Meanwhile, the fracas between Mr Thompson-Rangi and your associates continued. Mr Thompson-Rangi ended up going to the ground again. After you finished punching and kicking Mr Lee you grabbed Mr Thompson-Rangi by his hair and punched and kicked his head. He ended up curled up on the ground, using his arms and hands to attempt to protect his head.
[6] You went back to Mr Lee and, again, repeatedly punched, kicked and kneed him to his head and body. As he was attempting to get up from the ground, you threw him back down.
[7] The fight went on for a little longer with your associates committing further attacks on Mr Thompson-Rangi. Eventually, Mr Ah-Keni picked up the box of beer and left the scene with the unknown male. You and Mr Langi followed shortly after.
[8] Mr Lee received a deep cut to the left side of his lip. Mr Thompson- Rangi suffered cuts and scratches to his knees and elbows, deep cuts to his hands and wrist and bruising to his back and jaw. His nose was bleeding and he suffered some hair loss from being dragged by his hair.
District Court sentence
[4] The Judge took a starting point of two years, 10 months’ imprisonment and uplifted that by two months for Mr Satoa’s previous history of violent offending, both in New Zealand and Australia, and the fact the offences were committed while he was subject to a sentence of intensive supervision. The Judge then allowed a nine month discount for the guilty pleas, equivalent to 25 per cent; a two month discount for Mr Satoa’s personal background factors; and one month for remorse to arrive at the end sentence of 24 months’ imprisonment.
Appeal points
[5] In support of the appeal it is submitted that while the Judge recognised Mr Satoa’s personal background factors he erred in failing to acknowledge a nexus to the offending. Counsel Mrs Holden submits that Mr Satoa’s disconnection from his culture went beyond just colonial implications. He had lived in Samoa with his biological parents until the age of eight. While his parents embraced their Samoan culture they battled hardship which led to a decision to send Mr Satoa to live with his uncle and aunt at the age of eight. That resulted in a particularly bad outcome for Mr
Satoa, through cultural displacement of living in Australia and the way he was treated. Mr Satoa self-reported that he and his brother were not treated well by his uncle and aunt. That led to Mr Satoa going on the streets and becoming addicted to alcohol as early as his teenage years.
[6] The position has been exacerbated when he was deported from Australia to New Zealand as he has no connection with New Zealand. Mrs Holden submitted there was a sufficient nexus between Mr Satoa’s addiction to alcohol and his offending. Overall, having regard to the factors in the s 27 report, a discount of 10 to 15 per cent should have been afforded to him rather than the five to six per cent given by the Judge.
[7] Next, Ms Holden submitted that Mr Satoa’s letter showed some empathy and a discount of a further five per cent would have been appropriate. For those reasons she submitted the end result should have been a sentence of imprisonment of between 19 and 22 months’ imprisonment. As a result the sentence of 24 months was manifestly excessive.
Approach to the appeal
[8] The appeal is brought under s 250(2) of the Criminal Procedure Act 2011 which provides:
The first appeal court must allow the appeal if satisfied that—
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[9] In Tutakangahau v R the Court of Appeal confirmed that an appeal under s 250(2) was not intended to change the approach taken to sentence appeals under previous legislation.2 In particular, it is necessary for an appellant to show there was an error whether intrinsically or as a result of additional material submitted on appeal and, if so, the Court will then form its own view of the appropriate sentence. While there is no express reference to the concept of a “manifestly excessive” sentence in the
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
section the concept is longstanding and should continue to be applied. Importantly the focus remains on whether the sentence imposed was within range rather than the process by which the sentence was reached.
Analysis
[10] The short answer to this appeal lies in whether the sentence imposed was within the range available to the Judge. Given the offending involved unprovoked street violence with attacks to the head by multiple offenders it would have been open for the Judge to have taken at least a three year starting point and frankly to have imposed a three to four month uplift for the aggravating features of Mr Satoa’s propensity for offending (even taking account of the updated criminal history) and more relevantly, perhaps, given the offending occurred while subject to a sentence of supervision. Even applying the discounts sought on behalf of the appellant of between 40 and 45 per cent to such an adjusted starting point would have led to an end sentence of between 22 and 24 months’ imprisonment approximately. On that basis it cannot sensibly be argued the ultimate sentence of 24 months is manifestly excessive.
[11] That would be the outcome even accepting the matters argued for on behalf of the appellant by Mrs Holden. However in my assessment, a closer analysis of those submissions does not support any adjustment required to the approach the Judge took.
[12] The Judge was quite correct to point out that at the time of the offence Mr Satoa may have been intoxicated but that is not a mitigating factor.3 As the Crown notes there is no causal nexus between Mr Satoa’s alcohol addiction and his violent offending. There might well be a connection between his intoxication and the offending but that is something different. Further, as to his background, it appears he had a strong family background to the age of eight when, for their own reasons, his parents made the decision to send him to Australia in the view it would be for his betterment. He was let down by his relatives which suggests that was the wrong decision. However, in my assessment, the Judge’s allowance of two months or about five and a half per cent for Mr Satoa’s personal circumstances was within the range available to the Judge in the circumstances.
3 Sentencing Act 2002, s 9(3).
[13] As to remorse, obviously more is required than a bare acceptance of responsibility for a reduction for genuine remorse. The credit for an acceptance of responsibility is provided in the guilty plea. The allowance in this case was a full 25 per cent, which from the record was not entered at the earliest opportunity. The Judge had Mr Satoa’s letter of remorse which I have also considered. In my judgment it was open for the Judge to consider the letter supported no more than a further one month credit for remorse. The letter seems to have been written with a view to obtaining a reduction in sentence rather than expressing or disclosing any genuine understanding of the consequences of his actions on the victims of the offending.
[14] In summary, no matter how the matter is approached, the sentence imposed by the Judge was ultimately well within range available to him.
Result
[15]The appeal against sentence is dismissed.
Venning J
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