Setu v R - [2018] NZCA 127

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA521/2017
[2018] NZCA 127

BETWEEN	LEALOFI SETU Applicant
AND	THE QUEEN Respondent

Hearing:	18 April 2018
Court:	Kós P, French and Miller JJ
Counsel:	J H M Eaton QC for Applicant C J Lange and S R D D Bicknell Young for Respondent
Judgment:	27 April 2018 at 10.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.
BThe application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Setu seeks leave to appeal a sentencing decision of Mander J in the High Court under s 253 of the Criminal Procedure Act 2011.[1] Leave is required because this would be a second appeal, the decision of Mander J being itself an appeal from a sentence of five years’ imprisonment imposed by a District Court Judge, Judge Neave.[2]
[1]Setu v R [2017] NZHC 1839 [HC decision].
[2]R v Setu [2017] NZDC 10066 [DC decision].
The application for leave was filed in this Court eight days out of time, requiring Mr Setu to seek an extension of time. The period of delay was short and there was a reasonable explanation. The respondent did not oppose an extension and it is accordingly granted.

Background

The sentence was imposed following convictions for two breaches of protection order, one charge of aggravated burglary and one charge of wounding with intent to cause grievous bodily harm. Having regard to the aggravating factors, Judge Neave found that the wounding charge fell within the third band of R v Taueki[3] and adopted a starting point of 10 years’ imprisonment.[4] Taueki is a guidelines decision relating to sentencing for serious violent offending. It was issued by this Court in 2005. Judge Neave then adjusted the starting point of ten years’ imprisonment on account of personal mitigating factors resulting in an end sentence of five years’ imprisonment. Concurrent sentences of lesser terms were imposed in relation to the other offences.[5]
[3]R v Taueki [2005] 3 NZLR 372 (CA).
[4]At [12] and [22].
[5]At [30].
On appeal to the High Court, counsel for Mr Setu Mr Eaton QC argued that the starting point was too high and inconsistent with a number of High Court decisions where he said lesser starting points had been adopted for more serious offending.[6] It was argued the Judge had been overly rigid in his application of Taueki and that in order to be consistent with the High Court authorities he should have placed the offending within band two and regarded eight years’ imprisonment the highest starting point available.
[6]R v Grindrod HC Wellington CRI-2009-032-131, 11 September 2009; R v Heta HC Hamilton CRI-2010-019-5289, 12 May 2011; R v Emery [2012] NZHC 391; R v W [2016] NZHC 1076; R v Singh [2016] NZHC 1666; R v Ae [2016] NZHC 965; and R v Walker

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Setu v R

Details

AGLC: Setu v R [2018] NZCA 127
Case: [2018] NZCA 127
Decision Date: 27 April 2018 at 10.30 am

CaseChat Overview and Summary

Lealofí Setu sought leave to appeal against a sentencing decision made by Mander J in the High Court, pursuant to section 253 of the Criminal Procedure Act 2011. The appeal was filed eight days late, but the delay was short and there was a reasonable explanation for it. The Court granted an extension of time to file the application. The sentence was imposed by Judge Neave, following convictions for two breaches of a protection order, aggravated burglary, and wounding with intent to cause grievous bodily harm. The Court of Appeal had previously set out guidelines for sentencing in serious violent offending cases in R v Taueki. The Court held that the High Court was correct to uphold the sentence imposed by Judge Neave.

The Court was required to decide whether the sentencing decision raised a question of general importance and whether there had been a miscarriage of justice. The Court considered whether the sentencing decision was appropriate in light of the guidelines set out in R v Taueki. The Court also considered whether there had been a miscarriage of justice. The Court concluded that the sentencing decision did not raise a question of general importance and that there had not been a miscarriage of justice.

The Court held that the sentencing decision did not raise a question of general importance. The Court noted that guideline judgments are to be used flexibly and that sentencing judges need to exercise judgment in assessing the number and gravity of aggravating factors. The Court concluded that there was insufficient evidence of a disparity between sentencing practice and the guidelines to warrant revisiting the guidelines. The Court also held that the arguments overstate the import of the High Court's decision. The Court noted that the High Court had acknowledged the existence of variation in sentencing levels and possible sentence drift. The Court concluded that the High Court's decision did not render another sentencing court's application of the guidelines in another case inappropriate, so long as the starting point arrived at can be reconciled with the range held to be available.

The Court also held that there had not been a miscarriage of justice. The Court noted that the sentence imposed by Judge Neave was within the range of sentences that could be imposed for the offending. The Court concluded that the sentence was appropriate and that there had not been a miscarriage of justice.

The application for an extension of time to apply for leave to appeal is granted. The application for leave to appeal is declined.

Orders