Setu v R - [2017] NZHC 1839

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-64 [2017] NZHC 1839

BETWEEN
LEALOFI SETU

Appellant

AND

THE QUEEN Respondent

Hearing: 13 July 2017

Appearances:

J Eaton QC for Appellant
C J Lange for Respondent

Judgment:

4 August 2017

JUDGMENT OF MANDER J

[1] The appellant, Mr Lealofi Setu, pleaded guilty following a sentence indication to two charges of breaching a protection order, a charge of aggravated robbery and one of wounding with intent to cause grievous bodily harm. Judge Neave imposed an effective sentence of five years imprisonment.1

[2] Mr Setu appeals his sentence on the ground the Judge erred by taking a sentence starting point of 10 years imprisonment. He submits this was too high and resulted in a sentence which is manifestly excessive.

Background

[3] Mr Setu’s offending occurred against the background of the breakdown of his marriage. At the time of the offending, he and his victim, his wife, had separated and were living apart. A temporary protection order was issued in February 2016. On
19 March, the victim and her children were at netball courts in Hagley Park when he

came up from behind and kissed her on the back of the neck. She was shocked, and

1 R v Setu [2017] NZDC 10066.

pushed him away. Mr Setu left the area, but he had breached the protection order which was made final on 19 May.

[4] In the early hours of 20 May, Mr Setu went to the victim’s home armed with a large piece of wood. It appears Mr Setu had become distressed and agitated as a result of his belief the victim had entered into a new relationship and that there was a man present at the address.

[5] After accessing the house, Mr Setu entered the victim’s bedroom. He found only his wife asleep in her bed, nonetheless he attacked her. Mr Setu struck his victim violently numerous times around the head with the piece of wood. A young child was sleeping next to her mother in the bed at the time of the attack. Awoken by her mother’s screaming, the eldest child of the relationship entered the bedroom and tried to intervene before Mr Setu left.

[6] The victim suffered injuries and wounds to her head and face. She also incurred defensive injuries to her hands and arms. While the victim did not suffer any critical underlying head injuries, physical scars to her face are likely to leave her marked for the rest of her life.

[7] Mr Setu was apprehended by police attempting to clean the clothing he was wearing and soaking his cell phone in a bucket of water in an effort to avoid detection. While he admitted the first breach of the protection order, Mr Setu denied having attacked his wife.

The sentencing decision

[8] In providing his sentence indication, Judge Neave took a starting point of

10 years imprisonment based upon the guidance provided by the Court of Appeal in R v Taueki.2 Despite…

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 [2017] NZHC 1839
Case: [2017] NZHC 1839
Decision Date: 4 August 2017

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, Leaofi Setu, the appellant, challenged the sentence imposed by Judge Neave following his conviction on four charges. The appellant argued that the 10-year starting point applied by the sentencing judge was too high, resulting in a manifestly excessive sentence. The High Court was required to determine whether the starting point was appropriate, whether there was any double-counting of aggravating factors, and whether the overall sentence was excessive.

The Court found that the sentencing judge had carefully considered each of the aggravating factors present in the case, and that there was no double-counting. The use of a blunt instrument to target the victim's head, combined with the premeditation and vulnerability of the victim, justified a 10-year starting point. The Court also considered the principle of consistency in sentencing, but ultimately found that the sentencing judge's application of the Taueki guidelines was appropriate, and that the starting point did not result in a manifestly excessive sentence. The appeal was dismissed.

Orders