Silulu v The King - [2023] NZHC 1244

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000507

[2023] NZHC 1244

BETWEEN
DALEY OFFIAH SILULU

Appellant

AND

THE KING

Respondent

Hearing: 15 May 2023

Appearances:

S Brickell for Appellant

B Archibald for Respondent

Judgment:

25 May 2023

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 25 May 2023 at 3.45 pm

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

SILULU v R [2023] NZHC 1244 [25 May 2023]

Introduction

[1] Daley Silulu (the appellant) was sentenced by Judge J M Jelaš in the District Court at Waitākere on 9 December 2022 to imprisonment for two years and six months’ on 12 charges of dishonesty related offending and one charge of failing to comply with a condition of a previous sentence.1

[2] He appeals his sentence on the grounds that a report prepared in accordance with s 27 of the Sentencing Act 2002 should have been prepared and placed before the Judge at sentencing. He seeks to have a s 27 report which has been subsequently prepared admitted for the purposes of his appeal. He says that having regard to the contents of the report which sets out his background in detail, the sentence imposed is manifestly excessive.

District Court sentencing

[3] The appellant pleaded guilty to 12 charges of dishonesty offending and one charge of failing to comply with a sentence condition. The charges relate to offending during the period between 9 December 2020 to 26 September 2022. They include: theft; receiving stolen property; obtaining by deception; unlawful taking of a motor vehicle; making a false document; and two charges of burglary.2

[4] In her sentencing decision the Judge briefly described the appellant’s offending in respect of each of the charges, and noted that the most serious offending was the burglary he committed on 26 September 2022.

[5] The burglary offending on 26 September 2022 involved the appellant and a co-offender: renting a property under a false name; disconnecting the property’s security alarm; gaining access to a locked workshop which he was not authorised to enter; and taking multiple items including a Honda quad bike, trailer, an outboard motor and hand tools, estimated at a total value of $11,686. The other dishonesty and burglary charges involved: taking items from a communal locker storage area at the apartment block where the appellant was living; receiving a motor vehicle, changing

1 Police v Silulu [2022] NZDC 24902.
2 Crimes Act 1961, s 231(1)(a)(maximum penalty 10 years’ imprisonment)

its registration plates, convincing another person to register the vehicle in their name and on selling the vehicle; obtaining $1,050 by deception through the fake sale of an iPhone listed online; obtaining $15,000 by deception through the sale of a rental car the appellant had rented and on sold to an unknowing buyer; obtaining the keys to a slot-machine located in a bar, and taking $1,000 from the machine. The total loss caused by the appellant’s offending for which he was sentenced,…

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 Silulu v The King

Details

AGLC: Silulu v The King [2023] NZHC 1244
Case: [2023] NZHC 1244
Decision Date: 25 May 2023

CaseChat Overview and Summary

Daley Silulu (the appellant) appeals his sentence of two years and six months’ imprisonment imposed by the District Court for 12 charges of dishonesty related offending and one charge of failing to comply with a condition of a previous sentence. The appellant contends that a report prepared in accordance with section 27 of the Sentencing Act 2002 should have been prepared and placed before the sentencing Judge and that the sentence imposed is manifestly excessive. The appellant seeks to have a section 27 report, which has been subsequently prepared, admitted for the purposes of his appeal. The Crown does not oppose the report being admitted as fresh evidence and considered by the Court. The appellant’s offending comprised theft; receiving stolen property; obtaining by deception; unlawful taking of a motor vehicle; making a false document; and two charges of burglary. The total loss caused by the appellant’s offending for which he was sentenced was $78,036. The District Court Judge adopted a starting point of 24 months’ imprisonment for the most serious offending and applied an uplift of 24 months in respect of all of the other dishonesty charges to reach a nominal starting point for all of the dishonesty offending of four years’ imprisonment. The Judge allowed a discount of eight months for totality and a further 20 per cent discount for the appellant’s guilty pleas. The appellant had also spent 259 days on EM bail since it was granted on 25 March 2022. The Judge allowed a further two months’ reduction to take account of the time the appellant had spent on EM bail. The total sentence imposed by the Judge was two years and six months’ imprisonment. The appellant contends that having regard to the contents of the section 27 report which sets out his background in detail, the sentence imposed is manifestly excessive. The appellant’s background includes: multiple instances of childhood physical and emotional violence from close family members; witnessing his parents’ drug use which included use of methamphetamine and dealing methamphetamine; frequent and normalised exposure to gang members and gang culture; first use of alcohol aged 12 and subsequent development of addiction to methamphetamine and alcohol abuse; truancy and court appearances multiple times during his adolescent years; and suffering serious injury in a car accident when aged 18 which thereafter prevented him from playing rugby league which was something in which he had previously excelled. The Court found that the appellant’s methamphetamine addiction is an operative and causative factor leading to his offending, and that his personal family background as a child and as a teenager in which he was exposed to gang culture and drug use which was normalised within his family, was a significant factor in leading to his association with gangs and drug use. The Court found that the appellant’s methamphetamine addiction clearly affected his decision-making and judgment in relation to engaging in criminal actions in order to obtain money to pay for more methamphetamine. The Court found that the appellant’s personal background and the appellant’s methamphetamine addiction are readily identifiable as having made a causative contribution to the appellant’s offending. The Court found that the appellant’s personal background and methamphetamine addiction warrants a discount of 10 per cent of the adjusted starting point. The Court found that an uplift on account of prior offending and offending while subject to a sentence of supervision and while on EM bail, is not necessary or justified in the circumstances here. The Court found that allowing a 10 per cent discount to take account of the appellant’s personal background and its causative contribution to his offending would reduce his final sentence to 26 months’ imprisonment. The two weeks’ imprisonment imposed by the Judge to clear the appellant’s fines remains in addition. The appeal against sentence is allowed, and the sentence of two years and six months’ imprisonment imposed by the District Court Judge on 9 December 2022 is quashed, and substituted with a total sentence of two years, two months and two weeks’ imprisonment.

Orders