Su'a v The Queen - [2017] NZHC 2794

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2017-441-32 [2017] NZHC 2794

BETWEEN
CESAR SU’A

Appellant

AND

THE QUEEN Respondent

Hearing: 14 November 2017

Counsel:

N M Graham for Appellant
J E Mildenhall for Crown

Judgment:

15 November 2017

JUDGMENT OF THOMAS J

Introduction

[1] Cesar Su’a was sentenced along with a co-offender on 8 September 2017 in the Napier District Court to six years’ imprisonment following a guilty plea for causing grievous bodily harm with intent to do so.1 Mr Su’a now appeals his sentence on the ground it is manifestly excessive, essentially because it is the same as that of his co-offender who used an axe handle during the attack.

Factual background

[2] Mr Su’a is 20 years old. He, his brother Justin and their flatmate Waaka Davis were involved in an incident on 13 April 2017. Mr Su’a and Justin were in a car driven
by Mr Davis in central Napier at 10.00 am. The victim looked at the co-offenders as

1 Crimes Act 1961, s 188(1); maximum penalty 14 years’ imprisonment. R v Cesar Su’a [2017] NZDC 16090.

SU’A v R [2017] NZHC 2794 [15 November 2017]

they sat in the car. They verbally abused the victim, who walked away, turning a corner to get back to his work van. Mr Davis drove to a different street and the two brothers exited the car, one (conceded to be Justin) taking an axe handle. They found the victim and proceeded to assault him. Justin hit the victim on the back of the head with the handle; the victim fell to the ground, unconscious. Both brothers continued to kick and punch the victim while he was on the ground. One of them was seen using
the axe handle on the victim as though chopping wood. They then got into the car and

Mr Davis drove them away.

[3] Members of the public called emergency services. The three co-offenders were stopped soon after by police and the axe handle was found in the front passenger footwell, where Mr Su’a was seated.

[4] The victim was assessed as critically injured, having suffered a skull fracture and several brain bleeds. He continues to confront rehabilitative problems.

[5] Mr Su’a has one previous conviction from 2016 for unlawfully getting into a motor vehicle. He was convicted and discharged.

Pre-sentence report

[6] The pre-sentence report noted the inevitability of a sentence of imprisonment but, given Mr Su’a’s young age, recommended a psychological assessment and treatment programmes during his confinement. The writer noted Mr Su’a had a relatively stable upbringing until he was 16, when his parents separated. He went to live with his father in Manuwatu where he was exposed to gangs and violence. He had returned to live with his grandmother in Hawke’s Bay when the offending occurred. Although Mr Su’a said he did not consider he was a violent person, he agreed he was capable of violence and expressed willingness to undertake…

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 Su'a v The Queen

Details

AGLC: Su'a v The Queen [2017] NZHC 2794
Case: [2017] NZHC 2794
Decision Date: 15 November 2017

CaseChat Overview and Summary

The appeal by Cesar Su'a against his sentence in the Napier District Court was heard by Thomas J in the High Court of New Zealand. Su'a was sentenced to six years' imprisonment for causing grievous bodily harm with intent, a charge to which he pleaded guilty. The appeal centred on the claim that the sentence was manifestly excessive, particularly in comparison to the sentence given to his co-offender, who had used an axe handle during the attack. The key issue before the court was whether the District Court had erred in imposing the same sentence on both offenders, given the differing roles and levels of involvement in the crime.

The court examined the nature of the offending, which involved a serious, concerted attack on a single victim, and identified the aggravating factors of extreme violence, serious injury, use of a weapon, attacks to the head, and the involvement of more than one attacker. The starting point for sentencing was correctly identified as 10 years' imprisonment, with a 25% discount for the guilty plea. The court noted that the judge had considered the mitigating factors separately for each offender, including age and remorse, and had arrived at a sentence of six years for each. The appeal contended that the judge had erred in attributing the use of the weapon to Su'a and that further discounts for remorse and time spent on bail were warranted. However, the court found no error in the judge's assessment of the offenders' roles and the application of sentencing principles. It concluded that the sentences reflected the cumulative effect of the personal circumstances of each offender, which resulted in similar sentences despite the differing roles in the crime.

The High Court dismissed the appeal, holding that the District Court had correctly applied the sentencing principles and that there was no error in the sentence imposed on Su'a. The reasoning of the judge was upheld, and the appeal was dismissed, with no variation to the sentence.

Orders