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 treatment programmes. The writer recorded her concern that Mr Su’a had a sense of inevitability of his offending and being imprisoned.

District Court decision

[7]      The Judge sentenced Mr Su’a and his brother Justin.  Mr Davis still awaits sentence.  The Judge outlined the offending and five aggravating features identified by the Crown: extreme violence, serious injury, use of a weapon, attacks to the head and more than one attacker.  He identified a starting point of 10 years’ imprisonment for both defendants, on which each defendant was entitled to a guilty plea discount of

25 per cent.

[8]      The Judge discussed the mitigating circumstances of each offender separately.

Mr Su’a received an additional 20 per cent discount for his youth (he was 19 at the time), resulting in an end sentence of 6 years.   His brother received the same end sentence, on account of his having to serve the full sentence without parole due to the three strikes regime, his youth (21 at the time of offending) and consideration of totality, despite what the Judge noted as “valid reasons” why his sentence should be longer.

Submissions

[9]      Ms Graham for Mr Su’a submits the Judge made an error in attributing the use of the handle to Mr Su’a rather than his brother.   Because it was a significant aggravating feature, this may have led an error in sentencing.   She points to R v McNaughton, where Miller J found culpability or involvement may differ greatly between parties to an offence.2     She submits that each offender’s aggravating circumstances needed to be considered separately and the lack of use of a weapon by Mr Su’a justified a lower starting point.

[10]     Ms Graham further submits that, beyond the discounts given for guilty plea and youth, further discounts for remorse and time spent on EM bail were warranted. She submits Mr Su’a’s personal circumstances were in stark contrast to those of Justin, for whom this was a stage two offence and who showed no remorse or concern for the victim. Given that, Ms Graham submits the fact the deductions were the same for the

two offenders was an error.

2      R v McNaughton [2012] NZHC 815 at [4] and [61].

[11]     Ms Mildenhall for the Crown submits the starting point falls within band three of Taueki and is unassailable.3   She points out that the victim’s lack of consciousness could be another aggravating factor that was not expressly accounted for.   While acknowledging the Court of Appeal in Tuau said a starting point should reflect the relative culpability, Ms Mildenhall notes the Court said there was “no requirement to draw fine distinctions” where the degree of culpability is broadly the same.4  She said McNaughton is distinguishable as that case concerned multiple offenders and a number of different offences where there was clearly a need to distinguish who did what.

[12]     Ms Mildenhall disputes the Judge erred in saying Mr Su’a had the handle. Moreover, the Court on appeal is not concerned with minutiae of sentencing notes but with the application of sentencing principles to the case as a whole.

[13]     She draws attention to Haimona, where co-defendants charged as parties to offending each received nine year starting points, indicating equal culpability despite an inability to identify who delivered the most serious kick to the victim’s head.5

Ms Mildenhall suggests a similar approach is available here.

[14]     Ms Mildenhall further submits the Judge was entitled to refuse to apply a discount for remorse, given the pre-sentence report indicated Mr Su’a minimised his role in the offending, said the summary of facts was exaggerated and downplayed the seriousness of the assault.   The discount for youth was substantial and no further discount was warranted.

[15]     Finally, Ms Mildenhall submits the lack of disparity between the sentences is due to different considerations between the co-offenders and would not lead a reasonably-minded observer to think something was wrong with the administration of justice. The discounts given to Justin were generous but unusual leniency afforded to

one offender ought not to create an expectation that others will receive the same.6

3      R v Taueki [2005] 3 NZLR 372 (CA) at [34].

4      Tuau v R [2013] NZCA 623 at [26] and [32].

5      Haimona v R [2011] NZCA 375.

6      MacFarlane v R [2012] NZCA 317 at [24].

Law

[16]     The appeal proceeds on the basis of s 250 of the Criminal Procedure Act 2011, where the appellate court must allow an appeal if it first finds an error in the sentence and then is satisfied a different sentence ought to be imposed.

[17]     The tariff case is Taueki.7   There does not appear to be any dispute about the offending falling within band three, which attracts a starting point of between nine and

14 years.  The Court of Appeal provided the following as an example of band three offending:

[40]     Band three would normally encompass serious offending which has three or more of the aggravating features referred to in [31] above, where the combination of aggravating features is particularly grave.

[41]      The following examples may assist:

(a)   Serious concerted street attack: An episode of street violence where multiple attackers set upon a victim in a premeditated attack, using weapons which they have brought to the scene for the purpose, and where serious and lasting injuries are inflicted on the victim will call for a starting point in the lower to middle range of Band 3. Where the victim is particularly vulnerable, or the attack has “hate crime” aspects to it, a higher starting point would be required. Where the victim is left with injuries which will have an ongoing impact on his or her enjoyment of life, a starting point at the top end of Band 3 will be called for.

Analysis

[18]     I can see no error in the sentence imposed. The starting point was at the lower end of the correct tariff band, aggravating features were correctly identified and generous discounts were given for valid reasons.

[19]     Even if it were not Mr Su’a who took the axe handle out of the car, the Judge correctly identified Justin as the offender who used it to strike the victim.  The Judge considered the roles of the two offenders were in many respects indistinguishable. The fact is both offenders were involved in a serious, concerted street attack against a

single victim.

7      Taueki, above n 3.

[20]    The Judge essentially declined to accept Mr Su’a’s remorse because he minimised his offending and made comments about the inevitability of his ending up in prison. The Judge’s assessment was not demonstrably in error. Two months on EM bail is an insufficient period to qualify for any real discount in the circumstances.

[21]     The Judge dealt with each offender’s mitigating circumstances separately and provided justification for the discounts allocated to each offender. These justifications differed but the associated calculations arrived at the same end point for both offenders.   That does not mean the sentences are lacking in parity, rather that the cumulative effect of entirely different personal circumstances resulted in similar sentences. That is not an error.

Result

[22]     For the reasons given, the appeal is dismissed.

Thomas J

Solicitors:

Crown Law, Wellington