Su'e v The Queen

[2019] NZHC 2501

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000248

[2019] NZHC 2501

BETWEEN

FA’AFETAI AELIAS SU’E

Appellant

AND

THE QUEEN

Respondent

Hearing:	2 September 2019
Appearances:	Susan Giles for the Appellant S Cervin for the Respondent
Judgment:	3 October 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 3 October 2019 at 9.30 am

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:

Public Defence Service, Waitakere Meredith Connell, Auckland

SU’E v R [2019] NZHC 2501 [3 October 2019]

[1]                 Mr Fa’afetai Aelias Su’e appeals against a sentence of three years, 10 months’ imprisonment imposed by Judge Ronayne in the District Court at Auckland on 2 May 2019 in respect of a single charge of aggravated robbery.1

[2]                 Mr Su’e pleaded guilty to the charge, having accepted an indicated sentence of five years’ imprisonment, with a 20 per cent deduction for guilty plea, given by the Judge on 19 February 2019.

[3]                 The remaining issue at sentencing was what discount Mr Su’e should receive for personal mitigating factors. He received a two-month (or 3.33 per cent) discount for remorse only.

[4]                 For Mr Su’e, Ms Giles submits that the Judge erred in not awarding credit for rehabilitation and awarding insufficient credit for remorse and personal circumstances. As a result, the sentence imposed is said to have been manifestly excessive.

Offending

[5]                 The summary of facts on which Mr Su’e was sentenced records that, at about 2:20 pm on 13 September 2018, he entered an ASB bank in Henderson. He approached the counter, carrying a silver flask in one hand. He handed the teller a piece of paper, on which was a typed note demanding money. It read, in part, “I’ve got enough acid in my flask to burn your face and kill you. Within ten minutes don’t ring the Police or I will kill.” He removed the lid of the flask and set it down on the counter.

[6]                 Complying with the demand, the teller handed Mr Su’e $400 in cash, together with the note. Mr Su’e put the lid back on the flask and took it, the cash, and the note with him as he walked out of the bank.

1      R v Su’e [2019] NZDC 8126.

District Court

[7]                 At sentencing, the Judge said that the robbery was clearly premeditated and “well thought out”, albeit in an “unsophisticated” manner.2 He noted that the bank was a “high value target” and was a place at which members of the public were likely to be present. The effect on the teller of Mr Su’e’s “extremely sinister … threat to throw acid and to kill” was described by the Judge as having been “quite devastating” on the basis of her victim impact statement.

[8]                 In making these remarks, I understand the Judge to have been alluding to the aggravating features of aggravated robbery offending identified by the Court of Appeal in Mako,3 albeit implicitly. The five-year starting point adopted by the Judge was one year less than the six-year starting point indicated in Mako for the robbery of commercial premises likely to be populated by the public, targeting substantial sums and where a lethal weapon is used in circumstances indicating a degree of preparation.4

[9]                 Turning to the factors personal to Mr Su’e, the Judge noted that he had considered Corrections’ pre-sentence report, a letter Mr Su’e had written expressing remorse for his offending, and a cultural report prepared under s 27 of the  Sentencing Act 2002. At 25 years of age, the Judge considered Mr Su’e was not eligible for any youth discount and considered that his prior convictions precluded any discount for prior good character. Equally however, the Judge also considered that the prior convictions were irrelevant to the present offending and he did not impose any uplift. (The prior convictions consisted of five charges of driving while disqualified and one of breach of community work, for which Mr Su’e was convicted and discharged.)

[10]              Nothing in the s 27 report persuaded the Judge to  reduce  the  sentence. Judge Ronayne said that, “Your personal circumstances although not ignored by me are not such as to be anything out of the ordinary for somebody in your situation.”5 Nonetheless, taking into account Mr Su’e’s letter of apology and his expression of

2      To say it was unsophisticated would be an understatement, given Mr Su’e made no attempt to disguise himself and walked in and out of the bank.

3      R v Mako [2000] 2 NZLR 170 (CA).

4 At [54].

5      R v Su’e, above n 1, at [9].

remorse, which the Judge characterised as not being “extraordinary in any way”, the Judge granted a two-month discount.

[11]              From the adjusted sentence of four years, 10 months’ imprisonment, the Judge made a rounded 20 per cent discount in respect of the guilty plea, as he had earlier indicated. The Judge thereby arrived at an end sentence of three years, 10 months’ imprisonment.

Approach on appeal

[12]              This first appeal against sentence is brought as of right under s 244 of the Criminal Procedure Act 2011. I am required to allow the appeal if satisfied that there was an error in the sentence imposed on conviction, and that a different sentence should be imposed.6 Otherwise I must dismiss the appeal.7

[13]              The applicable measure of error is whether the sentence is “manifestly excessive”.8 Whether that is the case is to be determined by reference to the final sentence, rather than the route by which it was reached.9 Relevantly, the sentence indication given by Judge Ronayne is not binding on this Court on appeal.10

Summary of submissions

[14]              Ms Giles submits that a discount of 15 per cent for personal circumstances, with a further 5 per cent credit in respect of remorse and willingness to undertake restorative justice, would have been more appropriate than the discount of two months (or about 3.33 per cent) awarded.   Accordingly, she submits that a sentence of   three years, two months’ imprisonment should be imposed, instead of the sentence of three years, 10 months actually imposed.

[15]              For the Crown, Ms Cervin submits that there was no error in sentencing and that the end sentence imposed was not manifestly excessive. She says the Judge

6      Criminal Procedure Act 2011, s 250(2).

7      Section 250(3).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].

9      Ripia v R [2011] NZCA 101 at [15].

10     Criminal Procedure Act 2011, s 116(3).

clearly took into account the material contained in the pre-sentence reports relied on by the appellant. Furthermore, Ms Cervin submits that the Judge did not err in holding that, given the seriousness of the offending, a deterrent response containing little reflection of the personal circumstances noted by Ms Giles, was appropriate. Alternatively, to the extent that the Judge did err, any appropriate discount was such that the end sentence would still be well within range.

Discussion

Remorse

[16]              I agree with Ms Giles that a discount of materially more than two months should have been allowed for remorse alone. An offender does not have to show that their remorse is “extraordinary”. I am persuaded that Mr Su’e’s remorse is very genuine. Further, his insight into his offending, while perhaps not “extraordinary” is materially greater than usual.

[17]              Prior to sentencing, Mr Su’e wrote letters to the victim and to the sentencing Judge. His letter to the teller demonstrates a degree of insight into the impact of his offending on her. Perhaps most importantly, while claiming that the flask did not in fact contain acid, Mr Su’e makes no effort to minimise his culpability for the offending and identifies that he can do no more than “bring a little more ease to your mind”. This is consistent with his offer to participate in restorative justice with the victim; an offer which, understandably, she has not accepted.

[18]              Similarly, in his letter to the Court, Mr Su’e notes his successful completion of a drug and alcohol programme while remanded in custody and identifies the relationship between his drug use and his offending. Perhaps more clearly than in his letter to the victim, Mr Su’e identifies that the fact that, on his version of events, the victim was never in real danger of harm, does nothing to undo the distress he caused her. He also notes, and appears to fully comprehend, the negative financial and emotional implications of his incarceration for his family.

[19]              The pre-sentence report describes Mr Su’e as having been polite and forthcoming when interviewed, and having shown insight into the consequences of his

offending to the victim and into the “disappointment and shock” he has caused his family. The report-writer makes a positive assessment of Mr Su’e’s remorse.

[20]              This is also consistent with the contents of the very helpful s 27 cultural circumstances report prepared by Mr Andrew Peteru, a PhD candidate in the School of Sociology at the University of Auckland. Mr Peteru describes himself as a middle-aged Samoan male, raised in Samoa and fluent in both English and Samoan.  I consider his report to be balanced and thoughtful, and place some reliance on it.

[21]              The s 27 report describes Mr Su’e as a caring young man who has demonstrated remorse for his offending and insight into the harm it has caused; particularly to the teller he threatened.

[22]              Mr Peteru says that the appellant “regrets his life decisions and takes full responsibility for his actions, his immaturity for not considering the emotions of his victim, and for putting his family in this predicament”. More generally, while noting that his impression of Mr Su’e is, consistent with reports from his relatives and friends, of a generally reserved individual, Mr Peteru says Mr Su’e has previously demonstrated a capacity for empathy and other socially appropriate behaviours while engaged in Samoan communal activities, such as grieving. Mr Su’e has also provided help and financial support to various members of his family. These points further suggest that Mr Su’e’s remorse and insight are very sincere.

[23]              I return later to the question of an appropriate percentage deduction, which I approach on an overall basis.

Prospects of rehabilitation, personal trauma and cultural background

[24]              Similar to my view regarding remorse, I do not consider Mr Su’e’s other personal circumstances are “ordinary” for a defendant. Again, care needs to be taken with the Judge’s measuring stick, in any event. It may be that the personal circumstances of the people appearing before the Courts are such that discounts should “ordinarily” be given.11

11     I note, by way of example only, the recent report of then-Acting Chief District Court Judge Walker that 40 per cent of those defendants coming into the District Court have an acquired brain injury.

[25]              In terms of the wider factors relevant to Mr Su’e’s offending and prospects for rehabilitation, Ms Giles submits that, at the still young age of 25, and with only minor previous convictions, Mr Su’e has excellent rehabilitative prospects upon release. These prospects are said to be benefited by his strong family network, and the fact that he has already identified the relevance of drug use to his offending and taken steps to address that risk factor with an eight-module CADS alcohol and drug programme. Mr Su’e says he has been drug-free for seven months. Ms Giles submits that the appellant’s demonstrable commitment means that a custodial sentence of the length imposed is disproportionately punitive, his prior convictions notwithstanding.12

[26]              Ms Giles also submits that Mr Su’e has faced significant personal hardships in the loss of his father at the age of 12 and bullying in his teenage years, the former exacerbating the consequences of the latter. These events, which are detailed below, are said to have negatively impacted Mr Su’e’s emotional development, resulting in antisocial and, in respect of the present offending, dangerous behaviours. Given emergent evidence of the disproportionate likelihood of victims of bullying becoming violent offenders,13 Ms Giles submits that these personal factors serve to significantly lessen Mr Su’e’s culpability.

[27]              Mr Peteru explains that Mr Su’e comes from a pro-social family, but he became increasingly withdrawn after the death of his father when he was aged 12. His mother moved him to two different schools following his father’s death, so that he could be assisted by colleagues of her late husband, who had himself taught at those schools. She moved with Mr Su’e’s younger sibling to Australia. Mr Su’e remained here, living with his grandparents, both of whom were ministers of the Church. Mr Su’e is said to have foundered in finding a male role model and become a victim of bullying, which occurred on multiple occasions both at school and in public. Mr Su’e recounted one particular incident when he was 16, in which he was a victim of a group-beating in public by unknown assailants. A video of the beating was then circulated on the

12 Relying on Waho v Police [2018] NZHC 1767.

13     Ms Giles refers to Peter Gluckman Using evidence to build a better justice system: the challenge of the rising prison costs (Office  of the  Prime  Minister’s Chief Science Advisor, Wellington, 29 March 2018); and Peter Gluckman It’s never too early, never too late: a discussion paper on preventing youth offending in New Zealand (Office of the Prime Minister’s Chief Science Advisor, Wellington, 12 June 2018).

internet. For matters to have reached that point, the bullying is likely to have been serious. While it is easy for a Judge to dismiss the relevance of such a factor, I think it is wrong to do so. I accept Mr Su’e may well have been emotionally and perhaps even physically damaged by that sort of experience and that may have negatively impacted on his behaviour.

[28]              In terms of the Samoan culture in which the appellant was raised, Mr Peteru explains that these incidents would have caused the appellant considerable shame and status anxiety. The appellant is apparently entitled to use of the title of “matai”, a hereditary chiefly honorific title, but elects not to use it. Mr Peteru suggests that this may be because of his feeling unable to exhibit the traits of physical strength, meticulous and masterful Samoan oratory, and economic means that are expected of males in the traditionally hegemonically masculine Samoan culture. Mr Peteru suggests that Mr Su’e’s use of threatened violence in his offending was through a misguided desire to become a “toa”, a brave warrior-like figure, in order to exhibit that masculinity.

[29]              I note in somewhat different vein, Mr Peteru also records that Mr Su’e admitted he once had what Mr Peteru calls “grandiose” dreams of becoming successful the “easy way”. However, and consistently with his professed remorse and insight, he has now identified that he will have to be patient and apply himself to work and studies to achieve material success and an accompanying sense of emotional security.

[30]              Mr Peteru expresses confidence that Mr Su’e, through anger management and other counselling forming part of the rehabilitation to which he has committed, can be encouraged to direct his energies towards becoming worthy, in his eyes, of his “matai” title.

[31]              It seems that Mr Su’e has strong ties with the surviving members of his family which, when he is returned to what Mr Peteru terms the “the social relational space” of the family (“va fealoa’i”), will encourage him to engage in acts of service (“tautua le leoa”) in support of that family, exhibiting “O lea Toa”, the traditional Samoan masculine ideal, in a pro-social manner. He says Mr Su’e understands the Samoan culture and language well, but lacks the confidence to speak it. He says Mr Su’e also

has an understanding of the nuances that guide social dynamics within the culture, something that not all New Zealand-raised Samoans possess.

[32]              His family, by all accounts, are supportive of Mr Su’e’s rehabilitation and reintegration into the community, while also, it appears from Mr Peteru’s report, expecting him to apply himself to legitimate employment to support himself and the family. Mr Su’e has a six-year-old daughter from a previous relationship, with whom he has regular contact and he was helping to support. He has been in another relationship for about two years, according to the pre-sentence report, from which a child was born very recently. Mr Su’e’s uncle has offered to secure full-time employment for him as a forklift operator, which he intends to take up on release.  Mr Su’e was previously working for a temp agency. His mother has indicated she will return to New Zealand at the end of this year to support Mr Su’e. His current partner very much wants to be a part of his life.

[33]              Generally, it might be observed that Mr Peteru’s report demonstrates the potential value of s 27 reports that provide an explanation of the linkage between an offender’s personal, family, and cultural background and, at least in part, the reasons for their offending. Where such reports are available, as Whata J said of the s 27 report available in Heta:14

… recognition of deprivation and personal trauma does not involve condoning the offending. Rather it helps to explain it. Further, the positive outcome of restorative justice process, the views of the victim and the now low‐risk of reoffending presented by Ms Heta, address remaining concerns about accountability, deterrence, denunciation and protection of the public.

[34]              Heta and Arona v R were cases where systemic cultural deprivation exper- ienced by Māori was said to mitigate the offender’s culpability.15 The Court of Appeal in Arona made it clear that the s 27 report must demonstrate a clear linkage, either through evidence or through it being self-evident, between cultural deprivation and the offending.

14     Solicitor-General v Heta [2018] NZHC 2453 at [66].

15     Arona v R [2018] NZCA 427 at [59].

[35]              The present case is clearly not a case of systemic cultural deprivation, (although I have no doubt there is some systemic disadvantage). However, s 27 reports are also relevant to sentencing where aspects of an offender’s personal and cultural background other than cultural deprivation are relevant to their commission of an offence. The same evidential nexus must be present in those cases, as Woolford J recently said in Purua-King v R.16

[36]              Such a nexus has been demonstrated in the present case, as Mr Peteru has set out. Mr Su’e’s feelings of inadequacy in his role as a member of his family and, according to traditional Samoan ideals, as a man, appear to have contributed towards his engaging in the antisocial behaviours that culminated in the present offending. Mr Peteru’s report demonstrates that these feelings contributed to Mr Su’e’s offending and in all likelihood, the adversity that Mr Su’e experienced in his adolescent years contributed to a sense of anomie. To put it more simply – Mr Su’e has got lost along the way.

[37]              The remorse, insight, and desire to reform that Mr Su’e has demonstrated, coupled with the demonstrable steps to address his personal risk factors, indicate that, with assistance, he may well be able to harness these aspects of his cultural background to his benefit, and that of his family and community.

Youth

[38]              The Judge said that a  youth discount is not available to Mr Su’e at the age   of 25. Interestingly, in Gacitua, Venning J allowed a 25-year-old offender a youth discount as part of a total deduction of 20 per cent. That was noted without criticism by the Court of Appeal in  both  Gacitua  and  Richards.17 I would agree with Judge Ronayne in the sense that a discount at 25 might not generally be available, but I consider Mr Su’e’s relatively young age and apparent immaturity (referenced by Mr Peteru and apparent from the unsophisticated nature of the offending), are relevant here. I also note the recent establishment of a pilot scheme extending some of the processes from the Youth Court to young adult offenders up to the age of 25.

16     Purua-King v R [2019] NZHC 1698 at [36] and [45].

17     Richards v R [2017] NZCA 232, citing Gacitua v R [2013] NZCA 234.

[39]              Youth discounts are awarded in part to reflect the particular likelihood of young people rehabilitating, following comparatively more minor corrective interventions, than older people.18 I consider Mr Sue’s age, along with all of the other factors I refer to, does make it more likely that he will rehabilitate.

Prior convictions

[40]              While Mr Su’e has prior convictions, these relate to minor traffic offending and a breach of community work conditions, which can properly be characterised as at worst equivocal in relation to the present offending. I do not consider a record of that nature rules him out at all from a good chance of rehabilitation. To the contrary.  I consider such a minimal record to be a positive feature in this context.

Other cases

[41]              Also relevant is the general desirability of consistency in sentencing outcomes.19 The importance, in other words, of treating like cases alike. I note though that discounts for personal mitigating circumstances are particularly specific to the facts of each case.

[42]              Ms Giles refers me to Waho v Police.20 Mr Waho pleaded guilty to eight charges, including injuring with intent, assault with a weapon and threatening to kill. He essentially embarked on a two-day rampage against his partner after seeing her engaged in an intimate act with a party guest. He punched his partner in the face a number of times and tried to choke both the man she had been embracing and a bystander. He threatened to kill his partner. He dragged her some distance by the hair a number of times, threw her so she hit her head on a coffee table and used a knife against her. In short, the case involved serious and prolonged violence.

[43]              Mr Waho’s partner attended the sentencing. However, she had previously written a letter to the Court saying they had tried to reunite, but he had changed and she was not sure he was really sorry.

18     See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

19     Section 8(e).

20     Waho v Police [2018] NZHC 1767.

[44]              The District Court Judge took a start point of three years, nine months, then allowed a discount of eight months for rehabilitative efforts and good character, noting that Mr Waho had no relevant previous violence convictions; expressed a willingness to undergo counselling for anger management; attended four counselling sessions with Hauora Tairāwhiti and a drug and alcohol programme; demonstrated good insight into the harm caused by his offending in a letter to the Court; and self-referred to counselling sessions at the Tauawhi Men’s Centre. The District Court Judge also allowed a discount of two months for remorse, and then a 25 per cent discount for a guilty plea. Overall, the total discount for personal mitigating factors was 22 per cent.

[45]              Mr Waho argued unsuccessfully on appeal that greater discounts should have been allowed. After careful analysis, Collins J concluded that the discounts were within the range that was reasonably available.

[46]              In my view, a greater overall discount would be warranted here, given the larger number of relevant factors and it would appear more genuine remorse.

[47]              I have already observed that in Gacitua, Venning J allowed a 20 per cent discount for relative youth (a 25-year-old), the fact of no previous convictions and genuine remorse.21 The defendant in that case pleaded guilty to charges of reckless driving causing death and reckless driving causing injury.

[48]Again, I consider a greater discount would be merited here.

[49]              Heta is also relevant.22 Again, the facts are materially different, but the case indicates the potential range of discounts available to the Court in order to properly reflect and balance all of the principles and purposes of sentencing. Whata J described Ms Heta, who was of Māori descent, as having been deprived of a centre of wellbeing by systemic cultural deprivation and the “fight for survival” she had been engaged in since the age of ten. In this way, her cultural circumstances had combined with her individual background circumstances, which Whata J described as “horrific”. He

21     Gacitua v R [2012] NZHC 2542.

22     Heta, above n 14.

upheld the District Court Judge’s discount of 40 per cent for personal mitigating circumstances.

[50]              Considering these cases, it is readily apparent that the discount of two months, or a little over 3 per cent, adopted by the Judge in this case was clearly inadequate. This is also not one of those cases where the seriousness of the offending precludes the sentence taking account of the personal circumstances of the offender. The nature of the offending in the cases referred to above was, in my view, worse or at least equivalent.

Conclusion

[51]              Mr Su’e is very remorseful and insightful about his offending. He offered restorative justice, which was declined. He has suffered personal adversity in terms of the loss of his father and significant bullying, both at a young age, which in part explains his offending, particularly viewed in the context of his Samoan culture. His prior offending is minor and not relevant. He is still a young adult. It seems the offending was drug-fuelled. Mr Su’e has completed a drug and alcohol course and says he is drug-free. He has strong family support and full-time employment available to him on release. He has a role that he can aim to step into within the Samoan culture. He has young children he needs to help support and to help grow into responsible citizens.

[52]              Overall, Mr Su’e’s clear demonstration of remorse and positive indicators of rehabilitation persuade me that, while the present offending can be described as of moderate seriousness, and the harm to the victim certainly cannot be discounted, an appropriate sentencing response in this case should give material weight to rehabilitation, in addition to the other factors of deterrence and denunciation.23

[53]              Taking into account all of the above factors, along with the desirability of consistency in sentencing outcomes, I consider an overall discount of 25 per cent more appropriately reflects the mitigating factors personal to Mr Su’e.

23     Sentencing Act 2002, s 7(1).

[54]              I leave open the question raised by Ms Giles of whether evidence of traumatic experiences such as the adolescent bullying of an apparently vulnerable young person render later offending less culpable, such that a discrete discount is available. The scientific research by Professor Gluckman and others referred to by Ms Giles does suggest that victims of bullying often go on to coerce others using violence and fear. However, I have already taken account of these circumstances above, and that issue therefore does not arise.

[55]              From the starting point of five years indicated, which I should add I consider to be at the top end of the available range, I allow a discount of 15 months. Applying a further discount of 20 per cent for the guilty plea, that results in an adjusted sentence of three years’ imprisonment.

[56]              I consider the sentence imposed by the Judge of three years, 10 months’ imprisonment is manifestly excessive when contrasted with the sentence I have reached.

Result

[57]The appeal against sentence is therefore allowed.

[58]              The sentence of three years, 10 months’ imprisonment is quashed and a sentence of three years’ imprisonment substituted.

Hinton J