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…

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'e v The Queen

Details

AGLC: Su'e v The Queen [2019] NZHC 2501
Case: [2019] NZHC 2501
Decision Date: 3 October 2019

CaseChat Overview and Summary

Fa’afetai Aelias Su’e appeals against his three-year, 10-month imprisonment sentence imposed by Judge Ronayne in the District Court at Auckland for aggravated robbery. Mr Su’e had pleaded guilty to the charge and accepted a starting sentence of five years’ imprisonment, with a 20 per cent deduction for a guilty plea. The primary issue at sentencing was the discount Mr Su’e should receive for personal mitigating factors, for which he received a two-month discount for remorse only. Ms Giles, on behalf of Mr Su’e, argues that the Judge erred in not awarding credit for rehabilitation and awarding insufficient credit for remorse and personal circumstances, resulting in a manifestly excessive sentence. The Crown contends that there was no error in sentencing and that the end sentence imposed was not manifestly excessive. The High Court found that a discount of more than two months should have been allowed for remorse alone and that the Judge should have taken into account the appellant’s prospects of rehabilitation, personal trauma, and cultural background. The court concluded that an overall discount of 25 per cent more appropriately reflected the mitigating factors personal to Mr Su’e, resulting in a sentence of three years’ imprisonment. The sentence of three years, 10 months’ imprisonment is quashed and a sentence of three years’ imprisonment substituted. The appeal against sentence is allowed.

Orders