Sulusi v Police - [2020] NZHC 3314

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2020-441-25

[2020] NZHC 3314

BETWEEN
VIENNA SULUSI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 December 2020 (partly by AVL)

Counsel:

R D Stone for Appellant J Mara for Respondent

Judgment:

15 December 2020

JUDGMENT OF ELLIS J

[1] On 3 November 2020, Ms Sulusi was sentenced to three years’ imprisonment for aggravated burglary.1 Ms Sulusi appeals that sentence.

Facts

[2] At around 11.30 am on 2 March 2019, Ms Sulusi, with her half-sister Ms Nahora and two associates (one wearing a Mongrel Mob patch), went to the home of the victim (N) in Havelock North to recover $7,000 that N was holding for Ms Nahora. N had previously told Ms Nahora that the money had been stolen from her in a burglary.

[3] The four entered the home; Ms Nahora was carrying a gun wrapped in a blanket.2 Ms Sulusi was unaware that Ms Nahora had a firearm until they arrived at

1 R v Sulusi [2020] NZDC 22595.
2 The gun was apparently loaded.

SULUSI v NEW ZEALAND POLICE [2020] NZHC 3314 [15 December 2020]

the address. Ms Nahora threatened N and another occupant with the gun. They looted the complainant’s handbag. Ms Sulusi took N’s car keys, and the group left, taking N’s car.

[4] Ms Sulusi was later charged with aggravated burglary. She also faced other minor charges of theft and breaching bail.

District Court sentencing

[5] While the Judge noted that Ms Sulusi’s role was lesser than that of her sister, she said the offending itself had several aggravating features: the weapon, the gang patch, the group of four, the home invasion when the victim was asleep, and the property stolen. She agreed with the starting point previously indicated by Judge Adeane of five years’ imprisonment.3

[6] The Judge noted that Ms Sulusi was under the influence of methamphetamine at the time of the offending, and that Ms Sulusi was regretful about her involvement. The Judge acknowledged the s 27 report, noting that Ms Sulusi’s troubled childhood had made life hard for her.

[7] The Judge gave Ms Sulusi a 20 per cent discount for her guilty plea. She then noted several other factors for which she collectively gave a further 20 per cent discount:

(a)Ms Sulusi’s co-operation with police, which was over and above what would ordinarily be expected;

(b)her good rehabilitative prospects; and

(c)the contents of the s 27 cultural report, which revealed a troubled upbringing that, while not being directly causative, might be seen as reflected in Ms Sulusi’s adult lifestyle.

3 Ms Sulusi did not accept Judge Adeane’s sentence indication, although her counsel did not take issue with his five-year starting point at sentencing.

[8] The combined 40 per cent discount resulted in an end sentence of three years’ imprisonment. Ms Sulusi was convicted and discharged on the theft and bail breach charges.

Grounds of appeal

[9] Ms Sulusi takes no issue with the…

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 Sulusi v Police

Details

AGLC: Sulusi v Police [2020] NZHC 3314
Case: [2020] NZHC 3314
Decision Date: 15 December 2020

CaseChat Overview and Summary

In Sulusi v Police, Ms Sulusi appeals her three-year imprisonment sentence for aggravated burglary. The court considered Ms Sulusi's troubled background, her rehabilitative prospects, and the importance of maintaining contact with her four young children as mitigating factors. The High Court allowed the appeal, substituting a sentence of eight months' home detention, enabling Ms Sulusi to participate in the Te Waireka programme. The Court found that the District Court's starting point of five years was too high and that the global 20% discount did not adequately recognise Ms Sulusi's personal mitigating factors.

The appeal hinged on whether the District Court had erred in sentencing Ms Sulusi to three years' imprisonment for aggravated burglary. The High Court found that the starting point was too high and that the global 20% discount did not adequately recognise Ms Sulusi's rehabilitative prospects, childhood trauma, and the importance of maintaining contact with her children. The Court reviewed comparable cases involving home invasions with more than one offender and the presence of a weapon, and found that a starting point of around four years would have been more appropriate. The Court also considered the s 27 cultural report, which highlighted Ms Sulusi's troubled upbringing and its potential impact on her adult lifestyle.

The High Court allowed the appeal and substituted a sentence of eight months' home detention. The Court found that the District Court's starting point was too high and that the global 20% discount did not adequately recognise Ms Sulusi's rehabilitative prospects, childhood trauma, and the importance of maintaining contact with her children. The Court considered that a sentence of home detention would best serve Ms Sulusi's rehabilitative needs and enable her to participate in the Te Waireka programme. The Court took into account the time Ms Sulusi had already served and set the appropriate substituted end sentence at eight months' home detention. The special conditions and post-detention conditions set out in the PAC report dated 27 October 2020 would apply. Ms Sulusi's release and travel to Hawke's Bay would need to be coordinated with Te Waireka, which could take her on a Monday, Wednesday, or Friday.

Orders