H G de Groot and E J Burton for Appellant P D Marshall and T C Didsbury for Respondent
Judgment:
25 October 2023 at 10 am
JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThe appeal is allowed to the extent that the order made pursuant to s 86C(4) of the Sentencing Act 2002 is set aside. The sentence of five years and three months’ imprisonment remains in place.
Following a sentence indication, the appellant, Mr Kendal Sulusi pleaded guilty to two charges of aggravated robbery,[1] one charge of burglary,[2] two charges of theft of petrol,[3] and two charges of unlawfully taking a motor vehicle.[4] On 1 April 2020, Judge de Ridder in the District Court at Whangārei sentenced Mr Sulusi to five years and three months’ imprisonment.[5] Because the aggravated robberies were “stage-2” offences, it was ordered that, pursuant to s 86C(4)(a) of the Sentencing Act 2002, the sentence be served without parole.[6]
[1]Crimes Act 1961, s 235(c) — maximum penalty 14 years’ imprisonment.
[2]Section 231(1)(a) — maximum penalty 10 years’ imprisonment.
[3]Sections 219 and 223(d) — maximum penalty three months’ imprisonment.
[4]Section 226(1) — maximum penalty seven years’ imprisonment.
[5]R v Sulusi [2020] NZDC 5680 [sentencing notes].
[6]Section 86C(4)(a) of the Sentencing Act 2002 has since been repealed by s 5 of the Three Strikes Legislation Repeal Act 2022.
Mr Sulusi now applies for an extension of time to appeal against his sentence.[7] This application was heard together with the proposed appeal. Mr Sulusi submits that the order that his sentence be served without parole infringes the guarantee against disproportionately severe treatment or punishment in s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA).
Background to the offending
Mr Sulusi’s first strike offence
[7]The appeal was filed 753 working days out of time.
Mr Sulusi committed his first strike offence, a robbery, in 2014. The offending involved Mr Sulusi contacting a man who had been the victim of a burglary. Mr Sulusi claimed that he knew where the man’s property was and offered to help him retrieve it.
The victim reluctantly picked Mr Sulusi up in his car and drove him to New Lynn. Mr Sulusi instructed the victim to park the car. He then took the keys from the ignition and told the victim to let him drive or he would “smash [his] teeth into the back of [his] skull”. Fearing for his safety, the victim complied. Mr Sulusi then drove to another street, where he told the victim to get out of the car. The victim again reluctantly complied. At this point Mr Sulusi drove off and did not return the car. Four days later Mr Sulusi demanded…
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.
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Details
AGLC
Sulusi v The King [2023] NZCA 513
Case
[2023] NZCA 513
Decision Date
CaseChat Overview and Summary
In Sulusi v The King, the Court of Appeal of New Zealand granted an extension of time for the appellant, Kendal Sulusi, to appeal against his sentence. Sulusi pleaded guilty to multiple charges including aggravated robbery, burglary, theft of petrol, and unlawfully taking a motor vehicle. He was sentenced to five years and three months’ imprisonment, with the order that he serve the sentence without parole due to his prior convictions. Sulusi argued that this order infringed the guarantee against disproportionately severe treatment or punishment under section 9 of the New Zealand Bill of Rights Act 1990. The Crown argued that the sentence was not disproportionately severe and did not breach section 9. The Court found that the appeal had merit and granted the extension of time. The Court found that the order requiring Sulusi to serve his sentence without parole was disproportionately severe and breached section 9 of the Bill of Rights Act. However, the sentence of five years and three months’ imprisonment itself was upheld. The Court set aside the order that Sulusi serve his sentence without parole, while maintaining the underlying five years and three months’ imprisonment sentence.