The Queen v Samiu

[2007] NZCA 419

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 289/07
[2007] NZCA 419

THE QUEEN

v

SILA SAMIU

Hearing:18 September 2007

Court:Ellen France, John Hansen and Wild JJ

Counsel:L Hughes for Appellant

A Markham for Crown

Judgment:26 September 2007 at 11.30 am

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe sentence of two and a half years’ imprisonment on the burglary charge is quashed, and a sentence of two years’ imprisonment substituted.

C        The appellant is granted leave to apply for home detention.

DThe standard release conditions set out in s 14(1) of the Parole Act 2002 apply.

REASONS OF THE COURT

(Given by John Hansen J)

[1]       Late on 10 March 2005, the complainant was watching television at his home in Mangere with two visitors.  The door was kicked open and the appellant, along with a co-offender, Mr Lima, rushed inside.  The offenders punched the complainant to the ground, subjecting him to a sustained assault involving repeated kicks and punches to his head.  They threw items from around the room at him.  When the complainant requested assistance he was told to “shut up” and “stand up”.  When he did, he was again punched to the ground and kicked about the body several times.  The appellant and Mr Lima left the address, threatening to kill the occupants if they called the police.

[2]       Mr Lima took a number of items from the property and was separately charged with theft.

[3]       It appears that the complainant was known to the offenders, and the appellant admitted going to the address to beat up the complainant because he was angry.

[4]       The complainant was left with a black eye, bruising and cuts and grazes to his head and body.  As a result of the attack he changed jobs and moved from the area.

[5]       The appellant was not arrested until 15 months after the offending.  He was initially charged with aggravated robbery and assault with intent to injure.  From at least November 2006 the appellant indicated he was prepared to plead guilty to a lesser charge.  On 12 February 2007 the appellant pleaded guilty to burglary and assault with intent to injure, and on 30 May 2007 he was sentenced by Judge Epati to two and a half years’ imprisonment on the burglary, and 18 months, concurrent, on the assault with intent to injure.

[6]       He appeals on the ground the sentence was manifestly excessive.  It is said that the burglary should not have been treated as the lead offence; the starting point of four years’ imprisonment was too high; insufficient weight was given to relevant mitigating factors and the Judge should not have relied on the tariff decision relating to aggravated robbery (R v Mako [2000] 2 NZLR 170 (CA)).

[7]       The Crown responded that the Judge correctly relied on Mako, as the practice of applying “tariff” decisions to lesser offences with appropriate adjustments to reflect a lesser maximum penalty is well established (R v Taueki [2005] 3 NZLR 372 at [9] (CA)). The Crown also submitted that it was open, in the circumstances of this case, to make an analogous comparison with aggravated robbery, even though some of the elements were not present (R v Te Hira CA73/02 26 June 2002).  The Crown further submitted that as the burglary charge carried the greater maximum penalty, it was appropriate to treat this as the lead offence.  The Crown said that in any event totality considerations applied pursuant to s 85 of the Sentencing Act 2002 (R v Wharton (2003) 20 CRNZ 109 (CA)), and that a starting point of four years was well within range for this violent invasion of a private home at night by two offenders intending violence.  Finally, the Crown submitted the total discount of 37.5 per cent cannot be criticised, and readily takes into account all relevant mitigating factors.

[8]       As this Court has repeatedly said, in sentencing appeals it is not the methodology used by a sentencing Judge to arrive at sentence that is relevant.  Rather it is whether or not the final sentence imposed is manifestly excessive (R v M CA186/06 1 November 2006 at [22] – [26]).

[9]       In this case, although it was serious offending, the complainant was not seriously injured.  He did not require medical attention.  We recognise, however, that the attack had a significant psychological impact on him.

[10]     R v McRoy CA261/06 12 October 2006 is illustrative of sentences for wounding with intent to injure.  This Court reduced a sentence of 18 months’ imprisonment to 14 months’ imprisonment.  That is a case without the home invasion element inherent in the burglary charge in this case, but the victim remained severely disabled from the beating he received and the violence was more serious than this case.  We accept some uplift is required to recognise the burglary.

[11]     This present case may be also contrasted with the decision of Te Hira, relied on by the Crown.  That was a much more serious offence than the present, given there were five offenders and weapons were involved.  The male occupant was beaten and suffered injury.

[12]     Looking at the overall criminality in this case, we are of the view that a starting point of four years’ imprisonment was too high.  By taking into account McRoy and allowing an uplift for the burglary, we consider the appropriate starting point is three years.  From that, mitigating factors need to be considered.  In this case they are significant.

[13]     Firstly, the appellant had no previous relevant convictions.  Secondly, he was sentenced almost two years after the offending.  During that period he had made significant progress in turning his life around.  For the first time in his life he was in full-time employment and he had support from his employer, both in the form of letters and presence at sentencing.  He was genuinely remorseful, as evidenced by his desire to take part in a restorative justice conference.  He had reconnected with his family and church and had cut his ties with negative associates.  The large number of references supplied to the Judge spoke volumes for the efforts he had made.  Thirdly, he was aged only 18 at the time of the offending. 

[14]     In his sentencing notes, the only mitigating factor recognised by the Judge was the early guilty plea.  For the reasons set out in [13] we are satisfied there are other significant mitigating circumstances personal to this appellant.  We consider an appropriate allowance to recognise the guilty pleas and these other factors is one‑third.  That leaves an effective sentence of two years’ imprisonment.

[15]     Accordingly, the appeal is allowed.  The appellant is sentenced to two years’ imprisonment on the burglary.  Pursuant to s 93(2) of the Sentencing Act standard release conditions apply.  The sentence imposed by the Judge in relation to the wounding with intent is confirmed as a concurrent sentence.

[16]     Ms Hughes, on behalf of the appellant, submitted that if the appeal was allowed and the ultimate sentence qualified, the appellant should be granted leave to apply for home detention.  Given the positive efforts the appellant has made to turn his life around since this offending, and his youth, we consider it appropriate to grant him leave to apply for home detention.  Leave to apply for home detention is granted.

Solicitors

Crown Law Office, Wellington