The Queen v Uili

[2006] NZCA 304

IN THE COURT OF APPEAL OF NEW ZEALAND

CA148/06

THE QUEEN

v

VICTOR UILI

Hearing:25 October 2006

Court:Robertson, John Hansen and Goddard JJ

Counsel:I Sapolu and J Fuimaono-Sapolu for Appellant

S B Edwards and E Lamont-Messer for Crown

Judgment:26 October 2006 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL IS ALLOWED.  THE SENTENCE OF FIVE AND A HALF YEARS’ IMPRISONMENT IS QUASHED AND SUBSTITUTED WITH A SENTENCE OF FOUR YEARS’ IMPRISONMENT.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       Victor Uili appeals against an effective sentence of five and a half years’ imprisonment imposed upon him after trial on one charge of wounding with intent to cause grievous bodily harm.  He contends that the sentence is manifestly excessive, in that it is inconsistent with relevant authorities, there was a failure to take proper account of mitigating circumstances or to give them sufficient weight, and it is unjustifiably disparate with that imposed on a co-offender.

Facts

[2]       The appellant and a co-offender (W) who, because of his age, was dealt with in the Youth Court, were drinking alcohol around midday on 8 October 2004 at Mr Uili’s home.  The victim, who was a Caucasian man in his late twenties, walked past the house.  Mr Uili and W yelled racial abuse at him.  They were ignored.

[3]       About five minutes later, the victim, together with his middle-aged mother, walked back past the house.  He was approached by the two teenagers and asked if he wanted to fight.  He told them to go away.  Without provocation or reason, Mr Uili attacked the victim with a glass pint handle he was holding, striking him a number of times over his head and face.  He then dropped the glass and continued to punch the victim around the head and face with his fists.  W picked up the glass and also struck the victim over the head a number of times.

[4]       The victim fell to the ground where both youngsters continued to hit him and kick him until they were eventually restrained by a member of the public.  The two assailants left the scene prior to the arrival of the police.  The victim received a number of serious lacerations to the face and head that required stitches and a broken nose.  He was hospitalised overnight.  Fortuitously he does not appear to have sustained permanent damage.

[5]       Mr Uili admitted the facts as outlined when spoken to by the police and said the victim had ‘done the fingers’ to him.

The proper starting point

[6]       Ms Sapolu submitted that the starting point adopted was too high.  Judge Wade referred to the decision of this Court in R v Taueki [2005] 3 NZLR 372 and said at [8]:

I regard your offending as coming within the lower to middle range of Band 3 as set out in para 41(a) of the Taueki decision.  I therefore adopt in your case a starting point of 6½ years imprisonment.

[7]       We suspect Band 3 is an error and that it was really in Band 2 which is five to ten years’ imprisonment.  Band 3 is nine to fourteen years.

[8]       This banding was undertaken after the Judge had identified the characteristics of the offending at [7]:

… You committed an act of serious mindless violence with a whole host of aggravating features to it.  There was a degree of premeditation by lying in wait for your victim’s return.  There was the fact that you caused permanent injury, although the victim has minimised the scaring to his face.  The fact that you used a beer glass as a weapon.  The fact that your target was the head and face of your victim.  The fact that you were not alone but had a co-offender and you both cowardly joined in attacking him.  Finally, this was a hate crime in that you instigated the incident by shouting racial abuse; although I suggest and suspect that the shouting of the racial abuse was simply to try and anger the victim into answering you in a similar manner to try and give you some kind of excuse for what you did.

[9]       Ms Sapolu submitted that the Judge ought to have placed the offending in Band 1 of Taueki’s sentencing and a starting point of five years would have been appropriate on the basis that the injuries did not have a lasting detrimental effect.

[10]     There is a fallacy in that argument.  In this case, there was an attack both with a weapon and by a number of attackers against a single victim.  The compounding aggravation properly needed to be assessed.

[11]     We have no doubt that the starting point of six and a half years was within the available sentencing discretion.  Taueki at [39] says:

Concerted street attack:  For a street attack in which a victim is set upon by a group of attackers in an attack involving the use of weapons found at the scene, a starting point at the lower end of band two would be indicated.  If the attack involves blows to the head or other serious injuries are caused, or there is premeditation, then a starting point higher in the band two spectrum would be required.

[12]     What occurred was gratuitous street violence against an innocent man by two drunken young thugs.   A starting point of six and a half years was squarely within the available range.

Disparity

[13]     Disparity arises because W was dealt with in the Youth Court and sentenced to three months’ supervision with residence and a further six months’ supervision.  That is the most severe sentence that could be imposed on W in the Youth Court.  Ms Sapolu submitted that the existence and reality of that sentence was a factor that needed to be taken into account in dealing with W’s co-offender, Mr Uili.

[14]     Ms Edwards argued that absence of justification for difference (which is the test enunciated in R v Lawson [1982] 2 NZLR 219 at 223 (CA)) is answered where one co-offender is sentenced in the Youth Court. Disparity is prima facie explicable as different sentencing principles are operative: R v Wikaira CA166/93 6 July 1993.

[15]     It is noteworthy that these offenders were only 13 months apart in age.  W was fortunate that the Youth Court did not determine that his case should have been transferred for hearing in the general courts.  The fact that that did not occur and he was sentenced to the maximum available sentence was not justification for not imposing what is the appropriate sentence on this appellant, but it does create a perception of uneven justice in its outcome.

[16]     The heart of the sentencing of Mr Uili was captured by Judge Wade when he concluded by saying at [10]:

… That is to deter you from further offending, to hold you accountable, to protect the community from you for a period, and to deter others.

[17]     An informed bystander knowing all the facts including the special statutory regime which exists for very young people could be shown why the substantial margin existed between the effective sentences, but it is not easy to articulate the rationale and reasoning to teenagers in South Auckland.

[18]     It is to be remembered that W admitted his offending and was genuinely remorseful.  He had a supportive family so there were substantial mitigating circumstances in his effective sentence.

The mitigating factors

[19]     Mr Uili did not plead guilty.  What defence he ever thought he had to the allegation made against him is not readily apparent.  Ms Sapolu explained that the appellant saw himself as the lesser player and W had indicated he would give evidence to that effect.  That anticipation did not materialise.  It could never have gone to criminal responsibility, but only to sentencing response.  His defending of the case was not surprisingly viewed as being consistent with the refusal to face the serious aspects of his own offending.

[20]     The Judge identified two mitigating factors.  First, that he was 17 at the time of the offending.  Secondly, although he had previous convictions, he had never been to prison before.  Judge Wade allowed a one year reduction in sentence because of these factors.

[21]     Ms Sapolu submitted that the Judge gave insufficient weight to these matters, placed undue emphasis on deterrence and did not discuss the appellant’s prospects of rehabilitation which is a critical factor in one so young: R v Accused [1989] 1 NZLR 643 (CA).

[22]     Ms Edwards argued that it was open to the Judge to find that there were minimal prospects of rehabilitation given the fact that he had not taken any steps to address his offending, his lack of remorse and his determination to shift major responsibility for the attack on to his co-offender.

[23]     On this aspect of the case, the Judge said:

[W]here the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. (R v Mako [2000] 2 NZLR 170 at [66] (CA)).

[24]     Undoubtedly there are competing interests to be reconciled when dealing with a person of this age. 

[25]     In R v K (2003) 20 CRNZ 62, the Court said at [22]:

The amount to be deducted had to reflect the fact that the appellant is a young offender with no previous convictions.  In relation to this, the purpose and principles of the Sentencing Act 2002 are clear.  The gravity of a young offender’s offending has necessarily to be balanced against the need to consider his rehabilitation and reintegration into society and the outcome should be the least restrictive in the circumstances of the case.  Whilst these are not the only principles that require balancing in the case of a young offender, they are the principles to be given emphasis.  If not, a truly crushing sentence might be imposed that diminishes any real hope of reformation in a young person. Although there is no material before the Court pointing to a particular rehabilitative path for this appellant, his youthfulness alone requires a rehabilitative approach, as the victims themselves responsibly recognised.

[26]     In that case a six and a half year sentence was reduced to three years.  A 16 year old had been convicted of aggravated burglary, kidnapping and car conversion.  A key factor was his youth, but there was an early guilty plea, remorse and the appellant had had a lesser role in the offending.

[27]     The other side of the coin was is as discussed in R v Pehi CA82/99 28 April 1999 where this Court made clear that in cases of violent offending, teenage offenders must expect to be treated on sentencing like adults, particularly where they have a long list of previous convictions.

[28]     Any sentencing is a discretionary exercise and the crux of this case is whether the prospect of rehabilitation for a person with minimal previous convictions, and who has only recently turned 18, was sufficiently reflected in the ultimate sentence imposed.  Ms Edwards noted (and we acknowledge) that the opportunity for early release is significantly more beneficial under the Sentencing Act 2002 than it would have been under the Criminal Justice Act 1985.  She submitted that is where these aspects should be addressed.

[29]     It cannot be ignored that the writer of the pre-sentence report was sufficiently optimistic about his future to recommend community work and a period of supervision with special conditions.  As an ultimate sentence, that was clearly unrealistic.  However it underlines the perceived potential for this young man to re-assess where he has let himself get to and his ability to achieve a future which is positive and structured.

[30]     There are sufficient indications that this man is capable of salvage which suggest that, as a youngster, he should not be incarcerated for longer than is absolutely necessary.  Some principles of sentencing were articulated by the District Court Judge, but the rehabilitation and reintegration of this young man into society were not accorded significance. 

[31]     In the hope that this totally unacceptable behaviour can be put behind him, we are satisfied it is prudent to avoid the negative aspects of a crushing sentence.  We are persuaded that there is advantage to the community, his victim and this man himself in providing some earlier light at the end of the tunnel which also gives some recognition to the very different approaches to the sentencing of this man and his co-offender.

Result

[32]     The appeal is allowed.  The sentence of five and a half years’ imprisonment is quashed and substituted with a sentence of four years’ imprisonment.

Solicitors:
Sapolu Law, Auckland, for Appellant
Crown Law Office, Wellington