The Queen v Ulimasao Sesega

IN THE COURT OF APPEAL OF NEW ZEALAND

CA12/02

THE QUEEN

ULIMASAO SESEGA

Hearing:	20 March 2002
Coram:	McGrath J Robertson J Durie J
Appearances:	A L Pinnock for Appellant B J Horsley for Respondent
Judgment:	25 March 2002

JUDGMENT OF THE COURT DELIVERED BY DURIE J

The question on this appeal is whether a sentence of three years imprisonment was manifestly excessive in respect of causing grievous bodily harm with intent to injure to which the appellant had pleaded guilty.
In a brawl outside a nightclub the severely injured complainant in this case was initially struck in the head by an assailant wielding a bottle. This caused the complainant to fall heavily from on top of a car, where he had stationed himself, to the asphalt below. The complainant lost consciousness but the assailant continued his assault. A number of times the complainant was kicked in the head and body.
The appellant was amongst many in the vicinity. He saw the complainant bound onto the car, which was his girlfriend’s car and he then moved towards it. Whether he saw how the complainant fell to the ground or the subsequent kicks is not clear, but in any event when the appellant arrived the complainant was obviously unconscious. Notwithstanding that condition the appellant kicked the complainant in the head. He kicked only once but he was wearing boots. He was restrained thereafter by his girlfriend and then remained at the scene. The fact that many others were there may have left him with little real option but to remain, but at least he did remain. He assisted the victim by placing a bag under his head. When the Police arrived he made a full statement.
Amongst other serious injuries the complainant sustained two severe skull fractures and nearly died. Medical opinion is that one skull fracture was consistent with a fall while another was consistent with a kick or stomp to the head.
The appellant has a history of violent offences. In 1997 he was sentenced to three years imprisonment for wounding with intent to cause grievous bodily harm. That sentence was still running. He also has convictions for common assault, assault with intent to rob and robbery by assault. Twice he has breached periodic detention. Alcohol has played a part in these offences. On the other hand, the appellant does have family and community support reflected in several references submitted on his behalf. He is also receptive to counselling for his problem with violence and has been attending anger management counselling sessions while on remand. In a letter to the Court he has expressed remorse.
The sentencing Judge acknowledged there could be no certainty in attributing particular injuries to the appellant but thought the appellant was probably to blame for one fracture consistent with a kick or stomp to the head. He took a starting point of four years imprisonment and allowed one year for mitigating factors including the appellant’s guilty plea, post assault assistance, his remorse and supportive references.
Ms Pinnock argued that the Judge had given insufficient credit for mitigating factors, the guilty plea alone entitling one year’s grace, in her submission. Further, in adopting a starting point of four years, the Judge had wrongly equated the appellant’s single blow with the flurry of blows normally associated with such a beginning. She submitted the Judge also must be taken to have assumed that the appellant was responsible for the second head fracture when on the evidence that assumption could not have been made.
We note that in adopting a four year starting point the Judge expressly relied on Nuku v Police (High Court, Wanganui, AP 5/97, 22 April 1997, Doogue J). The victim’s injuries were not as severe in that case but only one attacker was involved. In that case the appellant had delivered four blows to his partner’s head and had then left her unconscious with a life threatening injury. He returned later to the scene to give assistance. On appeal, Doogue J considered four years was the highest justifiable starting point for this offending. The sentence was reduced to three years to reflect a guilty plea.
An extended attack on an off-duty Police officer, leading to severe facial injuries and possible brain damage, resulted in a four year sentence which on appeal, to this Court, was reduced to three years, in R v Wikiriwhi [1985] 2 NZLR 501 (CA). In a case involving continual punching and a kick, leaving the victim with face, skull, nose and leg fractures, a four year sentence was reduced to two and a half years on an appeal to the High Court – see Waiomio v Police (High Court, Auckland, AP 95/01, 7 August 2001, Rodney Hansen J). In Ragg v Police (High Court, Hamilton, AP 41/01, 18 July 2001) Rodney Hansen J reviewed the authorities to conclude that a starting point of four years was the top of the available range, generally reserved for the most serious of manual attacks. In that case involving assaults on two victims, with extensive punching and kicks that broke a lady’s ribs and punctured her lung, the sentence was reduced from three and a half to three years.
Clearly the four year starting point adopted in this case was at the top of the range. We also think there is force in Ms Pinnock’s arguments that it was not open to the Judge to assume that the appellant was responsible for the second skull fracture when the original assailant had also delivered kicks to the head and the depositions evidence referred to further kicks by others again. The appellant pleaded guilty to causing grievous bodily harm but we note that the medical opinion refers to other serious injuries beside that of the skull fractures.
We also note that the agreed statement of facts expressly acknowledges that the appellant delivered but one kick. Obviously this must be distinguished from a flurry of blows or a sustained and prolonged attack. Even so, one kick may constitute serious violence, as did a single but practised punch to a victim’s face in R v Cunningham (1989) 4 CRNZ 555 (CA).
Notwithstanding those views we consider that the starting point of four years, though severe, was entirely open to the Judge. Though this was a single kick, or stomp, it was particularly callous, indeed heinous, when delivered by a boot clad individual to the unconscious body of a heavily bleeding victim. It came moreover from an appellant who had gained early release from prison in respect of another violent assault. The period of that sentence had not yet expired. We reject Ms Pinnock’s submission that to bring that prior offending into account is to sentence the appellant twice over. A tendency to violence is a factor that must weigh with any Court in sentencing and where the protection of the public is in issue. It is a factor that weighs heavily with us now.
Accordingly the sentence must stand and the appeal is dismissed.

Solicitors

Cairns Slane, Auckland for Appellant
Crown Law Office, Wellington for Respondent

[2002] NZCA 1

25 March 2002