The Queen v Vaeluaga Latu
[2001] NZCA 270
•18 October 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA262/01 |
THE QUEEN
V
VAELUAGA LATU
| Hearing: | 18 October 2001 |
| Coram: | Blanchard J Robertson J Salmon J |
| Appearances: | P L Borich and N M Palmer for Appellant J M Jelas for Crown |
| Judgment: | 18 October 2001 |
| JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J |
Introduction
This is an appeal against an effective term of 13 years imprisonment imposed on the appellant in the District Court at Manukau on 15 June 2001.
As a result of two incidents which occurred at Mangere on 14 November 2000 three young men were charged with a variety of offences. After the taking of depositions and before trial the appellant Mr Latu pleaded guilty to one count of aggravated burglary on which he was eventually sentenced to 13 years imprisonment, two counts of injuring with intent to injure on each of which he was sentenced to three years imprisonment and two counts of wounding with intent to cause grievous bodily harm on each of which he was sentenced to seven years imprisonment. All the sentences were to be served concurrently.
The same Judge on 25 May had dealt with two co-accused, Mr Lemanu and Mr Sosene, for charges arising out of the same incident. Mr Lemanu was sentenced to an effective term of seven years imprisonment and Mr Sosene to an effective term of four years imprisonment.
The appeal against sentence (which is in respect only of the aggravated burglary charge) is advanced solely on the basis that the term of 13 years imprisonment was:
·manifestly excessive; and/or
·wrong in principle; and/or
·unjust given the sentences imposed on the two co-offenders.
Initially Mr Latu was charged with eight offences but three of these were withdrawn and two were amended.
The background facts
During the early evening of Tuesday 14 November 2000 the three offenders were drinking together in a garage. Mr Sosene got into an argument with an 18 year-old whom he punched at least four times before Mr Latu and Mr Lemanu joined in the attack. This involved kicking to the head and upper body until the victim lost consciousness.
The owner of the premises (a man in his early forties) came to the first victim’s aid. Mr Latu and Mr Lemanu set upon him punching him about the head and body. Mr Lemanu stood on the car bonnet kicking the second victim in the head and knocking him to the ground. There was further kicking which ceased only when his wife came to the garage.
The three men left the first address and walked a short distance. They knocked on the door of the home of the third victim and asked the 51 year-old occupant if his son was present. They were told he was not there and asked to go away. Instead they abused the man who tried to retreat into his house. He was pushed and fell into a chair. All three offenders entered the house and began punching him about the head and face while he was seated. A fourth victim, a son of the occupant, came to his father’s assistance. This 25 year-old man was punched 15 to 20 times around the head by Mr Lemanu and Mr Latu also punched him.
Mr Latu then focused his attention back on the third victim demanding money. He continued punching him around the head approximately 15 to 20 times. During the attack the victim said they should take whatever they could find.
While this was going on, Mr Latu shouted to Mr Sosene to close the door so that the victim’s cries would not attract the attention of neighbours.
Mr Latu next picked up a dumbbell from beside the chair the victim was sitting in and hit the father on the side of the head with it. He then used it to hit the son in the neck causing him to fall to the ground where he was kicked in the chest. Mr Latu also used the dumbbell to break the front door window on the way out.
Court history
When the charges were first laid only a charge of aggravated robbery involving one of the victims included a direct reference to the home invasion provisions of the Crimes Act 1961. This was one of the charges which was withdrawn. Prior to the commencement of the depositions hearing the prosecution sought amendments to two other counts so that there were specific references to home invasion elements. At no stage were they specifically mentioned in respect of the charge of aggravated burglary.
Following the amendments, pleas of guilty were entered pursuant to Section 153A of the Summary Proceedings Act 1957 by all of the three accused. They were remanded for sentence.
Mr Latu made an application to set aside one of his pleas which is the reason why Mr Lemanu and Mr Sosene were sentenced at an earlier date. After a hearing, the application to withdraw the plea of guilty was refused and Mr Latu was eventually sentenced by the same Judge who had sentenced his co-offenders.
Home invasion legislation
It is common ground that the information of aggravated burglary upon which the plea of guilty was entered did not specifically refer to Section 17C of the Crimes Act 1961 which is the provision relating to home invasion.
If the home invasion provisions did not apply, the maximum sentence of imprisonment available was 14 years. If they had application the maximum term of imprisonment was 19 years. Mr Borich accepted that there can be a difference between the maximum penalty available at the charging stage and that at the sentencing stage.
However Mr Borich relied upon Section 17 of the Summary Proceedings Act 1957 which provides:
Every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged.
He acknowledged that this Court determined in R v Koura (1996) 13 CRNZ 463 that there is no requirement that the penalty be specified in an information but counsel submitted that as a matter of fairness a prisoner and his counsel were entitled to certainty about the potential maximum penalty. This involves both what is being sought by the prosecution and the basis upon which the sentencing Judge will deal with the case. Without this he submitted that there cannot be a proper exercise of the provisions of Section 153A of the Summary Proceedings Act 1957.
The appellant argued that because the information did not specifically mention this home invasion aspect, it was wrong as a matter of principle for the Judge to treat the maximum available sentence as being 19 years. Accordingly it was submitted that the Judge started from too high a point and that the final sentence was accordingly unfair and is now unsustainable.
In response the Crown noted that the written submissions filed in advance of sentencing in the District Court were on the basis that the aggravated burglary involved home invasion and this was also the basis upon which Mr Lemanu and Mr Sosene had been sentenced. Ms Jelas submitted that Section 17A of the Summary Proceedings Act 1957 had no application to a charge under Section 240A(1)(b)(ii) of the Crimes Act 1961. It does not qualify under Section 17A(2)(b) of the Summary Proceedings Act 1957. Further it was contended that the maximum penalties for qualifying offences involving home invasion only become relevant at sentencing. Home invasion is not an element requiring proof of the sort contemplated under Section 17A of the Summary Proceedings Act 1957.
The Crown submission therefore was that as a matter of law the Court was bound to consider the home invasion provisions. Mr Borich does not dispute that the offending involved aspects which clearly come within the definition.
We are of the view that there is no substance in this ground of appeal. The Home Invasion provisions apply as a matter of law once the necessary evidential foundation is established. This was clearly home invasion in fact (which is not disputed) so the maximum available term of imprisonment must be 19 years. It may be better practice for an information and or indictment to include a reference to Section 17C of the Crimes Act 1961 much in the way that there is not infrequently a reference to a penalty section. But its absence cannot be decisive. There is in any event a specific flagging in Section 240A(2) of the possibility of Section 17C applying so no unfairness could arise.
Sentence manifestly excessive
It was next argued by the appellant that the 13 year sentence was in any event manifestly excessive. Appellant’s counsel conceded that the Judge’s articulated starting point of ten years was not inappropriate (R v Mako [2000] 2 NZLR 170). Mr Borich acknowledged that the principal aggravating features which applied to this appellant (and not his co- accused) were that the offences were committed while he was on bail, that he had previous convictions for serious like offences and his personal circumstances did not act to his advantage. Nonetheless it was submitted that when dealing with a person aged only 20 years these aggravating features did not justify an increase of some 30 per cent from the otherwise appropriate starting point. Counsel stressed that the Crown originally had submitted that there should be a term of imprisonment between eight and ten years and that this was increased to 11 to 12 years after the change of plea application was heard and dismissed. Mr Borich submitted that the hearing necessary for the change of plea application should not be equated with the trauma involved for complainants in a fully contested jury trial and this sharp increase was not justified.
In response the Crown noted that sentencing had been conducted on the basis that a notional sentence of eight years imprisonment would have been imposed but for the home detention aspect, and that an additional two years had been added to reflect that factor.
The Crown observed that in arriving at an initial starting point regard needed to be had to the fact that there were three participants in the aggravated burglary, two victims were affected, entry had been occasioned by force using violence and that there had been sustained and serious unprovoked attacks involving the use of a weapon which was capable of serious injury. Regard properly was had to the psychological effect on the victims. There was no substantial argument about that analysis nor the increase to a starting point of ten years because of home invasion.
This ground of appeal was related rather to the fact that there was the further add-on to reflect the fact that the offending occurred while Mr Latu was on bail and because of his previous criminal history.
The Crown submitted that this was one of those cases where the public interest and safety factors had to be at the forefront of the sentencing process. Since his release on parole in July 1999 after a term of imprisonment imposed for attempted aggravated robbery, Mr Latu had committed further offences on 5 November 1999, 15 November 1999, 7 July 2000, 5 September 2000 and 1 October 2000. It was his third conviction for aggravated robbery and he had five previous convictions for violent offending three of which led to terms of imprisonment.
The Judge had had the opportunity of directly assessing the appellant when he had given evidence during the course of his application to change his plea. Reflecting upon that evidence he said:
I had no hesitation saying that I find it incredible, that is unbelievable. I place no weight upon the words that he uses. The most startling feature of his evidence before me was his lack of concern for the people that he struck with his 6kg dumbbell. At no stage did he exhibit any sorrow, remorse or concern for their positions. Mr Latu is one of the few people who have appeared in this Court that has, in my view, the potential to take the life of another person without concern for their position, reflected in the manner that he gave evidence and his conduct when he was giving evidence.
This was undoubtedly serious offending by a man who appeared to have little insight and who lacked remorse. It was committed while he was on bail. The protection of the public had to be of substantial importance.
It is clear that the Judge did not form a sympathetic view of the position of the appellant. He appears to have been unimpressed by Mr Latu’s application to set aside his plea, his conduct during the hearing of that application and lack of apparent remorse. Counsel submitted that these were not aggravating features and should not have led to an increase in sentence. They were matters which precluded any reduction for mitigation but cannot justify a higher sentence. It is submitted that the proper starting point for the aggravated burglary could have been no more than ten years bearing in mind the fact that there was a plea of guilty. We return to this issue later.
Disparity
The final appeal point was that there was the disparity between Mr Latu and his two co-accused where in respect of the aggravated burglary charge Mr Latu was sentenced to 13 years, Mr Lemanu to seven and Mr Sosene to four years. Although the appeal is advanced only with regard to this most serious offence and the most lengthy sentence, the totality of offending should not be ignored.
Reference was made to the applicable tests enunciated by this Court in R v Lawson [1982] 2 NZLR 219. It is accepted that on other charges to which they all pleaded guilty, the same sentences were imposed on the appellant and Mr Lemanu. Some differentiation as far as Mr Sosene on the wounding with intent to cause grievous bodily harm the appellant accepts is understandable on the facts. Concurrent sentences on less serious offending can sometimes involve distortion. But Mr Borich submitted there was however no basis upon which Mr Latu should have received a prison sentence more than three times that of Mr Sosene on the aggravated burglary and almost double that of Mr Lemanu on the same count.
It is acknowledged that there is justification for disparity in that:
(a)Mr Latu was categorised by the sentencing Judge as the instigator and the main player; and
(b)he was the person wielding the dumbbell; and
(c)the personal circumstances of the other two were more optimistic and there were immediate pleas.
However it is contended that the disparity is so manifest as to make it gross and to constitute a miscarriage of justice.
Appellant’s counsel referred to a number of decisions of this Court including R v Carr CA 380/00, 7 December 2000; R v Giddens CA 165/00, 26 June 2000; and R v Thompson & Pullenbury CA 245/98, CA 267/98, 22 December 1998 but was swift to acknowledge that each case must be read within its own particular facts. Nonetheless he submitted that in the circumstances of this case the markedly different sentences on the lead charge had no justification upon any disciplined analysis and must lead to the inevitable conclusion that something has gone wrong in the administration of justice.
Ms Jelas in response acknowledged that the disparity appeared great but she submitted that it was justified having regard to the particular circumstances of both the offending and the offenders. Mr Sosene did not face any charge in respect of the assault on the second victim and in respect of the second incident Mr Sosene appears to have been sentenced on the basis that his actions were limited to throwing or the movement of an orange chair and then his departure. It appears that when he reached that view Mr Sosene may have been very fortunate that the sentencing Judge had not yet had the benefit of hearing the evidence he did on the application by Mr Latu to change his plea. Importantly however Mr Sosene was only 17, there was a plea of guilty and he had no prior convictions. His offending was considered by the Probation Officer to be out of character and a one-off incident and in fact there had been a recommendation for a suspended prison sentence.
As far as Mr Lemanu was concerned, although he was neither the principal offender nor the instigator, it is clear from the material set out above that he played a significant role in each of the offences but the Crown submitted that the main distinction was that it was Mr Latu alone who used a weapon.
It was also noted that Mr Lemanu’s personal circumstances warranted a significant credit. He was only 18, there was a guilty plea and expressions of genuine remorse and apology. His previous convictions did not involve any custodial sentences and the pre-sentencing report placed particular emphasis on rehabilitation.
As the Crown realistically acknowledged, the difference in sentences, particularly between Mr Sosene and Mr Latu, is extreme. We are of the view that Mr Sosene, in particular, and to a lesser extent Mr Lemanu, were fortunate to receive as lenient sentences as they did for their individual involvement in an inexcusable and deplorable series of attacks. This was bad thuggery which required strong condemnation and the imposition of penalties which would hopefully have a deterrent effect. There can be no doubt that Mr Latu’s culpability was the greatest. His record is worrying. His current attitude gives little ground for optimism.
Conclusion
These incidents which occurred over a relatively short period of time involved intolerable intrusions on the rights of other citizens. The invasion into a private home was very serious. It was however unplanned activity of young men out of control. When the totality of the offending is chronicled as outlined above the serious involvement of each must be accepted. It is true that the other two men were younger and did not have the list of previous offending which this appellant has, but that was the basis upon which their sentences were reduced. It is not a basis which justifies an increase in the sentence to be imposed upon Mr Latu.
We agree with the sentencing Judge that a starting point in the vicinity of ten years was proper having regard to the home invasion aspect. There was aggravation in the position of Mr Latu because he was on bail at the time that the offending occurred. He did however plead guilty and avoid a trial even though he sought to change his plea and that attempt put some victims through the trauma of giving evidence.
On the other hand bearing in mind the totality of the circumstances we are of the view that the disparity, even in light of actual culpability and backgrounds, is too great. An appellate Court must ensure that because lenient sentences are imposed on some, what would otherwise be appropriate sentences are not reduced so as to avoid disparity.
We are however persuaded that the culpability of Mr Latu after taking into account the sentences imposed on the co-accused, would properly be met by a sentence of 11 years imprisonment. That will not involve any unjustifiable disparity. Mr Latu is seen as a potential risk from whom the public is entitled to protection until he matures and acts as a responsible citizen. He has a serious criminal history. Mr Sosene at the other extreme was a young person without prior convictions, with a much lesser involvement in the offending and in respect of whom there was a realistic prospect of rehabilitation.
The appeal is accordingly allowed. The sentence of 13 years imprisonment is quashed. He is sentenced on the aggravated burglary charge to 11 years imprisonment.
Rice Craig, Papakura for appellant
Crown Solicitor, Auckland
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