Usoalli v The Queen

[2021] NZHC 2401

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000356

[2021] NZHC 2401

BETWEEN

SILA JUNIOR USOALLI

Appellant

AND

THE QUEEN

Respondent

Hearing:

7 September 2021

Counsel (via VMR):

B So for Appellant

AR Masters for Respondent

Judgment:

14 September 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 14 September 2021 at 10.30 am.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland.

Public Defence Service, Auckland.

USOALLI v R [2021] NZHC 2401 [14 September 2021]

[1]                  Judge A S Greig sentenced Sila Usoalli to a term of three months’ community detention and 18 months’ intensive supervision.1 Mr Usoalli appeals. He contends the sentence is manifestly excessive. An appeal in this context must be allowed if the appeal Court is satisfied there is an error in the sentence and a different one should be imposed.2 Or, in short, if the sentence is manifestly excessive.3

[2]                  On 25 September 2020, Mr Usoalli and another went into the front yard of a Mission Bay home and removed a set of car keys from the letterbox. The pair used the keys to open the complainant’s Audi and drive away. The complainant called Police. They found Mr Usoalli in the passenger seat a little later. Mr Usoalli exercised his right to silence. He pleaded guilty 6 May 2021.

[3]Judge Greig said this when passing sentence:4

The Crown submission is that the starting point should be six months’ imprisonment. They cite cases, and I agree that that probably is where this should begin. They call for a small uplift. A very modest uplift might be justified, but that would be subject to the full discount because the charges were changed, which would bring the sentence to around the four or five month imprisonment mark. That clearly allows me to look at electronically monitored options and other options. What I really take  account of is that  Mr Usoalli has spent eight months on either a 24 hour curfew or electronically monitored bail. That is a long time and I do not have any information before me that suggests he has breached that. I then therefore certainly take that into account and reduce the sentence further.

Mr Usoalli has a job offer, I understand. He works for a demolition firm, and so I would like him to be working if possible. That is the best way to ensure that he remains offence-free.

So the result of all of that is a sentence of three months’ community detention to be served at your address at ... Your  curfew hours are daily from 7 pm to  7 am for the next three months, and 18 months’ intensive supervision. I have imposed that so you can build on what I hope you have started to already. It is designed for you, okay? I wish you well, Mr Usoalli, good luck.

[4]                  Mr Usoalli argues the Judge did not give adequate weight to his time on bail, electronically monitored and otherwise. On Mr Usoalli’s behalf, Ms So says this

1      R v Usoalli [2021] NZDC 16243.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279.

4      R v Usoalli, above n 1, at [5]–[7].

feature should have left a sentence of one-month imprisonment, which could have been commuted to a term of supervision only.

[5]                  To elaborate, Mr Usoalli was on electronically monitored bail for four and a half months. He spent another three and a half months on a 24-hour curfew, without electronic monitoring. The Judge was bound to consider the former (and associated circumstance) by dint of s 9(3A) of the Sentencing Act 2002. It was open to the Judge to consider the latter because of s 9(4) of the same Act.

[6]                  Ms So also says Mr Usoalli was remanded in custody for 53 days, something not brought to the Judge’s attention, and this factor mitigated sentence.

[7]I accept:

(a)Ms Masters’ submission on behalf of the respondent the Judge did not err in relation to bail. Each type of bail permitted Mr Usoalli to work, so each’s  restrictiveness  was  appreciably  diminished.  Moreover, Mr Usoalli breached bail 19 October and 14 November 2020, and again 21 April 2021. The first two breaches were apparently not serious, but they were still breaches.

(b)Ms So’s submission in relation to time in custody. The Judge was not told of this. Had he been, it is almost certain the term of intensive supervision would have been appreciably shorter. Absent such allowance, this term is manifestly excessive.

[8]                  I am not persuaded to further interfere. While Ms So is correct the Judge’s workings are a little opaque, it was open to the Judge to conclude Mr Usoalli would benefit from a combination of sentences that promoted rehabilitation and oversight. Materially, Mr Usoalli may continue to work despite community detention and intensive supervision.

[9]                  The appeal is allowed to the extent the term of intensive supervision is reduced to 12 months. The sentence of community detention remains.

……………………………..

Downs J