THE QUEEN v VAELUAGA TULEI [1999] NZCA 17 (3 March 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND CA 376/98

THE QUEEN

v

VAELUAGA TULEI

Coram:Eichelbaum J

Robertson J

Elias J

Hearing:2 March 1999 (at Auckland)

Counsel:T M Saseve for Appellant

A R Burns for the Crown

Judgment: 3 March 1999

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JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

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Valeluaga Tulei faced an indictment that on 22 March 1998 at Huntly, he and Charlotte Lemanu Manase assaulted William Noel Austin with intent to rob him.When they were arraigned at the beginning of the trial, Mr Tulei pleaded guilty.His co-accused went to trial and she was convicted.

Subsequently the appellant was sentenced to three years imprisonment and Ms Manase to 16 months imprisonment suspended for two years.She was ordered to undergo 8 months of periodic detention.

The appeal against sentence is advanced on the basis that the three years was manifestly excessive with the Judge placing undue significance on the need to deter and to punish the appellant and that generally over emphasis was placed on negative aspects and insufficient weight to positive matters in support of the position of Mr Tulei.

About 10.30 pm the two offenders had driven into a sole charge service station in Huntly.Having parked the car a little away from the pumps they asked if they could use the toilet.Some minutes later they returned to confront the 61 year old who was operating the service station, grabbing him by the shoulder and demanding that the till be opened or he would be stabbed as Mr Tulei contended that he had a knife.

Before the matter developed into the aggravated robbery (which it is impossible to avoid concluding was intended) another motorist drove into the service station.Both of the offenders decamped.

The sentencing Judge properly underlined the effect of this on the complainant and noted that the appellant had a long list of previous offences including aggravated wounding, aggravated robbery and unlawfully taking a motor vehicle. This offending had occurred only days after release on parole.

The Judge accepted that the matter was not covered by s 5 of the Criminal Justice Act, but as an offence which was committed within days of release from similar offending had to be treated severely.

The Judge accepted that although the guilty plea was only on the day of the trial it was in respect of an amended indictment and that the appellant was entitled to some small credit.

He noted his youth, but said :

... offending of this sort, of dairies, petrol stations is extremely prevalent and many, not all, but most of the offenders are young people like yourself. Thus the question of youth as being significant in reaching an appropriate penalty is becoming of less and less significance.More particularly, it is becoming of less significance when you already offended in this way earlier and are so recently released from prison.

The Judge referred to the fact that alcohol and drugs were a problem for this man but that his plea in that regard was no different than what it had been the previous time he appeared before the Court.

The appeal is advanced on two fronts.First, that the sentence of three years was longer than was necessary in all the circumstances of the offending, and secondly, that insufficient weight was allowed for positive aspects which should have been considered.

The appellant does not suggest that a term of imprisonment was inappropriate or that in the circumstances it should have been suspended.Rather, that overall this was longer than necessary to deal with this 17 year old.It was noted that there was in fact no weapon, no property or money was actually taken, the planning was amateurish, poorly executed and the lack of commitment to the enterprise demonstrated by the hasty retreat which they made when another person arrived.

The submission was further made that in respect of the offender little or no regard was had to his :

age;

lack of maturity;

poor and disadvantaged upbringing;

very limited schooling;

lack of employment and meaningful or lawful occupation;

past and continuing offending whilst predominantly under the influence of alcoholand/or drugs;

acceptance of having a serious drug and alcohol problem;

acceptance of responsibility for his offending;

expressions of remorse for his offending;

willingness to address his problems and to get his life under control.

It was particularly argued that there was a total absence of any addressing of the need to impose a rehabilitative aspect in the sentence which would have the effect of supporting the empowering of the appellant with the necessary skill to break his cycle of offending.This aspect of the case was summarised by counsel for the appellant when he said :

This is especially so in cases of young immature offenders such as the appellant where the challenge to the Court must be to find ways to tap into their as yet unhardened characters so as to divert them from a life of criminality instead of simply locking them up to stew away until their release and then to imprison them for longer periods on their inevitable re-offending.

The Crown on the other hand submitted that three years was a sentence which was within the available tariff and could not be said to be manifestly excessive.Reference was made to R v Mita (CA 446/97, 23 February 1998) which stressed the factors mentioned in a victim impact statement.In any event Mr Burns submitted the sentencing level was not inconsistent with cases such as R v Bowen (CA 64/9, 28 May 1992); and R v Repia (CA 12/95, 26 May 1995).

Without in any way minimising the seriousness of what occurred here, we should observe that the facts in Bowen were substantially more aggravating than the position here with serious injury inflicted, and in Repia the sentence was imposed after trial and the offending involved a firearm.

Mr Burns also drew to our attention the judgment of the High Court dealing with this appellant's appeal on a previous occasion when he had appeared in Court.In particular the Judge's concluding remarks when he said :

I note that (the appellant) should consider himself particularly fortunate that I have found it necessary to treat all these three men equally.The pre-sentence report prepared about him makes dismal reading.If he maintains his intention to behave with groups on a continuing basis he will be asking for trouble.Each of these men must understand that they are the beneficiaries of the fact that the criminal justice system must be transparent, fair and equitable in its operation, but there will be no basis for any mercy to be shown to them in the future if they cannot grab this opportunity and respond to it in a positive way.

It should be noted that the current offence although serious did not have aggravating factors of the sort which had confronted the Judge in the High Court dealing with the previous appeal.

In this sentencing (as in all sentencing) the Court is concerned to ensure that proper weight is given to the denunciation and condemnation of this sort of behaviour in the hope that there will be some deterrent effect on this and others minded to act in a similar way.

The matter is clearly aggravated by the fact that this offending occurred so shortly after this man was released on parole, it being a condition of any parole that a person should be of good behaviour.

It is clear that bearing in mind all the circumstances the Court could not have contemplated a sentence which did not involve immediate imprisonment, or a sentence of 12 months or less which would have enabled the Court to impose supervision or conditions on parole.Men like Mr Tulei need to understand that self-starting of any rehabilitation or readjustment of their approach and attitude to life and the community within which they live are essential.

We are however concerned as to the long term future of this young man within the community and society's interest in ensuring that he is eventually productively engaged so that he does not continue to offend.A sentence which has a crushing effect on a person of this age has the risk of being counterproductive from the community's point of view in the long run.

The Judge did not articulate what allowances he made for the mitigating factors which are advanced but it must follow that he was of the view that a sentence in the order of four years must have been an appropriate starting point.The majority of the Court is persuaded that that is longer than is necessary and that a proper starting point in respect of the offending itself would have been three years.

Bearing in mind the various factors which could be advanced in the appellant's favour we are satisfied that allowance should have been made for them.

Accordingly the appeal is allowed.The sentence is quashed and is substituted by a sentence of two years and three months.

Solicitors:

Saseve Solicitors, DX EP 74 534, Papatoetoe

Crown Solicitor, Auckland