THE QUEEN v JERRY MOEVASA [2002] NZCA 72 (18 April 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca376/01

THE QUEEN

V

JERRY MOEVASA

Hearing:	27 March 2002
Coram:	Elias CJ Anderson J Durie J
Appearances:	J Dines for Appellant J M Jelaoe for Crown
Judgment:	18 April 2002

judgment of the court

Nature of the appeal

[1] Following pleas of guilty the appellant was sentenced to four years imprisonment on one count of wounding with intent to cause grievous bodily harm and six months imprisonment, to be served concurrently, on one count of being a male assaulted a female.He appeals against the sentence of four years imprisonment on the grounds of manifest excess, submitting that it is out of line with comparable cases and either the Judge gave insufficient weight to mitigating factors or adopted too high a starting point before allowing for those factors.

Nature of the offences

[2] In March 2001 the appellant and members of his family were at their Mangere home which adjoins the home of the complainants Mr A Roberts and his sister Ms P Roberts.Some members of the appellant's family were drinking and listening to music near the boundary fence.Ms Roberts called out for the music to be turned down because she had a sick child who needed to sleep and the volume was reduced for a short time but was then turned back up.The pattern of a complaint, a reduction and then an increase in the volume of the music was twice repeated resulting in an angry argument across the fence.Mr Roberts and the appellant decided they would meet at the front of their properties to sort out their differences.Before that confrontation occurred the appellant took two significant steps.First, he went to his kitchen and got a knife.Second, he went and parked his car on the road outside the Roberts' house.He then went with his brother on to the neighbour's property where he was confronted by Mr Roberts and Ms Roberts who repeatedly told him to leave.The brothers refused to do so and continued to verbally abuse the complainants.

[3] Fearing she was about to be assaulted, Ms Roberts pushed the appellant who responded by pushing her in the face, this act founding the charge of male assaults female.

[4] Mr Roberts then intervened to protect his sister and a scuffle ensued between him and the appellant.In the course of the scuffle the appellant stabbed Mr Roberts with the knife he had taken from the kitchen, causing a substantial and deep wound in Mr Roberts' back.The victim's lung was punctured and it collapsed.The knife narrowly missed other vital organs.Mr Roberts required hospitalisation for four days during which he had a tube inserted into his chest cavity to drain fluid.Upon his discharge from hospital he developed a chest infection and required recurrent treatment from his personal doctor for about three weeks.He could not return to work for over a month and suffered financial loss accordingly.His sense of security has been undermined to the extent that he felt it necessary to leave the Mangere home and find employment in the South Island.

[5] Ms Roberts suffered a cut on the chin and bruising with attendant soreness for some weeks.The recollection of the incident, including the injury to her brother, is upsetting to her and she feels her relationship with her family has been badly affected.

Appellant's response and personal circumstances

[6] Immediately following the stabbing the appellant decamped in the car which he had obviously set up for flight.Attempts by the Police to find him were unsuccessful until, some ten days after the incident, he presented with his lawyer at a Police Station.As well as the two charges already mentioned there were originally two further counts of threatening to kill but those were withdrawn upon the appellant's intimation that he would plead guilty to the counts involving actual force.Five weeks before the scheduled deposition hearing that indication of plea was given and guilty pleas were duly entered on the deposition date.

[7] The appellant was 21 years old at the time of the offences.He had no previous convictions for violence.As an 18 year old he had been convicted of operating a vehicle carelessly and driving with excess breath alcohol.Having subsequently driven whilst disqualified he was sentenced to periodic detention which he breached twice leading, on the second occasion, to a term of imprisonment of 14 days.

[8] The appellant was born and raised in Samoa, moving to New Zealand when aged 16.He was spoken of favourably by his parents and his pastor.He appears to be genuinely remorseful and to have insight into alcohol dependency which seems a feature of all his offending.His parents formally apologised to their neighbours in the Samoan way.

The Judge's reasons for sentence

[9] No issue is taken with the Judge's description of the facts of the offending, those having been outlined in the prosecution's summary.She noted the effect of the stabbing on Mr Roberts and had regard to the victim impact statements of both complainants.She regarded the injury sustained by Mr Roberts as very serious and potentially life-threatening, and that the effect of this for both complainants was significant.Elements of premeditation were seen in the way the appellant placed his car outside the victims' property and in his taking a knife from the kitchen.

[10] The Judge accepted that the appellant was not predisposed towards violence and that he had acted out of character.She noted his guilty plea at a depositions hearing before evidence was given, that he appeared to be remorseful and that he and his family had attempted to behave in a culturally appropriate way to show sincere remorse and apologies in respect of the victims.

[11] It was common ground between counsel that the wounding offence fell within that category identified in R v Hereora [1986] 2 NZLR 164, which contemplates cases of wounding or causing grievous bodily harm with intent in an impulsive act of violence involving the use of a weapon or intent to inflict serious injury.Such cases will attract a sentence within the bracket of three to five years imprisonment.Subjectively aggravating and mitigating factors will affect the location of the sentence within that range for cases of that general nature.

[12] In this case counsel for the appellant urged the District Court Judge to impose a term of imprisonment at the lowest end of that range, whereas the Crown suggested the higher end was appropriate.Having noticed this difference of emphasis the Judge said:

Taking all matters into account, I consider that the appropriate length of imprisonment to be served by the defendant, giving credit for his guilty plea and any other mitigating features which might be present, is one of four years. And he is so convicted and sentenced.

Appellant's arguments

[13] In support of his submission that the sentence was comparatively excessive, counsel for the appellant referred to several cases said to have features relevant for comparative purposes.These include R v Manh Toan Le and R v Truong Manh Le CA 208/00 and CA 209/00 14 September 2000, where on appeal sentences of four and-a-half years were reduced to three and-a-half years for wounding with a knife with intent.The injuries sustained were not serious and there was remorse by the offenders but having gone to trial they did not have the mitigating feature of a guilty plea.In R v Page CA 474/94 29 March 1995, a sentence of four years was eventually imposed in respect of an attack with a knife and other weapons, threats and stabbing which left the victim which facial scarring, fear of further attacks and separation from his partner.Page had previous convictions of serious violence, being aggravated wounding and aggravated assault as well as a record for burglary.

[14] In R v Brown CA 170/91 23 July 1991 the appellant had been found guilty after trial in respect of an assault with a full beer bottle with which he inflicted a skull wound and facial scarring to his victim.A sentence of five months imprisonment was imposed on an appeal by the Solicitor-General.

[15] In R v Alinizi CA 280/97 25 November 1997 the appellant had been found guilty on his trial of wounding with intent to cause grievous bodily harm.A sentence of four years imprisonment was reduced to three years on appeal.In that case the appellant attacked his daughter's boyfriend with a knife inflicting a back wound requiring a few stitches, a cut to one of the victim's fingers and other minor injuries.The sentencing Judge considered it mere chance that the injuries were not more serious because the appellant had taken the knife with him to the offices of the Children and Young Persons Service where he knew the victim would be and had attacked him ferociously, endeavouring to cause serious injury.The attack was characterised as premeditated and entirely unprovoked.Although less serious in its consequences, that outcome was fortuitous.

[16] In addition to the argument that the appeal is manifestly excessive, counsel for the appellant submits that this Court should review the sentence because the Judge failed to identify a starting point against which mitigating and aggravating features of the offending and the offender could be considered and failed to indicate what allowance was made for the timely guilty pleas.He submitted that the guilty pleas would in like circumstances ordinarily merit a significant discount measurable in practical terms.That submission echoes the observations made by this Court in R v Paul CA 68/84 1 March 1985, R v Orchard [1991] 1 NZLR 320, at 321 and R v Page, supra, that, where a reduction is to be made for a guilty plea, its extent will need to be measurable in practical terms.

[17] Counsel submitted that in addition to the guilty pleas there were other significantly mitigating factors such as the appellant's relatively young age at the time of the offence and the absence of previous relevant convictions as well as the extent of remorse.

[18] It was submitted that in failing to indicate a starting point and the amount of credit given for various mitigating features the appellant was deprived of certainty that he had in fact received appropriate credit.

Submissions for the Crown

[19] Ms Jelas noted the aggravating features of a potentially deadly weapon, deliberately and previously obtained, the seriousness of the injury to Mr Roberts and the general elements of premeditation indicated as well by the parking of the car in a get-away position.Appropriate recognition was given by counsel to the serious effects on the complainant.

[20] Ms Jelas also submitted that the absence of previous convictions for violence and the appellant's age were not significant considerations.The appellant was not very youthful and cannot claim to have been otherwise of good character.

[21] Counsel submitted that the sentence ultimately fell within the appropriate range indicated in R v Hereora.She observed that this Court noted in R v Manoharan CA 287/98 15 October 1998 to the effect that the sentences commonly imposed in England, as referred to in R v Hereora were actual sentences not starting points.

[22] Counsel distinguished the authorities relied on by the appellant by reference to the nature of the injuries which were relatively minor or far from life-threatening in cases such as Alinizi and Manh Toan Le and Truong Manh Le, or on the basis that there were differences in attendant circumstances including the personal circumstances of the offender.Counsel recognised that although the sentence was within an appropriate range it was at the higher end of that range and when questioned by the Court she acknowledged that three and-a-half years imprisonment would have been an appropriate sentence.

[23] Counsel submitted that although the sentencing Judge did not expressly state the amount of credit given for the guilty plea an appropriate credit would have been between six months and a year and credit was clearly given as the Judge specifically referred to that in the sentence which imposed the four years imprisonment.

Discussion

[24] The comparative assessment of sentences must always have regard to the subtleties of identification and weighing of relevant material which informs the sentence in any particular case.The references to bands rather than precise points in cases such as Hereora recognise that reality.And as this Court observed in R v Clotworthy (1998) 15 CRNZ 651 at 655:

Within which category an individual case falls, and where within the band applicable to that category, are matters of judgment depending on all the relevant circumstances of the case.While categories and bands are useful guides in the sentencing process, the question of what sentence is appropriate to the individual case is ultimately a matter of judgment on the basis of all the relevant factors.Care must be taken not to let categorisation result in too rigid or mathematical an approach.

[25] In the present case, however, although the Judge accepted the submissions of both counsel that the matter fell within the first category of Hereora, she gave no indication of where within that band her starting point might be.Since the aggravating features of the case were indications for adopting the higher end of the three-five year category, that the Judge took such a view may be inferred.Anything more than four years tends to the top end of the range so the starting point which the Judge had in mind cannot be ascertained with more precision than somewhere between four and five years.

[26] That leaves only to speculation the question of what reduction was given for all the mitigating factors, including but not limited to the appellant's surrender and subsequent guilty pleas.

[27] The courts have frequently explained the justification for acknowledging timely pleas of guilty with real and ascertainable reductions in the sentence that would otherwise be appropriate.The encouragement of early acknowledgements of guilt is very much in the interests of victims, tending to save them from the harrowing impact of the unavoidable delays of trial, the ordeal of giving evidence and the suspension of closure.Further, the prospects of rehabilitation of an offender are both encouraged by early acceptance of fault and expressions of remorse and, conversely, delayed by intransigent denial.From the point of view of the community there are savings in terms of cost and in convenience to the courts, the police and civilian witnesses.

[28] The judiciary, particularly trial Judges, are well aware that the court's recognition of timely pleas of guilty with palpable reductions in sentence is explained to offenders by their counsel and that appropriate pleas of guilty are often encouraged by offenders being informed of the law in this respect.

[29] Offenders are entitled to expect a transparent articulation of the impact of significantly mitigating as well as significantly aggravating factors of their offending.

[30] Thus for sound reasons of policy in respect of sentencing and to ensure the just treatment of offenders Judges should, when sentencing, give an adequate explanation of their reasons.It is regrettable that in the present case the structure of the sentence is obscure.

[31] Because the sentence seems very much on the high side in the result and because the reasons for sentence identify neither a starting point within the relevant category of Hereora nor the amount deducted for the significantly mitigating factor of the early guilty plea, we have to conclude either that the starting point must have been too high or the discount too low or both.On an assumption that the starting point was five years the discount for mitigating factors such as the guilty plea would therefore be a year.Such a discount is in our view inadequate.If the starting point were less than five years credit given for the guilty plea must have been correspondingly less and still inadequate.

[32] In our view, only if the sentence of four years imprisonment were quashed and a sentence of three and-a-half years imprisonment substituted would it be reasonably manifest that appropriate recognition had been given to the mitigating factors.In taking this approach we are assuming a starting point approaching five years imprisonment and then making an adequate allowance for the truly mitigating features.

Result

[33] For the above reasons the appeal against sentence is allowed.The sentence of four years imprisonment is quashed and a sentence of three and-a-half years imprisonment is substituted.

Solicitors

Crown Law Office, Wellington for Crown