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Lo-Tam v R [2005] NZCA 245 (20 October 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA214/05

THE QUEEN

v

IZRAEL KEITA LO-TAM

Hearing: 17 October 2005

Court: Chambers, Potter and Doogue JJ

Counsel: M N Pecotic for Appellant
M D Downs for Crown

Judgment: 20 October 2005

JUDGMENT OF THE COURT

A Leave to appeal out of time is granted.

B The appeal against sentence is allowed. The effective sentence is reduced to 5 years imprisonment by quashing the sentence of 2 years imprisonment on CRN 4004036423 and substituting a sentence of 1 year and 6 months imprisonment.

REASONS

(Given by Doogue J)

Introduction

[1] Izrael Keita Lo-Tam applies for leave to appeal against an effective sentence of five and a half years imprisonment imposed upon him in the District Court at Auckland on 11 February 2005. The Crown takes no objection to the application for leave to appeal out of time as the appellant had earlier appealed in error to the High Court. Leave is therefore given to bring the appeal out of time.
[2] The appeal is brought upon the basis that the sentence imposed was wrong in law and in principle and is manifestly excessive.
[3] The respondent accepts that in one respect the sentencing Judge wrongly categorised the nature of the offence for which he was sentencing the appellant but otherwise opposes the appeal.

Background

[4] The appellant pleaded guilty to two offences of injuring with intent to injure and one of injuring with intent to cause grievous bodily harm. Those offences were committed against young women in the first half of 2004. Judge Kerr in the District Court correctly identified those offences and summarised the details of them from the undisputed material before him in the following manner:

[2] On 28 March, [Victim A, a 36-year-old woman,] was walking on Williamson Avenue, Grey Lynn, at 6.45 am. You were walking towards her. You then punched her on the right side of her face with a closed fist causing her to fall heavily onto the ground. She suffered a lacerated face, bleeding nose and gums, and a bruised and swollen lower back. She also suffered delayed concussion. Her injuries required medical treatment.
[3] At 6.00 am on 29 April, [Victim B, a 55-year-old woman,] was walking on Richmond Road. You were walking towards her. You punched her to the left side of her head a number of times. She lost consciousness, fell to the ground, she suffered a fractured nose, two broken ribs, concussion, lacerations, severe swelling and bruising including two black eyes. She was admitted to hospital.
[4] On 20 May 2004 at 6.45 am, [Victim C, a 29-year-old woman,] was running on Richmond Road. You were walking towards her. You hit her on the head causing her to lose consciousness. She was admitted to hospital with bruising to the back of her head, concussion, severe swelling and bruising.
[5] [Victim A] has suffered short-term memory loss with inability to remember detail. She has had to take anti-anxiety pills for sometimes fearing being in public places. She has had to attend a psychologist and have time of [off] work. She suffers a lump to her cheek which might require surgery. She still feels very vulnerable in public.
[6] [Victim B] has suffered bad headaches from the concussion, has ringing in her ears, and her hearing has been affected. Her nose is crooked. She has had to undergo physiotherapy. She has lost concentration. She had no social life for five months and she is out of pocket some $600 because of various expenses, as well as losing three weeks off work.
[7] [Victim C] received a hole in her scalp requiring stitches and a fractured jaw. She was in a state of shock. She had to take painkillers. She had difficulty in carrying out her work and was only able to work part time for three months after the assault. She is out of pocket some $300.

[5] The appellant was born 27 January 1984. He is a powerfully built man weighing approximately 110 kilograms. He has one previous conviction for an offence of violence. He was convicted and sentenced to 100 hours community work and ordered to make reparation of some $1,263 on 22 April 2004 in respect of a common assault committed on 17 December 2002. The offence against Victim A was while he was on bail in respect of the earlier offence. The offences against Victims B and C were while he was serving his sentence for the earlier offence.
[6] At the time of sentencing Judge Kerr had before him a pre-sentence report, two relevant reports from a consultant psychiatrist and a senior psychologist, the undisputed summary of facts and victim impact reports.
[7] At the time of the offending the appellant was employed. However, it appears that he had an unstable lifestyle. He reported to the probation officer and the senior psychologist that all the offending followed binge drinking on the nights prior to the offences but these reports are slightly at variance with that of the consultant psychiatrist who noted that the offending did not occur in the context of any mental illness or drug and alcohol abuse.
[8] The pre-sentence report assessed the appellant’s motivation to change as no better than medium and his risk of re-offending as high unless he stopped drinking alcohol and received psychological help for what the appellant described as an "anger problem". The senior psychologist’s report noted a general willingness by the appellant to undergo any treatment deemed necessary to address his risk of re-offending which was considered moderate to high. The senior psychologist further noted that the appellant’s offending continued in a consistent manner despite his awareness of his earlier offending.

Sentencing remarks

[9] Judge Kerr in sentencing the appellant referred to the reports and submissions before him and the relevant provisions of ss 7, 8 and 9 of the Sentencing Act 2002. He accepted that at the time when the offending occurred, the appellant was at a low ebb, being depressed because of his lack of self-esteem and because of what was happening in his home. He noted, however, that the appellant had to be held accountable for the harm done to the victims and the community by his offending. He noted that the appellant constituted a danger to the public and that the public needed to be protected. He said that the appellant’s conduct had to be denounced and he had to be deterred from further offending. He also took into account, however, the appellant’s rehabilitation and reintegration into the community.
[10] The Judge went on to consider the relevant aspects of s 8 of the Sentencing Act. He noted that the offending was particularly serious because of the three separate offences. He then noted that the maximum penalty for the first offence was five years imprisonment and for the other two offences was seven years imprisonment. However, it is common ground that the maximum penalty was five years imprisonment for the two injuring with intent to injure offences and seven years for causing grievous bodily harm with intent to injure. The error is understandable given that there is an error in the information relating to the third offence in that it referred to the wrong section of the Crimes Act. The Judge then said:

I have to impose the maximum, or near the maximum sentence, but also have to be consistent with sentences for similar offending. Quite clearly, each victim suffered considerably.

[11] The Judge then said:

[10] Under s 9 in aggravation, the attacks were unprovoked and took place on unsuspecting members of the public. The offences involved actual serious violence. You were on bail when one of the offences occurred and, subject to community work when two of the offences occurred. The extent of the damage caused to the victims has already been discussed. What you did to each victim shows considerable cruelty. The victims were vulnerable, being women by themselves in early morning exercise. What you did also suggests some planning but it may well be, as Ms Pecotic submits, that the assaults were spontaneous and you didn’t make any plan in doing what you did.
[11] In mitigation though you are now, I think, 21; the offences occurring when you were 19 or thereabouts. I do not at all suggest that you have tried to delay the ending of this particular affair. You are a first offender as far as the three offences are concerned. You pleaded Guilty and that shows remorse, as indeed does the letters which you have written to each of the victims and the letter which you have written to me. And I have also taken into account the letter from your parents.
[12] You do have anger problems and psychological problems and counselling for those would be of benefit to you. You have previously been a first-rate sportsman but, regrettably, your behaviour has now put your sporting career in the rugby league field to an end. You have a very supporting family and you’re obviously embarrassed for what you did. I have to consider the totality of the offending, but it does seem to me that each of the events should be treated separately.

[12] The Judge then took a starting point of two and a half years for the assault on Victim 1 and reduced that to 18 months imprisonment. In respect of the offences involving the other two complainants he took a starting point of three years imprisonment and sentenced the appellant to two years on each. The effective sentence was the five and a half years imprisonment under appeal, with that sentence being achieved through the three cumulative sentences, one of 18 months and two of two years imprisonment.

The appeal

[13] As has already been noted it is common ground that the Judge erred in treating one of the offences as carrying a maximum penalty of seven years imprisonment when it should have been five years imprisonment. We need say no more about that at this stage.
[14] The appellant further relies upon the sentencing Judge sentencing him cumulatively in respect of the three offences and submits that they should have been treated as concurrent offences. It is unnecessary for us to traverse this argument in detail. The essential issue, as the Judge recognised, is the appropriate total sentence for the three offences. Ultimately it matters little as to how, in a case such as the present, the sentence is structured. It was certainly open to the Judge in this case to impose cumulative sentences given the separation in time between the offences and the fact that there were three separate, unrelated complainants.
[15] The appellant also takes issue with the statement by the Judge that he had to impose the maximum or near the maximum sentence. We think in context all the Judge must have meant by that was that his sentence had to be close to seven years imprisonment. The actual maximum was, of course, 17 years imprisonment, and what he imposed was nowhere near that.
[16] It is further submitted that the sentence imposed is not conducive to rehabilitation or reintegration into the community. It is submitted in addition that the Judge failed to take into account or give proper consideration to the appellant’s plea of guilty and remorse and co-operation with the Police. However, the Judge did in fact take into account all those matters as well as the appellant’s strong family support and his absence of previous offending apart from the one earlier assault offence.
[17] It is also submitted for the appellant that the sentence of imprisonment gives no room for rehabilitation and is crushingly long. It is submitted that the motivation and willingness of the appellant to address his anger, alcohol and psychological issues could well dissipate by the time he is released.
[18] Counsel for the appellant has referred to a number of other sentencing cases but none of them give any particular assistance in respect of this case, where there are three serious manual assaults on complete strangers within the course of a three month period. At the most they indicate that serious manual assaults can result in sentences of the order of four years imprisonment: see Nuku v Police HC WANG AP5/97 22 April 1997; Waiomio v Police HC AK A95/01 7 August 2001 and R v Sesega CA12/02 25 March 2002.
[19] It is submitted for the appellant that the ultimate sentence imposed was out of all proportion to the gravity of the offending and that the particular circumstances of the cases would have warranted a sentence that incorporated the rehabilitative element.

The Crown’s response

[20] The respondent accepts the sentence is severe. However the Crown submits that the appellant fell to be sentenced for three separate and serious violent assaults of women for reasons that remain unclear beyond some violent disposition on the part of the appellant.
[21] It is submitted for the respondent that the concurrence of factors in respect of the three offence indicate a level of targeting on the appellant’s part. It is accepted that no permanent physical damage was inflicted by the appellant and nor did he use weapons. However, he was clearly stronger than his victims and on each occasion must have employed considerable force and that there are and must be long-term psychological consequences for his victims. In addition there are the aggravating features that the offences were committed while the appellant was on bail or serving a sentence for the earlier offending, the serial nature of the offending and that the appellant is likely to re-offend again.
[22] It is accordingly submitted that this offending, given its nature and frequency, obliged the Judge to place emphasis upon deterrence and protection of the public. Further, having regard to s 7(1)(g) Sentencing Act 2002, the Judge was entitled to extend an otherwise available term of imprisonment: R v Ward [1976] 1 NZLR 588. Upon that analysis rehabilitation and the least restrictive outcome principle had, it is submitted, little traction. It is submitted the level of risk of violent re-offending by the appellant assessed by the probation officer and the senior psychologist underscored this proposition.
[23] The Crown accordingly submits that the term of imprisonment imposed ought to be amended only to the extent of correcting the apparent error on the part of the Judge in his categorisation of the offences and that this should result in a modest reduction only to the ultimate sentence.

Discussion

[24] Overall the sentencing Judge took a starting point of eight and a half years imprisonment, inclusive of the aggravating circumstances, reduced by an allowance of three years for the appellant’s pleas of guilty, remorse and other mitigating circumstances. However, in reaching that approach he treated one of the offences as having a maximum term of seven years imprisonment when the true position, as already noted, was that it carried a maximum term of five years imprisonment. If it was simply a matter of correcting that then, using the Judge’s approach, we would have taken a starting point of eight years imprisonment and imposed a sentence of five years imprisonment. However, given the error in his approach we think it preferable in the circumstances of this case to look afresh at the appropriate effective sentence for the totality of the offending.
[25] The appellant was guilty of three acts of violence against three different unknown females in a three month period. Each of the offences standing by themselves would but for aggravating and mitigating circumstances, have justified a sentence of the order of up to four years imprisonment.
[26] The aggravating circumstances cannot be ignored. Not only has the appellant been guilty of a previous offence of violence but also these offences were committed during the sentencing process for that offence. There were the three offences, with the appellant continuing to offend notwithstanding his awareness of the consequences for his victims. There was a pattern to his victims, which indicated that innocent defenceless females were targeted. The appellant is assessed at being at a moderate to high risk of re-offending. These factors alone justify an increase to the overall starting point that might otherwise have been appropriate.
[27] Approached in this way we consider that it was inevitable that a starting point for the totality of the offending, inclusive of the aggravating circumstances of the offending, of about eight years imprisonment would be arrived at.
[28] The primary mitigating circumstances of the appellant’s early pleas of guilty, remorse and co-operation with the police would have justified a discount of the sentence that could otherwise have been imposed of one-third: say, three years.
[29] Coincidentally the resultant effective five-year sentence equates with the figure resulting from a simple correction of the sentencing Judge’s figures. The appellant must consider himself lucky to achieve that outcome, which is solely a consequence of a technical error in the charging and the sentencing.
[30] We would note for the assistance of the prison and parole authorities that the appellant is badly in need of help for his alcohol abuse and his dangerous predilection for violence.

Decision

[31] The appeal is allowed. It is appropriate that the cumulative sentence approach of the Judge be retained. The effective sentence of five years imprisonment is achieved by quashing the sentence of two years imprisonment on CRN 4004036423 and substituting a sentence of one year and six months imprisonment. In all other respects the sentence under appeal stands.

Solicitors:
Crown Law Office, Wellington

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[1]	Izrael Keita Lo-Tam applies for leave to appeal against an effective sentence of five and a half years imprisonment imposed upon him in the District Court at Auckland on 11 February 2005. The Crown takes no objection to the application for leave to appeal out of time as the appellant had earlier appealed in error to the High Court. Leave is therefore given to bring the appeal out of time.
[2]	The appeal is brought upon the basis that the sentence imposed was wrong in law and in principle and is manifestly excessive.
[3]	The respondent accepts that in one respect the sentencing Judge wrongly categorised the nature of the offence for which he was sentencing the appellant but otherwise opposes the appeal.

[5]	The appellant was born 27 January 1984. He is a powerfully built man weighing approximately 110 kilograms. He has one previous conviction for an offence of violence. He was convicted and sentenced to 100 hours community work and ordered to make reparation of some $1,263 on 22 April 2004 in respect of a common assault committed on 17 December 2002. The offence against Victim A was while he was on bail in respect of the earlier offence. The offences against Victims B and C were while he was serving his sentence for the earlier offence.
[6]	At the time of sentencing Judge Kerr had before him a pre-sentence report, two relevant reports from a consultant psychiatrist and a senior psychologist, the undisputed summary of facts and victim impact reports.
[7]	At the time of the offending the appellant was employed. However, it appears that he had an unstable lifestyle. He reported to the probation officer and the senior psychologist that all the offending followed binge drinking on the nights prior to the offences but these reports are slightly at variance with that of the consultant psychiatrist who noted that the offending did not occur in the context of any mental illness or drug and alcohol abuse.
[8]	The pre-sentence report assessed the appellant’s motivation to change as no better than medium and his risk of re-offending as high unless he stopped drinking alcohol and received psychological help for what the appellant described as an "anger problem". The senior psychologist’s report noted a general willingness by the appellant to undergo any treatment deemed necessary to address his risk of re-offending which was considered moderate to high. The senior psychologist further noted that the appellant’s offending continued in a consistent manner despite his awareness of his earlier offending.

[13]	As has already been noted it is common ground that the Judge erred in treating one of the offences as carrying a maximum penalty of seven years imprisonment when it should have been five years imprisonment. We need say no more about that at this stage.
[14]	The appellant further relies upon the sentencing Judge sentencing him cumulatively in respect of the three offences and submits that they should have been treated as concurrent offences. It is unnecessary for us to traverse this argument in detail. The essential issue, as the Judge recognised, is the appropriate total sentence for the three offences. Ultimately it matters little as to how, in a case such as the present, the sentence is structured. It was certainly open to the Judge in this case to impose cumulative sentences given the separation in time between the offences and the fact that there were three separate, unrelated complainants.
[15]	The appellant also takes issue with the statement by the Judge that he had to impose the maximum or near the maximum sentence. We think in context all the Judge must have meant by that was that his sentence had to be close to seven years imprisonment. The actual maximum was, of course, 17 years imprisonment, and what he imposed was nowhere near that.
[16]	It is further submitted that the sentence imposed is not conducive to rehabilitation or reintegration into the community. It is submitted in addition that the Judge failed to take into account or give proper consideration to the appellant’s plea of guilty and remorse and co-operation with the Police. However, the Judge did in fact take into account all those matters as well as the appellant’s strong family support and his absence of previous offending apart from the one earlier assault offence.
[17]	It is also submitted for the appellant that the sentence of imprisonment gives no room for rehabilitation and is crushingly long. It is submitted that the motivation and willingness of the appellant to address his anger, alcohol and psychological issues could well dissipate by the time he is released.
[18]	Counsel for the appellant has referred to a number of other sentencing cases but none of them give any particular assistance in respect of this case, where there are three serious manual assaults on complete strangers within the course of a three month period. At the most they indicate that serious manual assaults can result in sentences of the order of four years imprisonment: see Nuku v Police HC WANG AP5/97 22 April 1997; Waiomio v Police HC AK A95/01 7 August 2001 and R v Sesega CA12/02 25 March 2002.
[19]	It is submitted for the appellant that the ultimate sentence imposed was out of all proportion to the gravity of the offending and that the particular circumstances of the cases would have warranted a sentence that incorporated the rehabilitative element.

[20]	The respondent accepts the sentence is severe. However the Crown submits that the appellant fell to be sentenced for three separate and serious violent assaults of women for reasons that remain unclear beyond some violent disposition on the part of the appellant.
[21]	It is submitted for the respondent that the concurrence of factors in respect of the three offence indicate a level of targeting on the appellant’s part. It is accepted that no permanent physical damage was inflicted by the appellant and nor did he use weapons. However, he was clearly stronger than his victims and on each occasion must have employed considerable force and that there are and must be long-term psychological consequences for his victims. In addition there are the aggravating features that the offences were committed while the appellant was on bail or serving a sentence for the earlier offending, the serial nature of the offending and that the appellant is likely to re-offend again.
[22]	It is accordingly submitted that this offending, given its nature and frequency, obliged the Judge to place emphasis upon deterrence and protection of the public. Further, having regard to s 7(1)(g) Sentencing Act 2002, the Judge was entitled to extend an otherwise available term of imprisonment: R v Ward [1976] 1 NZLR 588. Upon that analysis rehabilitation and the least restrictive outcome principle had, it is submitted, little traction. It is submitted the level of risk of violent re-offending by the appellant assessed by the probation officer and the senior psychologist underscored this proposition.
[23]	The Crown accordingly submits that the term of imprisonment imposed ought to be amended only to the extent of correcting the apparent error on the part of the Judge in his categorisation of the offences and that this should result in a modest reduction only to the ultimate sentence.

[24]	Overall the sentencing Judge took a starting point of eight and a half years imprisonment, inclusive of the aggravating circumstances, reduced by an allowance of three years for the appellant’s pleas of guilty, remorse and other mitigating circumstances. However, in reaching that approach he treated one of the offences as having a maximum term of seven years imprisonment when the true position, as already noted, was that it carried a maximum term of five years imprisonment. If it was simply a matter of correcting that then, using the Judge’s approach, we would have taken a starting point of eight years imprisonment and imposed a sentence of five years imprisonment. However, given the error in his approach we think it preferable in the circumstances of this case to look afresh at the appropriate effective sentence for the totality of the offending.
[25]	The appellant was guilty of three acts of violence against three different unknown females in a three month period. Each of the offences standing by themselves would but for aggravating and mitigating circumstances, have justified a sentence of the order of up to four years imprisonment.
[26]	The aggravating circumstances cannot be ignored. Not only has the appellant been guilty of a previous offence of violence but also these offences were committed during the sentencing process for that offence. There were the three offences, with the appellant continuing to offend notwithstanding his awareness of the consequences for his victims. There was a pattern to his victims, which indicated that innocent defenceless females were targeted. The appellant is assessed at being at a moderate to high risk of re-offending. These factors alone justify an increase to the overall starting point that might otherwise have been appropriate.
[27]	Approached in this way we consider that it was inevitable that a starting point for the totality of the offending, inclusive of the aggravating circumstances of the offending, of about eight years imprisonment would be arrived at.
[28]	The primary mitigating circumstances of the appellant’s early pleas of guilty, remorse and co-operation with the police would have justified a discount of the sentence that could otherwise have been imposed of one-third: say, three years.
[29]	Coincidentally the resultant effective five-year sentence equates with the figure resulting from a simple correction of the sentencing Judge’s figures. The appellant must consider himself lucky to achieve that outcome, which is solely a consequence of a technical error in the charging and the sentencing.
[30]	We would note for the assistance of the prison and parole authorities that the appellant is badly in need of help for his alcohol abuse and his dangerous predilection for violence.