The Queen v Gatoloai and Anor [2007] NZCA 319 (27 July 2007)

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The Queen v Gatoloai and Anor [2007] NZCA 319 (27 July 2007)

Last Updated: 4 June 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA138/07
CA139/07

[2007] NZCA 319

THE QUEEN

LUKA GATOLOAI ALOFA ETEUATI

Hearing:
Court:
Counsel:

18 July 2007
Arnold, Potter and Venning JJ
I Sapolu for Appellant Gatoloai
J Fuimaono-Sapolu for Appellant Eteuati
M T Davies for Crown

Judgment: 27 July 2007 at 3.30 pm

JUDGMENT OF THE COURT

A The appeals are allowed.

B In each case the sentence of four years' imprisonment is quashed and replaced with a sentence of three years six months' imprisonment.

REASONS OF THE COURT

(Given by Venning J)

R V LUKA GATOLOAI And Anor CA CA138/07 [27 July 2007]

Introduction

[1] The appellants pleaded guilty to one charge each of wounding with intent to cause grievous bodily harm. On 13 March 2007 in the District Court at Manukau Judge Epati sentenced them both to four years' imprisonment. They appeal their sentences.

Background to the offending

[2] During the evening of 19 February 2006 the appellants, together with an associate Mr Ti'i, were socialising together. At 2am the next morning they were dropped off at a petrol station. Mr Ti'i became involved in an altercation with the victim who had been walking past the petrol station. The victim ran away. Mr Ti'i and the appellants chased him.

[3] The appellant Mr Gatoloai punched the victim in the back of the head causing him to fall to the ground. The appellants and Mr Ti'i then began kicking and stomping on the victim's head with their heels. After about a minute the appellants walked away. Mr Ti'i returned and stomped on the victim's head twice more.

[4] As a result of the incident the victim required hospital treatment. He suffered extensive swelling to his head, a broken nose and cuts above and below his right eye.

Background to sentencing

[5] Mr Ti'i was aged 37 and had a number of previous convictions. He pleaded guilty at an early stage and was sentenced to imprisonment for five years.

[6] The appellants initially pleaded not guilty. Later they sought a sentencing indication. On 7 December 2006 Judge Epati heard submissions and gave an indication of a start point of five years' imprisonment with a final sentence of three to three and a half years' imprisonment. The appellants were remanded to call-over

on 25 January 2007 to enable them to consider their position. Crown counsel's notes indicate that the sentence indication was left open until that date.

[7] On 25 January 2007 the appellants entered guilty pleas and were remanded to 27 February 2007 for sentence.

[8] The sentencing was adjourned from 27 February to 13 March 2007 as counsel did not appear. On 13 March 2007 Judge Epati imposed sentences of four years imprisonment.

The sentences imposed in the District Court

[9] Judge Epati noted that the co-accused Mr Ti'i had pleaded guilty at an early stage and had been sentenced to imprisonment for a term of five years by Judge McAuslan. Judge Epati took five years as a start point for sentencing the appellants. The Judge then expressed some concern that Mr Gatoloai and his family had attended the victim's home to express their apology (Ifoga) in breach of a bail condition and without the prior approval of the victim or his family. Judge Epati then said he took into account the lack of previous convictions and the pleas of guilty before imposing the sentence of four years' imprisonment on both appellants.

[10] Judge Epati accepted that he had earlier given a sentence indication of three to three and a half years on 7 December 2006 but did not consider he was bound by that sentence indication because, in his view, the appellants had declined it.

Appellants' submissions

[11] The appellants submitted the sentence of four years' imprisonment was manifestly excessive for the following reasons:

(a) the sentence was inconsistent with the indication given by Judge Epati;

(b) the Judge did not refer to and apparently did not give any weight to
the pre-sentence reports; and
(c) the discount for mitigating factors was insufficient and minimal.
Respondent's submissions

[12] Mr Davies submitted that:

(a) even if the Judge did depart from the earlier sentence indication the
departure was not so great as to give rise to a miscarriage of justice;
(b) Judge Epati was not bound to accept and apply the findings and
recommendations in the pre-sentence reports; and
(c) the sentences imposed were close to the minimum appropriate having
regard to the circumstances of the offending and the offenders.

[13] In the alternative, in the event the sentences were considered to be in excess of the sentencing indication so that a miscarriage of justice arises Mr Davies submitted the appeal should be regarded as an appeal against conviction and the matter remitted back to the District Court for further consideration.

Decision

[14] The difficulties that can arise from providing sentence indications otherwise than in accordance with the guidelines provided in the District Court Bench Book have been commented on in a number of cases: R v Edwards [2000] NZCA 102; (2000) 17 CRNZ 604 (CA); R v Gemmell [2000] 1 NZLR 695 (CA); R v Edwards [2006] 3 NZLR 180 (CA) and [2006] NZSC 52 ("Edwards and Sipa").

[15] In this case, as in the decisions referred to above, the process has gone awry. The Crown record of the hearing on 7 December 2006 was:

Sentence Indication - starting point 5 years final sentence 3-3^ years -Eteuati - BTC Callover 25/1/07 Gatoloai - BTC Callover 25/1/07 Sentence indication left open until 25/1/07

[16] The record confirms the appellants' contention that the Judge left the sentence indication open until 25 January 2007. On 25 January 2007 when the matter came before Judge Johns the appellants entered guilty pleas. On the basis of the Crown's notes from 7 December 2006 the appellants entered the guilty pleas whilst the sentence indication was still open to them. In terms of the District Court Bench Book advice on sentence indications the Judge was bound by the sentence indication. Judge Epati was in error when he proceeded to sentence the appellants on the basis they had declined the sentence indication.

[17] It also seems that, contrary to the District Court Bench Book guidelines, the Judge had given the sentence indication without having the victim impact reports available to him.

[18] This Court has considered appeals arising from sentence indications on a number of occasions. The case of Edwards and Sipa involved a Solicitor-General appeal. In such a case, where the guilty pleas have been entered on the basis of the sentence indication, it is appropriate, as the Supreme Court observed, for the respondents to confirm they relied on the sentence indication in pleading guilty, and, that if the Court on appeal considers the sentence should be increased, they seek to have the conviction quashed and the matter remitted to the sentencing Court for the plea to be vacated and a not guilty plea entered.

[19] In R v Gemmell the Court considered an appeal where the difference between the sentence indication and the sentence imposed was so great that it was a miscarriage of justice to induce the guilty plea with the indication and then impose the sentence without offering the appellant the right to seek leave to set aside the guilty plea. The appeal was allowed and the conviction set aside with the matter remitted to the District Court for the appellant to plead again. In R v Edwards the Court followed the same process.

[20] Despite the authorities referred to, both counsel for the appellants submitted that if the appeals were to be allowed, then rather than refer the matter back to the District Court for the appellants to reconsider their pleas, this Court should allow the appeal and impose an appropriate sentence. It was implicit in the submission that both appellants would maintain their guilty pleas in any event. Mr Davies was prepared to acknowledge the practical advantage, in this case, of dealing with the matter in this Court, although he submitted that the end sentence of four years could not, in any event, be said to be manifestly excessive.

[21] In the particular circumstances of this case, and given the stance adopted by counsel for the appellants we feel able to deal with this appeal by quashing the sentence imposed by Judge Epati and imposing the appropriate sentence. Quite apart from the sentence indication, we are satisfied that in the circumstances of this case the Judge erred in principle so that the sentences imposed were manifestly excessive.

[22] We accept the Judge was right to adopt the starting point of five years for the appellants' role in this offending. This was a case of an impulsive street attack, not involving weapons, but involving a number of attackers against a single victim with blows to the head. The bodily harm, whilst serious, has not had a lasting effect on the victim. The start point sits at the top of band one or the bottom of band two from R v Taueki [2005] 3 NZLR 372 (CA).

[23] It is necessary to deal with the difference between the sentence imposed on Mr Ti'i and the sentence imposed on these appellants. In arriving at a sentence of five years' imprisonment for Mr Ti'i, Judge McAuslan must have taken a start point of approximately six years. The position of these appellants can be distinguished from that of Mr Ti'i. Mr Ti'i's involvement in the attack was more extensive than the appellants'. After the appellants had ceased the attack Mr Ti'i returned and stomped on the victim's head twice more. It also seems that Mr Ti'i, a much older man than the appellants, initiated the altercation with the victim. Those factors would justify a higher start point for Mr Ti'i. Next, although Mr Ti'i pleaded guilty early, he had previous convictions which would have reduced the mitigating factors available to him.

[24] There is, however, no basis upon which to distinguish between these two appellants either in relation to their involvement in the offending or in relation to their mitigating factors. Counsel did not seek to make any distinction.

[25] The mitigating factors were the guilty pleas (which were not made at the earliest opportunity), the appellants' youth (19 and 21 at the time of offending), their prospects of rehabilitation noted in the pre-sentence reports (including the steps taken by Mr Gatoloai to address his violence issues) and the remorse that both expressed in the course of their interviews for the pre-sentence reports (confirmed in Mr Gatoloai's attendance at the Ifoga). They are also entitled to a credit for their lack of previous convictions.

[26] While the Judge referred to the lack of previous convictions and the guilty pleas he failed to refer to the young age of the offenders and the prospects of rehabilitation as noted in the pre-sentence reports. In particular, we note that the report writers assessed the appellants' risk of re-offending as being low. By failing to refer to those factors as is required by s 9(2) of the Sentencing Act 2002, the Judge erred in principle.

[27] The mitigating factors are particularly relevant to the appropriate final sentence for these appellants. A deduction of 30 per cent in total was required to take account of the guilty pleas and the other mitigating factors in this case. That leads to a final sentence of three years six months.

Result

[28] The Judge erred in principle by both failing to sentence in accordance with the sentence indication and by failing to take account of all relevant mitigating factors. The end result is that in the circumstances of this case the sentence imposed is manifestly excessive. The appeal is allowed. In the case of both appellants the sentence of four years' imprisonment is quashed and replaced with a sentence of three years six months' imprisonment.

Solicitors:
Sapolu Law, Auckland
Crown Law Office, Wellington