The Queen v Afoa [2007] NZCA 362 (24 August 2007)

Court of Appeal of New Zealand

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The Queen v Afoa [2007] NZCA 362 (24 August 2007)

Last Updated: 29 August 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA224/07 [2007] NZCA 362THE QUEEN

v

ALAPATI AFOA

Hearing: 20 August 2007

Court: Chambers, Randerson and John Hansen JJ

Counsel: M W Ryan for Appellant
H D M Lawry for Crown

Judgment: 24 August 2007 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by John Hansen J)

[1] In August 2002 Mr Alapati Afoa, with an associate, smashed glass panels and entered a tavern in Auckland. This was during business hours. An unsuccessful attempt was made to remove the safe. The burglars left, taking a digital camera, an EFTPOS card and a driver’s licence.
[2] On 2 May 2005 in the early hours of the morning the appellant, with two other associates, entered a Video Ezy premises in Auckland. They removed two safes. They drove to South Auckland where they opened the safes and removed $1260 in cash and a book of Instant Kiwi tickets.
[3] On 26 February 2006 the appellant attempted to force open the rear doors of another commercial building in Auckland. He was disturbed by a member of the public and fled.
[4] On 9 March 2006 the police attended the appellant’s home address in an attempt to locate an instrument used in the attempted burglary. The appellant arrived, and his car was searched. A jemmy bar, four live shotgun cartridges and 4.2 grams of methamphetamine were found. As a result he was arrested and charged. Ultimately the appellant pleaded guilty to two charges of burglary, one of attempted burglary, one of possession of explosives and one of possession of a class A drug.
[5] The appellant is 28 years old. He has 58 previous convictions, including 19 for burglary. A number of his other convictions relate to dishonesty offences.
[6] Judge Gittos took a starting point of three and a half years’ imprisonment, which the appellant does not challenge. The Judge allowed a discount of nine months (21 per cent) for mitigating factors of which the only material ones were the guilty pleas. That resulted in an effective term of two years and nine months’ imprisonment. The appellant appeals against his sentence, saying it is manifestly excessive because the Judge failed to make sufficient allowance for his guilty plea and the mitigating factor that he had turned his life around.
[7] We disagree. First, : the appellant pleaded guilty after depositions and an unsuccessful challenge to the admissibility of evidence. The lateness of the guilty plea can be clearly seen when the relevant dates are set out. In relation to the two burglaries, the appellant first appeared in court on 29 September 2005. Depositions were in April 2006, and his guilty plea was only entered on 30 January 2007. In relation to the other three offences, he first appeared on 10 March 2006. Depositions were on 1 June 2006. He only pleaded guilty on 5 December 2006.
[8] In the absence of a guideline judgment, this Court has regularly approved discounts for guilty pleas of between 10 and 33 per cent. The level of discount reflects the stage at which the guilty plea is entered. It requires a very early guilty plea to attract a discount of 33 per cent. The later the plea, the smaller the discount: see R v Fonotia [2007] NZCA 188 at [50]; R v Suttie [2007] NZCA 201 at [21]; and R v Proctor [2007] NZCA 289 at [27]. This approach is consistent with both the United Kingdom and New South Wales sentencing guidelines. Given the lateness of the plea in this case, the allowance made was clearly within the range available to the sentencing judge.
[9] The appellant secondly submits the Judge failed to give sufficient allowance for his efforts in turning his life around. In particular he relied on references from a priest, a kickboxing trainer and two employers. He said the Judge was not entitled to view his efforts with scepticism.
[10] In our view the Judge was correct to do so. It is clear from a reading of the pre-sentence reports that the probation officers treated the appellant’s claims with significant caution. The Judge did no more than reflect that caution in his sentencing notes. The period when it was said the appellant was turning his life around could only be after his release on bail on 29 September 2005. Yet while on bail he offended further: he committed two serious burglaries of commercial premises. The Judge was right to treat this factor with scepticism and afford it no weight.
[11] The appellant was treated leniently. The appeal is without merit. It is dismissed.

Solicitors:
Haigh Lyon, Auckland, for Appellant
Crown Law Office, Wellington