R v Isaaka [2010] NZCA 276 (30 June 2010)

Last Updated: 7 July 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA751/2009 [2010] NZCA 276

BETWEEN THE QUEEN
Appellant

AND LEWIS WARREN ISAAKA
Respondent

CA706/2009

AND BETWEEN LEWIS WARREN ISAAKA
Appellant

AND THE QUEEN
Respondent

Hearing: 21 April 2010

Court: Glazebrook, Winkelmann and Venning JJ

Counsel: K A L Bicknell for Appellant
Q Duff for Respondent

Judgment: 30 June 2010 at 3.30 pm

JUDGMENT OF THE COURT

1. Leave to appeal sentence is granted to the Solicitor-General, but the appeal is dismissed.
2. Mr Isaaka’s application for an extension of time in which to appeal is granted but the appeal against sentence is dismissed.

____________________________________________________________________

REASONS

Winkelmann and Venning JJ [1]
Glazebrook J (dissenting in part) [40]

WINKELMANN AND VENNING JJ

(Given by Winkelmann J)

[1] Following a jury trial, Mr Isaaka was found guilty of kidnapping and driving with excess blood alcohol causing injury. He was sentenced by Judge McAuslan to five years imprisonment, the Judge declining to impose a minimum period of imprisonment. The Solicitor-General now seeks leave to appeal Judge McAuslan’s decision not to impose a minimum period of imprisonment on Mr Isaaka on the grounds that she failed to apply the test provided in s 86 of the Sentencing Act 2002.
[2] Mr Isaaka cross-appeals the sentence but on the grounds that the factual basis upon which the Judge sentenced was incorrect and inconsistent with the jury verdict. He also appeals on the alternative ground that the sentence was manifestly excessive because it was out of step with sentences for comparable offending, and failed to allow adequate discount for mitigating factors. Mr Isaaka’s appeal was brought approximately three weeks beyond the 28 day time limit for appeal. Mr Isaaka has provided an explanation for the delay and the Crown does not object to the extension of time. An extension of time to appeal is granted to Mr Isaaka.
[3] Leave to appeal sentence is granted, without opposition, to the Solicitor-General.

Background

[4] In December 2008, Mr Isaaka and the victim, his former de-factor partner, drove in her car from Palmerston North to visit Mr Isaaka’s brother in Manurewa. At the time Mr Isaaka was disqualified from driving, a sentence imposed after his plea of guilty to a charge of dangerous driving in 2007. He had also just been released from prison after serving a sentence of one year of imprisonment for assaulting and threatening to kill the victim on an earlier occasion.
[5] The pair argued after arriving in Auckland. In the early hours of New Year’s morning the victim attempted to leave the brother’s house in her car but was prevented from doing so by Mr Isaaka. The brother intervened and she drove away. The evidence of the brother at trial was that Mr Isaaka was trying to strike the victim through the passenger’s side of the car during that incident.
[6] Mr Isaaka followed the victim, driving his father’s van. He found her at a petrol station where she had stopped to fill the car with petrol. The evidence of bystanders was that Mr Isaaka drove the van in a dangerous manner into the forecourt of the petrol station, that the victim was scared of Mr Isaaka and that she ran to the rear of the shop trying to hide. Some of those present phoned the police. Mr Isaaka drove off but returned to the petrol station a short time later on foot. By that point in time he had calmed down and after a discussion between Mr Isaaka and the victim she left in her vehicle with him.
[7] The pair returned to the brother’s house and again an argument broke out. The victim left the property in her car, and again Mr Isaaka followed her in the van. She stopped her car, and ran from it, leaving the engine running. She ran up a driveway screaming for help. Mr Isaaka stopped the van in the driveway, and chased the victim. Catching her, he dragged her back down the driveway to the van and pushed her into the van.
[8] Mr Isaaka then drove off along a residential road in Manurewa at high speed. As he drove along, he punched the victim in the head several times. Just a few minutes later he drove straight into a tree with such force that the front of the van collapsed and the rear caught fire. Mr Isaaka and the victim were pulled from the wreckage and taken to hospital. The victim suffered serious head injuries which required the surgical removal of a large piece of skull to relieve pressure and swelling to the brain. She was lucky to survive – her head injuries were so severe that for some time she was expected to die. She continues to suffer from the effects of her brain injury, she requires full time care, and will continue to do so for the foreseeable future. She has little short term memory function.
[9] Mr Isaaka was also injured. Both legs were broken and one was later amputated below the knee. He had a lengthy stay in hospital.
[10] Mr Isaaka had also been charged with one count of threatening to kill and one count of injuring with intent to injure. The latter related to an allegation that in forcing her into the van, Mr Isaaka punched the victim and slammed her head into the side of the van. He was found not guilty on those counts.

Sentence

[11] In describing the facts established by evidence at trial Judge McAuslan set out a narrative generally consistent with that just recited. In relation to the point in time when the victim was dragged into the van, the Judge said:

She was then dragged back down the driveway to the van and pushed against it while you opened the door. She was hit, her head was hit against the van. She was pushed into it and you drove her away along Friedlanders Road at excessive speed.

[12] The Judge accepted that aggravating features of the offending were the threatened and actual violence. She said that although Mr Isaaka was acquitted on the count of injuring with intent to injure, there were attacks on the victim in the van and that was the violence relied upon by the Crown.
[13] She also took into account the further aggravating factor that Mr Isaaka was driving with excess breath alcohol, at excessive speeds and in a dangerous fashion, although noting defence submissions that the level of alcohol was not particularly high.
[14] The Judge identified Mr Isaaka’s previous convictions as an aggravating factor, the offences for which he had just been released from prison, convictions for contravention of protection orders and dangerous driving.
[15] She addressed defence submission that mitigating factors relevant to sentence were Mr Isaaka’s age (23 years old at the time of offending), the support he had from his family, the remorse he had expressed (particularly in writing a letter of apology to the victim), and the steps he had taken toward his own rehabilitation. She accepted that he regretted what had happened but did not accept that remorse should be given the emphasis that the defence sought in light of the evidence at trial, and the pre-sentence report. The pre-sentence report writer’s assessment was that Mr Isaaka continued to try and shift responsibility for the accident on to the victim, maintaining that she grabbed the wheel. A defence submission that Mr Isaaka’s disability caused by the accident was a mitigating factor was rejected by the Judge.
[16] The Judge took kidnapping as the lead offence for the purposes of sentencing. She was satisfied that an appropriate starting point on the lead offence was five years imprisonment. That had to be uplifted to reflect Mr Isaaka’s previous convictions and the other aggravating features outlined by the Crown. Taking into account Mr Isaaka’s youth, regret and remorse and the steps he had taken toward rehabilitation, she was satisfied that the end sentence for the kidnapping should be five years imprisonment.
[17] She said that Mr Isaaka’s culpability for the offence of driving with excess blood alcohol causing injury was very much at the upper end of such offending. She sentenced him to four years imprisonment concurrent on the kidnapping sentence and disqualified him from driving for three years, starting that day.
[18] The Judge dealt with the issue of the imposition of a minimum period of imprisonment in short order. She said that she was satisfied that that was a matter that could be left to the Parole Board for the reasons outlined in the defence submissions.

Solicitor-General’s appeal

[19] The Solicitor-General argues that the Judge erred in principle by failing to apply the statutory test for the imposition of a minimum period of imprisonment contained in s 86(2) of the Sentencing Act 2002 properly. Section 86(2) of the Sentencing Act provides:

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

[20] It was submitted that the Judge’s only expressed rationale for leaving the question to the Parole Board was ‘for the reasons outlined in the defence submissions’. Those submissions focused on mitigating factors, but the Judge expressly declined to place much emphasis on the mitigating factors in sentencing. In light of that, the Solicitor-General submits that those matters did not form part of the Judge’s reasons for declining a minimum period of imprisonment. Her sentencing notes therefore make plain that she abdicated, in favour of the Parole Board, her statutory obligation to consider the imposition of a minimum period of imprisonment informed by those matters mandated in s 86(2) of the Sentencing Act. It was wrong for her to do so since the Parole Board’s focus in making decisions as to parole is different to that required of the sentencing Judge by s 86(2).
[21] The Solicitor-General relies upon a decision of this Court in R v Grant where the Court said:[1]

A sentencing Judge cannot avoid his s 86 function by observing that the Parole Board will be better placed to assess when an accused is fit to be released. Parliament has required Judges to consider, at sentencing, whether a minimum period of imprisonment should be imposed and at ss (2) has provided guidance for Judges.

[22] Although it is undesirable that the Judge did not fully set out her reasoning, she nevertheless did incorporate the submissions of defence counsel by referring to them, and that reference would have been understood by those present in Court. Counsel for Mr Isaaka helpfully made his submissions from the sentencing hearing available to us. His submissions in relation to the imposition of a minimum period of imprisonment can be summarised as follows:

(a) The period specified pursuant to s 84(1) of the Parole Act 2002 is sufficient to hold the prisoner accountable for his actions, denounce his conduct and deter others and to protect the community.

(b) Although the offence of kidnapping is serious, Mr Isaaka’s offending is at the lower end in comparison to other cases. Minimum periods of imprisonment were not sought or imposed in cases referred to the Court.

(c) The prisoner spent 11 months on 24 hour curfew at hospital, then on bail and then in custody for a majority of the year. That, combined with the impact the offending has had on his life and his expression of remorse, gives the Court some assurance that he does not pose a threat to the community, has realised the seriousness and consequences of his actions and has taken responsibility for those actions.

[23] As submitted by the Solicitor-General, in considering whether to impose a minimum period of imprisonment, the sentencing Court must focus on the four specified purposes in s 86(2) of the Sentencing Act.[2] But we are satisfied that on a fair reading of the Judge’s sentencing notes she did exercise the discretion conferred upon her in accordance with s 86(2). She took into account the submissions advanced by counsel for Mr Isaaka as to why a minimum period of imprisonment was not necessary, and those submissions addressed all four of the factors set out in s 86(2). Although she clearly did not weigh remorse very heavily, she could legitimately take into account the length of finite sentence, and the impact the injuries had had upon Mr Isaaka, in determining that a minimum period of imprisonment was not necessary for any of the s 86(2) purposes.
[24] A strong argument can be made that this was a case in which a minimum period of imprisonment was appropriate, both for deterrence purposes and to protect the community, given Mr Isaaka’s previous record for both driving and violent offending. But since the Judge considered the factors she was required to under s 86(2), we cannot say that she made a reviewable error in not doing so.
[25] For these reasons the Solicitor-General’s appeal is dismissed.

Mr Isaaka’s appeal

[26] Mr Isaaka appeals his sentence on the grounds that

(a) In fixing a starting point the Judge took into account that there was violence associated with the kidnapping, but this was incorrect and inconsistent with the jury’s verdict.

(b) The sentence was manifestly excessive both on the basis that it was out of line with other authorities the Judge was referred to, and that the Judge failed to give adequate credit for the steps taken by Mr Isaaka following his offending.

[27] The first ground of appeal cannot succeed. As conceded by counsel for Mr Isaaka, at trial the Crown’s case in relation to the count of injuring with intent to injure was that Mr Isaaka had punched the victim, and slammed her head into the van before then forcing her inside the van. In sentencing Mr Isaaka the Judge said only that the victim’s head was ‘hit against the van’. It is apparent that she was careful not to characterise this as a deliberate act in light of the jury’s verdict. The Judge made clear that the violence she took into account as an aggravating factor was the violence to the victim once she was inside the van.
[28] Counsel for Mr Isaaka argued that the Judge erred in accepting the victim’s evidence in relation to this assault, when the jury had rejected her evidence both that she had been violently assaulted outside the van, and that Mr Isaaka had threatened to kill her. But the Judge had the opportunity of hearing the victim’s evidence, and the evidence of Mr Isaaka. It was open to her to accept the victim’s account of what occurred inside the van, which she did, describing the victim as firm in her account of that attack. The Judge was entitled to find the facts as she saw them, so long as they were not inconsistent with the jury’s findings. The finding that there was an assault inside the van was not inconsistent with the jury’s verdict on the other two counts.
[29] The second ground of appeal is that the sentence was manifestly excessive. Counsel for Mr Isaaka advanced the authorities relied upon at sentence[3] to argue that the kidnapping lies toward the less serious end of the spectrum of such offences, and that an appropriate starting point for that offence should therefore have been three and a half to four years. He emphasised the presence of aggravating features in the cases he referred to, which he submitted were not present in Mr Isaaka’s offending. In particular he emphasised that the offending was not premeditated, that the detention was of short duration, that it did not involve a breach of a protection order, and was not accompanied by serious violence, use of a weapon or serious sexual offending.
[30] As has previously been observed, there can be an infinite variety of circumstances which underlie the crime of kidnapping.[4] Nevertheless, our review of the cases relied upon by Mr Isaaka satisfy us that the sentence imposed by the Judge was not out of line with the authorities that he produced at sentence.
[31] The most comparable case he referred us to was R v Gurnick.[5] The victim in that case was the former de-facto partner of Mr Gurnick. Although there was a protection order in place, the victim had been out and willingly socialising with Mr Gurnick immediately prior to the kidnapping. The kidnapping occurred when Mr Gurnick forced the victim to remain in the car when she wanted to leave it, and then drove erratically and at great speed for some distance. He pulled the victim’s hair and verbally abused her. After about an hour he was apprehended by the police. Mr Gurnick pleaded guilty to counts of kidnapping the victim, and physically abusing her in breach of a protection order, and to charges of dangerous driving, failing to stop and breach of bail. He was sentenced to three years and six months imprisonment for kidnapping, six months for breach of the protection order and six months for dangerous driving, all to be served concurrently. He appealed his sentence on the grounds that it was out of line with existing authorities.
[32] In rejecting the appeal the Court said:[6]

... we do not endorse any suggestion that the common place elements of reaction to an emotional relationship and of use of a motor vehicle allow this case to be treated as other than serious. This case combines the indignity of the detention, hair-pulling and abuse with exposure of the complainant to high risk of death or grave injury from intoxicated driving at dangerously high speeds over difficult roads for something over an hour. There is no difference in principle between use of a car in such fashion and the use of any other weapon that causes risk to life.

[33] It is important to note that the sentence imposed upon Mr Gurnick gave credit for guilty pleas, a credit to which Mr Isaaka is not entitled. That suggests a starting point higher than three years six months was adopted. In any case, we view Mr Isaaka’s offending as considerably more serious than that in Gurnick. The distinguishing aggravating factor is the harm suffered by the victim as a result of the offending. As the victim impact statement makes plain, she has suffered traumatic head injuries, the consequences of which she will live with for the rest of her life. The harm done by the offending is an aggravating factor the Judge was entitled to take into account. The more harm that is done, the more aggravating that factor will be.
[34] In R v Lepupa, this Court cautioned against placing too much weight on serious consequences where they may be fortuitous and out of proportion to the criminality of the offending.[7] However, in this case, the injuries that the victim suffered were a direct and foreseeable result of Mr Isaaka’s decision to use a motor vehicle, effectively as a weapon, to kidnap the victim and then to drive it at speed and in a dangerous manner, whilst intoxicated. Indeed, it is an element of the driving offence that bodily injury was caused. Section 85 of the Sentencing Act requires that the Court, when imposing concurrent sentences, imposes a sentence in relation to the lead offence which is appropriate for the totality of the offending. We are satisfied that a starting point of five years was within the available range for the totality of this offending.
[35] It is also argued that the Judge failed to give adequate credit for the steps taken by Mr Isaaka following the offending. Counsel for Mr Isaaka submits that information was before the Judge that the appellant had participated in various programmes whilst on remand to attempt to address issues such as anger management, and that he had abstained from alcohol and illegal drugs since the offending. This ground of appeal must also fail. The Judge did refer to Mr Isaaka’s efforts at rehabilitation and allowed credit for them. She adopted a starting point of five years which she then uplifted for previous convictions and other aggravating features outlined by the Crown. She did not quantify the extent of that uplift. She then said that she took into account the mitigating features which included the steps that Mr Isaaka had taken. She had previously referred to steps taken on remand to address anger management and ‘other behavioural issues’. Having taken those matters into account she ended with a final sentence of five years.
[36] Given Mr Isaaka’s previous extensive criminal record which included serious offending against the same victim, a substantial uplift in sentence beyond five years to reflect this aggravating factor would have been justified, possibly in the order of 12 to 18 months. The Judge’s decision not to further uplift the sentence to reflect this aggravating factor had the effect of giving Mr Isaaka the benefit of a very generous discount, a discount for what can properly be characterised as minimal mitigating factors. Credit was given for youth, but Mr Isaaka was 23 at the time of the offending, and already had a lengthy record of offending. Credit was also given for regret and remorse, although, as the Judge noted, remorse was expressed at the last moment and not unqualified in nature. The only matter raised by counsel for Mr Isaaka which was truly to Mr Isaaka’s credit was the steps he had taken toward rehabilitation, and these were taken into account by the Judge. The final sentence arrived at by the Judge is, if anything, light given the very serious aggravating factors present, such as the use of a car effectively as a weapon employed to effect the kidnapping, the serious harm caused, and Mr Isaaka’s previous convictions.
[37] For these reasons, Mr Isaaka’s appeal against sentence is dismissed.

Result

[38] Leave to appeal sentence is granted to the Solicitor-General, but the appeal is dismissed.
[39] Mr Isaaka’s application for an extension of time in which to appeal is granted but the appeal against sentence is dismissed.

GLAZEBROOK J

[40] I agree, for the reasons given by Winkelmann J, that Mr Isaaka’s appeal against sentence should be dismissed.
[41] I would, however, have allowed the Solicitor-General’s appeal and imposed a minimum period of imprisonment of two and a half years. Had it not been a Solicitor-General’s appeal, I would have imposed a longer minimum period.
[42] The only reason explicitly given by the Judge for not imposing a minimum period was held by this Court in R v Grant to be an erroneous one. The Judge did refer to defence counsel’s submissions[8] but she obviously considered the offending more serious than defence counsel had submitted and does not appear to have been impressed by expressions of remorse.[9] This means that she did not accept the submissions set out at [22](b) and (c) above.
[43] We are left to infer that the Judge considered the period specified by the Parole Act to be sufficient for accountability, deterrence (both personal and general), denunciation and the protection of the community.[10] There was no explicit statement to this effect, however, and no reasons given for that view. This is not satisfactory.
[44] Further, I do not consider it an available view that the Parole Act period sufficed. The offending was very serious, the effect on the victim devastating and the lead sentence was already light.

Solicitors:
Crown Law Office, Wellington for respondent

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[1] R v Grant [2009] NZCA 485 at [17].
[2] R v Taueki [2005] 3 NZLR 372 (CA) at [55].

[3] See, for example, R v Wharton[2003] NZCA 63; (2003) 20 CRNZ 109 (CA); R v Oran (2003) 20 CRNZ 87 (CA); R v Featherstone HC Nelson CRI-2008-042-000491, 18 February 2009; R v Gurnick [2002] NZCA 249; (2002) 19 CRNZ 627 (CA); R v Hayes CA171/06, 20 July 2006.
[4] R v Wharton[2003] NZCA 63; (2003) 20 CRNZ 109 (CA) at [11].
[5] R v Gurnick [2002] NZCA 249; (2002) 19 CRNZ 627 (CA).
[6] At [16].
[7] R v Lepupa (1997) 15 CRNZ 262 (CA) at 265.
[8] See at [22] above.
[9] See at [23] above.
[10] See at [22](a) above.