Lisipa v R [2011] NZCA 23 (25 February 2010)

Last Updated: 1 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA730/2010 [2011] NZCA 23

BETWEEN EDWARD LISIPA Appellant

AND THE QUEEN Respondent

Hearing: 14 February 2011

Court: Stevens, Potter and Miller JJ

Counsel: J E Boyack for Appellant M D Downs for Respondent

Judgment: 25 February 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Stevens J)

Introduction

[1] Edward Lisipa pleaded guilty to a charge of assault with intent to rob. He appeals against his sentence in the District Court of two years and four months imprisonment. The sentence was imposed following a sentence indication hearing at which a starting point of three years and six months imprisonment was indicated,[1] together with a discount of 25 per cent for a guilty plea at that stage. The possibility of an uplift on the starting point was signalled, as was a discount for the appellant’s youth. The application of both these factors, however, would depend on the probation report. The Judge noted that even with a discount for youth, it was unlikely he would escape a prison sentence.[2]
[2] The appellant does not challenge the appropriateness of the starting point. Nor does he take exception to the application of the 25 per cent discount for the guilty plea. The sole issue on appeal was the extent of the discount applied by the Judge for the appellant’s youth, which was seemingly a figure of four months. In the same context, the appellant urged on us a sentence of home detention as opposed to imprisonment.

Factual background

[3] The appellant, then aged 17, and three associates, all members of the “Glenavon Mafia”, approached a massage parlour in central Auckland at 2:00 am on 12 January 2010. The appellant tried the door, which was locked. An associate then knocked. The manager of the massage parlour responded, stepping outside when she could not see anyone at the door. She saw three members of the group in the alley, two of whom approached. The appellant then pushed her on the neck with both hands, shouting that he wanted money. The manager stumbled and fell before getting to her feet again and fleeing inside. The group followed her inside the massage parlour and quickly searched the rear of the premises. The appellant walked around to the front of the premises and began to search the reception desk and drawers until the manager threw a book at him. The members of the group then ran out the way they had come in, unable to find any cash to take.
[4] Following the sentence indication the appellant pleaded guilty. Judge Moore noted that the offending amounted to aggravated robbery in all but name,[3] and that the appellant had a long list of appearances in the Youth Court on serious offending, including an aggravated robbery.[4] He further noted the appellant’s very limited remorse and did not consider that the probation officer’s recommendation of home detention was sufficient to reflect the seriousness of the offending, the appellant’s history and other factors. The Judge sentenced the appellant to imprisonment for two years and four months.

Appellant’s submissions

[5] Mr Boyack for the appellant submits that the Judge failed to give sufficient discount to reflect the appellant’s youth, given that he was only 17 years of age at the time of the offending. Mr Boyack also submits that a discount of up to 25 per cent could have been allowed on account of the appellant’s youth. Here, the probation report referred to some positive aspects (namely a desire to put gang affiliations behind him and insight into the offending) and made a recommendation of home detention, which would avoid sending such a young offender to prison.
[6] Mr Boyack also submits that the appellant is committed to rehabilitation, which was amply demonstrated by keeping out of trouble for two months when he was on electronically monitored (EM) bail after the sentence indication.

Crown submissions

[7] For the Crown, Mr Downs submits the Judge made a sufficient allowance for the appellant’s youth – up to 4 months, depending on how the sentence is calculated. Mr Downs acknowledged that the appellant had spent two months on EM bail, but argues that apart from this there was nothing tangible in his background to warrant a greater discount, or to support a sentence of home detention, if the applicable threshold could be reached.
[8] Mr Downs submits that the decision of this Court in R v Mako deals with the issue of what discount might be given for an offender’s youth.[5] The requirements for analysis are as follows:[6]

[65] Youth and the prospects of rehabilitation may be mitigating factors. Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences. As noted in the judgment of the Full Court of the High Court in Cooper a high proportion of aggravated robberies in this country are committed by teenagers. In some cases young offenders may have been directed by others who are older. It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and an unlikelihood of reoffending.

[66] However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender, remains serious violent offending.

[9] Mr Downs also refers to a passage of this Court in R v Pouwhare:[7]

[96] As these decisions illustrate, the fact that an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person’s part in it, anything aggravating and otherwise mitigating must also be weighed. The analysis Mako calls for is always indispensible.

Discussion

[10] The sole issue for determination is whether the sentencing Judge gave sufficient allowance for the appellant’s youth. We are satisfied that he did. Applying the analysis called for in R v Mako, we consider that the allowance made was appropriate. We have taken into account the seriousness of the offending, the appellant’s leading part in it, the relevant aggravating and mitigating features and the appellant’s background as set out in the probation report.
[11] We agree with Mr Downs that there is nothing tangible to warrant a greater discount in the circumstances of this case. While a Court will always pause before sending a young offender to prison for the first time, we do not consider that the appellant has shown at this stage that he is genuinely motivated to reform. The two months on EM bail were not on their own sufficient to tip the balance.
[12] Despite all that Mr Boyack said on his behalf, we consider that the Mako analysis cannot be stretched to warrant a greater discount. We add that, even if an end point sentence of two years or less was warranted (which is not the case), we are satisfied that this is not a case where a sentence of home detention would have been appropriate.

Result

[13] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Lisipa DC Auckland CRI-2010-090-1138, 10 August 2010 at [7]–[8].

[2] At [16].
[3] R v Lisipa DC Auckland CRI-2010-090-1138, 27 October 2010 at [3].
[4] At [8].
[5] R v Mako [2000] 2 NZLR 170 (CA), [2000] NZCA 407; (2000) 17 CRNZ 272.
[6] R v Mako at [65]–[66].
[7] R v Pouwhare [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].