Namulauulu v R [2011] NZCA 555 (4 November 2011)

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Namulauulu v R [2011] NZCA 555 (4 November 2011)

Last Updated: 10 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA499/2011 [2011] NZCA 555

BETWEEN ROBERT NAMULAUULU Appellant

AND THE QUEEN Respondent

Hearing: 1 November 2011

Court: Harrison, Miller and Asher JJ

Counsel: S Tait and H Kim for Appellant M D Downs for Respondent

Judgment: 4 November 2011 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by Miller J)

Introduction

[1] This is an appeal against a sentence of two years and four months imprisonment imposed on the appellant, Robert Namulauulu, for his role in a violent attack on two victims at their home in which he used a shotgun to threaten them.[1]

Facts

[2] On the evening of 11 July 2010 Robert and his brother Mano had been drinking at a party. They returned to their home at Otara with an associate. There they chose to confront the neighbours, allegedly because they believed the neighbours had been dealing drugs. They have been sentenced on the assumption that they may genuinely have held that belief.
[3] Robert and Mano went to the neighbours’ house and knocked on the door. A father and son were within. The father answered the door. They demanded to know where the drugs were. The father shut the door on them. They shouted at him, then damaged his car and smashed a laundry window. The father ran outside and told them to leave or he would call the police. Mano punched him several times about the head, causing him to fall to the ground, where Mano continued to punch him. The man’s son rescued him, but was himself struck on the head by a bottle thrown by the associate. The offenders walked down the drive, shouting that they would get the victims.
[4] Robert then returned to his own address and fetched what was described as a short-barrelled shotgun. About 30 seconds later it went off. At sentencing the Judge inferred that Robert must have loaded it, but he noted a submission by Robert’s counsel that the discharge was accidental.
[5] It was not in dispute that after the gun was fired Robert ran back to the victims’ house with the gun. There he raised the gun and ordered the victims to come out. The Judge observed that one might well wonder what had happened had they done so. The police then arrived, and the offenders fled.
[6] Both victims were very shaken, and they suffered some cuts and grazes and bruises.

District Court

[7] Robert faced two charges of unlawful possession of a firearm, two of intentional damage, one of assault (as a party), and one of possessing explosives (the ammunition). He had two previous convictions for possessing offensive weapons. Mano faced one of unlawful possession of a firearm (as a party), two of intentional damage and one of assault with intent to injure. He had no relevant previous convictions. Both men pleaded guilty at a relatively late stage, in May 2011.
[8] The pre-sentence reports for Robert recommended home detention. He was assessed as a low reoffending risk, with low to moderate motivation to change. He has no rehabilitative needs, although he might benefit from alcohol and drug treatment. Judge Blackie took a starting point of three years imprisonment, reflecting the home invasion at night, the threats and use of a weapon to intimidate. A deterrent sentence was needed. Three years was an appropriate starting point, particularly where a loaded weapon was used. There was no uplift for the previous convictions. The discount of eight months to reach the end sentence reflected Robert’s guilty pleas, his worthwhile contributions to the community and his expressions of remorse. He was sentenced to a concurrent term of nine months for the assault.
[9] Mano received 10 months home detention for his part in the affair, from a starting point of two years imprisonment. The lower starting point reflected his limited role regarding the weapon; he was in possession of it only as a party to Robert’s offending.

Appeal

[10] Robert’s counsel on this appeal, Mr Tait, appeared for Mano at sentencing. Robert’s counsel at sentencing was Mr Faleauto. Robert initially complained that he was inadequately represented, saying that he saw Mr Faleauto only for five minutes before sentencing and no written submissions were filed. The cases cited by the sentencing Judge were not discussed, although they might have been distinguished.[2] Mr Faleauto did not discuss the pre-sentence report with Robert or obtain written confirmation from his fiancée about their financial position and upcoming wedding.
[11] However, the allegation of incompetence was not pursued in the end. Rather, Mr Tait’s main point was that Robert discharged the gun accidentally while trying to unload it. He fetched the gun from his house to intimidate the victims as he had heard them say they were going to get a gun. Knowing it was loaded, he decided to empty it but it went off in the air as he did so. These submissions were based on an affidavit of Robert’s which, it turned out, had not been sworn but did reflect his instructions to Mr Tait.

Decision

[12] If the affidavit had been sworn it would make no difference. On the facts admitted by Robert, he was the principal offender in a very serious firearms offence. It involved an attack on the complainants in their own home, at night, and the gun was used to intimidate. He fetched the gun, and he threatened the victims with it. He was party to actual violence against them. There is no tariff case, but the maximum sentence for the offence of unlawful possession of a firearm is four years imprisonment. A starting point of more than three years was available for the overall offending even if the weapon was discharged accidentally and even if, unknown to the victims, it was empty when used to threaten them. The circumstances are not very far removed from those which this Court had in mind when cataloguing aggravating factors for aggravated robbery in R v Mako.[3] Indeed, Mr Tait conceded that a starting point of two years nine months would have been available.
[13] We observe that Judge Blackie assumed Robert must have loaded the gun, but little turns on that. The Judge noted a submission that the gun had gone off accidentally, and he appears to have accepted that it was not fired at anyone and was used only to intimidate. He was right to express concern about what might have happened had matters escalated. The only mitigating fact about the gun which was not before the Judge was Robert’s claim that it went off because he was trying to unload it. That does not in itself call for a reduction in the starting point. Robert got the gun to intimidate, and he used it for that purpose after firing it. We observe too that an uplift of three months might have been applied for the previous convictions.
[14] The overall discount of eight months, or 22 per cent, was in our opinion adequate to reflect the mitigating factors. Robert could not claim previous good character. In any event, his personal circumstances, including his employment and his supportive family and partner, were put before the Judge in the pre-sentence report and letters from Robert and his partner. It was clear from the pre-sentence report that in some other respects, such as church life, he is a contributing member of the community. The employer’s reference was referred to and accepted.
[15] In the result, we are not persuaded that the sentence was manifestly excessive.
[16] Disparity is raised. Manu’s sentence calculation (before conversion to home detention) was 20 months, 12 months less than Robert’s. We do not think the difference is sufficient to warrant adjustment to Robert’s otherwise appropriate sentence. Robert chose to fetch the gun and use it to threaten the complainants, and he has relevant previous convictions. The lead offence in Mano’s case was the assault.
[17] Because the end sentence is longer than two years, no question of home detention arose.

Result

[18] The appeal is dismissed.

Solicitors:
Tucker & Co, North Shore City, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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[1] R v Namulauulu DC Manukau CRI-2010-092-10802, 5 August 2011.

[2] R v Richardson CA450/02, 25 March 2003; R v Epplett HC Christchurch T17/90, 17 May 1990.

[3] R v Mako [2000] 2 NZLR 170 (CA) at [58].