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Court of Appeal of New Zealand |
Last Updated: 25 March 2020
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BETWEEN |
UETA VEA Appellant |
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AND |
THE QUEEN Respondent |
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Hearing: |
27 February 2020 |
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Court: |
Clifford, Simon France and Lang JJ |
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Counsel: |
L L Tu’i for Appellant B C L Charmley for Respondent |
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Judgment: |
19 March 2020 at 11 am |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France
J)
[1] Mr Vea pleaded guilty to a charge of murder and was sentenced by Moore J to life imprisonment with a minimum period of imprisonment (MPI) of 17 years.[1] He appeals the length of the MPI.
Facts
[2] Annoyed at what he suspected was an inappropriate relationship between his wife and the victim, Mr Vea armed himself with a machete. He went to the victim’s house knowing the victim was not in but would soon return. Mr Vea gained entry through a window and waited. As the victim entered, Mr Vea immediately attacked him with the machete.
[3] The agreed summary of facts describes a number of strikes to the back of the neck, under the chin, and to the victim’s torso, hand, left shoulder and left ear. The assault caused a traumatic injury to the base of the skull. It severed the spinal cord and vertebrae, and would have caused paralysis. It also lacerated the vertebral artery. Some of the other lacerations reached the bone. There was significant blood loss.
[4] The summary records that Mr Vea heard Mr Liuasi ask for help during the assault. When Mr Liuasi became motionless, Mr Vea is said to have rolled him over and observed him for two minutes before leaving. These detailed items are obviously sourced in Mr Vea’s accounts, he and the victim being the only persons present.
[5] Mr Vea left in Mr Liuasi’s car and drove to near where his wife was. He parked the car, walked to her address and told her what he had done. They drove to the local church grounds on which was situated the house where Mr Liuasi lay. The priest was spoken to and they all went to the house. Police were called and Mr Vea was arrested and interviewed. He made full admissions.
Sentencing
[6] In the High Court, Moore J found two of the factors in s 104 of the Sentencing Act 2002 to be present. The first — unlawful entry into a dwelling house (s 104(1)(c)) — was not in dispute. The second — a high level of brutality, cruelty, depravity or callousness (s 104(1)(e)) — was contested. The Judge considered the number of blows delivered in a frenzied attack met the high level required by s 104, and constituted brutality.[2] He found that Mr Vea’s conduct in observing the stricken Mr Liuasi, and just watching him, constituted a degree of callousness that added a layer of culpability.[3]
[7] In assessing an appropriate MPI, the Judge reviewed several cases.[4] Some focus was given to Hamidzadeh v R, on which the Crown relied and in which a 17‑year MPI had been considered appropriate.[5] The Judge considered the present case to be more serious than Hamidzadeh but less serious than R v Beazley,[6] a case he had recently sentenced where the starting point was 18 and a half years. A starting point of 17 and a half years was identified.[7]
[8] Turning to mitigation, the Judge reviewed a cultural report prepared pursuant to s 27 of the Sentencing Act, and noted the respective families had successfully completed the Samoan custom of ifoga, where the family of the offender seeks forgiveness pursuant to a formal process. Forgiveness will not necessarily be given, but it was here. The Crown accepted, as did the Judge, that it was to be treated as an offer to make amends in terms of the statutory mitigating factors.[8]
[9] The Judge considered credit for remorse was constrained by comments made in the pre-sentence report. The focus was on observations by Mr Vea that initially he intended only to warn Mr Liuasi, something the Judge considered to be completely at odds with the objective facts.[9] Credit was due for a guilty plea, though the Judge noted that it was “not entered at the earliest opportunity” and must be considered against a background of previous convictions for domestic violence, and a strong Crown case.[10]
[10] For the mitigation package a figure of one year was identified, reducing the starting point to 16 and a half years.[11] Given that figure and the overall circumstances, it was not considered the 17 years figure otherwise required by s 104 of the Sentencing Act would be manifestly unjust, and accordingly that was the figure imposed.[12]
Appeal
[11] On appeal,[13] the appellant submits that Moore J erred in finding that it was not manifestly unjust to impose a 17-year MPI. Three aspects are challenged:
- (a) the starting point of 17 and a half years;
- (b) the size of the mitigation reduction; and
- (c) the decision to impose the s 104 figure.
[12] We address each in turn.
Starting point
[13] In her comprehensive submissions Ms Tu’i focused on the issue of whether s 104(1)(e) of the Sentencing Act was engaged. We consider in the circumstances of the present case that is not the correct approach. Section 104 is anyway engaged by the home invasion limb, and so the better focus is to identify an appropriate starting point having regard to all the circumstances. The violence used by Mr Vea was at a high level, and on which side of what can be described as a fine line the case falls will not affect matters.
[14] Here, Mr Vea armed himself with a lethal weapon, broke into the victim’s house, lay in wait for him, and then attacked immediately when the victim walked in. It was, as the Judge said, a frenzied attack that left the victim no chance to protect himself. There were many blows. One obviously was fatal, being delivered with sufficient force to sever the spinal cord and vertebrae, and lacerate the vertebral artery. Other strikes caused lacerations that went through to the bone. The victim called out for help or mercy, but received none. Mr Vea did not seek to get help once the attack was concluded but instead, on his admission, watched the victim for a short period before leaving.
[15] We agree with the Judge that a starting point around 17 and a half years is appropriate. That places it in the middle of Hamidzadeh v R and Akash v R (17 and 18 years respectively).[14] They likewise involved this sort of attack, albeit each has different s 104 features. Here the factors of home invasion, a blindside attack involving multiple strikes, and a degree of callousness support the figure identified by the Judge, and we do not consider it is in error.
Credit for mitigating factors
[16] Ms Tu’i submits the one-year deduction is insufficient both solely in terms of the guilty plea credit, but also to the extent it fails to recognise Mr Vea’s remorse, and the value of the ifoga process that was conducted.
[17] We turn first to the guilty plea, described by the Judge as “not entered at the earliest opportunity”.[15] Counsel submits that is incorrect. An affidavit is proffered from counsel representing Mr Vea at the time. Ms Dyhrberg QC explains that Mr Vea always accepted responsibility. She considered it her responsibility to explore Mr Vea’s mental health at the time and commissioned a psychiatric assessment. As soon as this was to hand, and indicated there was nothing relevant to a defence, Ms Dyhrberg met with Mr Vea, confirmed his instruction and immediately advised he wished to be arraigned.
[18] We admit this evidence which assists to clarify matters,[16] but consider it was in any case not needed to make the appeal point. The chronology was:
- (a) offence, 13 January 2019;
- (b) first appearance, 14 January;
- (c) first High Court appearance, 7 February. Remanded for case review on 10 April;
- (d) mental health assessments 28 February and 26 March;
- (e) advice from psychiatrist received 8 April;
- (f) 13 April, guilty plea intimated to Crown and arraignment sought (case review having been adjourned pending receipt of report); and
- (g) plea, 1 May.
[19] It follows that only three months had elapsed from the date of the offence to when Mr Vea requested to be arraigned in order to plead guilty. This is an unusually quick time for a plea on such a charge, and we consider it to be entered at the earliest opportunity.
[20] Relevant to both the credit for the guilty plea and also the other mitigating factors, we note that Mr Vea made a full admission immediately following the offending. Aspects of the summary of facts, adverse to Mr Vea, come from his admissions as to what occurred at the time. It is a strong Crown case, and no doubt one the investigation would have readily resolved even without Mr Vea’s input. Nevertheless, his immediate acknowledgment and assistance in detailing what happened should not be downplayed for that reason.
We consider too much weight was placed on a comment in the pre-sentence report about only initially meaning to confront. This does not support a conclusion of not accepting responsibility, given all the other objective material that pointed the other way. We also consider the ifoga process, although not directly involving Mr Vea,is culturally relevant, and constitutes, as the Crown accepts, an offer to make amends. It is indeed a positive step in that direction.[17]
[21] It is often noted that an early guilty plea in these cases can attract between 12 months’ and two years’ discount.[18] Given all the mitigating factors we have identified, we consider two years was the appropriate figure here.
The application of s 104
[22] Section 104 of the Sentencing Act applies because of subs (1)(c) and probably, although we do not need to determine it, because of subs (1)(e). That means an assessment is required as to whether an MPI of 17 years would be manifestly unjust. In making that assessment we are considering an alternative MPI of 15 and a half years.
[23] We note that s 104 is not peripherally engaged. The home invasion was central to enabling the ambush that occurred, and the level of violence was very much in the brutality realm. However, we accept Mr Vea is remorseful and has done what he can at this early stage, aided by his family, to make amends. An MPI of 17 years would represent very little credit for these factors and the plea, in circumstances where full credit is due and where the steps taken by the offender have, from a very early stage, lessened the anxiety of the victim’s family about the criminal justice aspects of this terrible event.
[24] We are accordingly satisfied that to lift the otherwise applicable minimum non‑parole period by 18 months, from 15 and a half years to 17 years, would be manifestly unjust.
Conclusion
[25] The application to admit the affidavit of trial counsel is granted.
[26] The appeal against the length of the MPI is allowed.
[27] The minimum period of imprisonment of 17 years is quashed. A minimum period of imprisonment of 15 years and six months is substituted.
[28] The underlying sentence of life imprisonment is unaffected.
Solicitors:
Crown Solicitor, Manukau for
Respondent
[1] R v Vea [2019] NZHC 1587.
[2] At [36].
[3] At [36].
[4] At [38] n 10; citing R v Smith [2013] NZHC 2782; Thurgood v R [2012] NZCA 23; and R v Beazley [2019] NZHC 672.
[5] Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369. Eighteen months was then deducted to reflect Mr Hamidzadeh’s guilty plea.
[7] R v Vea, above n 1, at [41].
[8] At [50]; referring to the statutory mitigating factors at s 10(1)(c) and (d) of the Sentencing Act 2002.
[9] At [51].
[10] At [56]–[57].
[11] At [57]–[58].
[12] At [59]–[64].
[13] Sentencing Act 2002, s 105.
[14] Hamidzadeh v R, above n 5; and Akash v R [2017] NZCA 122.
[15] R v Vea, above n 1, at [57].
[16] Pursuant to the Criminal Procedure Act 2011, s 335.
[17] For a discussion of the treatment of ifoga in Samoan courts see also James Bruce Lutui “Apology: A Moral, Cultural and Restorative Perspective” in Warren Brookbanks (ed) Therapeutic Jurisprudence: New Zealand Perspectives (Thomson Reuters, Wellington, 2015) 71 at 82–85.
[18] R v Akash, above n 14, at [17] and [25], in which 12 months’ discount was upheld; Hamidzadeh v R, above n 5, at [89], in which 18 months was upheld; and R v Momoisea [2019] NZCA 528 at [38], in which 18 months was upheld. It is not an uncommon figure.
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