R v Ula [2012] NZHC 3226 (30 November 2012)

Last Updated: 19 February 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-090-000606 [2012] NZHC 3226

THE QUEEN

v

_{INISI ULA}

Hearing: 30 November 2012

Appearances: S P Symon for the Crown

S Tait for the Prisoner

Judgment: 30 November 2012

_{SENTENCE OF DUFFY J}

Counsel: S Tait P O Box 76538 Manukau Auckland 2241 for the Prisoner

Solicitors: Meredith Connell P O Box 2213 Shortland Street Auckland 1140 (DX CP24063) for the Crown

R v ULA HC AK CRI-2012-090-000606 [30 November 2012]

[1] Inisi Ula, you have pleaded guilty to the charge of wounding with intent to injure and the charge of assault with intent to rob.

Facts

[2] The facts of the offending are these: on 14 January 2012, at 3:30 am, the victim, Jesse Cope, left his home address intending to go to the BP Weymouth Service Station, a short distance from his home. As he walked up the road, you challenged him to a fight. He ignored you and continued walking towards the service station. As he approached the intersection of Weymouth Road and Rowandale Avenue, he was grabbed from behind by you and your associate. The two of you began punching the victim in the head.

[3] While assaulting him, you and your associate took a black shoulder bag from the victim. The bag contained a wallet and $20 cash. The victim managed to pull away from you and ran into the forecourt of the BP Weymouth Service Station. You and your associate pursued the victim into the forecourt area, even though, by then, you had taken his bag. The victim pleaded with the service station attendant to let him into the shop but the attendant could not do so, due to company policy.

[4] You then grabbed the victim and began punching him on the right side of the face with some force. Your associate went to the victim’s left and began punching him to the left side of the face. The two of you continued punching the victim until he fell to the ground. You both then kicked and stomped on the victim about the head and body until you were pulled away from him by service station customers.

[5] The victim has since had to undergo a lengthy operation to insert metal plates into both sides of his jaw. He had a fractured eye socket, which was unable to be operated on because of the severe injuries to his jaw. He will need continuous medical treatment for up to 12 months to his jaw and cheek area. I am sure there will also be ongoing consequences regarding these injuries.

Victim impact statement

Jesse Cope

[6] In terms of the victim impact statement, the victim is now a 15 year old student. He was 14 years old at the time of the offending. He says that on the day of the attack, he was minding his own business and did not provoke you or your associate in any way. He was extremely scared when he was attacked. He managed to get away but when the attendant refused to open up the doors, he realised he was in trouble, and panicked because he did not know what to do.

[7] He says he thought he was going to die when you and your associate started attacking him. He felt like the attack lasted for a very long time. He was thinking about what his parents were going to think and still thought he was going to die on the way to hospital.

[8] He does not have any ongoing pain or medical issues at present, but has had to have extensive treatment to his jaw and cheek. He is angry about what has happened. He is sad as he cannot understand why you would do something like that to someone. He says he now feels more cautious, especially at night. When he hears groups of people, he gets scared. He is no longer confident in himself. He has found it hard to concentrate on schoolwork and is more apprehensive around big groups of people at school. It is to be hoped that the progress of his education is not hindered by this experience.

Rose Cope

[9] The victim’s adoptive mother describes him as a quiet, polite boy, with a sensitive soul. She says that the weekend this happened was when the victim’s sister had moved into the family address at his insistence and she was the reason he had gone up to the petrol station at that time of morning, to get her a phone top-up.

[10] Both parents thought the victim was going to die when they received the news from the Police that he had been beaten up. When his mother saw him in

hospital, she felt sick as his injuries made him look dead. She says that the victim’s siblings were very angry and their immediate reaction was that they wanted to mete out their own justice. She and her husband had to calm them down. The family is upset that you did not show any level of co-operation with the Police. The identity of your associate is still unknown.

[11] The victim’s mother describes the victim now as even more of a “home body”. She says he is unwilling to go out on his own and has lost all his confidence. He hates people touching his things, whereas before he did not mind lending things to his friends.

Personal circumstances

Prior convictions

[12] Mr Ula, in terms of your personal circumstances, you have six previous convictions, but none that are particularly relevant to the present offending.

Pre-sentence report

[13] You are now a 20 year old man of Tongan-Niuean descent, who was born in New Zealand. The pre-sentence report shows that you have always enjoyed a close and supportive relationship with other family members and you normally reside in the family home. They are here today in Court to support you. However, it also needs to be recognised that you have a background of violent conduct.

[14] You were asked to leave school in year nine because you were involved in fights with other pupils, so you completed your formal education at 14 years old at a special school. Since 2009, you have worked seasonally, along with your father and brother, in a Manurewa business that processes wool and pelts. You give most of your earnings to your partner and to your family.

[15] Your partner says that in the past, you have been immature and your drinking has been a problem. She says you have made an effort to change since your arrest. In general, you are said to be a good partner and a good father. Your mother

described you as a “good son”, but says that you have a drinking problem and that you have had a temper problem since you were young. That is borne out by your school history.

[16] You do not use illicit drugs, but you admit to consuming alcohol to excess on most weekends. The pre-sentence report writer says that tests suggested to her that you have a harmful pattern of drinking. In relation to your offending, your explanation was simply that you were too drunk to remember. You did not deny the offending and you now say you would like to make amends to the victim and his family.

[17] The report writer identifies contributing factors to your offending as being a propensity towards violence, contact with offending-supportive associates and alcohol abuse. You advised that you would do whatever programmes were suggested. Because of the nature of the current offences and your history of alcohol abuse, your risk of reoffending was assessed as high.

[18] Now I am not sure if it is since the pre-sentence report was written or not – perhaps it was, but I note to your credit that you have actually taken some steps to address the more concerning aspects of your behaviour.

[19] First, you attended a community alcohol and drug services programme in June of this year. You completed six sessions. It was recommended that you continued to get support to maintain, change and to prevent lapse. I consider that it is to your credit that you took the opportunity to participate in that programme.

[20] You have also participated in the “Preventing Violence Programme” at the Manukau branch of Relationships Aotearoa. This was in November of this year, and it also indicates to me that you now recognise that you do have a tendency towards violence, either when you are drunk or you have lost your temper, and that you need to do something about this. Recognising this is important, not only for others who might be harmed by you in the future if you were to continue behaving in that way, but for yourself and for your family, because until you get a good grip on your

conduct, and stop drinking to excess, and allowing your violent bad temper to get the better of you, you will find yourself back in court facing further serious charges.

Purposes and principles of sentencing

[21] In sentencing you today, I must have regard to the purposes and principles of sentencing.

Relevant purposes of sentencing (s 7, Sentencing Act 2002)

[22] The relevant purposes of sentencing are:

(i) To hold you accountable for harm done to the victim and the community (s 7(1)(a));

(ii) To ensure that there is responsibility for, and acknowledgement of, that harm (s 7(1)(b));

(iii) To provide for the victim’s interests (s 7(1)(c));

(iv) To denounce your conduct (s 7(1)(e)) and to deter such conduct (s 7(1)(f));

(v) To protect the community (s 7(1)(g)); and

(vi) I should have regard to your rehabilitation and reintegration back into the community (s 7(1)(h)).

Relevant principles of sentencing (s 8, Sentencing Act 2002)

[23] In terms of the relevant principles of sentencing, I should consider:

(i) The gravity of the offending, including the degree of culpability (s 8(a));

(ii) The seriousness of the type of offence (s 8(b));

(iii) Consistency with appropriate sentencing levels (s 8(e));

(iv) I should impose the least restrictive outcome appropriate in the circumstances (s 8(g));

(v) I should have regard to your particular circumstances that might render an otherwise appropriate sentence disproportionately severe (s 8(h)); and

(vi) I should also have regard to your personal, family, whanau, community, and cultural background where rehabilitation is a purpose (s 8(i)).

Aggravating and mitigating factors (s 9, Sentencing Act 2002) [24] I should also consider the aggravating and mitigating factors. Aggravating factors of the offending

[25] In terms of aggravating features of the offending, I consider there are aggravating features here, which include:

(i) Actual violence (s 9(1)(a));

(ii) The extent of the loss, damage, or harm to the victim

(s 9(1)(d)); and

(iii) The vulnerability of the victim (s 9(1)(g)).

Mitigating factors of the offending

[26] I see no mitigating factors in terms of the offending.

Aggravating factors relating to the offender

[27] I do not see any aggravating factors relating to you.

Mitigating factors relating to the offender

[28] In terms of mitigating factors, I consider there is: (i) Your guilty plea (s 9(2)(b));

(ii) Your youth;

(iii) Expressions of remorse; and

(iv) Attempts at rehabilitation.

Submissions

Crown submissions

[29] The Crown submits that the appropriate starting point for the totality of your offending is 10 years’ imprisonment. The Crown has submitted that there should be an uplift for previous convictions, reduced only by five per cent for your personal mitigating features, including your guilty plea. But today, the Crown has altered that stance, in view of the additional information that has been provided this morning by your counsel. The Crown has now said, in essence, that it considers a starting point of 10 years’ imprisonment appropriate with discounts, which would reduce the sentence to an end sentence of eight years’ imprisonment.

Offender’s submissions

[30] Your counsel submits that the appropriate starting point is nine years’ imprisonment. Your counsel submits that there should be discounts for age, guilty plea, remorse, previous good character and time in custody and on strict bail

conditions. Your counsel submits this should reduce the sentence down to seven

years’ imprisonment.

[31] Now, Mr Ula, as I go through the sentencing process, it should have become apparent to you that I have to set a starting point, and then I have to consider whether there are any uplifts or discounts. So you will not know the final sentence until I get to the very end.

Sentencing approach

Lead offence

[32] First, I must adopt a lead offence. Section 84 of the Sentencing Act states that concurrent sentences are appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences. This would apply to the simultaneous events here.

[33] Where concurrent sentences are to be imposed, I must take the most serious offence and use that as the lead offence. I propose here to treat the offence of wounding with intent as the lead offence.

Tariff case

[34] The leading case for sentencing on a charge of wounding with intent to cause

grievous bodily harm is the Court of Appeal’s decision in R v Taueki [2005] 3 NZLR

372 (CA). It set out three bands of offending as follows:

(i) Band one, which carries a sentence of three to six years’

imprisonment:

Where no aggravating features are present, a starting point at the bottom of this band is appropriate. Where one or more is present, a higher starting point is required.

(ii) Band two, which carries a sentence of five to 10 years’

imprisonment:

This is appropriate for grievous bodily harm offending featuring two or three aggravating features.

(iii) Band three, which carries a sentence of nine to 14 years’

imprisonment:

This encompasses serious offending with three or more aggravating features, where the combination of aggravating features is particularly grave.

[35] The aggravating factors in this case (as set out at [31] of Taueki) include:

(i) Extreme violence: where violent conduct is prolonged, unprovoked or gratuitous;

(ii) Serious injury: a higher starting point will be called for where there is a very serious injury;

(iii) Attacking the head: attacks to the head are an aggravating feature, which is treated as seriously as weapons;

(iv) Facilitation of crime: here, the wounding was committed in order to steal from the victim;

(v) Multiple attackers: the greater the number of attackers, the greater the culpability. Here, you were accompanied by an associate; and

(vi) The victim’s vulnerability: where there is a disparity in size or strength, that will be a factor. Here, the attack was on a 14 year old boy.

[36] I consider that all five aggravating features seriously contributed to the harm suffered by the victim. There was prolonged violence that was unprovoked and gratuitous, resulting in serious injuries to the victim’s face, requiring extensive surgery. Much of the attack was when the victim was on the ground, and the attack was to his head, as seen by the injuries to his cheek and jaws. The fact that there were two offenders against a young 14 year old also aggravates the offending. In comparison to you, Mr Ula, the victim was vulnerable.

[37] Overall, I consider that the features of the offending place it in the lower end of band three.

[38] I am grateful to counsel for their assistance in providing relevant comparable cases. These are:

[39] R v Grace HC Palmerston North CRI-2008-054-5606, 11 May 2010. The facts are that Mr Grace’s co-offender boasted to the complainant that he had slept with the complainant’s girlfriend. That made the complainant angry and he stabbed Mr Grace’s co-offender in the shoulder with a carving knife. The co-offender then reacted by punching the complainant, knocking him to the floor. Mr Grace then joined in, kicking and stomping on the victim’s head about 20 to 30 times. The attack only stopped when the complainant stayed still pretending he was dead. When the offenders’ attention was distracted, the victim fled the scene, but became unconscious shortly after. The complainant needed surgery for the multiple fractures to his jaw and face, facial wounds and bruising, loss of two front teeth, wounds to his right ear, his ears and bruising to his shoulders. The victim ended up having actual brain injury, as a result of the attack, with titanium plates in his skull and screws in his face.

[40] Ronald Young J found that the offending would justify a starting point sentence of around eight and a half years’ imprisonment, uplifted to 10 years’ imprisonment for previous convictions. The Judge considered that a 10 per cent guilty plea discount was generous, given the late guilty plea. In the end, the Judge decided that preventive detention was warranted.

[41] In R v Hepi HC Rotorua CRI-2006-063-946, 20 October 2006, Mr Hepi tricked his way into the victim’s house. The victim was an 89 year old woman. Once Mr Hepi entered, he attacked the woman and she was struck at least once with sufficient force to break her jaw and render her unconscious. Mr Hepi tied her up and stole a bankcard and $300 cash. He then threatened to kill the victim if she did not tell him the PIN to her bankcard.

[42] Rodney Hansen J identified the aggravating features as extreme unprovoked and gratuitous violence, premeditation, serious injury, attack on the head, presence of a weapon, vulnerability of the victim and home invasion. He considered that a sentence of 11 years’ imprisonment was appropriate, as there were no personal mitigating features. He then considered the sentence for robbery would be less, with a starting point of eight to 10 years, but this would be served concurrently.

[43] In R v Dowd HC Rotorua CRI-2006-077-153, 10 October 2006, Mr Dowd repeatedly punched the victim, a wheelchair-bound friend, causing him to fall to the ground. He then kicked and stomped on the man’s head, rendering him unconscious. After that, he obtained a steak knife from the kitchen and stabbed the victim three or four times on his buttocks. The victim ended up with lacerations and fractures to his face, as well as a stab wound on his thigh and his buttocks. He also had massive head trauma and swelling to his brain. He lay unconscious in hospital for about a month.

[44] Frater J accepted that this offending fell within band 3 of Taueki, identifying the aggravating features as extreme, prolonged violence, use of a weapon, premeditation, serious injury and vigilante action. Other factors included Mr Dowd’s attempt at cleaning up after the offending to hide the evidence, as well as the effect on the victim’s family. Frater J considered that a starting point of 11 to 12 years’ imprisonment was appropriate. After discounting for an early guilty plea and co-operation with the Police, the Judge imposed an end sentence of eight and a half years’ imprisonment.

[45] In R v Stewart CA21/06, 31 August 2006, Mr Stewart drank a considerable amount of alcohol, then went with a friend and the victim to a local tavern to drink

more alcohol. At some point in the evening at the hotel, Mr Stewart started punching the victim, who was lying on the ground. He was punched in the head. Mr Stewart then kicked the victim forcibly in the head and face “very hard”. The victim was left in a permanent vegetative state.

[46] The sentencing judge chose a starting point of 11 years’ imprisonment and imposed an end sentence of 10 years’ imprisonment, as well as a minimum period of imprisonment of five and a half years. The Court of Appeal considered the assault was mindless, unprovoked, repeated and vicious. It involved injuries of the gravest kind to the victim’s head, as well as numerous “very hard” kicks with Mr Stewart’s boots. The Court of Appeal dismissed the appeal.

Analysis

Setting a starting point

[47] Mr Ula, when I stand back and look at the facts of your case with the cases I have read out, I think the most comparable case is Grace. As in Grace, there were two offenders and here, as in Grace, the violence was extreme. But I consider this offending is more serious than in Grace. Although the extent of the injuries in Grace were more serious, the victim at least somewhat contributed to the situation by stabbing Mr Grace’s co-offender; so, the attack was not completely unprovoked. Further, Mr Grace did not have the additional aggravating feature of facilitating crime, namely robbery. So I think a starting point higher than Grace is justified.

[48] On the other hand, this case is less serious than in Hepi, Dowd and Stewart. Although Hepi also involved wounding in the context of a property offence, the victim there was much more vulnerable, and there appeared to be a high level of premeditation in the ruse the offender used to get into the house in the first place. There was also a threat to kill in that case. Dowd involved the use of a weapon, which seriously aggravated the injuries, which were more extensive than here; and the victim in Stewart ended up in a permanent vegetative state. Again, therefore, the consequence of that offending was much more serious.

[49] Therefore, I find that a sentence of around nine and a half years’ imprisonment would be an appropriate starting point to reflect the gravity of the offending.

Adjusting the starting point

[50] The Crown has suggested that your previous convictions warrant an uplift. Your previous convictions involve three traffic offences, one disorderly behaviour and two receiving property offences, one such offence occurring after this present offending. Although the disorderly behaviour conviction might perhaps be seen as a precursor to violent offending, and the receiving offences are property offences, they are different in nature and severity. I do not think it is necessary to uplift the starting point to reflect these convictions, which are relatively minor.

[51] As for personal mitigating features, the defence seeks various discounts.

[52] First, your age. Your counsel submits that as you were 19 when the offending occurred, you should get a discount for youth. Here, the offending is more than a mere “youthful indiscretion”. At 19 years old, you can be expected to know that gratuitous violence and robbery would have grave consequences. I also note that you have a family of your own; so you should be held to the standard of a responsible adult. I think that, in the circumstances, only a minimal discount is warranted for youth.

[53] Then there is the guilty plea. You were charged on 14 January 2012. You did not enter a guilty plea until 19 September 2012, less than a week before the trial was set to begin. Further, the prosecution case was strong. I consider that a discount of no more than 10 per cent is warranted for the guilty plea.

[54] There is then remorse. Given the late guilty plea, I had earlier thought that it was difficult to see how there was any remorse warranting recognition for a special discount. Ordinary remorse is inherent in the guilty plea itself. However, in the pre- sentence report, you have offered to make amends to the victim’s family. Today, I have been given a letter that you have written to the victim, and I understand that is

to be given to his family after the sentencing. The letter does cause me to believe that you now do feel a degree of remorse over and above the ordinary level of remorse that would be inherent in a guilty plea.

[55] There is also the steps that you have taken, and to which I have already referred, to address your alcohol problem and your bad temper problem.

[56] Overall, therefore, I consider that in addition to the 10 per cent discount for a guilty plea, there should be another 15 per cent discount. The 15 per cent discount will reflect five per cent for your youth, five per cent for additional remorse, and five per cent for the rehabilitation steps that you have taken.

[57] Your counsel has also submitted that I should take previous good character into account. Although I have concluded that your previous convictions should not warrant an uplift, that does not translate into you having previous good character. Your six previous convictions clearly count against this. So I consider that a good character discount would not be appropriate.

[58] There is then time spent in custody and on strict bail conditions. Your counsel has cited R v Gray [2008] NZCA 224 for the proposition that in certain circumstances, it is appropriate for a sentencing judge to allow a deduction against the starting point for compliance with a restrictive bail regime. This is for the sentencing judge to evaluate in all the circumstances. The question is whether the bail conditions themselves were so restrictive that they amounted to a remand in custody.

[59] According to your bail conditions, you have been subjected to 24 hour electronically monitored bail with a 24 hour curfew since 11 May 2012. I consider it legitimate to give you a discount in light of these circumstances. I consider that some recognition on the restriction on your liberty needs to be made. But I do not necessarily equate the time spent subject to the strict bail conditions as being necessarily equivalent to actual time spent in custody.

[60] The discounts I have arrived at, that is a total of 25 per cent, with a starting point sentence of nine and a half years, brings the sentence to one of seven years and two months’ imprisonment. I propose to make a further two month reduction to reflect the restrictive bail conditions. This brings the end sentence for the lead offence to one of seven years’ imprisonment.

[61] There remains the concurrent sentence for the assault with the intent to rob. To reflect the gravity of that offending, I propose to adopt a sentence of five and a half years’ imprisonment, and that will be served concurrently.

[62] Mr Ula, please stand.

[63] For the offence of wounding with intent to injure, you are sentenced to seven years’ imprisonment. For the offence of assault with intent to rob, you are sentenced to five and a half years’ imprisonment. The sentences are to be served concurrently.

[64] Also, I make a direction remitting the $1,000 worth of fines that you presently owe.

[65] Stand down please, Mr Ula.

Duffy J