R v Moa [2013] NZHC 3041 (15 November 2013)

Last Updated: 14 February 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-15479 [2013] NZHC 3041

THE QUEEN

v

SIOELI TUPOU MOA TELEFONI POLUTELU MOA

Hearing: 15 November 2013

Appearances: S L McColgan for Crown

D S Niven for Defendant S Moa

V L Pomeroy for Defendant T Moa

Judgment: 15 November 2013

_{SENTENCING REMARKS OF PETERS J}

Solicitors: Meredith Connell, Auckland

V L Pomeroy, Auckland

_{Counsel: D S Niven, Auckland}

R v MOA [2013] NZHC 3041 [15 November 2013]

Introduction

[1] Mr Telefoni Moa and Mr Sioeli Moa, you appear for sentence today having pleaded guilty to one charge of injuring Taua Limu with intent to injure him.¹ The maximum sentence for the offence is 5 years’ imprisonment.

[2] I presided over the trial, or at least as far as that trial proceeded, commencing on 30 September 2013 in which each of you faced 5 charges – one of assault, one of causing grievous bodily harm with intent to do so, and three of injuring with intent to cause grievous bodily harm.

[3] Midway through the trial the Crown asked me to discharge you on counts 1,

2, 4 and 5 in the indictment and to amend count 3. I discharged you accordingly, the indictment was amended and you each pleaded guilty to the amended count. I granted you bail pending sentence, there being no opposition to me doing so.

Facts

[4] The offending for which I am to sentence you occurred in the early hours of

12 August 2012.

[5] You and your friends were in a car that was parked in an alleyway running off Edinburgh Street, which itself is off Karangahape Road. Another group, including Mr Limu, were in a carpark on the corner of Gundry Street and Karangahape Road.

[6] The car in which you were parked was facing into the Gundry Street carpark. The two areas are separated by a mesh fence.

[7] Someone in your group said something to a woman in the other group. She and a friend, Alex Tone, walked along Karangahape Road to where you were parked. That led to an argument and then to a fight. Taua Limu was one of those who joined

_{the fray.}

¹ Crimes Act 1961, s 189(2).

[8] In the course of the fight Mr Limu was knocked unconscious. You each acknowledge kicking him whilst he was unconscious. Mr Limu’s skull was fractured, although it is not clear whether that occurred as he was knocked to the ground or whilst he was being kicked, so I propose to put that to one side. His face was bruised and swollen and he required specialist medical assessment.

[9] The Police were called, your group drove off and that left the Police, emergency services and later hospital staff to attend to the aftermath.

[10] I intend to sentence you on the basis that you did not initiate the fight and that for a period you were acting in self defence. But I also take into account that each of you kicked Mr Limu whilst he was unconscious. In my view, the evidence was that you kicked him to the head and, at the point you did so, the need for any self defence had passed.

[11] Mr Sioeli Moa, your counsel suggests that Mr Limu picked up a sheet of glass and broke it over you, and that was why you kicked him. Mr Limu denied that when he gave evidence. I am going to ignore the suggestion as to the sheet of glass because there is no evidence that it was used by Mr Limu, if it was used at all.

[12] At my request, Corrections prepared reports on each of you for today’s purposes. They are remarkably similar, even though they were prepared by different people. One thing that stands out from both of them is that each of you thinks the other group and Mr Limu, given what you are for sentence on, got what he asked for and that your behaviour was acceptable.

[13] I have to say I do not see it that way. Nothing needed to be said by anyone in your group to those people in the Gundry Street carpark. The reaction, by all concerned – and that includes their group and yours – was out of proportion and dangerous. Time – and that includes your time – and money would have been saved if nothing had been said or, when it was said, ignored or if the situation defused when they came around to where you were parked. More importantly, you both now have convictions for violent offending.

Personal circumstances

[14] As I have said, the Corrections’ reports are remarkably similar.

[15] Mr Sioeli Moa, you are 23 years old and until recently have not been working. Mr Telefoni Moa, you are 20 years old, and were attending a freight forwarding course when arrested for this offending. That precluded you from finishing the course although I understand from your counsel today that you have re-enrolled.

[16] Corrections say each of you:

[17] has no remorse for your actions or empathy with Mr Limu, and as I

have said think he “got what he asked for”;

[18] consider violence to be an acceptable means to an end; [19] has a harmful attitude towards alcohol consumption; and

[20] has a low motivation to change your behaviour and views, a medium risk of reoffending and presents a high risk of harm to others which I can readily accept if you think that violence is an acceptable way to conduct yourselves.

[21] You have each declined to consent to an electronically monitored sentence and so Corrections did not prepare the report on home detention that I asked for. Corrections recommend that I sentence each of you to a period of imprisonment.

[22] Sioeli, you have a conviction for violent offending, committed in the US.

Telefoni, you do not have any convictions that are relevant for today’s purposes.

Approach to sentencing

[23] Let me come to the sentencing process. There are two stages to this.

[24] First, I must identify a “starting point” that reflects the inherent culpability in your offending. Secondly, I must consider whether there are any matters personal to you that make it appropriate to increase or reduce the sentence from that starting point.

Starting point

[25] Coming to the starting point, there is no dispute between any of the lawyers present that I am to impose a sentence that:

holds you accountable for the harm that your offending caused to

_{Mr Limu and the community;}

makes you understand that you are responsible for that harm;

deters you and others from behaving in the same way in the future;

treats you in the same way and on the same basis that other offenders who have committed this type of offence have been treated; and

_{is the least restrictive appropriate in the circumstances.}

[26] In a recent case, Nuku v R,² the Court of Appeal gave guidance as to how the Court should sentence for offences that involve intent to injure, as this one does. The Court identified three bands of starting point, depending on the aggravating and mitigating features of offending.³ These features are those listed in Taueki.⁴ The question is which band you fall into.

[27] Band 1 of Nuku applies where there are few aggravating features, the level of violence is relatively low and the sentencing judge, that is me, considers the culpability to be at a level that might have been better reflected in a less serious

_{charge. In that band, a sentence of less than imprisonment can be appropriate.}

² _{Nuku v R [2012] NZCA 584; [2013] 2 NZLR 39.}

³ _{Ibid, at [38] and [42].}

⁴ R v Taueki [2005] 3 NZLR 372.

[28] Band 2 applies where three or fewer aggravating factors. A starting point of

up to 3 years’ imprisonment will be appropriate in that situation.

[29] Band 3 applies where three or more of the aggravating factors set out in Taueki and the combination of those factors is particularly serious. We are all agreed that you are not in band 3.

Features of the offending

[30] The aggravating features of the offending which I take into account in the present case are that I find that you both kicked Mr Limu in the head. That elevates the seriousness of offending because the Court takes a particularly dim view of violence to the head. Moreover, you did so when Mr Limu was unconscious and therefore vulnerable. I note your counsel’s submission that he was afforded a measure of protection by his girlfriend’s attempt to shield him but nonetheless you attacked him when he was on the ground and unconscious. The other matter I take into account is that there were multiple attackers. I accept that, at the start of this fight, you did not have weight of numbers on your side but you certainly did by the time Mr Limu was unconscious. You had the weight of numbers at that time because everyone else was unconscious on the ground, apart from the girls in the complainant group.

[31] A factor that does reduce the seriousness of the offending is excessive self-defence.⁵ I accept that you were acting in self defence at the start and I also accept that at some point you intervened to try and remove a person in your group from the situation and to stop him from continuing to act in an aggressive manner.

Counsels’ submissions

[32] Crown counsel suggests that the features of your offending place it at the low end of band 2 and that a starting point of 2 years’ imprisonment is appropriate.

⁵ Ibid at [33].

[33] Your lawyers suggest that the offending should be in band 1 or at the lower end of band 2 and suggest a starting point of either a short term of imprisonment or a lengthy sentence of community work.

[34] I am satisfied that the offending is on the cusp of band 1 and band 2. In the circumstances, I consider a starting point 2 years’ imprisonment to be appropriate. I have reached this conclusion taking into account the factors to which I have referred, aggravating and mitigating, authorities which apply Nuku and several which predate Nuku although I have given those less weight. The details of those cases will appear in the written version of this sentencing note. I do not propose to read them out now.

Cases applying Nuku

_{[35] Grigsby v Police:}⁶

an argument between Mr Grisby and the victim escalated to a physical

_fight;

Mr Grisby bit the victim on the arm and shoulder;

the offending fell towards the bottom of band 2 of Nuku. On appeal

_{the High Court fixed a starting point of 9 months’ imprisonment.}

_{[36] Gilbert v Police:}⁷

Mr Gilbert threw boiling water at the complainant after an argument;

the water landed on the complainant’s back and caused her back to

_{blister and swell;}

on appeal the High Court agreed that the offending fell within band 2 of Nuku and confirmed the starting point of 2 years 6 months’ imprisonment.

Cases that pre-date Nuku

_{[37] Bennett v R:}⁸

Mr Bennett was convicted on two counts of injuring with intent to

_{injure and one of assault with intent to injure;}

a group of party goers including Mr Bennett were standing around the

_{first victim’s vehicle. There was a verbal altercation;}

Mr Bennett punched the first victim in the head and his associates, including his father, then joined in. The first victim was knocked to the ground where he was repeatedly kicked in the head and stomach by Mr Bennett and his father. The first victim suffered a broken eye socket and severe bruising. The sentencing Judge took a starting point of 2 years’ imprisonment for each of Mr Bennett and his father

_{in relation to the first victim;}

the second victim attempted to intervene but was elbowed and punched to the ground. The third victim attempted to intervene but was punched and fell to the ground where he was kicked repeatedly

_{and one offender stomped on his face;}

an uplift of 9 months was imposed to reflect the harm to the other

_victims.

_{[38] Neho v R:}⁹

the victim was sitting and speaking with an associate. Mr Neho and an associate approached the victim, verbally abused him and attempted to grab tobacco and a beer bottle that the victim was holding;

a struggle ensued and Mr Neho was pulled away and assaulted by the

_{victim’s associate, who then left;}

Mr Neho returned to the victim and proceeded to punch him 10-12

_{times, causing him to lose consciousness temporarily;}

Mr Neho pleaded guilty to one count of injuring with intent to injure.

_{The Court of Appeal upheld a starting point of 2 years’ imprisonment.}

_{[39] Harrison v R:}¹⁰

in an unprovoked attack, Mr Harrison punched the victim once in the

_{face. The victim was knocked unconscious;}

Mr Harrison then stomped on the victim’s head with significant force.

The victim suffered a fractured skull, swelling and bruising to the brain and a blood clot. He required treatment every week for a period of 3 months and subsequently suffered permanent harm including

_{hearing loss;}

the sentencing Judge adopted a starting point of 2 years, 8 months’

imprisonment. The Court of Appeal concluded that the offending was too serious to permit a sentence of home detention.

_{[40] Hala v R:}¹¹

unprovoked attack after the victim collided with Mr Hala as he

_{walked through a crowd;}

Mr Hala punched the victim three times in the face, knocked him to the ground and then punched him as he attempted to get up. The victim suffered a fractured jaw and required dental work;

the Court of Appeal upheld a starting point of 2 years and 10 months’ imprisonment. Case decided under R v Harris,¹² but the Court of Appeal noted that the starting point would have been equally available had Mr Hala been sentenced using the bands established in

_Nuku.

_{[41] Devery v Police:}¹³

unprovoked road rage. Mr Devery punched the victim to the head, kicked him at least two or three times in the back, and struck him

_{about the head with a bottle at least twice;}

victim’s injuries included a swollen black eye, cuts around his mouth,

_{nose and eye area, grazes on his elbow, and bruising to his torso;}

on appeal the High Court upheld a starting point of 3 years’

_{imprisonment.}

_{[42] Winklemann v R:}¹⁴

Mr Winklemann and an associate were outside a bar and made comments to some females present. The two victims said something

_{in response;}

Mr Winklemann punched the first victim who fell onto the footpath.

_{Mr Winklemann continued punching his head;}

Mr Winklemann punched the second victim in the face. He fell back against a shop window and Mr Winklemann continued punching him

_{and tried to knee him in the face and head;}

¹² _{R v Harris [2008] NZCA 528.}

¹³ Devery v Police [2013] NZHC 264.

the first victim suffered a concussion, black eye, a swollen and grazed face. The second victim received a fractured jaw;

the Court of Appeal did not adjust the starting point of 3 years and 3

_{months’ imprisonment.}

Adjusting the starting point

[43] I turn now consider whether I should increase or reduce the sentence on account of other matters personal to you.

[44] All lawyers agree that there are no aggravating factors that make it appropriate to increase the sentence.

[45] As for mitigation, Telefoni Moa you have no previous convictions relevant to this sentence. I accept your counsel’s submission that you are entitled to some credit for previous good character and I propose to reduce the starting point by 10 per cent on account of that.

[46] I propose to make some reduction to Mr Sioeli Moa’s sentence on account of his 11 months on EM bail. There were two short lived breaches of bail, which affect the level of reduction it is appropriate to make. I propose to reduce your sentence by

3 months on account of your time on EM bail.

[47] All lawyers are agreed that a reduction of 25 per cent is required to reflect your guilty pleas.

[48] Taking all of those matters into account that brings me to an end sentence of

16 months’ imprisonment for each of you.

Type of sentence

[49] Given the length of end sentence, the law would ordinarily require me to consider whether I should impose a sentence of home detention rather than imprisonment.

[50] I am not going to do that for one principal reason, namely that you have refused to consent to such a sentence. Accordingly, I have no information available to me which would allow me to consider whether such a sentence might be appropriate or available to me in the circumstances.

[51] That is not entirely the end of the matter because there is also an issue in cases of violent offending as to whether it is ever appropriate to sentence someone to home detention.¹⁵ I accept that there are some cases in which the Court may decide to do so.¹⁶ I would have been willing to consider it in this case but your lack of consent makes it unnecessary for me to do so.

Sentence

[52] Mr Sioeli Moa and Mr Telefoni Moa, would you please stand. [53] Mr Sioeli Moa, I sentence you to 16 months imprisonment. [54] Mr Telefoni Moa, I sentence you to 16 months’ imprisonment. [55] Stand down.

..................................................................

_{M Peters J}

¹⁵ Sadiq v R [2012] NZCA 396 at [9]; Grimshaw-Jones v R [2010] NZCA 490 at [13]; and R v

_{Gwatkin CA228/02, 29 October 202 at [22].}

¹⁶ O'Hanlon v R HC New Plymouth CRI-2009-443-26, 18 December 2009 at [47]; Goodlet v Police

HC Dunedin CRI-2008-412-36, 18 November 2008; R v Adlam HC Rotorua CRI-2006-063-4350, 1

April 2008; and Moana-Wharenui v Police HC Hamilton CRI-2008-419-66, 3 September 2008.