Elisaia v Police [2017] NZHC 2418 (3 October 2017)

Last Updated: 16 November 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-268 [2017] NZHC 2418

BETWEEN	WADE ELISAIA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	2 October 2017
Appearances:	B Meyer for Appellant D S Houghton for Respondent
Judgment:	3 October 2017

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 3 October 2017 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

ELISAIA v NEW ZEALAND POLICE [2017] NZHC 2418 [3 October 2017]

[1] Mr Elisaia pleaded guilty in the District Court to ten charges. These comprised receiving (x 2), dangerous driving, failing to stop, resisting a constable, driving whilst suspended, being in possession of an offensive weapon, theft of petrol and possession of cannabis. On 14 July 2017, Judge Wharepouri sentenced Mr Elisaia to 22 months imprisonment on those charges.¹

[2] Mr Elisaia came before the District Court again on 13 September 2017 after pleading guilty to charges of robbery and using threatening language. Judge Fitzgerald imposed a cumulative sentence of eight months imprisonment on those charges.²

Mr Elisaia accepts that Judge Fitzgerald was entitled to impose a cumulative sentence because this offending was discrete from that which led to the sentence imposed by Judge Wharepouri. Mr Elisaia appeals against the cumulative sentence of eight months imprisonment on the basis that it has produced a total sentence that is wholly out of proportion to the overall gravity of his offending.

Factual background

[3] It is not necessary to set out the facts in relation to the first set of charges because Mr Elisaia accepts that the Judge imposed an end sentence on those charges that was within the available range. The focus of the appeal is therefore on the second set of charges and, in particular, on the length of cumulative sentence that the Judge imposed in respect of those charges.

[4] The second set of charges arose out of two related incidents that occurred whilst Mr Elisaia was in custody on the first set of charges. On 4 May 2017 Mr Elisaia was in a holding cell at the Auckland District Court. He saw another person in the cell wearing a hooded leather jacket and he demanded the jacket from that person. The victim initially offered Mr Elisaia his t-shirt, but Mr Elisaia insisted on having the jacket. When the victim refused to hand it over, Mr Elisaia punched him in the face

_{on two occasions and took the jacket from him. He then used the jacket as a pillow as}

¹ New Zealand Police v Elisaia [2017] NZDC 15548.

² New Zealand Police v Elisaia [2017] NZDC 20772.

he lay down on the bench of the cell. The assault caused the victim to suffer a bleeding nose and some minor swelling but he did not require medical attention.

[5] These events were captured on a CCTV camera. When an officer spoke to Mr Elisaia about the incident, he responded by making threats against the officer. This led to the charge of using threatening language

Structure of the sentences

The sentence imposed on 14 July 2017

[6] Judge Wharepouri took a starting point of 18 months imprisonment on the lead charge, which he took to be a charge of receiving a stolen Land Rover motor vehicle. He then applied an uplift of 12 months to reflect Mr Elisaia’s culpability on the remaining charges. Some of the offending had occurred whilst Mr Elisaia was on bail. The Judge applied an uplift of one month to reflect that fact, and then added a further month to reflect Mr Elisaia’s earlier convictions for offending of a similar nature. This produced an end sentence of 32 months imprisonment before taking into account mitigating factors.

[7] The Judge reduced the sentence by eight months, or 25 per cent, to reflect early guilty pleas. He then applied a further discount of two months to reflect expressions of remorse and rehabilitative efforts made by Mr Elisaia whilst in custody. This produced the end sentence of 22 months imprisonment. The Judge imposed that sentence on the lead charge, and then imposed concurrent sentences on the remaining charges.

The sentence imposed on 12 July 2017

[8] Judge Fitzgerald sentenced Mr Elisaia two months after Judge Wharepouri had sentenced Mr Elisaia to 22 months imprisonment. Judge Fitzgerald was therefore required to have regard to totality principles once he decided to impose a sentence that was cumulative on those imposed by Judge Wharepouri.³ In other words, he needed

to impose a sentence that was not wholly out of proportion to the overall gravity of all of the offending.

[9] The Judge was clearly alive to this issue because he observed:⁴

[4] In effect, what I need to do is put myself in the position the Judge was in back in July and decide what the sentence would have been if these charges had been before the Court then. Now in carrying out that exercise, I accept that 12 months’ imprisonment is appropriate to adopt as a starting point and that is in relation to the robbery charge with the other charge included in that as well.

[10] The Judge did not apply any uplift to reflect Mr Elisaia’s previous convictions because Judge Wharepouri had already taken that factor into account when imposing the earlier sentence. The Judge applied a discount of one month to reflect remorse and rehabilitative efforts, together with a further discount of five per cent, or three months, to reflect guilty pleas. This produced the cumulative end sentence of eight months imprisonment. He imposed a concurrent sentence of one month imprisonment on the charge of using threatening language.

The arguments

[11] For Mr Elisaia, Mr Meyer submits that Judge Wharepouri would not have imposed a sentence requiring Mr Elisaia to serve an extra eight months in prison if he had sentenced Mr Elisaia on all charges on 13 July 2017. Mr Meyer points out that Judge Wharepouri added a total uplift of twelve months to reflect all of the offending other than that involving receipt of the stolen Land Rover. He submits it is inconceivable that the Judge would have increased that by a further twelve months to reflect the additional offending arising out of the incident in the court cells. He submits that, as Judge Fitzgerald expressly recognised, the offending in the court cells was at a relatively low level and involved no premeditation or lasting loss and injury to the victim. As a result, Mr Meyer submits that the Court should reduce the cumulative sentence to one of approximately two months duration.

[12] For the respondent, Ms Houghton contends that Judge Fitzgerald gave effect to totality principles by adopting a starting point towards the bottom of the available

range for a theft that was accompanied by violence directed to the head of the victim. She also submits that the Judge was required to build in an additional component to reflect the other charge. For those reasons she submits the cumulative sentence of eight months imprisonment was within the available range.

Decision

[13] Although the Judge was obviously alert to the need to apply totality principles, he did not expressly say how he proposed to do that. By way of example, he did not select a starting point of twelve months imprisonment and then conclude that an end sentence of eight months imprisonment after taking into account mitigating factors was still appropriate having regard to totality principles. Nor did he say he had reduced an otherwise appropriate starting point of more than twelve months imprisonment to reflect totality principles. I therefore have no means of knowing how he approached this issue.

[14] Looking at the matter afresh, I agree with Ms Houghton that a starting point of twelve months imprisonment could not ordinarily be said to be outside the available range for the charges on which the Judge was required to impose sentence. The robbery involved crude and callous standover tactics against another prisoner whom Mr Elisaia clearly viewed as being an easy target. It also involved actual violence directed to the victim’s head. In addition, the sentence also needed to reflect the threatening language charge. A starting point of twelve months imprisonment was well within the available range for offending having those characteristics. Nor can there be any issue regarding the discounts the Judge applied in respect of mitigating factors. As will already be obvious, the real issue is whether the cumulative sentence of eight months was too high having regard to the totality of Mr Elisaia’s offending.

[15] One way of testing the approach taken by Judge Fitzgerald is to combine it with that taken by Judge Wharepouri. This raises the issue of whether Judge Wharepouri could realistically have applied a further uplift of at least twelve months to reflect the offending in the court cell. If he did, it would be added to the twelve month uplift Judge Wharepouri applied to reflect the totality of Mr Elisaia’s offending other than the lead charge relating to the Land Rover. This approach would produce

an end starting point of three years six months imprisonment before taking into account mitigating factors. I consider that to be too high having regard to the totality of Mr Elisaia’s offending. This suggests that the cumulative end sentence of eight months imprisonment on the second set of charges may also be too high.

[16] Furthermore, the sentence that Judge Fitzgerald imposed had the effect of increasing the sentence Judge Wharepouri had earlier imposed by nearly one third. I consider this to be wholly disproportionate having regard to the nature of the later offending when compared to that for which Mr Elisaia had earlier received an end sentence of 22 months imprisonment. I do not consider the later offending warranted an increase of more than approximately 25 per cent having regard to totality principles.

Result

[17] The appeal against sentence is allowed. The cumulative sentence of eight months imprisonment on the robbery charge is quashed, and a cumulative sentence of

_{five months imprisonment is imposed in its place.}

Lang J

Solicitors:

Crown Solicitor, Auckland