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Lealofi Setu v/s The Queen


Company & Directors' Information:- SETU INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U51909DL1992PTC047101

Company & Directors' Information:- SETU CORPORATION PRIVATE LIMITED [Strike Off] CIN = U52399PN2012PTC145338

Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 521 of 2017

    Decided On, 27 April 2018

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE KÓS P
    By, THE HONOURABLE MR. JUSTICE FRENCH & THE HONOURABLE MR. JUSTICE MILLER

    For the Applicant: J.H.M. Eaton, QC. For the Respondent: C.J. Lange, S.R.D.D. Bicknell Young, Advocates.



Judgment Text

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Setu seeks leave to appeal a sentencing decision of Mander J in the High Court under s 253 of the Criminal Procedure Act 2011.[1] Leave is required because this would be a second appeal, the decision of Mander J being itself an appeal from a sentence of five years’ imprisonment imposed by a District Court Judge, Judge Neave.[2]

[2] The application for leave was filed in this Court eight days out of time, requiring Mr Setu to seek an extension of time. The period of delay was short and there was a reasonable explanation. The respondent did not oppose an extension and it is accordingly granted.

Background

[3] The sentence was imposed following convictions for two breaches of protection order, one charge of aggravated burglary and one charge of wounding with intent to cause grievous bodily harm. Having regard to the aggravating factors, Judge Neave found that the wounding charge fell within the third band of R v Taueki[3] and adopted a starting point of 10 years’ imprisonment.[4] Taueki is a guidelines decision relating to sentencing for serious violent offending. It was issued by this Court in 2005. Judge Neave then adjusted the starting point of ten years’ imprisonment on account of personal mitigating factors resulting in an end sentence of five years’ imprisonment. Concurrent sentences of lesser terms were imposed in relation to the other offences.[5]

[4] On appeal to the High Court, counsel for Mr Setu Mr Eaton QC argued that the starting point was too high and inconsistent with a number of High Court decisions where he said lesser starting points had been adopted for more serious offending.[6] It was argued the Judge had been overly rigid in his application of Taueki and that in order to be consistent with the High Court authorities he should have placed the offending within band two and regarded eight years’ imprisonment the highest starting point available.

[5] Justice Mander rejected that argument and upheld the sentence. In the course of his judgment he acknowledged (as indeed did Judge Neave)[7] the existence of High Court authorities where a lesser starting point had been applied.[8] Justice Mander stated that there may 'perhaps to some extent' have been 'sentence drift' from the guidance provided by the Court of Appeal in Taueki, but that Judge Neave was entitled to follow that guidance.

[6] In seeking leave to appeal Mander J’s decision, Mr Eaton argued that the decision raised a question of general importance, namely what approach should a sentencing judge take when there is tension between current sentencing practice and a guidelines judgment. Mr Eaton contended that under the Sentencing Act 2002 consistency was an overriding principle and that the obligation to impose consistent sentences trumped the application of any tariff decision.[9] In Mr Eaton’s submission, Mander J had accordingly erred by purporting to correct what Mander J perceived as sentencing drift and by holding in effect that judges must follow the guidelines decision and not have regard to current decisions.

Analysis

[7] We do not accept these arguments for the following reasons.

[8] First, although the proposed question of general importance was not cast in this way, what Mr Eaton was effectively seeking was a revisiting of the Taueki guidelines. The Court must always be prepared to revisit guideline judgments as and when circumstances require. However on the material presently before us, there is insufficient empirical evidence of the perceived disparity between sentencing practice and Taueki which would warrant our embarking on that task.

[9] Secondly, in our view the arguments overstate the import of Mander J’s decision. In particular they ignore the following important passages in the decision where Mander J stated:

[44] It is trite to observe that each case will turn on its own particular facts and that invariably, each case will have their differences. There are instances of offending more serious than that of Mr Setu’s where lesser starting points have been adopted. There are also those cases, albeit fewer, where the relative seriousness is not dissimilar and a commensurate starting point applied.

...

[47] That development of itself [a body of authority illustrating variation in sentencing levels and possible sentence drift] may simply reflect what the Court of Appeal acknowledged in its Taueki decision, namely that sentencing ultimately involves the exercise of discretion and must allow for flexibility. The fact that some sentencing Courts have chosen, as they are entitled, to apply Taueki in a particular way does not, in my view, render another sentencing Court’s application of the Taueki guidance in another case inappropriate, so long as the starting point arrived at can be reconciled with the range the Court of Appeal has held to be available because of the nature and combination of aggravating features.

[10] Guideline judgments are just that - guidelines in the exercise of a discretion. As this Court made clear in Taueki itself, the suggested bands and starting points are to be used flexibly.[10] Sentencing judges need to exercise judgment in assessing not only the number of aggravating factors but also their gravity. The placing of any particular case within a band is also very much an evaluative exercise, there being significant overlap at the margins.

[11] The nature of a guidelines decision is well established and does not require further elucidation.

[12] We conclude that this case does not raise a question of sufficient general or public importance to merit a second appeal. Nor do we consider there has been any miscarriage of justice.

Outcome

[13] The application for an extension of time to apply for leave to appeal is granted.

[14] The application for leave to appeal is declined.

----------------------------------------------------------

[1] Setu v R [2017] NZHC 1839 [HC decision].

[2] R v Setu [2017] NZDC 10066 [DC decision].

[3] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

[4] At [12] and [22].

[5] At [30].

[6] R v Grindrod H

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C Wellington CRI-2009-032-131, 11 September 2009; R v Heta HC Hamilton CRI-2010-019-5289, 12 May 2011; R v Emery [2012] NZHC 391; R v W [2016] NZHC 1076; R v Singh [2016] NZHC 1666; R v Ae [2016] NZHC 965; and R v Walker [2015] NZHC 3214. Mr Eaton also submitted that decisions of this Court upholding starting points of ten years or more had concerned more serious offending. [7] DC decision, above n 2, at [12]. [8] HC decision, above n 1, at [43]. [9] Sentencing Act 2002, s 8(e). In so far as the submission purports to elevate consistency as the preeminent sentencing principle, we do not accept that is the effect of s 8. [10] Taueki, above n 3, at [42]–[43].
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