VAEAFISI V R [2017] NZCA 545

VAEAFISI V R [2017] NZCA 545 [24 November 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA349/2017[2017] NZCA 545BETWEEN AKOSITA VAEAFISIAppellantAND THE QUEENRespondentHearing: 13 November 2017Court: Harrison, Lang and Ellis JJCounsel: N P Chisnall for AppellantJEL Carruthers for RespondentJudgment: 24 November 2017 at 2.30 pmJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Akosita Vaeafisi pleaded guilty in the District Court at Manukau to six chargesof aggravated robbery and one charge of burglary. On 14 June 2017 Judge AndréeWiltens sentenced Ms Vaeafisi to six years and nine months' imprisonment on allcharges.11 R v Waitai [2017] NZDC 12651.[2] Ms Vaeafisi appeals against sentence. She does not contend the end sentencewas manifestly excessive having regard to her overall culpability. Rather, she arguesthat it needs to be reduced further to achieve parity with a sentence of five years andsix months' imprisonment that was imposed on her sister and co-offender,Alavinya Vaeafisi (referred to by her first name in this judgment ).2The charges[3] The charges were laid after the police established that Alavinya andMs Vaeafisi had planned and executed a series of aggravated robberies inSouth Auckland between 10 February and 16 March 2015. They arranged for othermembers of their family to participate in these activities. The offending involved therobbery of occupants of private dwellings, together with street robberies and therobbery of dairies and a takeaway shop. In each case several members of the groupwould carry out the robbery whilst others would act as lookouts or getaway drivers.[4] In total, the group committed eight separate aggravated robberies, oneattempted aggravated robbery, a burglary and theft. All of the group shared in theproceeds of the offending. This generally comprised cigarettes and small quantities ofcash. The exception was the robbery of a dairy in which cash, cigarettes and acellphone to a total value of approximately $10,000 were taken.The procedural background to the appeal[5] To understand properly the issues raised by the appeal, it is necessary to haveregard to its procedural background. This relates to the sentences imposed onAlavinya and Ms Vaeafisi.Alavinya's original sentence[6] Like Ms Vaeafisi, Alavinya planned and coordinated the robberies.On occasions she provided advice by cellphone whilst the offending was in progress,and she also acted as a lookout and getaway driver in two of the robberies.2 R v Kirk [2017] NZHC 673 at [87].[7] Alavinya pleaded guilty after accepting a sentence indication given byJudge McNaughton in the District Court. The Judge took a starting point of sevenyears' imprisonment on the lead offence, and then increased that to ten years'imprisonment to reflect the totality of the offending. He considered Alavinya'sreduced physical role in the offending warranted a reduction of one year from thestarting point, but offset that by an uplift of the same amount to reflect the fact thatAlavinya had three previous convictions for aggravated robbery. She had received asentence of five years' imprisonment for that offending in 2005. The Judge thenindicated he would apply a discount of 25 per cent to reflect guilty pleas if they wereentered promptly.[8] Following her acceptance of the sentence indication, Alavinya improved herposition further by making a statement to the police in which she acknowledged herrole in the offending and identified the roles played by other family members in thecrimes committed by the group. She also confirmed she would give evidence for theCrown at the trial of those persons.[9] When he sentenced Alavinya on 21 December 2016, Judge McNaughtonadopted the overall starting point of ten years' imprisonment he had earlier selected toreflect Alavinya's culpability in relation to all offending.3 He then applied a25-per-cent discount, as previously indicated, to reflect guilty pleas. From theresulting sentence of seven years and six months' imprisonment he applied a furtherdiscount of two years and six months to reflect the fact that Alavinya had agreed tocooperate with the Crown and give evidence against her co-offenders. He also reducedthe sentence by one year to reflect remorse that Alavinya had expressed herwillingness to attend a restorative justice conference and rehabilitative steps she hadundertaken whilst in custody. This produced an end sentence of four years'imprisonment that the Judge imposed on all charges concurrently.3 R v Vaeafisi [2016] NZDC 26230.The Solicitor-General's appeal[10] The Solicitor-General appealed against the sentence imposed on Alavinya andanother of her co-offenders, Sammie-Jo Kirk.4 In a judgment delivered on 10 April2017, Toogood J allowed the appeal.5 He considered that Alavinya's offendingwarranted a starting point of not less than 13 years' imprisonment.6 Toogood J alsoconsidered that Judge McNaughton had erred in reducing the starting point by a yearto reflect the reduced physical role she had played in the offending.7 He consideredthat Alavinya was a full participant in the overall enterprise, and the fact that she hadnot physically carried out the robberies did not justify any reduction in the startingpoint.[11] Toogood J accepted that an uplift of one year was appropriate to reflectAlavinya's failure to respond positively to previous convictions for similar offending.8He also agreed that, although they were generous, the discounts allowed by the Judgefor guilty pleas and the offer to provide assistance to the Crown were within theavailable range.9 Toogood J considered, however, that the Judge had erred in applyingthese discounts. He observed:[76] The Judge's principal error, however, lay [in] the way in which heused the guilty plea and assistance discounts in calculating the end sentence.It is clear from the authorities such as Hessell, Taueki and Hadfield that theguilty plea discount must be applied at the end of the analysis, after the startingpoint and any other adjustments for personal aggravating or personalmitigating factors are taken into account. Applying the discount directly tothe adjusted starting point, as the Judge did in this case, inflates thesignificance of the discount. Here the generous allowance of 50 per cent,deducted from the adjusted starting point of 10 years the Judge adopted, hadthe effect of reducing the sentence by five years. Had the Judge applied it atthe correct stage of the analysis, the adjustment would have been four yearsand six months.[77] The end result of a principled approach to sentencing Ms Vaeafisiconsistently with authority should have produced a sentence in the range ofsix to seven years. Instead, the compound effect of the Judge's errors resultedin an end sentence of only four years' imprisonment. It is clear that wasmanifestly inadequate.4 R v Kirk [2012] NZDC 26280.5 R v Kirk, above n 2.6 At [67].7 At [68]–[70].8 At [73].9 At [75].(Footnote omitted.)[12] Having concluded that Alavinya ought to have received an end sentence withinthe range of six to seven years, the Judge allowed the appeal and increased Alavinya'ssentence to one of five years and six months' imprisonment.10 He did so to reflect thewell-established principle that any successful appeal by the Solicitor-General shouldresult in an increased sentence at the bottom of the available range.11The sentence imposed on Ms Vaeafisi[13] Judge Andrée Wiltens sentenced Ms Vaeafisi after Toogood J had delivered hisdecision allowing the appeal against the sentence imposed on Alavinya. He wastherefore aware of the observations Toogood J had made regarding the appropriatestarting points and end sentence in respect of Alavinya's offending. Judge AndréeWiltens said he found himself in "a very unsatisfactory situation" because of theextremely lenient sentence Alavinya had received.12 Adopting the approach taken byToogood J, the Judge applied a starting point of seven years' imprisonment to reflectthe offence he selected as the lead offence.13 He then increased that by six years toreflect Ms Vaeafisi's overall culpability in respect of the remaining charges.14This produced a starting point of 13 years' imprisonment before taking into accountaggravating and mitigating factors.[14] After pleading guilty Ms Vaeafisi had followed Alavinya's lead and agreed togive evidence for the Crown at the trial of her co-offenders. Judge Andrée Wiltensreduced the starting point by 35 per cent to reflect that fact, as well as her lack ofprevious convictions.15 He then reduced the sentence by 12.5 per cent to reflect lateguilty pleas.16 This produced an end sentence of seven years and three months'imprisonment. The Judge considered this was too high to reflect adequately therequirement of parity having regard to the end sentence imposed on Alavinya.1710 At [77] and [86]–[87].11 At [85].12 R v Waitai, above n 1, at [1].13 At [6].14 At [7].15 At [11].16 At [12].17 At [13].He therefore reduced the sentence by a further six months. This resulted in concurrentsentences of six years and nine months' imprisonment on each charge.The appeal[15] On Ms Vaeafisi's behalf Mr Chisnall contends there is an unjustified disparitybetween the sentence of six years nine months' imprisonment that Ms Vaeafisireceived and the sentence of five years and six months' imprisonment imposed onAlavinya. He points out that, unlike Alavinya, Ms Vaeafisi did not have any relevantprevious convictions and, like Alavinya, she was able to call on mitigating factors thatought to have produced an end sentence no greater than that imposed on Alavinya. MrChisnall contends the disparity is so marked that it calls into question the integrity ofthe administration of justice.Decision[16] The only issue we are required to determine is whether the Judge ought to havereduced Ms Vaeafisi's end sentence of six years and nine months' imprisonment inorder to bring it into line further with the sentence Toogood J imposed on Alavinyaafter allowing the Solicitor-General's appeal.[17] We do not consider that to be appropriate for several reasons. First, Toogood Jhad identified the appropriate end sentence for Alavinya's offending as being withinthe range of six to seven years' imprisonment. We consider he was extremely generousin then imposing a sentence of five years and six months' imprisonment. If a sentenceof six years' imprisonment was at the bottom of the available range, it is arguable thatToogood J ought to have imposed that sentence on Alavinya.[18] Secondly, the end sentence that Alavinya received was, as Toogood J observed,the result of an appeal by the Solicitor-General. We do not consider the fact that alower sentence has been imposed on one offender for that reason justifies the reductionof an otherwise proper sentence on a co-offender.[19] Thirdly, the difference between the two end sentences is explicable in largepart to the greater discount Alavinya received for her earlier guilty pleas.[20] Fourthly, the desirability of consistency between sentences imposed onco-offenders who have committed similar offences rests on the proposition that anymarked departure in sentencing levels without adequate reason "can result in injusticeto an accused person and may raise doubts about the even-handed administration ofjustice".18 Sometimes the test is described as being whether an independent andobjective observer would consider the disparity between sentences imposed on co-offenders calls into question the administration of justice.19[21] In the present case, we consider that an independent and objective observerwould recognise that Judge Andrée Wiltens had applied the starting point of 13 years'imprisonment held to be appropriate by Toogood J. Such a person would also readilyappreciate the reasons why in this particular case the end sentences were different.These included the fact that Alavinya's sentence was the result of a Solicitor-General'sappeal and Alavinya had entered her guilty pleas earlier than Ms Vaeafisi.[22] Furthermore, in a sentencing context, two wrongs do not make a right.We consider an independent and objective observer may well conclude that theadministration of justice was called into question if it permitted Ms Vaeafisi to receivethe same sentence as Alavinya. The observer would most likely be of the view thatMs Vaeafisi should not be entitled to share in the benefit of Judge McNaughton's errorbeyond the allowance Judge Andrée Wiltens has already given her.[23] For these reasons we do not consider it appropriate to reduce the end sentencefurther to reflect parity principles.Result[24] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent18 R v Morris [1991] 3 NZLR 641 (CA) at 645.19 Singh v R [2013] NZCA 245 at [35].