SA LEAVAI v R [2017] NZCA 368

SA LEAVAI v R [2017] NZCA 368 [25 August 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA89/2017[2017] NZCA 368BETWEEN JAMES PATRISARICH SA LEAVAIAppellantAND THE QUEENRespondentHearing: 24 July 2017Court: Gilbert, Brewer and Peters JJCounsel: C J Tennet for AppellantS K Barr for RespondentJudgment: 25 August 2017 at 12.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Sa Leavai appeals his sentence of seven years' imprisonment imposed byJudge Kellar1 on the following charges:(a) sexual violation by unlawful sexual connection;2(b) assault with intent to injure (x2);3(c) indecent assault;4(d) theft (x2);5 and(e) wilful damage.6[2] Mr Sa Leavai pleaded guilty to these charges. His overall submission is thatthe sentence is manifestly excessive. His grounds of appeal challenge, first, thecorrectness of the decisions Judge Kellar made in calculating the sentence and,secondly, the conduct of his previous counsel.Facts[3] On 20 May 2016, Mr Sa Leavai met the three victims at a bar. The group endedup at victim 1's address. The drinking continued. Victim 2 started to fall asleepbecause of her level of intoxication. She was on a bed and Mr Sa Leavai got into thebed and lay behind her. He put his hand under the victim's dress and started kissingthe back of her neck. He then put his hand inside her underwear and rubbed andgrabbed her bottom aggressively. Victim 3 told him to stop. This incident foundedthe charge of indecent assault.1 R v Sa Leavai [2017] NZDC 1859.2 Crimes Act 1961, ss 128(1)(b) and 128B(1); Maximum penalty 20 years' imprisonment.3 Section 193; Maximum penalty 3 years' imprisonment.4 Section 135; Maximum penalty 7 years' imprisonment.5 Sections 219 and 223(b) and (c); Maximum penalty 1 year imprisonment and 7 years'imprisonment respectively.6 Summary Offences Act 1981, s 11(1)(a); Maximum penalty 3 months' imprisonment or a $2,000fine.[4] An argument developed and Mr Sa Leavai used his elbow to strike victim 2across the face. She received a cut lip and facial bruising as a result.[5] Victims 2 and 3 tried to force Mr Sa Leavai to leave the address. Theythreatened to make a phone call to get help. As a result, Mr Sa Leavai took victim 3'scellphone. This incident founds one of the charges of theft.[6] Mr Sa Leavai then left the room and went downstairs, taking victim 3'scellphone with him. Victims 2 and 3 went after him to retrieve the cellphone.Mr Sa Leavai then grabbed victim 3 by the throat with one hand. She tried to pull hishand away. Mr Sa Leavai then let go of victim 3 and grabbed victim 2 around thethroat and forced her into a sitting position on the stairs. He then punched both victims2 and 3 several times to their heads, pulled their hair and swung their heads into thewall. At one point, victim 3 was punched so hard she fell over and injured her elbow.During this incident, Mr Sa Leavai shut and locked the front door. These facts gaverise to the two charges of assault with intent to injure.[7] Mr Sa Leavai then grabbed victim 3 by the hair and dragged her into a toiletroom and locked the door. Mr Sa Leavai removed his shirt and pulled his pants downwhile grabbing victim 3's hair. Mr Sa Leavai then forced victim 3 to perform oral sexon him by inserting his penis into her mouth. Mr Sa Leavai pulled victim 3's head upby her hair and told her to "suck his fucken dick". When she said "no", he pinchedher windpipe really hard and pushed her back down. While still holding her hair, hesmashed her head into a basin. Mr Sa Leavai then forced victim 3 to continueperforming oral sex on him by inserting his penis back into her mouth. As a result ofthis incident, Mr Sa Leavai was charged with sexual violation by unlawful sexualconnection.[8] While all this was going on, victim 1, being scared of the violence, had hiddenunder the stairs. He called the Police.[9] During the course of these events, Mr Sa Leavai threw and smashed anelectronic game device, as well as damaging some blinds and a wall. As a result, thecharge of wilful damage was laid.[10] After all these events, Mr Sa Leavai decided to leave the address. Beforegoing, he stole an Apple iPhone 6S and charging cable, a Sony PS4 controller, a goldchain link necklace and a gold watch. This property belonged to victim 1 and wasvalued at $1,839. The second charge of theft was laid in relation to this offending.Judge Kellar's sentence[11] In setting the starting point, the Judge accepted that, to a large extent, theoffending was spontaneous, albeit with an element of premeditation.7 The Judge notedthat Mr Sa Leavai had taken a cellphone to prevent the victims calling for assistance.He noted also that victim 3 had been dragged into the toilet and the door then lockedso as to prevent her from escaping and to prevent anybody assisting her.[12] The second aggravating factor identified by the Judge was the use of violenceand the degree of it.8 It was relatively prolonged and victim 3 was physically assaulteda number of times in the hall before being dragged by the hair into the toilet room andforced to perform oral sex. The violence continued in the toilet room when victim 3said "no". That was when Mr Sa Leavai pinched her windpipe and smashed her headinto a basin before forcing her to continue oral sex. The Judge noted that this was avery high degree of serious violence.[13] The third aggravating factor identified by the Judge was that some ofMr Sa Leavai's attacks involved attacks to the head.9 These attacks carried seriouspotential for injury.[14] The fourth aggravating feature, and the Judge acknowledged the overlap withthe element of premeditation, was the aspect of detention.10 Mr Sa Leavai had lockedthe front door of the address to prevent people leaving and, more importantly, therewas the detention of victim 3 in the toilet.7 R v Sa Leavai, above n1 at [10].8 At [11].9 At [12].10 At [13].[15] Finally, the Judge identified the most serious aspect of the offending as beingthe harm to the victims.11 They were frightened, degraded and injured. Quite apartfrom the physical aspects, there were the ongoing emotional effects of the offending.[16] Having regard to the judgment of this Court in R v AM (CA27/2009),12Judge Kellar adopted a starting point of eight years' imprisonment for the lead offenceof sexual violation by unlawful sexual connection.13 He increased this by one year forthe assault with intent to injure in respect of the victim of the sexual violation, victim 3.The Judge imposed a further uplift of two years' imprisonment for the indecent assaultof victim 2 and the assault with intent to injure her. That led to an overall startingpoint of 11 years' imprisonment.14[17] We note that although Mr Sa Leavai has three previous convictions forcommon assault (two in 2007 and one in 2010), the Judge did not increase the sentenceto take account of them. Neither did the Judge increase his sentence because of thethefts and the wilful damage. He considered that these charges paled intoinsignificance and he dealt with them by imposing concurrent sentences.[18] As to reductions for factors personal to Mr Sa Leavai, the Judge first reducedthe starting point by one year for remorse.15 He then allowed some 20 per cent(two years) as a reduction for the guilty pleas.16 That left an overall end sentence ofeight years' imprisonment.[19] Judge Kellar then considered the weight of that sentence against his overallview of the totality of Mr Sa Leavai's offending. The Judge decided that a furtherreduction of one year's imprisonment was required. Thus, the final sentence wasseven years' imprisonment.1711 At [14].12 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.13 At [26].14 At [26].15 At [27].16 At [30].17 At [30].The AppealCalculation of the sentence[20] Mr Tennet for Mr Sa Leavai focused on the setting of the starting point. Hedoes not challenge the discounts given, although he would add to them.[21] Mr Tennet submits that Judge Kellar erred in setting the starting point in threerespects:(a) The effective starting point of nine years' imprisonment in respect ofvictim 3 was too high.(b) The uplift of two years for victim 2 was too high.(c) The Judge should have given a discount for the willingness ofMr Sa Leavai to participate in a restorative justice conference.[22] Mr Tennet submits that the starting point for the sexual violation charge shouldhave been seven years' imprisonment with only a small uplift for all the remainingcharges.[23] In our view, there is no doubt that the sexual violation offending to whichMr Sa Leavai pleaded guilty is within band two of R v AM (CA27/2009) (with startingpoints between 7 and 13 years' imprisonment).18 We agree with Mr Barr for the Crownthat the eight year starting point was unremarkable. The offending involvedMr Sa Leavai dragging victim 3 by her hair to a toilet room where he detained her bylocking the door. He forced her to perform oral sex on him and, when she said "no",assaulted her using significant violence to overcome her resistance and then forced herto resume oral sex. A higher starting point could have been adopted.[24] Likewise, the uplift of one year for the preceding assault with intent to injureis fully justified. It was a separate assault and had to be taken into account.18 R v AM (CA27/2009), above n 12, at [98].[25] As for victim 2, the Judge had to impose an uplift for the indecent assault onher coupled with the assault with intent to injure her. This was in the context of theseizure of the cellphone and the locking of the front door to the address. Imposing anuplift of two years was within the range available to the Judge.[26] We accept that the overall starting point of 11 years' imprisonment could beregarded as stern, given that this was a single series of events which did not result inserious physical injuries. However, the Judge did not impose any additional penaltiesfor the offending against victim 1 – the theft and the wilful damage – and the remainingtheft charge. Nor did he uplift the sentences for the assault with intent to injure chargesto take into account Mr Sa Leavai's three previous assault convictions.[27] The reductions made by the Judge for remorse and for entering pleas of guiltywere appropriate. We do not agree that Mr Sa Leavai's willingness to participate in arestorative justice conference merits a discount beyond that which was given for hisexpressions of remorse.[28] Finally, we consider that any doubt about the appropriateness of the sentenceis dispelled by the Judge's final reduction of one year to account for totality.[29] Sentencing is not a mathematical process. It requires a Judge to assess theparticular offending against the broad sentencing precedents and the relevantcircumstances. The evaluation includes the purposes and principles of sentencing asset out in ss 7-8 of the Sentencing Act 2002. The outcome is a range in which anappropriate sentence can be located. A final sentence of seven years' imprisonment iswell within the range available to Judge Kellar for the totality of Mr Sa Leavai'soffending against the three victims.Conduct of counsel[30] Mr Sa Leavai is unhappy with the way in which he was represented by hisprevious counsel. Mr Tennet has endeavoured to express that unhappiness in wayswhich might persuade us to reduce Mr Sa Leavai's sentence, which we have otherwisefound to be within the range available to the sentencing Judge. However, we do notsee that the matters raised by Mr Tennet can go to sentence.[31] Mr Sa Leavai and his wife filed affidavits in support of his appeal to which wehave had regard. Mr Sa Leavai's affidavit deposes that he did not expect to enter pleasof guilty on the day he did. He complains that he was not advised about the procedurefor obtaining a sentence indication and that, although his counsel negotiated theremoval of some of the charges he then faced, the summary of facts remained thesame. Mr Sa Leavai deposes that he did not know that he could have a disputed factshearing.[32] Mr Sa Leavai appears to dispute that he indecently assaulted victim 2, that hestole the cellphone and that he assaulted victims 2 and 3 with intent to injure them.He alleges that the victims' statements contradict each other in this regard.[33] Mrs Leavai deposes that Mr Sa Leavai's lawyer did not treat them with dueprofessional courtesy and did not properly consult with them.[34] We note at this point that, privilege having been waived, Mr Sa Leavai's formercounsel has also filed an affidavit. He gives an account of his dealings withMr Sa Leavai and with Mrs Leavai. On that account, the dealings were professionaland appropriate. He deposes that he went through the summary of facts with them andexplained the discounts available for guilty pleas. He annexes his workings which hecreated at the meeting, recording his assessment that the likely sentence would beseven years and three months' imprisonment. These workings proved to beremarkably accurate both as to the structure of the sentence and the outcome.[35] The key point for us is that Mr Sa Leavai has not appealed his convictions. Hedoes not seek to vacate his pleas and go to trial. That is understandable given theadmissions he has made relating to the charge of sexual violation. We cannot reducehis sentence because he and his wife are unhappy with aspects of Mr Sa Leavai's legalrepresentation.[36] For completeness, we make the following points:(a) Mr Sa Leavai's former counsel persuaded the Crown to remove threecharges of male assaults female and one charge of sexual violation byunlawful sexual connection (laid in respect of the continuation offorced oral sex), but the Crown prosecutor was firm that the summaryof facts would not be changed. This was because the Crown prosecutorwas required to put before the Judge a summary of all material factsgoing to the essential criminality of the offending.19(b) The purpose of a sentence indication hearing is to enable a defendantto learn on a without prejudice basis the sentence likely to be imposedif they were to enter a guilty plea. It would be an abuse of process toseek a sentence indication as a means of gaining more time to discussmatters with family members.(c) A disputed facts hearing is not available for contests over facts whichare essential to the validity of charges. Mr Sa Leavai's complaints gomainly to whether he is guilty of some of the charges. Guilt orinnocence is determined by trial.Result[37] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent19 Crown Law Office, Solicitor-General's Prosecution Guidelines (1 July 2013) at [18.8].