SETU v R [2018] NZCA 127

SETU v R [2018] NZCA 127 [27 April 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA521/2017[2018] NZCA 127BETWEEN LEALOFI SETUApplicantAND THE QUEENRespondentHearing: 18 April 2018Court: Kós P, French and Miller JJCounsel: J H M Eaton QC for ApplicantC J Lange and S R D D Bicknell Young for RespondentJudgment: 27 April 2018 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time to apply for leave to appeal isgranted.B The application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Setu seeks leave to appeal a sentencing decision of Mander J inthe High Court under s 253 of the Criminal Procedure Act 2011.1 Leave is required1 Setu v R [2017] NZHC 1839 [HC decision].because this would be a second appeal, the decision of Mander J being itself an appealfrom 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 andthere was a reasonable explanation. The respondent did not oppose an extension andit is accordingly granted.Background[3] The sentence was imposed following convictions for two breaches ofprotection order, one charge of aggravated burglary and one charge of wounding withintent 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 Taueki3and adopted a starting point of 10 years' imprisonment.4 Taueki is a guidelinesdecision relating to sentencing for serious violent offending. It was issued bythis Court in 2005. Judge Neave then adjusted the starting point of ten years'imprisonment on account of personal mitigating factors resulting in an end sentenceof five years' imprisonment. Concurrent sentences of lesser terms were imposed inrelation to the other offences.5[4] On appeal to the High Court, counsel for Mr Setu Mr Eaton QC argued that thestarting point was too high and inconsistent with a number of High Court decisionswhere he said lesser starting points had been adopted for more serious offending.6It was argued the Judge had been overly rigid in his application of Taueki and that inorder to be consistent with the High Court authorities he should have placed theoffending within band two and regarded eight years' imprisonment the highest startingpoint available.2 R v Setu [2017] NZDC 10066 [DC decision].3 R v Taueki [2005] 3 NZLR 372 (CA).4 At [12] and [22].5 At [30].6 R v Grindrod HC Wellington CRI-2009-032-131, 11 September 2009; R v Heta HC HamiltonCRI-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 morehad concerned more serious offending.[5] Justice Mander rejected that argument and upheld the sentence. In the courseof his judgment he acknowledged (as indeed did Judge Neave)7 the existence ofHigh Court authorities where a lesser starting point had been applied.8 Justice Manderstated that there may "perhaps to some extent" have been "sentence drift" from theguidance provided by the Court of Appeal in Taueki, but that Judge Neave was entitledto follow that guidance.[6] In seeking leave to appeal Mander J's decision, Mr Eaton argued that thedecision raised a question of general importance, namely what approach should asentencing judge take when there is tension between current sentencing practice and aguidelines judgment. Mr Eaton contended that under the Sentencing Act 2002consistency was an overriding principle and that the obligation to impose consistentsentences 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 assentencing drift and by holding in effect that judges must follow the guidelinesdecision 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 thisway, 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 whencircumstances require. However on the material presently before us, there isinsufficient empirical evidence of the perceived disparity between sentencing practiceand Taueki which would warrant our embarking on that task.[9] Secondly, in our view the arguments overstate the import of Mander J'sdecision. In particular they ignore the following important passages in the decisionwhere Mander J stated: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 thepre-eminent sentencing principle, we do not accept that is the effect of s 8.[44] It is trite to observe that each case will turn on its own particular factsand that invariably, each case will have their differences. There are instancesof offending more serious than that of Mr Setu's where lesser starting pointshave been adopted. There are also those cases, albeit fewer, where the relativeseriousness is not dissimilar and a commensurate starting point applied.[47] That development of itself [a body of authority illustrating variationin sentencing levels and possible sentence drift] may simply reflect whatthe Court of Appeal acknowledged in its Taueki decision, namely thatsentencing ultimately involves the exercise of discretion and must allow forflexibility. The fact that some sentencing Courts have chosen, as they areentitled, to apply Taueki in a particular way does not, in my view, renderanother sentencing Court's application of the Taueki guidance in another caseinappropriate, so long as the starting point arrived at can be reconciled withthe range the Court of Appeal has held to be available because of the natureand 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 areto be used flexibly.10 Sentencing judges need to exercise judgment in assessing notonly the number of aggravating factors but also their gravity. The placing of anyparticular case within a band is also very much an evaluative exercise, there beingsignificant overlap at the margins.[11] The nature of a guidelines decision is well established and does not requirefurther elucidation.[12] We conclude that this case does not raise a question of sufficient general orpublic importance to merit a second appeal. Nor do we consider there has been anymiscarriage 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.Solicitors:Crown Solicitor, Christchurch for Respondent10 Taueki, above n 3, at [42]–[43].