LISIPA v R [2021] NZCA 341

LISIPA v R [2021] NZCA 341 [27 July 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA48/2019[2021] NZCA 341BETWEEN SALEMONA BRAD LISIPAAppellantAND THE QUEENRespondentHearing: 20 May 2021Court: Cooper, Simon France and Edwards JJCounsel: K H Maxwell for AppellantM R L Davie for RespondentJudgment: 27 July 2021 at 3 pmJUDGMENT OF THE COURTA The application to admit fresh evidence on appeal is granted.B The appeal against sentence is allowed.C The four concurrent sentences of 14 years' imprisonment are quashed.D Four concurrent sentences of 12 years and 10 months' imprisonment aresubstituted.E The minimum period of imprisonment is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Mr Lisipa appeals an overall sentence of 14 years' imprisonment, and theaccompanying minimum period of imprisonment (MPI) of nine years and threemonths. The sentence relates to three charges of aggravated robbery, an attemptedaggravated robbery charged as assault with intent to rob, and a collection of othercharges including burglary, resisting arrest, and two charges each of theft anddangerous driving.1[2] There are three matters advanced in support of the appeal:(a) a challenge to an uplift of two years' imprisonment which covered pastoffending, and being on bail at the time of the offences;(b) a challenge to the need for an MPI; and(c) a submission that factors in Mr Lisipa's background and upbringingmerit some level of discount.[3] Concerning the third ground, fresh evidence in the form of a report preparedunder s 27 of the Sentencing Act 2002 by Ms Shelley Turner is proffered. Althoughs 27 reports should not be produced for the first time on appeal,2 the Crown does notoppose the Court receiving it and having considered it we are satisfied it should beadmitted.Offending[4] Mr Lisipa is 31 years of age with an already formidable history of seriousoffending prior to the series of offences now described. The current offences occurredprimarily in June and July 2017.[5] The most serious offending was a sequence of four events occurring within ashort period:1 R v Lisipa [2019] NZDC 2370 [District Court judgment].2 Carroll v R [2019] NZCA 172 at [8].(a) aggravated robbery of a mobile phone store using a hammer. Mr Lisipasmashed a cabinet and took nine mobile phones;(b) assault with intent to rob which involved entering a bank armed with ashotgun. Mr Lisipa pointed the gun at the tellers but security screenswere deployed and he left without anything;(c) aggravated burglary of a TAB premises. Mr Lisipa used a hammer tosmash a window. It was after hours. The workers still present lockedthemselves in a room and called for assistance. Mr Lisipa took $2,000from the cash register; and(d) aggravated robbery of another TAB premises. Mr Lisipa had ascrewdriver, threatened the workers and made off with over $16,000.[6] Transportation to these events was by way of stolen vehicles. The period ofoffending ended with two occasion of dangerous driving, one of which also led to acharge of resisting arrest. Within this overall period of offences there was also anunproductive burglary of the same TAB premises from which Mr Lisipa later obtainedthe $16,000. Mr Lisipa was unsuccessful in obtaining money from the TAB.Sentencing[7] Judge Gibson identified the bank offence as the lead offence and took a startingpoint of six years' imprisonment.3 All other offending attracted an uplift of the sameamount leaving a base starting point of 12 years' imprisonment. The Judge then added18 months for past offending and six months for offending while on bail and whileunder sentence.4 This took the starting point to 14 years.[8] There were no mitigating factors. Mr Lisipa was described as a "dangerouscriminal" with little prospect of change and a clear risk of reoffending.5 The maximumMPI of two-thirds of the sentence was imposed.63 District Court judgment, above n 1, at [26].4 At [27].5 At [28].6 At [29]; and Sentencing Act 2002, s 86(4)(a).Information about Mr Lisipa[9] At sentencing the Court had the standard pre-sentence report and of courseMr Lisipa's record of past offending. Concerning that, the first offending noted forMr Lisipa is a Youth Court notation when he was 15 years of age. It related to a cartheft and burglary when he had just turned 14. Over the next two years there appearto be a further two Youth Court appearances dealing with a large number of mattersincluding aggravated robbery and assault with intent to rob. These led to supervisionin a social welfare residence.[10] Mr Lisipa first appeared in the adult court in November 2006 for what appearsto be four aggravated robberies, two robberies and other offences. He was by then17 years of age, and was sentenced to a term of imprisonment of two years and sixmonths. After release, through 2008 and 2009, relatively minor offences werecommitted which attracted short terms of imprisonment totalling seven months.[11] In August 2010, just before his 21st birthday, Mr Lisipa was sentenced inrelation to theft of a vehicle, three aggravated robberies and a further robbery.The aggravated robberies all involved weapons and the overall sentence was sevenyears and six months' imprisonment with an MPI of three years and nine months.[12] Mr Lisipa was released in September 2016. The aggravated robberies thenoccurred in June and July of 2017, but there had been earlier offences in February2017 (burglary and theft) for which Mr Lisipa was on bail. It appears he was takeninto custody on the aggravated robberies charges in late July 2019. The realitytherefore is that Mr Lisipa has spent most of his life since he was 17 years old in jail.[13] As noted, for the purpose of the appeal a specialist report prepared under s 27of the Sentencing Act is submitted.[14] Mr Lisipa's parents came to New Zealand from Niue in 1970 and 1980respectively. The parents' wider families have done likewise such that New Zealandis the family base. The parents were employed in low-income occupations andMr Lisipa's upbringing was stable.[15] It appears that from intermediate level at school he displayed behaviouralissues which saw him expelled from more than one school and eventually placed bythe Ministry of Education in an alternative education environment. He did poorlythere and ended up in "the care and protection" environment. The background to thiswould seem to have been that Mr Lisipa, from around the age of 10, began mixingwith a group of similar age that formed their own street gang. Mr Lisipa then soughtattachment to an established gang, the Cripps. Two of his siblings were already in thatgang.[16] The report advises that Mr Lisipa in his early teens was moved into boys'homes and then, as noted, into youth justice residences.[17] Discussions with Mr Lisipa led the report writer to conclude what might beseen as inevitable — Mr Lisipa is, and feels, institutionalised. He knows no other reallife and in his short periods of release he struggles to cope. His life history has lefthim with limited skills to assist. He has become separated from his family, and at thetime of the latest offending had become a methamphetamine user. On hisself-reporting, it was a significant habit at the time.[18] The report suggests that Mr Lisipa is beginning to gain insight into what allthis means. This insight includes remorse for victims but also awareness of what hepersonally has missed out on. There is said to be some awareness of a need to change.Mr Lisipa's parents remain supportive and would welcome him home, albeit if heagrees to a relatively strict regime.Analysis[19] As noted, three grounds of appeal are raised.[20] We address first the challenge to the uplift. Eighteen months is a stern upliftfor past offending, and the need to avoid repunishing is a recognised concern.7However, objectively, Mr Lisipa's repeated offending is serious, involves the use ofweapons, creates risks to people and on this occasion occurred shortly after his release7 See for example Blackmore v R [2014] NZCA 109 at [12]–[13].from a lengthy term of imprisonment for similar offending. We do not consider theuplift was excessive.[21] Standing alone the same could be said for the six-month uplift for offendingwhile on bail, but when added to a stern prior offending uplift, and an alreadysignificant jail term, we consider it is excessive, and accordingly we quash that aspect.[22] The other two grounds of appeal are related. The fuller information aboutMr Lisipa, his journey to the situation in which he now finds himself, the emergenceat age 31 of some realisation of where he is at and of what the cost has been both toothers and himself, and the existence of ongoing family support lead to a clear viewthat the MPI should be quashed.[23] Mr Lisipa served the full term of his previous sentence. There is a chance hewill do so again since a risk of reoffending is so obviously demonstrated by his pastactions. That safety valve of serving the full term remains in place regardless of anMPI being imposed. However, there is as noted the prospect that Mr Lisipa may beseeking a different future and it would be unfortunate if access to assistance with thattransition were blocked by an MPI. Faced with a person as plainly institutionalised asMr Lisipa, and presented with some prospects of change, we consider it correct tofoster that opportunity, albeit against the background of what remains a necessarilylengthy sentence.[24] Mr Lisipa had a loving family and stable background and there is no suggestionof violence or deprivation at the hands of his parents. But for whatever reason from avery young age he became involved with gangs. His life went on a criminal trajectoryas a result of wrong choices made when very young. We consider, given the recentindications that he has developed more insight into the consequences of his offendingboth for those affected by it and himself, the appropriate response to the s 27 report isto apply a discount of five per cent (eight months) and to quash the MPI.Conclusion[25] The application to admit fresh evidence on appeal is granted.[26] The appeal against sentence is allowed.[27] The four concurrent sentences of 14 years' imprisonment are quashed.[28] Four concurrent sentences of 12 years and 10 months' imprisonment aresubstituted.[29] We quash the MPI.Solicitors:Crown Law Office, Wellington for Respondent