VEA v R [2020] NZCA 68

VEA v R [2020] NZCA 68 [19 March 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA351/2019[2020] NZCA 68BETWEEN UETA VEAAppellantAND THE QUEENRespondentHearing: 27 February 2020Court: Clifford, Simon France and Lang JJCounsel: L L Tu'i for AppellantB C L Charmley for RespondentJudgment: 19 March 2020 at 11 amJUDGMENT OF THE COURTA The application to admit the affidavit of trial counsel is granted.B The appeal against sentence is allowed.C The minimum period of imprisonment of 17 years is quashed. A minimumperiod of imprisonment of 15 years and six months is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Mr Vea pleaded guilty to a charge of murder and was sentenced by Moore J tolife imprisonment with a minimum period of imprisonment (MPI) of 17 years.1He appeals the length of the MPI.1 R v Vea [2019] NZHC 1587.Facts[2] Annoyed at what he suspected was an inappropriate relationship between hiswife and the victim, Mr Vea armed himself with a machete. He went to the victim'shouse knowing the victim was not in but would soon return. Mr Vea gained entrythrough a window and waited. As the victim entered, Mr Vea immediately attackedhim with the machete.[3] The agreed summary of facts describes a number of strikes to the back of theneck, under the chin, and to the victim's torso, hand, left shoulder and left ear.The assault caused a traumatic injury to the base of the skull. It severed the spinalcord and vertebrae, and would have caused paralysis. It also lacerated the vertebralartery. Some of the other lacerations reached the bone. There was significant bloodloss.[4] The summary records that Mr Vea heard Mr Liuasi ask for help during theassault. When Mr Liuasi became motionless, Mr Vea is said to have rolled him overand observed him for two minutes before leaving. These detailed items are obviouslysourced in Mr Vea's accounts, he and the victim being the only persons present.[5] Mr Vea left in Mr Liuasi's car and drove to near where his wife was. He parkedthe car, walked to her address and told her what he had done. They drove to the localchurch grounds on which was situated the house where Mr Liuasi lay. The priest wasspoken to and they all went to the house. Police were called and Mr Vea was arrestedand interviewed. He made full admissions.Sentencing[6] In the High Court, Moore J found two of the factors in s 104 of the SentencingAct 2002 to be present. The first — unlawful entry into a dwelling house (s 104(1)(c))— was not in dispute. The second — a high level of brutality, cruelty, depravity orcallousness (s 104(1)(e)) — was contested. The Judge considered the number of blowsdelivered in a frenzied attack met the high level required by s 104, and constitutedbrutality.2 He found that Mr Vea's conduct in observing the stricken Mr Liuasi, andjust watching him, constituted a degree of callousness that added a layer ofculpability.3[7] In assessing an appropriate MPI, the Judge reviewed several cases.4 Somefocus was given to Hamidzadeh v R, on which the Crown relied and in which a 17-yearMPI had been considered appropriate.5 The Judge considered the present case to bemore serious than Hamidzadeh but less serious than R v Beazley,6 a case he hadrecently sentenced where the starting point was 18 and a half years. A starting pointof 17 and a half years was identified.7[8] Turning to mitigation, the Judge reviewed a cultural report prepared pursuantto s 27 of the Sentencing Act, and noted the respective families had successfullycompleted the Samoan custom of ifoga, where the family of the offender seeksforgiveness pursuant to a formal process. Forgiveness will not necessarily be given,but it was here. The Crown accepted, as did the Judge, that it was to be treated as anoffer to make amends in terms of the statutory mitigating factors.8[9] The Judge considered credit for remorse was constrained by comments madein the pre-sentence report. The focus was on observations by Mr Vea that initially heintended only to warn Mr Liuasi, something the Judge considered to be completely atodds with the objective facts.9 Credit was due for a guilty plea, though the Judge notedthat it was "not entered at the earliest opportunity" and must be considered against abackground of previous convictions for domestic violence, and a strong Crown case.102 At [36].3 At [36].4 At [38] n 10; citing R v Smith [2013] NZHC 2782; Thurgood v R [2012] NZCA 23; and R v Beazley[2019] NZHC 672.5 Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369. Eighteen months was then deducted toreflect Mr Hamidzadeh's guilty plea.6 R v Beazley, above n 4.7 R v Vea, above n 1, at [41].8 At [50]; referring to the statutory mitigating factors at s 10(1)(c) and (d) of the Sentencing Act2002.9 At [51].10 At [56]–[57].[10] For the mitigation package a figure of one year was identified, reducingthe starting point to 16 and a half years.11 Given that figure and the overallcircumstances, it was not considered the 17 years figure otherwise required by s 104of the Sentencing Act would be manifestly unjust, and accordingly that was the figureimposed.12Appeal[11] On appeal,13 the appellant submits that Moore J erred in finding that it was notmanifestly unjust to impose a 17-year MPI. Three aspects are challenged:(a) the starting point of 17 and a half years;(b) the size of the mitigation reduction; and(c) the decision to impose the s 104 figure.[12] We address each in turn.Starting point[13] In her comprehensive submissions Ms Tu'i focused on the issue of whethers 104(1)(e) of the Sentencing Act was engaged. We consider in the circumstances ofthe present case that is not the correct approach. Section 104 is anyway engaged bythe home invasion limb, and so the better focus is to identify an appropriate startingpoint having regard to all the circumstances. The violence used by Mr Vea was at ahigh level, and on which side of what can be described as a fine line the case falls willnot affect matters.[14] Here, Mr Vea armed himself with a lethal weapon, broke into the victim'shouse, lay in wait for him, and then attacked immediately when the victim walked in.It was, as the Judge said, a frenzied attack that left the victim no chance to protecthimself. There were many blows. One obviously was fatal, being delivered with11 At [57]–[58].12 At [59]–[64].13 Sentencing Act 2002, s 105.sufficient force to sever the spinal cord and vertebrae, and lacerate the vertebral artery.Other strikes caused lacerations that went through to the bone. The victim called outfor help or mercy, but received none. Mr Vea did not seek to get help once the attackwas concluded but instead, on his admission, watched the victim for a short periodbefore leaving.[15] We agree with the Judge that a starting point around 17 and a half years isappropriate. That places it in the middle of Hamidzadeh v R and Akash v R (17 and18 years respectively).14 They likewise involved this sort of attack, albeit each hasdifferent s 104 features. Here the factors of home invasion, a blindside attackinvolving multiple strikes, and a degree of callousness support the figure identified bythe Judge, and we do not consider it is in error.Credit for mitigating factors[16] Ms Tu'i submits the one-year deduction is insufficient both solely in terms ofthe guilty plea credit, but also to the extent it fails to recognise Mr Vea's remorse, andthe value of the ifoga process that was conducted.[17] We turn first to the guilty plea, described by the Judge as "not entered at theearliest opportunity".15 Counsel submits that is incorrect. An affidavit is profferedfrom counsel representing Mr Vea at the time. Ms Dyhrberg QC explains that Mr Veaalways accepted responsibility. She considered it her responsibility to exploreMr Vea's mental health at the time and commissioned a psychiatric assessment.As soon as this was to hand, and indicated there was nothing relevant to a defence,Ms Dyhrberg met with Mr Vea, confirmed his instruction and immediately advised hewished to be arraigned.[18] We admit this evidence which assists to clarify matters,16 but consider it wasin any case not needed to make the appeal point. The chronology was:(a) offence, 13 January 2019;14 Hamidzadeh v R, above n 5; and Akash v R [2017] NZCA 122.15 R v Vea, above n 1, at [57].16 Pursuant to the Criminal Procedure Act 2011, s 335.(b) first appearance, 14 January;(c) first High Court appearance, 7 February. Remanded for case review on10 April;(d) mental health assessments 28 February and 26 March;(e) advice from psychiatrist received 8 April;(f) 13 April, guilty plea intimated to Crown and arraignment sought (casereview having been adjourned pending receipt of report); and(g) plea, 1 May.[19] It follows that only three months had elapsed from the date of the offence towhen Mr Vea requested to be arraigned in order to plead guilty. This is an unusuallyquick time for a plea on such a charge, and we consider it to be entered at the earliestopportunity.[20] Relevant to both the credit for the guilty plea and also the other mitigatingfactors, we note that Mr Vea made a full admission immediately following theoffending. Aspects of the summary of facts, adverse to Mr Vea, come from hisadmissions as to what occurred at the time. It is a strong Crown case, and no doubtone the investigation would have readily resolved even without Mr Vea's input.Nevertheless, his immediate acknowledgment and assistance in detailing whathappened should not be downplayed for that reason.We consider too much weight was placed on a comment in the pre-sentence reportabout only initially meaning to confront. This does not support a conclusion of notaccepting responsibility, given all the other objective material that pointed the otherway. We also consider the ifoga process, although not directly involving Mr Vea,isculturally relevant, and constitutes, as the Crown accepts, an offer to make amends.It is indeed a positive step in that direction.1717 For a discussion of the treatment of ifoga in Samoan courts see also James Bruce Lutui "Apology:A Moral, Cultural and Restorative Perspective" in Warren Brookbanks (ed) TherapeuticJurisprudence: New Zealand Perspectives (Thomson Reuters, Wellington, 2015) 71 at 82–85.[21] It is often noted that an early guilty plea in these cases can attract between12 months' and two years' discount.18 Given all the mitigating factors we haveidentified, we consider two years was the appropriate figure here.The application of s 104[22] Section 104 of the Sentencing Act applies because of subs (1)(c) and probably,although we do not need to determine it, because of subs (1)(e). That means anassessment is required as to whether an MPI of 17 years would be manifestly unjust.In making that assessment we are considering an alternative MPI of 15 and a halfyears.[23] We note that s 104 is not peripherally engaged. The home invasion was centralto enabling the ambush that occurred, and the level of violence was very much in thebrutality realm. However, we accept Mr Vea is remorseful and has done what he canat this early stage, aided by his family, to make amends. An MPI of 17 years wouldrepresent very little credit for these factors and the plea, in circumstances where fullcredit is due and where the steps taken by the offender have, from a very early stage,lessened the anxiety of the victim's family about the criminal justice aspects of thisterrible event.[24] We are accordingly satisfied that to lift the otherwise applicable minimumnon-parole period by 18 months, from 15 and a half years to 17 years, would bemanifestly unjust.Conclusion[25] The application to admit the affidavit of trial counsel is granted.[26] The appeal against the length of the MPI is allowed.[27] The minimum period of imprisonment of 17 years is quashed. A minimumperiod of imprisonment of 15 years and six months is substituted.18 R v Akash, above n 14, at [17] and [25], in which 12 months' discount was upheld; Hamidzadeh vR, above n 5, at [89], in which 18 months was upheld; and R v Momoisea [2019] NZCA 528 at[38], in which 18 months was upheld. It is not an uncommon figure.[28] The underlying sentence of life imprisonment is unaffected.Solicitors:Crown Solicitor, Manukau for Respondent