Tevita Kolofale v The Queen

• Jurisdiction: New Zealand
• Judge: Courtney J
• Judgment Date: 24 March 2022
• Neutral Citation: [2022] NZCA 74
• Docket Number: CA401/2021
• Court: Court of Appeal

Between

Tevita Kolofale

Appellant

and

The Queen

Respondent

[2022] NZCA 74

Court:

Courtney, Katz and Cull JJ

CA401/2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeal against a sentence of 7 years imposed for wounding with intent to injure, aggravated robbery (x2) and receiving — personal mitigating factors — discounts for youth (aged 25 years) and time spent on Electronic Monitoring bail — totality — psychological issues and nexus with offending

Counsel:

J A Younger for Appellant

C Ure for Respondent

• A The appeal is allowed.

• B The sentence of seven years is set aside and substituted with one of six years six months.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Courtney J)

Introduction

1 Mr Kolofale pleaded guilty to one charge of wounding with intent to injure, two of aggravated robbery and one of receiving. The charges arose from the following incidents:

• (a) On 10 December 2019 Mr Kolofale attacked JE in the street with a boning knife, stabbing him multiple times in the back and torso (charge 1 — wounding with intent to injure).

• (b) On 9 July 2020, while on bail, Mr Kolofale went to JE's house and threatened him with a knife in front of his wife, their three children and his 11-year-old sister. He punched JE in the head twice and demanded that he hand over property. He told JE that “I know where you live now. I'll definitely be back” (charge 2 — aggravated robbery).

• (c) Several days later Mr Kolofale spent the day with an associate, DR. In the evening Mr Kolofale drove DR's vehicle, with DR as a passenger, to a rural area and demanded that DR get out of the vehicle. Another vehicle arrived with three of Mr Kolofale's associates. Mr Kolofale punched DR in the face. He and his associates punched and kicked DR an estimated 15 times. DR's vehicle and cellphone were stolen. A sawn-off shotgun was brandished at him out of the car window as the group drove off (charge 3 — aggravated robbery).

• (d) On 19 July 2020 Mr Kolofale took a vehicle worth about $5,000 (charge 4 — receiving).

2 Judge Krebs imposed an end sentence of seven years' imprisonment. 1 The Judge took starting points of two years nine months' imprisonment for charge 1, seven years' imprisonment for charge 2 and three years six months' imprisonment for charge 3. 2 He reduced the combined starting point of 13 years three months' to one of 12 years' imprisonment for totality. 3

3 The Judge declined to grant a specific discount for youth because of Mr Kolofale's age (25 years) combined with his history of serious offending. He allowed discounts of 20 per cent for the guilty pleas and 20 per cent for Mr Kolofale's

personal factors. These psychological and cultural factors included the effect of ADHD on Mr Kolofale's behaviour, the clear nexus between Mr Kolofale's upbringing and cultural factors and the way his health was treated. These factors were then balanced against his offending

4 Mr Kolofale was also given a second-strike warning, with the result being that he must serve that sentence without parole.

5 Mr Kolafale appeals the sentence on grounds that it was manifestly excessive as a result of:

• (a) the starting point for charge 3 being too high;

• (b) no discount given for his youth;

• (c) inadequate discount for totality;

• (d) inadequate discount for combined personal, cultural and psychological factors; and

• (e) no discount given for the time spent on Electronic Monitoring bail (EM bail).

6 The question on a sentence appeal is whether the end sentence fairly reflected the defendant's overall culpability for the offending. Mr Kolofale says that the appropriate end sentence would have been five to six years' imprisonment. The Crown maintains that the end sentence was within range.

The starting point for charge 3

7 The Judge selected the starting point of three years six months' imprisonment for charge 3 by reference to this Court's decision in Bullen v R, which involved similar, but more serious, offending that attracted a starting point of four and a half years' imprisonment. 4 In that case, the defendants drove the complainant to a remote place

under the pretext of purchasing cannabis from him when, in fact, they planned to rob him. They brought cable ties with them. When the complainant resisted, he was punched, kicked, then pushed to the ground and tied up. He was left there, injured and tied up. The complainant was vulnerable as a result of his age and a medical condition

8 Ms Younger, for Mr Kolofale, submitted that the offending in Bullen was far more serious than in the present case, given that in that case there was physical restraint, the complainant was more vulnerable because of his medical condition, and had been left restrained. In comparison, Ms Younger noted that although there was a degree of planning and premeditation in this case, no weapons were actually used (the gun was only brandished after the offending had occurred) and although there was violence the injuries sustained were not serious. She acknowledged that the complainant's car, wallet and phone were taken. The car, valued at approximately $8,000, was badly damaged when it was recovered and cost the complainant about $5,000 to restore to its original state.

9 Ms Younger argued that the offending was closer factually to Tecofsky, in which the defendant had lured the complainant to a remote spot, having arranged with co-defendants that they would also arrive at that place. 5 When they did, the co-defendants assaulted the complainant and robbed him of his wallet. Whata J recognised three years as an appropriate starting point.

10 Ms Younger also submitted that the present case would be better viewed as akin to street robbery in terms of R v Mako and that the upper end starting point was three years which, she argued, was within this Court's comments at [59] of that case. 6 In fact, in Mako, this Court expressly contemplated a higher starting point than three years in cases where there was actual violence:

[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and 3 years. Actual physical enforcement might well require a higher starting point.

11 The circumstances of charge 3 would, in Mako terms, justify a starting point higher than three years. In our view the offending falls somewhere between Bullen on the one hand and Tecofsky on the other. The level of planning and the aggravating feature of restraining the complainant in Bullen are not present here. Nevertheless, the robbery was premeditated. The complainant was vulnerable. He was set upon and seriously assaulted by a group. The assault was more serious than in Tecofsky and the value of the property taken much higher. We see no error in the starting point taken by the Judge on charge 3.

Discount for age

12 The Judge identified Mr Kolofale's “long history of serious offending despite being 25 years of age” as not justifying a discount for youth. 7

13 Ms Younger pointed out that Mr Kolofale was 23 years old at the time of the first incident of offending in 2019. Ms Younger submitted that the offending displayed immaturity and a lack of the skill set required to resolve conflict in an adult manner. She emphasised statements made by the High Court and by this Court recognising both the age-related neurological differences between young people and adults, and the capacity of young people for rehabilitation. 8

14 Unquestionably, age-related neurological differences explain many of the impulsive and unwise decisions that lead young people into the criminal courts. However, it is difficult to accept that this was the cause of Mr Kolofale's offending. Neither of the aggravated robberies can fairly be described as impulsive acts attributable to immaturity. They were premeditated acts by someone with significant previous criminal experience. As we come to later, we accept that Mr Kolofale has faced many challenges in life and discounts were justifiable for those reasons. But we do not see any error by the Judge in declining to allow a specific discount for age.

15 Ms Younger submitted, further, that by refusing a discount for age, the Judge had effectively imposed a higher sentence than was justified solely on the basis of his

previous convictions. This submission was based on the fact that Mr Kolofale was subject to a second strike, requiring him to serve his entire sentence without parole. Ms Younger drew on this Court's comments in Wipa v R in relation to uplifts where the defendant was subject to a second strike: 9

[36] We conclude that when considering an uplift for previous convictions, or for offending while on bail or subject to sentence, the court should decide whether,...