THE QUEEN v KEITH RAYMOND HOPA [2001] NZCA 379 (18 December 2001)

IN THE court of appeal of new zealand

ca302/01 CA320/01

THE QUEEN

V

KEITH RAYMOND HOPA

TAWHITI WILLIAM CLIMIE

Hearing:	6 December 2001
Coram:	Blanchard J Robertson J Hammond J
Appearances:	P S Coles for Hopa A R Laurenson for Climie N M Crutchley for Crown
Judgment:	18 December 2001

judgment of the court delivered by blanchard j

[1] Mr Hopa and Mr Climie appeal their sentences of 10 years imprisonment for attempted murder on the ground that they are manifestly excessive in all the circumstances.Mr Climie abandoned an appeal against conviction which is accordingly dismissed.

Facts

[2] On 18 July 2000 the appellants went to a mechanical workshop in Levin operated by a Mr Ericsson to get a new door handle for Mr Hopa's white Falcon motor vehicle. While they were there, a Mr Gage, who operated another workshop to the rear of Mr Ericsson's, came by.Shortly afterwards, the victim, Mr Nuku, arrived.Mr Ericsson was his business partner.When Mr Nuku discovered the presence of Mr Climie, with whom he said he had "a problem", there was a confrontation.Both appellants took hold of weapons but the altercation did not come to much.The appellants left in the white Falcon driven by Mr Hopa. There is no doubt that both men were present in that vehicle during its later movements and that in whatever they did they were acting together.A question for the sentencing Judge was whether they were subsequently accompanied in that vehicle by another or others, particularly by the gunman who will shortly be referred to.

[3] Later that afternoon, at around 4.15pm, the appellants and several other men returned to Mr Gage's workshop looking for Mr Nuku.One man was armed with a pistol, while others were armed with various weapons such as metal bars.Mr Gage gave evidence that some of the group beat him in retaliation for allegedly setting Mr Climie up to be attacked by Mr Nuku.This incident later gave rise to most involved being charged with assault with a weapon, although none of those charged was convicted and, to that extent, Mr Gage's evidence must be taken to have been rejected by the jury.

[4] When the group failed to find Mr Nuku at the workshop, they went to his home at Morgan Crescent.The appellants arrived in the white Falcon.Both had metal bars as weapons.Other men came in a red Falcon.There may also have been a third car.The victim was shot in the face at close range by a bullet fired from a pistol.The bullet hit him in the left cheek, passing through his sinus cavity, before being ingested.With the assistance of his cousin, who was standing nearby, Mr Nuku managed to escape around the back of the house, over a fence and across the street.Four or five further shots were fired at them as they ran away.It is clear from the evidence that neither of the appellants fired any of the shots.While under cross-examination, Mr Nuku identified the gunman as one of the other accused, but that accused was acquitted.Conflicting descriptions of the gunman had been given during the trial by Mr Nuku and other witnesses.

The sentencing remarks

[5] Before any shot was fired, according to Mr Nuku, the appellants said words to the effect of "you are dog shit Nomad affiliate".When Mr Nuku was running away Mr Hopa shouted out "We are going to get you.We will be back".

[6] On sentencing the appellants, the Judge took the view that, after the altercation with the victim at Mr Ericsson's workshop, the appellants approached others to help "deal" to Mr Nuku.The Judge said the appellants had taken a man in their vehicle to the victim's home; they had known that that man had a firearm, having seen him previously with a gun when looking for the victim at Mr Gage's workshop; they had known that he would use it on the victim when and if he found him, and they had in fact procured him to be there with that firearm to shoot Mr Nuku.The question on this appeal is whether this approach was open to the Judge or whether he should have sentenced on the basis that the appellants had merely assisted or encouraged the attempt to murder Mr Nuku.

[7] The Judge rejected a submission that the jury's verdicts indicated no more than that it was satisfied Mr Climie and Mr Hopa knew that one or more of the men might have a firearm and might well use it; that they did not procure a gunman or gunmen to be present and were convicted only as being parties to the offending.The Judge rejected also the submission that the jury's verdicts did not necessarily show the appellants had any knowledge of the presence of weapons before they were used; that they were found guilty of being parties to the shooting only because of the threats or abuse they uttered during the incident.

[8] The Judge noted that the maximum sentence available was 14 years imprisonment.He identified as aggravating factors that the offending was a planned and premeditated attempt to execute the victim; that it involved a number of people, most of whom were armed, against one person only and that the offending took place at a time when there were women and children in the neighbouring houses and passers-by of all ages on the road.The Judge said the appellants had had "absolutely no regard for the safety of those other people".

[9] Taking into account those aggravating factors and the authorities cited by counsel, the Judge adopted a starting point of 10 years imprisonment for both appellants.After discussing the appellants' personal circumstances, he said there was nothing justifying an increase or decrease in sentence.

Submissions

[10] Counsel for the appellants, Mr Coles on behalf of Mr Hopa, and Mr Laurenson on behalf of Mr Climie, submitted that the Judge erred in sentencing the appellants as if they were principal offenders.Mr Coles submitted that the appellants were convicted on the basis that they were guilty of attempted murder as parties pursuant to s66(2) Crimes Act 1961.This had been the Crown case and the Judge had directed the jury on that basis.As accepted by counsel for the Crown, there was never any suggestion that Mr Hopa was the person who actually shot the victim.Counsel submitted that the Judge therefore took an inappropriately high starting point, failing to take into account that the degree of knowledge or intention required to convict a person as a party is less than that required to convict a principal offender.All of the cases relied upon by the sentencing Judge had related to principal offenders convicted on the basis that they had formed an intention to kill.

[11] Mr Coles submitted that there was also no evidentiary basis for the Judge's conclusion that Mr Hopa, together with Mr Climie, had taken a man in their vehicle to the victim's home; had known that that man had a firearm; had known that he would use it on the victim; and that the appellants had in fact procured him to be there with that firearm to shoot the victim.The earlier altercation between the victim and Mr Climie did not involve Mr Hopa.There was no evidence suggesting Mr Hopa had any reason for enmity towards the victim.The Judge's finding that both the appellants approached others to "deal" to the victim was speculative, as was the Judge's finding that they had both procured a gunman or gunmen.The only evidence supporting the finding that the appellants had previously seen the gunman with a firearm at Mr Gage's workshop was the testimony of Mr Gage.However, counsel submitted that the jury must have rejected Mr Gage's evidence in its entirety when it acquitted those charged with assaulting Mr Gage with a weapon on the occasion when the group first looked for the victim on the day in question.Counsel noted also inconsistencies in the evidence which showed, it was submitted, that the gunman did not arrive in the appellants' vehicle.

[12] On the basis of the directions to the jury, counsel submitted, the guilty verdict could only safely be viewed as attaching to Mr Hopa as a party to the offence in continuing to be involved and assisting in the violence after shots were fired, where his knowledge of the existence of a firearm had arisen only when the pistol was produced and used at the victim's home.

[13] Mr Laurenson too submitted that the Judge erred in finding as a matter of fact that Mr Climie had been a central figure in the offending.There was no evidential basis for this conclusion, which meant Mr Climie's sentence was manifestly excessive.Counsel submitted that, as stated in a written plea in mitigation prepared and presented to the Court on Mr Climie's behalf, the appellant was an outsider who had returned to Levin for a tangi.He had had no or little control over the events that had taken place at the victim's home on the day in question.This was supported, it was submitted, by the difficulties faced by the appellant during the trial whereby Mr Climie was segregated from the other accused.The others involved in the offending had believed Mr Climie could be used to manipulate a result for them.When he resisted, he was intimidated and threatened.Counsel submitted that the Judge had given no or inadequate consideration to these factors in sentencing the appellant.

[14] Counsel for the Crown, Ms Crutchley, submitted that there was indeed sufficient evidence to support the factual findings made by the Judge, and that these findings were not inconsistent with the jury's verdict.She said that the explanations given by counsel on behalf of Mr Climie about the pressures placed on him by the other accused during the trial were perfectly consistent also with Mr Climie's having played a central role in the offending.The Judge had been entitled to reject the plea in mitigation.

[15] The Crown accepted that there was never any suggestion that either of the appellants was the principal offender in the sense of actually shooting the victim.There had been no evidential base for any such suggestion.The Crown case had been only that the appellants were parties to the attempted murder; that they had appreciated that it could well happen that one of the group would try to kill Mr Nuku.What the Judge really meant when he referred to a "principal offender" was merely that the appellants had played a central role or had a significant involvement in the offending. In that respect, Ms Crutchley submitted, the sentences imposed were not manifestly excessive.The culpability of a secondary party may be just as great or even greater than that of the person who uses the weapon to try to kill the complainant.

Decision

[16] A sentencing Judge who has heard the evidence in a jury trial is entitled, where the evidence supports it, to reach his or her own view of the facts relevant to sentencing provided such view is not inconsistent with the verdict (R v Heti (1992) 8 CRNZ 554, 555).There is no general requirement that a sentencing Judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender (R v Isaacs (1997) 41 NSWLR 374, 378).Where there are factual issues which are critical to the assessment of culpability and would, if determined against the convicted person, lead to a heavier sentence but which the jury did not need to determine in concluding that the ingredients of the charge had been proven to the standard of beyond reasonable doubt, the sentencing Judge must make an assessment of those issues giving the benefit of any reasonable doubt to the convicted person.It is the same where the jury's verdict could have been properly reached on alternative bases involving differing degrees of culpability.See R v Moananui [1983] NZCA 66; [1983] NZLR 537, 543 and other authorities discussed in Hall's Sentencing App. 1.3.4, the decision of the High Court of Australia in Cheung v The Queen [2001] HCA 67, 22 November 2001 and the New Zealand Law Commission's Report on Proof of Disputed Facts on Sentence (NZLC R76, November 2001), Chapter 3.

[17] We have examined the evidence and the Judge's remarks in his summing up and upon sentencing with some care and have concluded that it was open to him to sentence the appellants on the basis he did.It follows that the sentences cannot be said to be manifestly excessive.Counsel for the appellants accepted that 10 years was not beyond the available range for anyone who had arranged to bring to Mr Nuku's home the gunman who shot and inflicted the head wound, knowing that this was the gunman's intention.

[18] Certainly there are some significant inconsistencies in the accounts given by Mr Nuku and his partner, Ms Machuca.But it was open to the Judge to prefer her version of events on certain critical points.While Mr Nuku, alone on this point, stated that the gunman had been the driver of a red Japanese car - which is not mentioned by any other witness - Ms Machuca testified that the person who shot him came from the white Falcon; that the gunman had got out of "the driver's side or right back passenger's seat".There had been two or three men in the white car.

[19] Ms Machuca's evidence on this point is supported by Mr Gage's evidence that a few minutes earlier there had been up to four occupants of the white car when it arrived at his premises and that one of these people had a handgun. Both he and Ms Machuca described the gun as "silver" or "silvery" - and a similar description was given by a neighbour, Louise Lepper, who said she saw a man with a small silver gun.Mr Gage had also said that it was of "gun metal colour".He thought it was an older style gun like a handgun from a cowboy movie but not small enough to be fitted into a pocket.Mr Nuku's description of the gun differed.He described it as a Beretta or Colt with a magazine fed slide action - a more modern style - but he did not mention the colour.We do not see these differences in the description of the gun as having much significance.

[20] Although the jury had not found the charge of assaulting Mr Gage proved beyond reasonable doubt, it was not necessary for the Judge to put aside the entirety of what Mr Gage said on oath about incidental matters, such as having seen the man with a gun coming from the direction of the white Falcon driven by the appellants before the red car arrived.There is also independent evidence from Ms Williams, Mr Taylor and Mrs Watson of seeing more than two people in or getting out of the white car near Mr Nuku's address. Ms Whiti also saw three people in the car, although her description of the man in the rear seat did not tally with the description given by Mr Nuku of the gunman.In its totality this evidence indicates that the appellants conveyed the gunman to the scene with an appreciation of what he intended to do.

[21] The difficulties which Mr Climie may have experienced during the trial are, as Crown counsel has said, consistent as much with his central role in the attempt to kill Mr Nuku, as with any lesser participation.It is to be noted that it was Mr Climie who was at the centre of the first altercation and with whom Mr Nuku had "a problem".Mr Hopa was plainly acting in conjunction with Mr Climie throughout.

[22] The Judge did not expressly refer to the standard of proof in his sentencing remarks.It has not been usual in this country to do so.He did, however, remark in sentencing Mr Climie that he and Mr Hopa "knew full well" that there was a man in "your car" armed with a firearm who intended to use it on Mr Nuku and that they had procured him to be there with that firearm to shoot Mr Nuku.The use of this language strongly suggests a degree of certainty in this critical conclusion consistent only with proof to the criminal standard.As we have said, our review of the evidence satisfies us that this was a view reasonably open to the Judge.The matters raised on behalf of the appellants do not give rise to a concern about the Judge's factual assessment requiring this Court to interfere with the sentences he imposed.It has not been shown that the Judge's view was unsupported by the evidence or inconsistent with the verdicts.

[23] The appeals against sentence are accordingly dismissed.

Solicitors:

P S Coles, Palmerston North

Govett Quilliam, New Plymouth

Crown Law Office, Wellington