THE QUEEN v MASON HONI TERAKI [2003] NZCA 34 (3 March 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA293/02

THE QUEEN

v

MASON HONI TERAKI

Hearing: 26 February 2003

Coram: Blanchard J

Baragwanath J

Goddard J

Appearances: N H Soper for Appellant

J M Jelaś for Crown

Judgment: 3 March 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]

The appellant was convicted after a jury trial in the District Court at Invercargill on two counts of injuring with intent to cause grievous bodily harm and one count of assault.He received an effective sentence of four years imprisonment.He appeals against his conviction on the charges of injuring and against the sentence.

Facts

[2]	The unchallenged conviction on the charge of assault related to an incident which occurred more than a week prior to the more serious charges.At approximately 4pm on 9 April 2001 one of the complainants, Mr Hall, aged 16, was walking along a street in Invercargill when a white Nissan motor vehicle went past.The two occupants of the vehicle and Hall exchanged “the fingers”.The vehicle did a u-turn and drove back towards Hall, stopping in a driveway close by.A person later identified by Hall as the appellant stepped out and punched Hall once in the face before driving off.No complaint was lodged with the police but Hall and an onlooker both noted the registration number of the vehicle.
[3]	At approximately 11pm on 17 April 2001, Hall and his acquaintance, Mr Keen, were walking along Bay Road when the same Nissan motor vehicle, driven by the appellant, came towards them. In the front passenger seat of the vehicle was Mr Cage, described by the appellant as his best friend. Keen’s evidence was that the car pulled up near them and the passenger door started to open.Hall, recognising the vehicle, told Keen to “run” and the two fled down Drury Lane and onto a property located at 16 Drury Lane, which Keen referred to as his old house.Under cross-examination Keen stated that the vehicle followed them and pulled into the gravel driveway at this address.
[4]	Hall and Keen then jumped over the back fence of the property and into the back of the property at 13 Stobo Street.Keen remained at the back of the property.Hall went around to the front door and knocked on it, returning immediately to the back of the property.The occupant at this address deposed that she heard a car pull up on the street outside her house, then heard voices coming up the driveway.She described what sounded like a normal conversation taking place.She did not mention hearing any knock at the front door but did hear “more people and sort of rushing around the back of the house”.
[5]	Cage confronted Hall and Keen with a weapon at the rear of the property.It was described by Keen as “long and thin and made out of metal”.Hall gave evidence that it “could have been a wheel brace or something”.Cage struck both of them with the weapon.Hall was hit in the forehead, the back of his head and on his arms six or seven times.Keen was hit in the head and at one point knocked to the ground.The oral pathologist who examined Hall after the incident gave evidence that in his opinion the wounds were from a wheel spanner which caused a distinctive hexagonal impression in Hall’s forehead.That was also consistent with the nature of the injury.
[6]	Keen stated that after the assault Gage left the property the same way that he had arrived, by walking down the side of the house to Stobo Street.The occupant of 13 Stobo Street gave evidence that after she had phoned the police to report “noise” and “fighting” at the rear of the house, she “heard a car taking off from in front of the house” and heading in the direction of Bay Road.The occupant did not see the vehicle at any stage.
[7]	The police stopped the Nissan on Bay Road soon afterwards.It was being driven by the appellant. During a “cursory look” over the vehicle one of the officers noticed a four-pronged wheel brace behind the passenger seat.A search of Gage’s residence on 5 April 2002 revealed two wheel braces.
[8]	Both the appellant and Gage elected not to give evidence at trial.

Arguments on appeal

[9]	The appellant challenged his conviction as an accessory on the basis that the jury verdict was unreasonable and could not be supported by the evidence.There was said to be no evidence that the appellant intended to aid or assist Gage to commit the particular offences on 17 April.Counsel emphasised that there was no evidence of anything said between Gage and the appellant and no evidence that he knew Gage had armed himself with a weapon or even that he knew what Gage had done to Hall and Keen when he returned to the vehicle.
[10]	It was submitted that the appellant could be guilty as a secondary party only if he had knowledge of the essential matters that comprised the offence of injuring with intent, and that the appellant had no such knowledge.It was accepted by Mr Soper that the appellant could have been convicted as a party to assaults on the complainants but, he said, it had not been proved to the requisite standard that the appellant knew Gage intended to use a weapon to seriously injure Hall and Keen.It was further submitted that the fact that the appellant drove a short distance in apparent pursuit of the complainants, and over a week beforehand had been involved in an altercation with Hall, was not sufficient in itself for an inference to be drawn that he had the requisite degree of knowledge of what was to occur at Stobo Street.
[11]	The Crown supported the conviction and submitted that there was sufficient evidence for the jury to conclude that the appellant was a party to the offending.Ms Jelaś pointed to the fact that the appellant was in control of the vehicle throughout, and had stopped suddenly when he chanced upon the complainants.The appellant had driven the car from Drury Lane around to Stobo Street.Gage had picked up the weapon from the appellant’s vehicle.Ms Jelaś submitted that the evidence of the householder at Stobo Street was important.Shortly before the attack she had heard a car arrive and two people coming up her driveway talking.That could only have been the appellant and Gage as Hall and Keen were never together at the front of the house.It showed that the appellant had got out of the car at Stobo Street.It was well open to the jury to infer that he must then have been aware that Gage had a weapon and was intending to use it to attack the complainants, whom they had been pursuing in the car.

Decision

[12]

For the reasons given by Ms Jelaś, we are not persuaded by Mr Soper’s argument that the jury could not reasonably have concluded that the appellant lacked the requisite knowledge that Gage intended to use a weapon.Clearly the attack was a follow up to the appellant’s punching of Hall a week before and was either instigated by the appellant or a “joint venture”.It was the appellant who was in control of the car used to pursue the complainants.The weapon must surely have come from the car.Gage would not have been carrying such an implement about with him.Very likely the appellant either supplied it or saw Gage pick it up.He would certainly have been aware of it, and of what Gage intended to use it for, when he and Gage entered the driveway and had their conversation.

[13]

The case was put to the jury on the basis of the appellant as an assister.On these facts it might well have been put as instigation or encouragement.

Sentence Appeal

[14]	The appellant and Gage were sentenced together. Gage, who was described by the judge as the “principal offender”, was sentenced to four years imprisonment for injuring each of the complainants with intent to cause grievous bodily harm.His appeal against conviction has been abandoned.The appellant also received a four year sentence, but as a “secondary party”.The Judge said that the jury had found the appellant guilty as an accessory on the basis that he knew there was a likelihood that Gage intended to inflict serious harm on Hall and Keen, and knew that Gage was armed when he left the vehicle.
[15]	The Judge felt justified in imposing the same sentence on Gage and the appellant. This was because the appellant, unlike Gage, had previous convictions for violent offending and there was also a high risk that he would reoffend.
[16]	In the course of sentencing the Judge took into account the aggravating features of the case. These included the fact that the attack was designed to punish Hall who had the temerity to challenge the appellant on an earlier occasion, the injuries to Keen who has a permanent “unsightly” scar on his head, the injuries to Hall which include permanent brain damage and psychological effects, and the appellant’s previous convictions for violent offending. The mitigating factors included the appellant’s good record as a worker and the fact he appears to have given up abusing drugs and alcohol.
[17]	Counsel for the appellant submitted to us that four years imprisonment was excessive. It was submitted that the Judge failed to give sufficient weight to what counsel argued was the appellant’s more limited involvement and did not give enough weight to the mitigating factors.Counsel also observed that the pre-sentence report prepared on 29 July 2002 did not refer to the appellant as presenting a high risk of reoffending.
[18]	The Crown submitted that the appellant played an integral part in the offending and was equally as culpable as Gage.It was also submitted that the personal circumstances of the appellant, treated by the Judge as a mitigating factor, carried little weight in light of the seriousness of the offending.
[19]	These were two very serious assaults.Mindless violence has had profound consequences, particularly for Mr Hall.
[20]	If the focus is upon the fact that Gage struck the blows, a sentence of four years for the appellant’s participation could be seen as stern; but the Judge was, we consider, justified in treating the two offenders equally.It could also be said that Gage received a rather lenient sentence but not to such extent as to create a disparity requiring correction by adjustment to that imposed on the appellant.A lesser sentence might have been required if the appellant had been a first offender but only Gage could claim such a credit.
[21]	In fact the two offenders were acting in combination to retaliate, it would appear, for an insult they considered had been given by Hall on the previous occasion.It is to be remembered that, but for the appellant’s role in driving the car, first to Drury Lane and then into Stobo Street tracking the victims, there would have been no assaults.The wheel brace came from his car – it is unlikely to have been brought by Gage – and it can fairly be taken from the fact that he was in conversation with Gage moments before the attack and his transportation of Gage afterwards that he was quite willing to see it used to strike the complainants, with likely serious consequences.
[22]	We see no proper basis for interfering in the Judge’s exercise of his sentencing discretion.

Result

[23]	The appeals against both conviction and sentence are dismissed.

Solicitors:

Arthur Watson Savage, Invercargill

Crown Law Office, Wellington