NGAWAKA v R [2004] NZCA 249 (6 October 2004)

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NGAWAKA v R [2004] NZCA 249 (6 October 2004)

Last Updated: 2 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA111/04
CA146/04
CA174/04

THE QUEEN



v



RONALD BENJAMIN VIVIAN NGAWAKA
JASON TE WHETU RANSFIELD
KEITH KAHU THOMPSON

Hearing: 28 September 2004

Coram: Glazebrook J
Potter J
Salmon J

Appearances: H S Edward for Appellant Ngawaka
B S Cooper and R A Walden for Appellant Ransfield
S Lance for Appellant Thompson
M F Laracy for Crown

Judgment: 6 October 2004

JUDGMENT OF THE COURT DELIVERED BY SALMON J

[1]

The three appellants and a Mr Tamati were tried before a Judge and Jury in the High Court on three charges, two in respect of the complainant Dion Parakuka, and the other in respect of his brother, Alan Parakuka. The two charges in respect of Dion were in the alternative. The more serious charge was one of attempted murder. The Jury acquitted the appellants and Mr Tamati on that charge and found them guilty of the alternative charge of wounding with intent to cause grievous bodily harm. They were all acquitted in respect of the charge relating to the brother. The appellants and Mr Tamati were sentenced on the 19 March 2004. The appellant Ransfield, and Mr Tamati (who has not appealed), were sentenced to six years imprisonment. The appellants, Thompson and Ngawaka, whose involvement was considered to be less, were sentenced to four and a half years imprisonment.

[2]

Mr Thompson appeals against his conviction. All appellants appeal against sentence.

Facual background

[3]	The offending occurred on the evening of 24 December 2002. The appellants were at an address in Kaingaroa. About 2 am that morning, the appellant, Thompson’s son, arrived at the address and told those present that an altercation had occurred between him and Dion Parakuka. As a result, Mr Thompson’s son was quite badly beaten up. Mr Thompson, his partner and his son, drove to the party at 29 Barron Crescent, Kaingaroa where this altercation had taken place. There was a confrontation between Mr Thompson and Mr Parakuka. That ended with Mr Parakuka apologising. Mr Thompson, his partner and son, then returned home.
[4]	Apparently Mr Tamati expressed the view that Dion Parakuka’s apology was not enough and he, Mr Ngawaka and Mr Ransfield, went out and got into the car to go back to the party where the altercation had occurred. Mr Tamati came back inside and said to Mr Thompson, "Aren’t you getting in the car, you pussy". Mr Thompson considered that he then had no alternative but to go with the other three and got into the car with them.
[5]	When they arrived at the party, all four got out of the vehicle. Some at least were armed with weapons which included a small axe, a screwdriver and a hammer. Dion Parakuka was knocked to the ground where he was kicked, punched and struck on the head with the hammer, stabbed in the arms and body with the screwdriver and hit on the legs and ankle with the axe. Mr Parakuka received numerous injuries to his head and body which included two gaping wounds to his head which required stitching, a penetrating stab wound to his right arm, a fractured right leg and a fractured left ankle.
[6]	The Judge accepted that Mr Tamati and Mr Ransfield were the prime movers in the assault, with Mr Thompson and Mr Ngawaka playing a much lesser role.

Appeal against conviction

[7]	Mr Thompson’s appeal against conviction is based upon two grounds:

a) That the Judge did not direct the Jury on the question of "withdrawal of participation" in the context of s66 of the Crimes Act.
b) That the verdict was against the weight of evidence in relation to an element under s66(2), i.e. the Crown were required to prove beyond reasonable doubt that the offence committed was a "known probable consequence" of the common intention.

[8]	Mr Lance’s submissions before us concentrated primarily on the first of these two grounds. Counsel emphasised that Mr Thompson’s first visit to 29 Barron Crescent had ended with an apology and a handshake. He said that it was not Mr Thompson’s idea to go back again. He was a reluctant starter and only went when Mr Tamati persuaded him to do so. Counsel submitted that Mr Thompson had not known that there were weapons in the car and that when he saw them being used he became very concerned. He was in a state of shock and he withdrew from participation in what counsel acknowledged in this Court was a common intention to give Mr Parakuka "the bash". Mr Thompson’s withdrawal involved standing away from the attack. He did not say anything to the other appellants and there was no evidence that they were aware of his desire to withdraw from involvement.
[9]	Mr Lance acknowledged that he had not addressed the Jury on the question of withdrawal of participation but he did address on Mr Thompson’s statement which he submitted provided a factual basis for the application of the doctrine. Consequently the Judge should have summed up on the doctrine of his own volition.
[10]	Ms Laracy for the Crown, submitted that in order for the doctrine to apply there must be an unequivocal withdrawal. She submitted that had the Judge raised the defence it would have undermined the appellant’s primary defence which was that there was no common intention.
[11]	As to the second ground, Mr Lance submitted that the issue is whether the Jury had a basis for a conclusion that Mr Thompson had knowledge in advance of the weapons in the car. He submitted that there is no evidence to contradict Mr Thompson’s statement of absence of such knowledge. He pointed out that it was dark when Mr Thompson got into the car. He was the last to do so, and there was some evidence of a lack of an inside light in the car.
[12]	Counsel submitted that a reference by the Judge in his sentencing notes to the question of knowledge of the weapons was equivocal and could be read as not applying to Mr Thompson. It is appropriate that we refer to this factual issue because our view on it disposes immediately of the second ground of appeal. In paragraph [6] of his Sentencing Notes, the Judge said:

[6] In your statement to the Police, Mr Ngawaka, when you were asked about the return, you said "I went for a bit of moral support and backup". So from that I draw the conclusion that the four of you decided to get into the car and return to Barron Crescent to give Dion "the bash" which was put to Mr Thompson and he agreed with it, and although there were various denials as to your knowledge of the weapons in the car, in my view it cannot be doubted that you knew there was the axe or tomahawk in the car and probably the hammer and possibly other weapons. So that at that point, when the four of you arrived at Barron Crescent, there must have been – and the jury verdicts confirm it – a common intention to "give Dion the bash".

[13]

In our view, there is no doubt that the Judge was referring to all four of the prisoners in the passage relating to knowledge of the weapons. Clearly he did not accept Mr Thompson’s denial of such knowledge. Mr Lance did not take us through the evidence in an attempt to satisfy us that there was in fact no evidence upon which such a view could be formed. But in any case, we are of the view that whether or not he had knowledge of the weapons, the possibility of a wounding with intent to cause grievous bodily harm must be a probable consequence of the common intention of four people to "give Dion the bash".

Further discussion of appeal against conviction

[14]	There is a very useful discussion of withdrawal from participation in the judgment of Hammond J in R v Pink [2001] 2 NZLR 860. In paragraph [22] the Judge set out what he considered to be the conditions that needed to be met before withdrawal could be established:

[22] As a matter of legal doctrine, it seems to me that the following conditions must be met:
• First, there must in fact be a notice of withdrawal, whether by words or actions.
• Secondly, that withdrawal must be unequivocal.
• Thirdly, that withdrawal must be communicated to the principal offenders. There is some debate as to whether the communication must be to all the principal offenders, but here all were told.
• Fourthly, the withdrawal may only be effected by taking all reasonable steps to undo the effect of the party’s previous actions. (See R v Menniti [1985] 1 Qd R 520.) As with any test of "reasonableness", it is impossible to divorce that consideration from the facts of a given case. The accused’s actions may have been so overt and influential that positive steps must be taken by him to intercede, and prevent the crime occurring. There is at least one authority (R v Grundy [1977] Crim LR 534 (CA)) which suggests that where the accused’s participation was in the form of counselling, attempts by the accused to dissuade the principal offenders from proceeding with the crime are sufficient.

[15]

We accept that as an accurate statement of the law. We consider that there was no withdrawal in this case. First, for the reason that on the evidence, it cannot be said that the withdrawal was unequivocal. Mr Thompson did not leave the scene. At best he stood at some distance apart from where the assault was taking place. But most importantly there was no communication of his withdrawal to the principal parties. We consider that the defence of withdrawal was not available to Mr Thompson and obviously, therefore, it would not have been appropriate for the Judge to sum up on that topic.

[16]

The appeal against conviction is dismissed.

Appeals against sentence

[17]	In his sentencing remarks, the Judge set out the background to the offending, and then after making the comments relating to the weapons and referred to above, went on to note that what happened after the four of them got out of the car was confused. He said:

There was some evidence that all four of you attacked Mr Parakuka but I accept what Mr Lance and Mr Edward have put forward that if Messrs Thompson and Ngawaka were involved themselves in the dispute it must have been at a very much lesser level than Messrs Tamati and Ransfield.

[18]

He noted that it was clear from the evidence that Dion Parakuka was attacked with the tomahawk and with something that was said to look like a bar and was probably the hammer, but may have been a screwdriver or some other weapon. He noted that the attack went on for some period, that Dion was unarmed and that the previous altercation with Mr Thompson’s son could not provide any reasonable justification for what they did. He noted that during the assault someone, and it could not be said who, called out "kill him" or "waste him". He referred to Mr Parakuka’s injuries and then said:

The Crown takes the view that all four of you were involved as assailants. As I have said, the evidence was clear that Messrs Ransfield and Tamati were personally involved in the assault on Dion Parakuka. It was less clear that the other two, Messrs Thompson and Ngawaka, were personally involved but they went round to provide moral support and backup and that suggests that had the fight gone badly you might have been prepared to involved yourselves to a greater degree.

[19]

The Judge referred to personal considerations concerning each of the four assailants. He noted what was said by this Court in R v Hereora [1986] 2 NZLR 164 as to the penalties appropriate in cases of this sort. He determined that this was not a case of impulsive violence but rather one where there was a degree of premeditation and planning and considered that on the basis of Hereora, the appropriate starting point was between five and eight years imprisonment. He took as his starting point the lower end of that range. He noted that Ransfield and Tamati were the proved attackers and that Thompson and Ngawaka were much less involved, and then said in relation to them:

Although you might have been there for moral support and backup, at least you were not involved in the physical and serious violence foisted on Mr Parakuka. I take the view therefore that there is a distinction between the two pairs of you.

[20]	On that basis he imposed a sentence of six years imprisonment on Mr Ransfield and Mr Tamaki, and four and a half years on Mr Thompson and Mr Ngawaka.
[21]	In so far as the Judge made findings of fact relating to the involvement of each of the participants, it must be remembered that he presided over the trial and was therefore in a position to reach conclusions as to the facts for sentencing purposes.

Submissions of counsel

[22]

Mr Lance submitted that insufficient credit had been given for the difference between Mr Thompson’s involvement and that of the others. He submitted that in respect of all of them the starting point should have been four years imprisonment because their actions lacked real premeditation. In the case of Thompson, he made the following points:

a) That he was a reluctant participant.
b) That he was not involved in the actual assault.
c) That he was subject to the dominance of the others.
d) That his involvement was over a very short period of time.

[23]	For Ransfield, Mr Walden submitted that the Judge had not correctly applied the relevant sentencing principles. He, too, submitted that there was minimal premeditation and he said that the weapons could well have been impulsively taken up. He submitted that the starting point should have been four years with an effective sentence of three to three and a half years. He pointed out that Mr Ransfield was the chief care giver for his children and that he was injured in the fight when the weapon he was carrying was taken off him.
[24]	Mr Edward submitted that the Judge did not give Mr Ngawaka sufficient credit for his lesser involvement. He referred to Mr Ngawaka’s remorse. He referred to the judgment of this Court in R v Moon (CA366/02, 27 February 2003). That was a case of a stabbing with a knife. The injury suffered by the complainant had long term consequences. The Court reduced the sentence imposed of eight years to five. It is noteworthy that the Crown at sentencing had taken the view that the starting point was no more than five or six years imprisonment. The important difference between that case and the present one is that in this case there were four persons involved even if only two were actual assailants.
[25]	For the Crown, Ms Laracy submitted that the Judge had been correct to place this case in the second Hereora category and to fix as the appropriate sentence for the principal offenders a term of imprisonment of six years. She submitted that the Judge had recognised the differing involvement of the appellants. She submitted that there was premeditation and that given the weapons used, the injuries might well have been much more serious than they were.

Discussion

[26]	In general we agree with the submissions of counsel for the Crown. A starting point at the level proposed by the appellants in the case of wounding with intent to cause grievous bodily harm would only be appropriate for an impulsive act of violence. Here there is a combination of aggravating features which justify a starting point of between five and eight years. The first of those aggravating features is the premeditation which, like the Sentencing Judge, we consider was present in this case. That premeditation involved the initial discussion of the event concerning Mr Thompson’s son and the decision to go back to the party and take revenge. The aggravating features included the involvement of four people and the decision by the attackers to arm themselves with weapons. This was a vicious assault on an unarmed man who had already apologised for his earlier behaviour. We consider that the six year sentences imposed on the two principal offenders were amply justified.
[27]	That leaves for consideration the question as to whether the 18 month difference between that sentence and the four and a half years imposed on the other two appellants is sufficient recognition of their lesser role. We consider that it is.
[28]	The other two, willingly it seems on the part of Mr Ngawaka, and with some reluctance on the part of Mr Thompson, involved themselves in the plan. Like the others they have been found guilty of wounding with intent to cause grievous bodily harm. The Judge considered that they were aware of the existence of the weapons that were used. In all those circumstances we have concluded that 18 months represents an adequate differential in the sentences and that four and a half years imprisonment while firm cannot be said to be a manifestly excessive sentence for Mr Ngawaka and Mr Thompson.
[29]	The appeals against sentence are dismissed.

Solicitors:
H S Edward, Rotorua for Appellant Ngawaka
S Lance, Rotorua for Appellant Thompson
Crown Law Office, Wellington