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R v MANUKAU [2004] NZCA 278 (15 November 2004)

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R v MANUKAU [2004] NZCA 278 (15 November 2004)

Last Updated: 3 December 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA204/04
CA207/04

THE QUEEN

v

TRENT RHYS MANUKAU

Hearing: 5 October 2004

Court: Glazebrook, Hammond, William Young JJ

Counsel: S B W Grieve QC and K D Abbott for Appellant
F E Guy for Crown

Judgment: 15 November 2004

JUDGMENT OF THE COURT

The appeal against conviction is dismissed. We grant the Solicitor-General leave to appeal against sentence and we allow that appeal by imposing a minimum period of imprisonment of three and a half years.

REASONS

(Given by William Young J)

Table of Contents

Para No

Introduction [1]
The facts – an overview [3]
The issues at trial [10]
The conviction appeal
Overview [16]
The summing up [17]
The response of defence counsel to the summing up [22]
The arguments for the appellant in this Court [23]
The argument for the Crown [26]
Evaluation [28]
Appeal against sentence
The appellant [44]
Impact of the offending on the victims and their families [48]
The approach of the Judge [49]
The Solicitor-General’s application for leave to appeal [50]
Argument for the appellant [53]
Evaluation [55]
Result [63]

Introduction

[1] In February and March this year, Trent Rhys Manukau (to whom we will refer as "the appellant") stood trial in the High Court at Auckland before Priestley J and a jury on counts alleging murder and attempted murder and an alternative count of wounding with intent to cause grievous bodily harm. On 3 March 2004, the jury found him not guilty of murder and attempted murder but guilty of manslaughter and wounding with intent to cause grievous bodily harm. On 6 May 2004, he was sentenced by the Judge to seven years imprisonment on the manslaughter count and, concurrently, to two and a half years imprisonment on the wounding with intent count. The Judge did not impose a minimum non-parole period.
[2] The appellant appeals against conviction and the Solicitor-General seeks leave to appeal against sentence and, in particular, the refusal by the Judge to impose a minimum non-parole period.

The facts – an overview

[3] On 2 November 2002, the appellant and his brother Karl Manukau went to the Ultrazone Amusement Arcade in South Auckland. The appellant had with him a diving knife with a serrated blade which was approximately 15cm in length.
[4] The appellant and his brother were affiliated with a gang known as "the Crips". A number of young people who were associated with a rival gang ("the Bloods") arrived at Ultrazone in a white van sometime after the appellant and his brother. It is possible that there were other people associated with the Bloods present prior to the appellant and his brother arriving. The appellant and his brother were intoxicated and abusive. The appellant in particular was acting in a provocative way. The upshot was an altercation. Some 22 eye witnesses gave evidence of how this altercation started and the general course of the surrounding events. The accused did not give evidence but he did make two statements to the police which were recorded on video. Unsurprisingly there was much conflict as to what happened.
[5] It is clear that the altercation started when Mr Mamoe Kaisala, a security guard, was endeavouring to remove either or both of the appellant and his brother from the premises.
[6] In the events that followed, other people (including Mr Fala Faapo) became involved. The evidence as to the nature of this involvement differed. Some of the evidence suggested that the other people were simply trying to break up the altercation. But there was also evidence that suggested that they were intervening on the side of Mr Kaisala. If he had not been part of the altercation from the outset (and some of the witnesses said he had been), the appellant was soon involved as well. It is common ground that the appellant stabbed Mr Faapo and Mr Kaisala. Both men were seriously injured and Mr Kaisala was later to die from his injuries. After the stabbing the appellant continued to behave in an extremely aggressive and threatening way.
[7] The white van, to which we have referred, contained equipment associated with a painting business. In the aftermath of the stabbing, one of the men who had arrived in the van was armed with a metal pipe which he had taken from the van. It may be that other items from the van, and in particular a length of chain, were also removed for use as weapons. In the events that followed, the appellant was struck once with the metal pipe and both the appellant and his brother endeavoured to leave the scene.
[8] The appellant’s brother was caught by the other young people and beaten up. The appellant ran to a nearby cinema which he entered. He secreted the knife under a seat. Cinema security staff removed him and returned him to the Ultrazone carpark where the police spoke to him. He was later arrested.
[9] Arising out of these events the appellant was charged with the murder of Mr Kaisala. He was found not guilty of murder but guilty of manslaughter. He was also charged with the attempted murder of Mr Faapo and, alternatively, with wounding with intent to cause grievous bodily harm. He was found not guilty of attempted murder but guilty of wounding with intent.

The issues at trial

[10] The appellant’s principal defence was that he had been acting in defence of himself and his brother. Additionally, there were issues whether he had the mens rea required to warrant conviction for murder and attempted murder. Provocation was not run as a defence and the jury were not directed as to it.
[11] The jury must have rejected the defence argument that the appellant had been acting in defence of himself and his brother but were in doubt whether the appellant had murderous intent (in relation to the count of murdering Mr Kaisala) and an intent to kill (in relation to the charge of attempting to murder Mr Faapo).
[12] The Crown case was primarily presented on the basis that the appellant used the knife to stab Messrs Kaisala and Faapo in circumstances in which neither he nor his brother faced a risk of any serious harm. There was certainly an evidential basis upon which this case could be presented to the jury. If the jury accepted that there had been no more than a minor scuffle underway at the time the appellant stabbed Messrs Kaisala and Faapo, it was inevitable that the jury would reject his defence that he had been acting in defence of his brother and himself and had used no more than reasonable force. This is because, on this hypothesis, the use of a knife was not reasonable.
[13] The defence case was along these lines. The altercation started with a scuffle between Karl Manukau and Mr Kaisala. Some men, including Mr Faapo, came to Mr Kaisala’s assistance. The appellant stood by watching what was happening. But then, as other people (one of whom was armed with a chain and another with a baseball or softball bat) joined in and Karl Manukau was obviously getting the worse of the struggle, he went to assist him. The appellant’s defence was that he used the knife in that context, to protect his brother from a serious assault and, incidentally, himself. The appellant chose not to give evidence and relied on what he said at interview. His account of events as given at interview was not entirely consistent (for instance as to when the bat was allegedly deployed) and was also riddled with lies. It nonetheless provided an evidential foundation for the defence case.
[14] Other possible views of what happened were open. For instance, the jury might have concluded that there was a major altercation underway when the appellant joined in but that the men opposed to his brother were not armed. There was a substantial body of evidence which supported this view of the facts and if the jury saw it as reasonably possible, it may, conceivably, have seen the use of the knife as reasonable.
[15] For ease of reference we will refer to these three possible approaches to the case as "the primary Crown case", "the primary defence case" and "the middle view". This terminology is simplistic because there was a broad spectrum of possible views of the facts which were open to the jury. Despite being simplistic, this terminology will nonetheless be of assistance in evaluating the criticisms made on behalf of the appellant of the Judge’s summing up.

The conviction appeal

Overview

[16] The conviction appeal was presented on the single ground of unfairness in the way in which the Judge summed up and in particular his reading of certain passages of evidence to the jury.

The summing up

[17] Priestley J summed up to the jury on 3 March 2004.
[18] The part of his summing up which is most relevant to the appeal began in this way:

[101] All 22 approximately witnesses [a reference to the eye witnesses] have given different versions. You may decide, it being entirely a matter for you, that some are more accurate than others. You may decide that some have not told you the full story. You may decide that some have faulty memories. There are conflicting stories on important issues such as who was grappling with whom; how rapidly a fight or brawl broke out; how many people were involved in that brawl; where exactly the accused was both before and after the fight broke out; who was attacked first; whether or not threats were exchanged. Some of the witnesses clearly confused the names of the accused and his brother Karl and may also have been confused about who it was who was involved in the assault.
[102] Fifteen months later these conflicts and different stories are almost inevitable. So too, when you have 22 people who may have observed the same event either throughout or at different stages, you are inevitably going to get different versions.
[103] You will have to grapple with these problems as best you can. You may decide, as Mr Marchant [who was the prosecutor] has submitted to you, that a number of witnesses are consistent on various important matters. Mr Grieve [who was counsel for the appellant at trial] too sees different consistencies. But remember, on the important issues of whether the Crown has satisfied you beyond reasonable doubt that self-defence is excluded and, if you get to that stage, whether or not the Crown has satisfied you beyond reasonable doubt of murderous intent, the conflicting evidence or stories you have heard are vital to the issue of whether you as a jury are sure.
[104] That does not mean that because you may have had 22 different versions you should automatically conclude that it is all too confused and you have a doubt. Your responsibility, and this is the oath you took three weeks ago, is to assess the evidence you have heard. Some witnesses may well have [struck] you as being totally unreliable or vague. Other witnesses may in your view have been giving you accurate and truthful evidence. In assessing the evidence you should not see yourselves as being detectives or crime investigators. That is not your job. In assessing the evidence as I have already told you, you need to be sure about certain crucial and important events and issues. If the evidence makes you sure so far as the essential features of self-defence and the three counts are concerned, then the Crown will have proved its case. But if the evidence does not make you sure and in particular if you are not sure that the Crown has excluded self-defence, then the Crown has not proved its case.
[105] I am going to refer you to certain passages of the evidence which you may consider helpful. Both Mr Marchant and Mr Grieve QC have already read out some of these passages to you. In selecting them I am not giving you a signal that I regard these passages as being more important than the other evidence you have heard. Whether or not you find the passages I refer you to as helpful is entirely for you to decide.

[19] The Judge then read out passages from the evidence of four witnesses and as he did so, he made a number of comments on what they had to say. The witnesses whose evidence he read were Mr Antonio Deljovanis, Ms Arnica Savage, Mr Raymond Faapo and Mr Tuli Faapo. Having read that evidence the Judge then referred to, but did not read from, the appellant’s video statements and summarised the evidence as to the injuries suffered by the appellant.
[20] He then went on:

[127] I am not going to spend any more time reading out passages of evidence to you. During the course of the last three weeks you would have formed some ideas as to what witnesses you regard as reliable and helpful and what witnesses you regard as unreliable. I stress to you that you and you alone are the judges of the evidence. And it is the evidence which you accept as being reliable; the picture which the evidence convinces you paints which must form the basis of your decisions about whether the Crown have excluded self-defence by making you sure, and also whether the Crown has proved the essential features of murderous intent for counts 1 and 2.

[21] The Judge concluded his summing up by summarising in considerable detail the Crown and defence cases.

The response of defence counsel to the summing up

[22] At the conclusion of the summing up, objection was raised by Mr Grieve QC:

... I am bound to say that I am very disturbed by the selection of evidence that Your Honour read to the jury and with respect it was selected. Your Honour directed properly about difficulties of conflict of evidence and so on, but then proceeded to select passages which overall in my submission favoured the prosecution. Once a Judge embarks on reading evidence, particularly in a case like this, it is with respect a very dangerous practice because... [h]aving embarked on that course a jury may well conclude that those are the witnesses whose accounts you favour. ...

The Judge responded:

... [Y]ou have redress elsewhere if all goes wrong from your point of view. The passages of evidence I read out were prefaced with very sensible warnings that I was giving no signals, and ... were designed, in an even-handed way, to cover the most coherent evidence which seemed to me to be available which presented the picture which the Crown was painting and the picture which you were painting. It would not have escaped your notice that some of the passages of evidence I read out this morning were precisely the same as you read out yesterday.

The arguments for the appellant in this Court

[23] Mr Grieve’s initial position (as summarised in his written argument) was that the Judge should merely have summarised the factual cases as advanced by counsel without specific reference to the evidence of any witness. Given the nature of the case, his reading of selected passages did not fairly represent the whole evidential picture.
[24] More particularly, Mr Grieve complained about the detail of the Judge’s approach. Some of the evidence should not have been read. As well, in this section of the Judge’s summing up, he did not refer, at least in any detail, to the appellant’s version of the key events.
[25] This resulted in a summing up which was unbalanced and manifestly unfair, amounting to a miscarriage of justice.

The argument for the Crown

[26] For the Crown, Ms Guy maintained that it was not wrong for the Judge to read back to the jury parts of the evidence in the way that he did. The trial had been lengthy and the evidence he read merely reflected some of the differing perceptions of what had taken place at the scene of the offending.
[27] She submitted that the evidence selected was balanced. The greatest coverage was given to the evidence of Ms Arnica Savage, whose evidence was heavily relied upon by the defence. Excerpts from the Crown witnesses’ evidence were considerably shorter and some of these accounts were supportive of the defence case.

Evaluation

[28] At the request of counsel, the Judge did not provide the jury with a transcript of the evidence. He can hardly be criticised for adopting a course which both counsel urged on him. On the other hand, whether the jury should receive the transcript was for him to determine. The consequence of withholding the transcript from the jury was that jurors were left to remember, using such notes as they may have taken, the far from consistent accounts of the relevant events given by over 20 witnesses.
[29] We think it worth re-emphasising the results of the New Zealand jury research project carried out by Professor Warren Young and others and published by the New Zealand Law Commission as preliminary paper 37, volume 2, Juries in Criminal Trials, Part 11A Summary of the research findings (1999):

A ... reported consequence of the fact that testimony was in oral form was that jurors had difficulty in recalling the details of it during deliberations. Such difficulties were reported to have occurred in 21 trials, and were particularly acute where the evidence was confused or contradictory, or where the sequence of events was unclear. They were also particularly likely to arise where there was more than one complainant and a number of charges: jurors reported that they got the stories between complainants mixed up; that they mistook names, dates or times; and that they sometimes had difficulty in recollecting what evidence related to which charges.
(See para 3.5)

Jury complaints about not having transcripts are neither new nor confined to New Zealand, see for instance New South Wales Law Reform Commission, The Jury in a Criminal Trial (1986) at pp 90-92 and Chesterman, Chan and Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (2001) at paras 462-471. Largely as a result of Professor Warren Young’s work, Judges started giving evidence transcripts to juries and the point has now been reached were this practice is well-established and is perfectly acceptable to this Court, see R v McLean (Colin) [2001] 3 NZLR 794 and R v Haines [2002] 3 NZLR 13.

[30] In evaluating the complaints made by Mr Grieve, some additional context is important:

(a) Although the jury did not have a transcript of the evidence given by the Crown witnesses, they did have the transcripts of the appellant’s video interviews in which he maintained that he had acted in defence of himself and his brother and claimed that two of those who were attacking his brother were armed with weapons.
(b) In their closing addresses, counsel dealt extensively with the evidence given by the various eye witnesses. Some of their evidence was paraphrased and some was read to the jury from the notes of evidence. It is not possible to be certain what evidence was read. One way or another, however, the jury was reminded of all the relevant evidence.
(c) The witnesses chosen by the Judge were, in a sense, representative of various classes of the witnesses who gave evidence. Mr Deljovanis was the Ultrazone manager. Ms Savage was one of a number of girls who witnessed the incident and who were generally independent (in the sense of having no affiliation with either the Bloods or the Crips). Messrs Raymond and Tuli Faapo had both arrived in the white van, to which we have referred, and Tuli Faapo was the man who struck the appellant with the pipe after the stabbing. They were two of a number of people associated with the Bloods who gave evidence.

[31] Ms Arnica Savage’s evidence was that the initial altercation was between the appellant and Mr Kaisala. Although there was other evidence to this effect, her account was contrary to the drift of the evidence as a whole (which was to the effect that the altercation was initially between Karl Manukau and Mr Kaisala). But her evidence was nonetheless of assistance to the appellant as it suggested that when the appellant used the knife, he had already been assaulted by Mr Kaisala and was engaged in a pushing and shoving altercation with a number of Bloods supporters. Indeed, on the whole, the passages of evidence read by the Judge struck a reasonably fair balance between what we have described as the primary Crown case and the middle view. As the argument developed, Mr Grieve’s argument primarily focused on his concern that the primary defence case (ie that the appellant responded to an armed attack on his brother) was overlooked, at least in the passages which were read.
[32] There was some general evidence to the effect that some of the other people at Ultrazone had or may have had weapons (or implements which could be used as weapons) which were described in various, perhaps sometimes overlapping, ways: a bat, a wheel brace (or "crow-bar"), a pole, a metal pipe, a vacuum cleaner pipe and a screwdriver. At one stage (on the Crown case prior to the use of the knife but, according to the appellant at interview, prior to him becoming directly involved) a torch (presumably belonging to Mr Kaisala) was thrown at the appellant. A screwdriver was used to stab Mr Karl Manukau (although this would appear to have been after the appellant had stabbed his two victims). After the incident, the police found a chain in the white van. But other than what the appellant said at interview and with the possible exception of some equivocal evidence from Ms Amber Godinet, there was no evidence to suggest that anyone was actually using any a weapon prior to the appellant stabbing Mr Kaisala and Mr Faapo.
[33] The Judge could have read the evidence of Ms Amber Godinet to the jury. But it was unlikely that what she said would be lost sight of by the jury. Both counsel addressed the jury extensively on her evidence and the Judge later mentioned her evidence when he came to summarise the defence case. There were passages in Ms Arnica Savage’s evidence which were perhaps more helpful to the appellant than what the Judge read. However, the drift of her evidence seems to us to have been captured in what was read. The Judge could also have read to the jury the relevant extracts from the transcripts of the appellant’s police interviews and in this way reminded the jury of what the appellant had said. But there was no risk of the jury overlooking that explanation. They had in the jury-room the transcripts of the interviews. Further, later in his summing up, the Judge put in very full terms the defence case.
[34] The real significance that might be attached to the Judge reading some prosecution evidence but not reading or discussing the evidence of Ms Godinet and the appellant’s explanations at interview is that the selection of material referred to by the Judge might arguably reflect a preference by the Judge for the Crown case. This indeed is the primary complaint of Mr Grieve.
[35] All of this might be thought to suggest that the decision not to give the jury a transcript of the evidence was perhaps a little unfortunate. If a transcript of the evidence had been provided to the jury, there would have been no occasion for the Judge to read lengthy passages of evidence. Rather, the evidence on the key issues in the case could have been summarised easily and helpfully for the jury by reference to transcripts of the evidence and what the appellant said at interview and thus no debatable selection process would have been required.
[36] There were other ways in which the Judge could have summed up. He could perhaps have identified the differing contentions as to the course events took and marshalled the evidence around those contentions, possibly providing summaries, in writing, as to which witnesses supported which contentions.
[37] The law provides considerable leeway for Judges when summing up to juries. That the Judge may have been able to provide more effective assistance either by giving the transcript of the evidence to the jury and summing up by reference to it or by marshalling the evidence around the different contentions as to the course which events took does not mean that the way in which he actually summed up was inappropriate or led to a miscarriage of justice.
[38] The most that the jury could have taken from the Judge’s selection of the evidence which he read is that the Judge thought that the evidence as a whole did not provide much support for the theory that the appellant was responding to an armed attack on his brother. In truth the evidence provided scant support for that theory and if the Judge had said that explicitly, it would not have been objectionable, see for instance R v McRoberts CA86/99 15 June 1999 and R v Afele CA330/02 10 December 2002.
[39] Of course, if a Judge makes a comment as to the strengths of the competing cases, he or she must:

(a) Do so in terms which do not usurp the function of the jury; and
(b) Remind the jury of the substance of the defence case.

In substance, this is what the Judge did.

[40] The Judge made it clear that the jury were the sole judges of fact and free to depart from his views on the facts. Further, he made it clear that his selection of the evidence which he read was not to limit the evidence to which the jury should have regard. Most importantly, he surveyed in a very complete way the defence case including the contention that the appellant intervened in a struggle involving his brother in which his brother was under attack from a number of men, two of whom were armed with weapons. In the course of this summary he also referred to the evidence of Ms Godinet.
[41] In that context, the fact that his apparent view of the facts was expressed by implication rather than expressly seems to us not to matter.
[42] We add that we are by no means sure that Mr Grieve would have welcomed a summing up which focused closely on the explanations given by the appellant at interview and involved the reading of substantial passages from the two transcripts. The appellant told many lies when he was interviewed by the police, a point which would necessarily have been emphasised if the reading of the Crown evidence had been "balanced" by a reading of what the appellant told the police. From the point of view of the defence, Mr Grieve gave a far stronger and convincing exposition of the appellant’s case in his closing address to the jury than the appellant did at interview. In those circumstances, we do not see how the appellant can fairly claim to have been prejudiced by reason of the Judge putting his defence to the jury primarily by way of a paraphrase of Mr Grieve’s closing address.
[43] Accordingly, we dismiss the appeal by the appellant against his convictions.

Appeal against sentence

The appellant

[44] The appellant was born in May 1985. So at the time of the offending he was 17 years old. He had one previous conviction (for assault). He left school at the end of year 11. By the time he appeared for sentence he had a partner and a child.
[45] It was clear that he had consumed a good deal of alcohol on the afternoon of the offending. It is possible that the aggressive way he behaved was influenced by the presence and behaviour of his older brother, Karl Manukau.
[46] The pre-sentence report noted that Karl Manukau was estranged from the family over his role on the night of the offending.
[47] The appellant was assessed by the pre-sentence report writer as having a low to moderate risk of re-offending and by the Judge as being remorseful.

Impact of the offending on the victims and their families

[48] We have seen the victim impact reports which were made available to the Judge. There is no need for us to dwell on them or on the seriousness of the offending. Mr Kaisala was married and had six children. Mr Faapo was seriously wounded.

The approach of the Judge

[49] Having referred to the facts and general sentencing considerations the Judge said:

[22] The Crown acknowledges that there is no sentencing tariff for manslaughter. Counsel accepts that the jury was not persuaded beyond reasonable doubt that you had murderous intent but submits that the manslaughter involved falls at the high end of the range because, in Mr Marchant’s submission, the attacks were deliberate and calculated to cause serious harm. The Crown submits that a sentence of eight years imprisonment for manslaughter is appropriate together with a cumulative sentence of two years for causing grievous bodily harm. Those written submissions, however, have been modified somewhat by Crown counsel during the course of exchanges between the bar and Bench this morning. The Crown further submits that a minimum term under s 86 is appropriate. In counsel’s submission the circumstances of the homicide are out of the ordinary range (s 86(3)) and that in terms of R v Brown [2002] 3 NZLR 670, eligibility for parole after one-third of the imposed sentence would not adequately reflect society’s condemnation of your behaviour. Referring to a passage in R v Brown to which I will subsequently return, Mr Marchant submits that three out of four specified factors are there and that it is the seriousness of your offending which brings s 86 into play regardless of mitigating factors.
...
[24] Your counsel submits that a concurrent term in respect of the s 188 conviction should be imposed rather than a cumulative term; that a minimum term under s 86 is not appropriate; and that a lead sentence of six years for manslaughter, that lead sentence encompassing also the s 188(1) conviction in totality is appropriate.
...
[26] I consider concurrent sentences are mandated by the statue and by the evidence I heard. The lead charge must be manslaughter, increased somewhat to reflect the totality of your offending and the fact that there were two victims not one. After discussion Mr Marchant accepts the applicability of s 84 in the way I have just outlined it.
...
[28] Yours Mr Manukau, is not a case where you were subjected personally to a savage or sustained attack by your victims. Although your brother Karl Manukau was later seriously beaten up, in circumstances which clearly caused you and your family much anguish, it is significant that this attack on him occurred after you had stabbed your victims and cannot be used as a pretext or excuse for your own actions. Neither of your victims were abusing you, chasing you, or provoking you. Their involvement in the scuffle, even to the extent that they were instigators of it, was spontaneous and not sustained. Making as much allowance as I can for the possible involvement of supporters of your victims and rival members of the Bloods gang, these aspects are outweighed in my judgment by your drunkenness, your aggression, and by your carrying a concealed knife which you were prepared to use spontaneously and in an unjustified fashion. The carrying of knife, particularly in inflammatory situations, must be treated as a significant aggravating factor ... .
[29] Weighing all Sentencing Act factors as best I can, being alert to the need to denounce and deter with this type of offending, and having regard to similar but by no means comparable cases, specifically Kane, Nicholson, and Narayan-Singh) I would regard a term of imprisonment of eight to nine years as a proper starting point reflecting the totality of your offending. However, I intend to reduce that by a significant extent to reflect your youth, your relatively good record, your remorse, and the positive and low risk attributes outline in the pre-sentence report.
[30] I consider than an appropriate total term in all the circumstances, and having regard to s 85, is imprisonment for a period of seven years.
[31] Accordingly I sentence you to a term of seven years imprisonment on the charge of manslaughter. On the grievous bodily harm charge under s 188(1) of the Crimes Act 1961, I sentence you to a term of two and a half years imprisonment. Those terms are to be served concurrently.
[32] I now turn to s 86 and I set out paragraph [32] of R v Brown:

[32] It must be a matter for judicial judgment whether the "sufficiently serious" threshold is crossed. Generally this will involve identifying aspects that set the particular offending apart. Any attempt to list possible features that might qualify would unduly fetter the sentencing discretion. The Judge must review the circumstances as a whole and apply the statutory test. The central consideration must be culpability which necessarily is increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences. This last factor may be important in cases involving major drug dealing. We do not consider the overall assessment need be constrained by the particular charge brought in respect of the conduct concerned; for example, in cases of serious violence against the person the assessment of culpability should be in relation to conduct of that kind and not limited only to conduct giving rise to charges for precisely the same offence.

Both counsel have relied on the above passage.
[33] I do not consider, having regard to the provisions of s 86 of the Sentencing Act and the guidelines established by the Court of Appeal in R v Brown, that your offending is so serious, that being eligible for parole after one-third of its length would not be enough to punish, deter and denounce. This is not a case involving callousness or persistent sustained violence. There were indeed multiple victims, and of course the taking of a life is serious. But having said that, manslaughter is to some extent a catch-all crime which embraces homicides lacking murderous intent of precisely this nature. Your offending Mr Manukau, resulted from your bravado, your drunkenness, your youth, and your carriage of a lethal weapon which you were prepared to use stupidly and in an ill-judged fashion. The Crown failed to prove murderous intent. Manslaughter convictions in cases such as this are legion.
[34] Having regard to those considerations and also to your remorse and your youth I do not consider that Sentencing Act criteria require me to impose a minimum term. I refuse to do so.

The Solicitor-General’s application for leave to appeal

[50] The Solicitor-General sought leave to appeal against the sentence imposed on the ground that the Judge’s refusal to impose a minimum period of imprisonment under s 86 of the Sentencing Act was wrong in principle and has resulted in a manifestly inadequate sentence.
[51] Ms Guy submitted that the Judge had erred in the application of the test whether the circumstances of the offending were sufficiently serious to justify a minimum period of imprisonment. The Judge had compared the circumstances of the present case with similar cases of manslaughter. Ms Guy submitted that the Judge erroneously concluded that the common occurrence of manslaughter meant that the appellant’s offending was insufficiently serious to warrant a minimum term. The Judge also mistakenly compared the case to similar manslaughter cases rather than all types of manslaughter cases. Further, the Judge mistakenly took into account the appellant’s personal circumstances, which were irrelevant when determining the seriousness of the offending.
[52] While Ms Guy conceded that the length of the sentence was appropriate, she maintained that a minimum term should have been imposed. The circumstances here are more serious than those in R v Helps [2003] NZCA 93; (2003) 20 CRNZ 165, and are akin to those in R v Waterhouse CA33/04, 13 May 2004. Minimum periods were imposed in these two manslaughter cases. She submitted that a minimum period of three and a half years would be appropriate.

Argument for the appellant

[53] Mr Abbott (who argued this aspect of the case for the appellant) supported the Judge’s reasoning and the conclusion reached. He submitted that the refusal to impose a minimum period was available to the Judge on an analysis of the circumstances of the offending.
[54] In effect Mr Abbott adopted the approach taken by the Judge.

Evaluation

[55] The sentencing and parole legislation proceeds on the basis that in general an offender who is sentenced to more than two years imprisonment should be eligible for parole once one third of the sentence has been served. In ordinary cases, the overall culpability of the offender is reflected in the nominal sentence imposed and thus in the minimum term which must be served (being one third of the nominal sentence).
[56] Section 86 proceeds on the basis that for some serious offending, the proportion of the nominal sentence which must be served should exceed one third.
[57] Section 86 has recently been amended, but at the time relevant to the present case, it provided:

86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2) The court may impose a minimum period of imprisonment under this section if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002.
(3) For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

[58] The two leading cases are R v Brown [2002] 3 NZLR 670 and R v M [2003] 3 NZLR 481. Also of note is the recognition by this Court in R v T (CA 251/02 31 October 2002), that offending which is common (in that case, sexual abuse of children) can nonetheless be sufficiently serious to warrant the imposition of an extended non-parole period.
[59] The jury concluded that the appellant intended to inflict grievous bodily harm on Mr Faapo. Given the facts of the case, it is hard to see how the jury could have concluded that he intended to inflict any lesser harm on Mr Kaisala and it must in any event have concluded that there was an intention to inflict bodily injury. In light of that, the acquittal on the charge of murder would appear to have proceeded on the basis that it was reasonably possible that the appellant did not recognise that the bodily injury he intended to inflict on Mr Kaisala was likely to cause death, see s 167(b), Crimes Act 1961. The appellant’s offending must be regarded as being right on the murder/manslaughter cusp.
[60] We accept that the Judge was right to fix concurrent terms of imprisonment. Orthodox sentencing practice dictated that a head sentence be imposed on the manslaughter which reflects the overall criminality of the appellant’s conduct. The Judge recognised this in [26] of the sentencing remarks which we earlier set out. Given the requirement to allow for the criminality involved in the serious assault on Mr Faapo and the narrowness of the margin by which the appellant avoided conviction for murder, the seven years imposed on the manslaughter count seems very light. We say this given that the appellant brought to Ultrazone a concealed weapon which he was prepared to use and that the whole incident was provoked by him and his brother. The seven year sentence imposed appears to reflect a view on the part of the Judge that the appellant was indeed acting in defence of himself and his brother but that the force he used went beyond what was reasonable. In fixing a sentence as low as seven years, the Judge seems to have given full allowance for this consideration.
[61] In our view the only conclusion available was that the offending was "out of the ordinary range of offending of the particular kind" for the purposes of s 86(2) and was sufficiently serious to warrant the imposition of a minimum term exceeding one third of the nominal sentence imposed. In this respect we note that minimum non-parole periods were imposed and upheld in broadly comparable circumstances in R v Helps and R v Waterhouse.
[62] Accordingly we grant the Solicitor-General leave to appeal and allow his appeal to the extent of imposing a minimum period of imprisonment of three and a half years (which is what the Solicitor-General sought).

Result

[63] The appeal against conviction is dismissed. We grant the Solicitor-General leave to appeal against sentence and we allow that appeal by imposing a minimum period of imprisonment of three and a half years.

Solicitors:
Crown Law Office, Wellington

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[3]	On 2 November 2002, the appellant and his brother Karl Manukau went to the Ultrazone Amusement Arcade in South Auckland. The appellant had with him a diving knife with a serrated blade which was approximately 15cm in length.
[4]	The appellant and his brother were affiliated with a gang known as "the Crips". A number of young people who were associated with a rival gang ("the Bloods") arrived at Ultrazone in a white van sometime after the appellant and his brother. It is possible that there were other people associated with the Bloods present prior to the appellant and his brother arriving. The appellant and his brother were intoxicated and abusive. The appellant in particular was acting in a provocative way. The upshot was an altercation. Some 22 eye witnesses gave evidence of how this altercation started and the general course of the surrounding events. The accused did not give evidence but he did make two statements to the police which were recorded on video. Unsurprisingly there was much conflict as to what happened.
[5]	It is clear that the altercation started when Mr Mamoe Kaisala, a security guard, was endeavouring to remove either or both of the appellant and his brother from the premises.
[6]	In the events that followed, other people (including Mr Fala Faapo) became involved. The evidence as to the nature of this involvement differed. Some of the evidence suggested that the other people were simply trying to break up the altercation. But there was also evidence that suggested that they were intervening on the side of Mr Kaisala. If he had not been part of the altercation from the outset (and some of the witnesses said he had been), the appellant was soon involved as well. It is common ground that the appellant stabbed Mr Faapo and Mr Kaisala. Both men were seriously injured and Mr Kaisala was later to die from his injuries. After the stabbing the appellant continued to behave in an extremely aggressive and threatening way.
[7]	The white van, to which we have referred, contained equipment associated with a painting business. In the aftermath of the stabbing, one of the men who had arrived in the van was armed with a metal pipe which he had taken from the van. It may be that other items from the van, and in particular a length of chain, were also removed for use as weapons. In the events that followed, the appellant was struck once with the metal pipe and both the appellant and his brother endeavoured to leave the scene.
[8]	The appellant’s brother was caught by the other young people and beaten up. The appellant ran to a nearby cinema which he entered. He secreted the knife under a seat. Cinema security staff removed him and returned him to the Ultrazone carpark where the police spoke to him. He was later arrested.
[9]	Arising out of these events the appellant was charged with the murder of Mr Kaisala. He was found not guilty of murder but guilty of manslaughter. He was also charged with the attempted murder of Mr Faapo and, alternatively, with wounding with intent to cause grievous bodily harm. He was found not guilty of attempted murder but guilty of wounding with intent.

[10]	The appellant’s principal defence was that he had been acting in defence of himself and his brother. Additionally, there were issues whether he had the mens rea required to warrant conviction for murder and attempted murder. Provocation was not run as a defence and the jury were not directed as to it.
[11]	The jury must have rejected the defence argument that the appellant had been acting in defence of himself and his brother but were in doubt whether the appellant had murderous intent (in relation to the count of murdering Mr Kaisala) and an intent to kill (in relation to the charge of attempting to murder Mr Faapo).
[12]	The Crown case was primarily presented on the basis that the appellant used the knife to stab Messrs Kaisala and Faapo in circumstances in which neither he nor his brother faced a risk of any serious harm. There was certainly an evidential basis upon which this case could be presented to the jury. If the jury accepted that there had been no more than a minor scuffle underway at the time the appellant stabbed Messrs Kaisala and Faapo, it was inevitable that the jury would reject his defence that he had been acting in defence of his brother and himself and had used no more than reasonable force. This is because, on this hypothesis, the use of a knife was not reasonable.
[13]	The defence case was along these lines. The altercation started with a scuffle between Karl Manukau and Mr Kaisala. Some men, including Mr Faapo, came to Mr Kaisala’s assistance. The appellant stood by watching what was happening. But then, as other people (one of whom was armed with a chain and another with a baseball or softball bat) joined in and Karl Manukau was obviously getting the worse of the struggle, he went to assist him. The appellant’s defence was that he used the knife in that context, to protect his brother from a serious assault and, incidentally, himself. The appellant chose not to give evidence and relied on what he said at interview. His account of events as given at interview was not entirely consistent (for instance as to when the bat was allegedly deployed) and was also riddled with lies. It nonetheless provided an evidential foundation for the defence case.
[14]	Other possible views of what happened were open. For instance, the jury might have concluded that there was a major altercation underway when the appellant joined in but that the men opposed to his brother were not armed. There was a substantial body of evidence which supported this view of the facts and if the jury saw it as reasonably possible, it may, conceivably, have seen the use of the knife as reasonable.
[15]	For ease of reference we will refer to these three possible approaches to the case as "the primary Crown case", "the primary defence case" and "the middle view". This terminology is simplistic because there was a broad spectrum of possible views of the facts which were open to the jury. Despite being simplistic, this terminology will nonetheless be of assistance in evaluating the criticisms made on behalf of the appellant of the Judge’s summing up.

[17]	Priestley J summed up to the jury on 3 March 2004.
[18]	The part of his summing up which is most relevant to the appeal began in this way:

[23]	Mr Grieve’s initial position (as summarised in his written argument) was that the Judge should merely have summarised the factual cases as advanced by counsel without specific reference to the evidence of any witness. Given the nature of the case, his reading of selected passages did not fairly represent the whole evidential picture.
[24]	More particularly, Mr Grieve complained about the detail of the Judge’s approach. Some of the evidence should not have been read. As well, in this section of the Judge’s summing up, he did not refer, at least in any detail, to the appellant’s version of the key events.
[25]	This resulted in a summing up which was unbalanced and manifestly unfair, amounting to a miscarriage of justice.

[26]	For the Crown, Ms Guy maintained that it was not wrong for the Judge to read back to the jury parts of the evidence in the way that he did. The trial had been lengthy and the evidence he read merely reflected some of the differing perceptions of what had taken place at the scene of the offending.
[27]	She submitted that the evidence selected was balanced. The greatest coverage was given to the evidence of Ms Arnica Savage, whose evidence was heavily relied upon by the defence. Excerpts from the Crown witnesses’ evidence were considerably shorter and some of these accounts were supportive of the defence case.

[31]	Ms Arnica Savage’s evidence was that the initial altercation was between the appellant and Mr Kaisala. Although there was other evidence to this effect, her account was contrary to the drift of the evidence as a whole (which was to the effect that the altercation was initially between Karl Manukau and Mr Kaisala). But her evidence was nonetheless of assistance to the appellant as it suggested that when the appellant used the knife, he had already been assaulted by Mr Kaisala and was engaged in a pushing and shoving altercation with a number of Bloods supporters. Indeed, on the whole, the passages of evidence read by the Judge struck a reasonably fair balance between what we have described as the primary Crown case and the middle view. As the argument developed, Mr Grieve’s argument primarily focused on his concern that the primary defence case (ie that the appellant responded to an armed attack on his brother) was overlooked, at least in the passages which were read.
[32]	There was some general evidence to the effect that some of the other people at Ultrazone had or may have had weapons (or implements which could be used as weapons) which were described in various, perhaps sometimes overlapping, ways: a bat, a wheel brace (or "crow-bar"), a pole, a metal pipe, a vacuum cleaner pipe and a screwdriver. At one stage (on the Crown case prior to the use of the knife but, according to the appellant at interview, prior to him becoming directly involved) a torch (presumably belonging to Mr Kaisala) was thrown at the appellant. A screwdriver was used to stab Mr Karl Manukau (although this would appear to have been after the appellant had stabbed his two victims). After the incident, the police found a chain in the white van. But other than what the appellant said at interview and with the possible exception of some equivocal evidence from Ms Amber Godinet, there was no evidence to suggest that anyone was actually using any a weapon prior to the appellant stabbing Mr Kaisala and Mr Faapo.
[33]	The Judge could have read the evidence of Ms Amber Godinet to the jury. But it was unlikely that what she said would be lost sight of by the jury. Both counsel addressed the jury extensively on her evidence and the Judge later mentioned her evidence when he came to summarise the defence case. There were passages in Ms Arnica Savage’s evidence which were perhaps more helpful to the appellant than what the Judge read. However, the drift of her evidence seems to us to have been captured in what was read. The Judge could also have read to the jury the relevant extracts from the transcripts of the appellant’s police interviews and in this way reminded the jury of what the appellant had said. But there was no risk of the jury overlooking that explanation. They had in the jury-room the transcripts of the interviews. Further, later in his summing up, the Judge put in very full terms the defence case.
[34]	The real significance that might be attached to the Judge reading some prosecution evidence but not reading or discussing the evidence of Ms Godinet and the appellant’s explanations at interview is that the selection of material referred to by the Judge might arguably reflect a preference by the Judge for the Crown case. This indeed is the primary complaint of Mr Grieve.
[35]	All of this might be thought to suggest that the decision not to give the jury a transcript of the evidence was perhaps a little unfortunate. If a transcript of the evidence had been provided to the jury, there would have been no occasion for the Judge to read lengthy passages of evidence. Rather, the evidence on the key issues in the case could have been summarised easily and helpfully for the jury by reference to transcripts of the evidence and what the appellant said at interview and thus no debatable selection process would have been required.
[36]	There were other ways in which the Judge could have summed up. He could perhaps have identified the differing contentions as to the course events took and marshalled the evidence around those contentions, possibly providing summaries, in writing, as to which witnesses supported which contentions.
[37]	The law provides considerable leeway for Judges when summing up to juries. That the Judge may have been able to provide more effective assistance either by giving the transcript of the evidence to the jury and summing up by reference to it or by marshalling the evidence around the different contentions as to the course which events took does not mean that the way in which he actually summed up was inappropriate or led to a miscarriage of justice.
[38]	The most that the jury could have taken from the Judge’s selection of the evidence which he read is that the Judge thought that the evidence as a whole did not provide much support for the theory that the appellant was responding to an armed attack on his brother. In truth the evidence provided scant support for that theory and if the Judge had said that explicitly, it would not have been objectionable, see for instance R v McRoberts CA86/99 15 June 1999 and R v Afele CA330/02 10 December 2002.
[39]	Of course, if a Judge makes a comment as to the strengths of the competing cases, he or she must:

[40]	The Judge made it clear that the jury were the sole judges of fact and free to depart from his views on the facts. Further, he made it clear that his selection of the evidence which he read was not to limit the evidence to which the jury should have regard. Most importantly, he surveyed in a very complete way the defence case including the contention that the appellant intervened in a struggle involving his brother in which his brother was under attack from a number of men, two of whom were armed with weapons. In the course of this summary he also referred to the evidence of Ms Godinet.
[41]	In that context, the fact that his apparent view of the facts was expressed by implication rather than expressly seems to us not to matter.
[42]	We add that we are by no means sure that Mr Grieve would have welcomed a summing up which focused closely on the explanations given by the appellant at interview and involved the reading of substantial passages from the two transcripts. The appellant told many lies when he was interviewed by the police, a point which would necessarily have been emphasised if the reading of the Crown evidence had been "balanced" by a reading of what the appellant told the police. From the point of view of the defence, Mr Grieve gave a far stronger and convincing exposition of the appellant’s case in his closing address to the jury than the appellant did at interview. In those circumstances, we do not see how the appellant can fairly claim to have been prejudiced by reason of the Judge putting his defence to the jury primarily by way of a paraphrase of Mr Grieve’s closing address.
[43]	Accordingly, we dismiss the appeal by the appellant against his convictions.

[44]	The appellant was born in May 1985. So at the time of the offending he was 17 years old. He had one previous conviction (for assault). He left school at the end of year 11. By the time he appeared for sentence he had a partner and a child.
[45]	It was clear that he had consumed a good deal of alcohol on the afternoon of the offending. It is possible that the aggressive way he behaved was influenced by the presence and behaviour of his older brother, Karl Manukau.
[46]	The pre-sentence report noted that Karl Manukau was estranged from the family over his role on the night of the offending.
[47]	The appellant was assessed by the pre-sentence report writer as having a low to moderate risk of re-offending and by the Judge as being remorseful.

[50]	The Solicitor-General sought leave to appeal against the sentence imposed on the ground that the Judge’s refusal to impose a minimum period of imprisonment under s 86 of the Sentencing Act was wrong in principle and has resulted in a manifestly inadequate sentence.
[51]	Ms Guy submitted that the Judge had erred in the application of the test whether the circumstances of the offending were sufficiently serious to justify a minimum period of imprisonment. The Judge had compared the circumstances of the present case with similar cases of manslaughter. Ms Guy submitted that the Judge erroneously concluded that the common occurrence of manslaughter meant that the appellant’s offending was insufficiently serious to warrant a minimum term. The Judge also mistakenly compared the case to similar manslaughter cases rather than all types of manslaughter cases. Further, the Judge mistakenly took into account the appellant’s personal circumstances, which were irrelevant when determining the seriousness of the offending.
[52]	While Ms Guy conceded that the length of the sentence was appropriate, she maintained that a minimum term should have been imposed. The circumstances here are more serious than those in R v Helps [2003] NZCA 93; (2003) 20 CRNZ 165, and are akin to those in R v Waterhouse CA33/04, 13 May 2004. Minimum periods were imposed in these two manslaughter cases. She submitted that a minimum period of three and a half years would be appropriate.

[53]	Mr Abbott (who argued this aspect of the case for the appellant) supported the Judge’s reasoning and the conclusion reached. He submitted that the refusal to impose a minimum period was available to the Judge on an analysis of the circumstances of the offending.
[54]	In effect Mr Abbott adopted the approach taken by the Judge.

[55]	The sentencing and parole legislation proceeds on the basis that in general an offender who is sentenced to more than two years imprisonment should be eligible for parole once one third of the sentence has been served. In ordinary cases, the overall culpability of the offender is reflected in the nominal sentence imposed and thus in the minimum term which must be served (being one third of the nominal sentence).
[56]	Section 86 proceeds on the basis that for some serious offending, the proportion of the nominal sentence which must be served should exceed one third.
[57]	Section 86 has recently been amended, but at the time relevant to the present case, it provided:

[58]	The two leading cases are R v Brown [2002] 3 NZLR 670 and R v M [2003] 3 NZLR 481. Also of note is the recognition by this Court in R v T (CA 251/02 31 October 2002), that offending which is common (in that case, sexual abuse of children) can nonetheless be sufficiently serious to warrant the imposition of an extended non-parole period.
[59]	The jury concluded that the appellant intended to inflict grievous bodily harm on Mr Faapo. Given the facts of the case, it is hard to see how the jury could have concluded that he intended to inflict any lesser harm on Mr Kaisala and it must in any event have concluded that there was an intention to inflict bodily injury. In light of that, the acquittal on the charge of murder would appear to have proceeded on the basis that it was reasonably possible that the appellant did not recognise that the bodily injury he intended to inflict on Mr Kaisala was likely to cause death, see s 167(b), Crimes Act 1961. The appellant’s offending must be regarded as being right on the murder/manslaughter cusp.
[60]	We accept that the Judge was right to fix concurrent terms of imprisonment. Orthodox sentencing practice dictated that a head sentence be imposed on the manslaughter which reflects the overall criminality of the appellant’s conduct. The Judge recognised this in [26] of the sentencing remarks which we earlier set out. Given the requirement to allow for the criminality involved in the serious assault on Mr Faapo and the narrowness of the margin by which the appellant avoided conviction for murder, the seven years imposed on the manslaughter count seems very light. We say this given that the appellant brought to Ultrazone a concealed weapon which he was prepared to use and that the whole incident was provoked by him and his brother. The seven year sentence imposed appears to reflect a view on the part of the Judge that the appellant was indeed acting in defence of himself and his brother but that the force he used went beyond what was reasonable. In fixing a sentence as low as seven years, the Judge seems to have given full allowance for this consideration.
[61]	In our view the only conclusion available was that the offending was "out of the ordinary range of offending of the particular kind" for the purposes of s 86(2) and was sufficiently serious to warrant the imposition of a minimum term exceeding one third of the nominal sentence imposed. In this respect we note that minimum non-parole periods were imposed and upheld in broadly comparable circumstances in R v Helps and R v Waterhouse.
[62]	Accordingly we grant the Solicitor-General leave to appeal and allow his appeal to the extent of imposing a minimum period of imprisonment of three and a half years (which is what the Solicitor-General sought).