R v NAIME [2005] NZCA 134 (30 May 2005)

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R v NAIME [2005] NZCA 134 (30 May 2005)

Last Updated: 29 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA428/04
CA429/04

THE QUEEN



v



APELAAMO JOHNNY NAIME
TAASE ALONIU

Hearing: 17 February 2005

Court: Anderson P, Glazebrook, Hammond, William Young and O'Regan JJ

Counsel: V Chand and J A Philson for Respondent Naime
I S Sapolu and E R Ward for Respondent Aloniu
J C Pike for Crown

Judgment: 30 May 2005

JUDGMENT OF THE COURT

The Solicitor-General’s applications for leave to appeal against the sentences imposed on Mr Naime and Mr Aloniu are granted, the appeals are allowed and, in each case, the sentences of two years imprisonment are quashed and replaced by sentences of three years imprisonment.

REASONS

(Given by O’Regan J)

Introduction

[1]

The Solicitor-General seeks leave to appeal against the sentences of two years imprisonment (with leave to apply for home detention) imposed on Mr Naime and Mr Aloniu by Judge Singh in the District Court at Manukau. Each had been convicted after a jury trial of one charge of causing grievous bodily harm with intent to cause grievous bodily harm, one charge of taking part in a riot and one charge of riotous damage. Each was sentenced to a total of two years imprisonment, and given leave to apply for home detention.

[2]

We heard these applications for leave to appeal together with three other appeals because they were all cases involving serious offending, and they provided an opportunity for the Court to review the continuing application of its decision in R v Hereora [1986] 2 NZLR 161 as a guideline for sentences for such offending. The judgment for those other appeals, and, in particular, the discussion of sentencing guidelines, is still in the course of preparation. However, in view of the conclusion reached by the Court in the present case, we have decided to issue a separate judgment in this case, so that the resolution of the matter is not subject to further delay. In dealing with this appeal, we have applied the law as it stood at the time of the sentencing, based on Hereora. The guidelines we will set out in the judgment relating to the other appeals heard with this case will apply only to future cases.

Facts

[3]	On 8 March 2003 Mr Naime, Mr Aloniu, their friend Mr Moetu, and their associates were at Clendon Recreational Centre in South Auckland. The victim, Mr Edwards, and his associates arrived at the Recreational Centre and called for a fight, directing the challenge to a member of Mr Naime and Mr Aloniu’s group.
[4]	At some stage in the fight, Mr Edwards got into his car and drove to another part of the park where he became isolated from his group. He drove his car in a dangerous manner, changing gears and revving his car in the path of people, who had to move to avoid being hit. Witnesses at trial gave varying accounts of two to six people actually being hit. One of those was Mr Moetu, who was run over.
[5]	When the car had stopped, the respondents and their associates approached the car to assist Mr Moetu from under it. They proceeded to drag Mr Edwards out of the car and assault him with bottles, baseball bats and sticks. Mr Naime kicked Mr Edwards in the face. Mr Aloniu used a stick or bat to bludgeon the victim about the head. One bystander shouted out to Mr Aloniu to stop saying "you’re going to kill him". Both respondents contributed significantly to Mr Edwards’ injuries. However, the precise extent of their involvement is unclear, as injuries were also inflicted by others.
[6]	Mr Naime also threw a trundler onto the bonnet of Mr Edwards’ car. Mr Naime’s contribution to the total damage to Mr Edwards’ car is not known. In addition, the condition of the car prior to the incident is not known, and some of the damage was undoubtedly caused by Mr Edwards’ dangerous driving.
[7]	The injuries suffered by Mr Edwards were serious. His front teeth were dislodged. There was severe damage to his facial tissue and bones. He required emergency surgery. Skull fragments had to be removed from his brain, and a steel plate had to be fitted to cover bone loss. He was in a critical condition for some days after the surgery.
[8]	On 24 August 2004, Mr Naime and Mr Aloniu were both found guilty by a jury of causing grievous bodily harm and rioting, and Mr Naime was also found guilty of causing riotous damage.

Sentencing Remarks

[9]	In regard to Mr Naime, the Judge considered the aggravating factors under s 9 of the Sentencing Act. There was a previous conviction in 2003 for the possession of an offensive weapon. He also had around $1,500 in outstanding fines. The Judge identified as mitigating factors Mr Naime’s generally good criminal history (except for a conviction for possession of an offensive weapon), his young age, his previous contribution to the workforce, the support of his family, his apology to all involved in the trial particularly to Mr Edwards, his acknowledgement of his involvement in the matter, and his plea for forgiveness. The Judge also placed emphasis on the fact that Mr Naime had initially been motivated to help his friend Mr Moetu, although this eventually descended into a revenge attack. Judge Singh also observed that Mr Naime had a medium motivation to change his behaviour, and was at a low to medium risk of re-offending. He had not offended since March 2003. He was also capable if motivated of contributing to the workforce. The Judge noted that Mr Naime did not breach his bail in any way.
[10]	In relation to Mr Aloniu, Judge Singh highlighted a number of aggravating factors. In particular Mr Aloniu was a principal offender, the incident involved serious violence and injuries, the use of a stick or bat, and the fact the victim could well have died from the injuries sustained. The Judge noted the respondent’s motivation to change and address his offending behaviour, that he was assessed as having a low risk of re-offending, and that he had initially wanted to help Mr Moetu (however his actions soon descended into "revenge mode"). Mr Aloniu also had no previous criminal history, and generally complied with the stringent conditions for bail. As well, he was co-operative with the Police.
[11]	The sentencing Judge considered the authorities, including Hereora. The Judge said that while the general principles in the cases were helpful, he found this case distinguishable and exceptional. The respondents in going to the Recreational Centre had not planned to be involved in a riot or any incident whatsoever, and it was the victim and his associates who instigated the aggression (Mr Edwards himself is facing a charge of causing grievous bodily harm with intent). There had been a number of others who had contributed to Mr Edward’s total injuries (not just Mr Aloniu and Mr Naime). They had not been charged. The respondents were also initially motivated to assist Mr Moetu. The Judge recognised that it was important to have regard to the sentencing ranges and general principles enunciated in the authorities cited by counsel for the purposes of consistency and parity. However, he said that ultimately he had a residual discretion to exercise leniency. He adopted a starting point of three to five years imprisonment.
[12]	In light of the mitigating and aggravating factors, he imposed concurrent sentences of two years imprisonment for the charge of causing grievous bodily harm; 12 months for rioting; and 12 months for causing riotous damage. Leave was granted to apply for home detention. However, we were told by counsel that the applications made by Mr Naime and Mr Aloniu for home detention were declined.

Submissions for the Crown

[13]	For the Crown, Mr Pike primarily challenged the degree of reliance by the Judge on the actions of the victim. He submitted that neither respondent appeared to be the sort of person to shrink from violence. Both engaged themselves gratuitously and needlessly in a near lethal act of brutal group violence.
[14]	Mr Pike identified the following aggravating features: attack on a defenceless person by a group of offenders all intent on inflicting serious bodily injury; one of the respondents used a weapon striking the victim about the head, and was a major contributor to the serious skull fractures; the other respondent participated contemporaneously in the attack kicking the victim in the facial region inflicting significant injuries; the injuries inflicted were grave and the victim was fortunate to survive the attack; and there are indications in regard to Mr Aloniu that he was assisting in a revenge attack carried out by a criminal gang ("the Bloods"). Mr Pike submitted that almost none of these features of the case were taken into account by the sentencing Judge. In particular, while noting that the victim had nearly died, the Judge did not factor in the very serious and lasting injury that had been caused.
[15]	Mr Pike suggested that the appropriate sentence was six years imprisonment, reduced from what otherwise ought to have been eight years imprisonment because this is a Solicitor-General’s appeal.

Submissions for Mr Aloniu

[16]

Counsel for Mr Aloniu, Ms Sapolu argued that, having regard to the circumstances of this case, s 8(c) and (d) of the Sentencing Act and the guidelines in Hereora, Mr Aloniu’s offending was not of the most serious kind, nor near to the most serious kind (citing in support: R v Sullivan and Kelling (1987) 9 Cr AppR(S) 196; R v Chesterman (1984) 6 Cr AppR(S) 151; R v Winter CA 452/96 26 February 1997). She submitted that the trial Judge was in a far better position to assess the circumstances within which he exercised his discretion. The Judge had the advantage of having heard and seen all witnesses give evidence and be cross-examined, and as such was in the best position to assess the evidence.

[17]

Ms Sapolu placed emphasis on the statement made by this Court in R v Fate (1998) 16 CRNZ 88 that this Court should not gainsay a lower Court Judge’s imposition of a merciful sentence. She submitted that the sentence of two years imprisonment with leave to apply for home detention was correct in law and not manifestly inadequate.

Submissions for Mr Naime

[18]	Counsel for Mr Naime, Mr Chand submitted that the exercise of the Court’s powers of mercy was appropriate in the circumstances of this case. He said the trial Judge took all relevant factors into account, having heard the evidence first hand, and applied the correct legal tests and principles. He submitted that the categories in Hereora should not be strictly followed given the unusual facts of this case.
[19]	Mr Chand submitted that several elements of ss 7, 8 and 9 of the Sentencing Act 2002 in particular were relevant to this case: the rehabilitation of Mr Naime, the least restrictive outcome, family support, Mr Naime’s personal and cultural background, the victim’s conduct, the low risk of re-offending and Mr Naime’s previous good character and adherence to bail conditions.
[20]	Mr Chand highlighted the following mitigating factors: the young age of Mr Naime; the fact that Mr Naime had no previous convictions for violent offending other than one conviction for possession of an offensive weapon; no pre-meditation; provocation by the victim; Mr Naime did not use a weapon in the assault and as such could not have caused the most serious skull injury; Mr Naime had been on strict bail conditions which he had observed without fail; Mr Naime had strong family support and there was a low risk of re-offending; work would be available to Mr Naime; before trial Mr Naime had been gainfully employed; Mr Naime’s involvement in the assault was brief.
[21]	Mr Chand said the victim and his associates were the aggressors. The victim used his car as a lethal weapon to do serious harm to people at the park. It incited the young people at the park to turn against the victim.
[22]	Mr Chand distinguished a number of the authorities cited by the Crown on the basis that those cases included factors not present here such as a high degree of planning, premeditation, deliberate acts, the use of weapons, gang related offending, race based attacks, and a lack of provocation by the victims in those cases.

Discussion

[23]	There is no doubt that the sentences imposed in this case were extremely lenient. The issue for us is whether it is appropriate to interfere with the sentencing Judge’s exercise of mercy, given the reluctance of this Court to do so unless it is entirely satisfied that the exercise was inappropriate in the particular circumstances: R v Fate at [93] and the cases noted in that decision.
[24]	Mr Pike submitted that the provocation caused by the victim’s conduct is no excuse for the offending which followed. We think that ignores the reality of the situation: the situation was clearly inflamed by the victim’s actions. This was a case involving extreme and frightening provocation by the victim. That must be recognised in the assessment of the offenders’ culpability. It is clear that the attack on the victim eventually became a matter of revenge, but at least initially it began as a reaction to the very real danger faced by Mr Moetu from the reckless (or, possibly, deliberate) actions of the victim. We accept the submission made by Ms Sapolu and Mr Chand that the trial Judge was well placed to assess the somewhat confused factual background, having presided at the trial. This reinforces the reluctance of this Court to intervene where a Judge has exercised the right to extend mercy on sentencing.
[25]	Notwithstanding those factors, however, we have concluded that the sentences in the present case are manifestly inadequate for the offending which occurred, and that the threshold for intervention on appeal has been crossed. But for the unusual circumstances leading up to the offending, this offending would fall within category two of Hereora, given the aggravating factors. In particular, we highlight the very severe violence, the fact that it was an assault by a number of attackers on one victim, the very severe injuries suffered by the victim and, possibly, the fact that there was a gang element to the attack. It has to be accepted, however, that there was no premeditation and, indeed, the victim was part of a group which had arrived with the intention of a fight, so that the whole incident was triggered by the actions of the victim and his associates.
[26]	Having regard to the lack of premeditation and the level of provocation from the actions of the victim (and his associates), we accept that it was appropriate to place this offending in category one of Hereora, and to exercise mercy. We are also conscious of the approach taken by this Court on Solicitor-General appeals: as noted in R v McLean CA 136/01 21 June 2001 at [21], if this Court does increase a sentence on an appeal by the Solicitor-General, it does so only to a sentence at the lower end of the available range. Taking all those factors into account, we believe that the lowest starting point available for the present offending was four year’s imprisonment. Having regard to the mitigating factors identified by the sentencing Judge, we believe that the lowest possible sentence in this case was three year’s imprisonment.

Result

[27]

Accordingly we grant leave to the Solicitor-General to appeal, allow the Solicitor-General’s appeal in both cases and increase the sentence of imprisonment imposed on both Mr Naime and Mr Aloniu to a sentence of three year’s imprisonment for causing grievous bodily harm. The concurrent sentences for other offences are unchanged. As the new sentence exceeds two years imprisonment, there can be no leave to apply for home detention.

Solicitors:
Crown Law Office, Wellington
Sapolu Law, Auckland for Respondent Aloniu