WITOKO v R [2005] NZCA 180 (6 July 2005)

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WITOKO v R [2005] NZCA 180 (6 July 2005)

Last Updated: 7 August 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA510/04
CA25/05

THE QUEEN



v



BRONSON PENITI WALKER
ALEXANDER HAMANA WITOKO

Hearing: 20 June 2005

Court: O'Regan, Chisholm and Salmon JJ

Counsel: T M Petherick for Appellant Walker
E J Forster for Appellant Witoko
A Markham for Crown

Judgment: 6 July 2005

JUDGMENT OF THE COURT

A Mr Walker’s appeal against sentence is allowed. We quash the sentence of four and a half years imprisonment imposed in the District Court and substitute a sentence of three and a half years imprisonment.
B Mr Witoko’s appeal against sentence is allowed. We quash the sentence of five years imprisonment imposed in the District Court and substitute a sentence of four years imprisonment.

REASONS

(Given by O’Regan J)

Introduction

[1]

Mr Witoko was found guilty following a trial in the District Court at Napier of three charges of aggravated robbery, two charges of kidnapping and one charge of conversion of a motor vehicle. He was sentenced to a total term of imprisonment of five years. Mr Walker pleaded guilty to the same charges at the commencement of the trial and was sentenced to the total term of four and a half years imprisonment. Both have appealed against those sentences.

[2]

Mr Walker and Mr Witoko were charged along with two others, Shyan Ngaweketuhimata and Tuwhare Pui who were also convicted at the trial and were also sentenced to a total of five years imprisonment. Neither has appealed the sentence. There were two others involved in the offending but they have not been identified or charged.

Factual background

[3]	The sentencing Judge, Judge Adeane who presided at the trial, summarised the factual background in his sentencing remarks (which related to all four offenders) in the following terms:

It is apparent that together on the night in question you were cruising about Central Hawkes Bay in a borrowed motor vehicle. Your association as a group apparently comes about as a result of loyalties or aspirations you might have in respect of a gang and it seems that at least some of your group constitute an apprenticeship movement in that direction.
You were, so far as the evidence informs the Court, four amongst six people associated on the same basis. As I understand it, the evidence will not support the charges against the other two.
Around about midnight the vehicle which you were driving broke down near the rural home shared by the two victims in the vicinity of Te Aute. Walker and one other, not known, went to the house seeking help. Ms Morse agreed to provide transport in her own vehicle and she took Ms Gillies along for company.
There is a suggestion that the group, or so many of you as were together earlier in the day, had already been to the property for other reasons.
In due course however, having brought her vehicle to your aid, Ms Morse eventually picked up all four of you. Shortly after that a machete was first of all held to the throat of the driver, while a tomahawk was held to the throat of her friend. On the evidence this occurred virtually simultaneously and it is self evident that both of these quite imposing and dangerous weapons had been carried by one or more of you into the complainant’s motor vehicle when you left your own broken down vehicle.
Both the women were grabbed by the hair, their heads were pulled back, weapons were placed to their throat, and in the course of this not a single word of dissent from those actions was heard from anybody. It is not known even now who produced the weapons, but the jury drew, as they were entitled to draw, inferences concerning the knowledge and intentions of all those present.
From that point on these women were simply terrorised by a series of threats and demands. Again it is not known specifically who made exactly what threats, but certainly some evidence did emerge in that regard.
They were forced into the luggage compartment of the motor vehicle and driven round further, but not before cash, a credit card and other chattels were taken from them by direct threats. The vehicle was then driven to Flaxmere, a PIN number was obtained after it was demanded from one of the women, and $1500 was withdrawn from her bank account via an ATM.
It is quite clear that these events, this detention, continued over a significant period of time. It is not possible to say how long, but that is understandable. It may well have been in the vicinity of an hour or possibly even longer.
It is, as I say, far from clear just who among you did what, but apart from requests to be dropped off after the offences were completed there was no effort made by anyone towards dissociation from what had been going on.

Sentencing remarks

[4]	Judge Adeane noted the uncertainty as to the roles of each offender, and referred to the "unbecoming spectacle of individuals blaming each other in the hope of minimising their own part in this offending". He said that the jury’s findings suggested there was a measure of common purpose and mutual support in the course of the offending.
[5]	The Judge noted the serious impact of the offending in the victims, both of whom had been seriously traumatised as a result of the terrifying ordeal they had endured.
[6]	The Judge noted the youth of the offenders: at the time of sentencing Ngaweketuhimata and Witoko were 18 and Pui and Walker were 17. He accepted that none had significant convictions and, in the case of Walker, no convictions at all. He said that until this episode Walker was "a decent young man living a decent lifestyle", but noted that the lifestyles of Ngaweketuhimata and Pui were susceptible to criticism. The Judge accepted there were some "individual differences" which he said he would take into account, but said that there was much more in the case which all of the offenders had in common, particularly their choice to remain together in the offending, the unhealthy interest which had drawn them together, the attempts to remain anonymous and the clear element of acting in concert. He accepted the Crown submission that the level of involvement of each offender in the offending "should be viewed as indistinguishable one from the other," and that there were conspicuous aggravating features.
[7]	The Judge referred to the decision of this Court in R v Mako [2000] 2 NZLR 170 in relation to the aggravated robbery charges, but noted that there were also kidnapping charges which meant that the offending involved two different serious offences. Having considered the relevant provisions of the Sentencing Act the Judge set the starting point at between seven and eight years imprisonment and, making "the utmost allowance that can be made for the youth of each of you, and for the prospects that you might reform", sentenced Ngaweketuhimata, Pui and Witoko to five years imprisonment. In view of Mr Walker’s late guilty plea, he sentenced him to four and half years imprisonment.
[8]	The Judge rejected the Crown submission that a minimum period of imprisonment should be imposed. He said that in view of the young age of the offenders and the corresponding possibility of rehabilitation, decisions about the timing of their release were best left with the parole board.

Issues

[9]	Mr Walker’s appeal is based on three grounds, namely:

(a) The Judge was wrong to sentence all of the offenders on the basis that their offending should be viewed as indistinguishable from one another. This was said to be contrary to an agreement reached between the Crown and defence counsel at the time that Mr Walker pleaded guilty;
(b) Mr Walker was sentenced on the basis of evidence that had been given at trial, whereas he should have been sentenced only on the basis of the summary of facts to which he pleaded guilty and the agreement between defence and Crown counsel referred to above;
(c) The Judge failed to take fully into account the individual differences between co-offenders. In that regard, much emphasis was placed on Mr Walker’s youth (16 at the time of the offending), complete absence of previous convictions, previous "decent lifestyle" and prospects for rehabilitation, which were all said to be in contrast with the position of the other offenders.

[10]	Mr Witoko’s appeal raises two issues. These are:

(a) The Judge proceeded on the basis that the jury had concluded in reaching its verdicts that there was a measure of common purpose and mutual support at work in the course of the offending. It was alleged that the jury’s finding was ambiguous and that it was open to the Judge to sentence on the basis that Mr Witoko had attempted to disassociate himself from the offending and therefore had lower culpability than the other offenders;
(b) The Judge gave insufficient regard to the personal circumstances of Mr Witoko and the significant attempts he had made to rehabilitate himself.

[11]	We will deal with the points in the order in which they are raised above.

Mr Walker

Ground One: Lesser role in offending

[12]	On behalf of Mr Walker, Mr Petherick said that the Judge was wrong to see the roles of the offenders as indistinguishable from one another. The Judge had noted that the Crown had made a submission to that effect, but Mr Petherick pointed out that the Crown prosecutor had, in fact, submitted that the roles of Mr Ngaweketuhimata, Mr Pui and Mr Witoko could not be distinguished, but that "the Crown accepts in this case that Walker was not one of the leaders and was not armed. On the evidence the Crown would have accepted that he was the offender who gave the victim Morse her medication and the victim Gillies a cigarette. However, I understand that he has denied carrying out these actions when speaking to the Probation Officer".
[13]	Mr Petherick said that once it was accepted that Mr Walker had a lesser role, in that he did not instigate the offending, did not brandish a weapon and was not one of the most active offenders, the sentence imposed on him had to reflect those factors. In that regard he relied on the observation of this Court in R v K (2003) 20 CRNZ 62 at [20] where the need to sentence on the basis of the culpability of the individual offender in a multi-offender situation was emphasised.
[14]	Mr Petherick said that Mr Walker’s offending was at a lower level than the others because he had been surprised when his two offenders had produced weapons, had asked to be dropped off by the others before some of the offending had occurred, had wished to extract himself from the offending, had not brandished a weapon (as the Crown accepted) and had not received any money or stolen property.
[15]	On behalf of the Crown, Ms Markham accepted that, at sentencing, the Crown had accepted that Mr Walker was not one of the leaders and was not armed. She said that it was clear that Mr Walker had nevertheless played a full role in the offending which was apparent from his guilty plea. She said if he wished to dispute any material part of the summary of facts he ought to have sought a disputed facts hearing at sentencing. She said the facts he acknowledged by his guilty plea indicated that he had the requisite mental knowledge of the group’s common enterprise and either directly participated in, or encouraged others in, the offending.
[16]	Ms Markham said the trial evidence did not establish who the leader of the group was, and who had brandished weapons. Thus the Judge was justified in treating all parties as having equal culpability. In support of that contention she referred us to the decision of this Court in Solicitor-General v Lam (1997) 15 CRNZ 18 at 25, where the Court said there was no need to draw fine distinctions in this field. She argued that the final sentence of four and a half years could not, in any event, be said to be manifestly excessive given Mr Walker’s acknowledged role in the offending.
[17]	We do not think that the Judge can be criticised for treating the level of culpability of all the offenders as broadly similar. While we accept that Mr Walker could be properly excluded from being one of those who brandished a weapon, the identity of those who brandished weapons was never established. The Judge saw the offending as a group enterprise in which all of the members of the group had to accept responsibility for what occurred. In the absence of evidence establishing that Mr Walker was one who disengaged from the offending at its mid-point, the Judge was entitled to discount that factor. If Mr Walker had wished to establish that, he would need to have called for a disputed facts hearing.
[18]	In all the circumstances, we are not satisfied that this factor alone would justify interfering with the sentence imposed by Mr Walker in the District Court.

Ground two: Sentencing on the basis of trial evidence

[19]	Mr Petherick said that the Judge had sentenced on the basis of evidence given at trial, and that this was inappropriate because Mr Walker had pleaded guilty before trial.
[20]	Ms Markham accepted that, as a matter of principle, Mr Walker was entitled to be sentenced on the basis of the summary of facts to which he had pleaded guilty. But she said that there was no material difference between the summary of facts and the trial evidence which could have made any impact on the sentence.
[21]	Ms Markham’s concession was rightly made but she was also correct that there was no material difference between the summary of facts and the trial evidence, rather than the matters which we have already dealt with in relation to the first ground of appeal and which we have found not, in themselves, to be sufficiently material to justify intervention by this Court.
[22]	This ground of appeal fails.

Ground three: Individual differences

[23]	Mr Petherick said that the Judge had noted that there were some differences between the offenders, but had failed to give due consideration to them. In particular he relied on the following:

(a) Mr Walker was only 16 at the time of the offending, whereas the other offenders were older;
(b) Mr Walker had no previous conviction whereas Mr Ngaweketuhimata and Mr Pui had served previous terms of imprisonment;
(c) Mr Walker had, until the offending, been "a decent young man living a decent lifestyle", to use the words of the Judge, unlike Mr Ngaweketuhimata and Mr Pui;
(d) Mr Walker had good prospects for rehabilitation, whereas those of the others, particularly Mr Ngaweketuhimata and Mr Pui, were less positive;
(e) Mr Walker had pleaded guilty and had co-operated with the Police, including providing some assistance to the Police at his first interview;
(f) Mr Walker could truthfully say that the offending was completely out of character, as attested to by the references provided and his comparatively good school record.

[24]

On behalf of the Crown, Ms Markham said that the argument made on behalf of Mr Walker was, in effect, a disparity argument which would succeed only where the disparity was "unjustifiable and gross": R v Rameka [1973] 2 NZLR 592 at 594. She said that all of the offenders had received a generous discount from the Judge’s starting point of seven-eight years in this case and that the differences between them were not sufficiently significant to meet the "unjustifiable and gross" benchmark.

[25]

We think the observations of this Court in R v Mako at [65]-[66] provide a proper analysis of the issue before us in relation to this aspect of the appeal. In those paragraphs, the Court said:

[65] Youth and the prospects of rehabilitation may be mitigating factors. Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences. As noted in the judgment of the Full Court of the High Court in Cooper a high proportion of aggravated robberies in this country are committed by teenagers. In some cases young offenders may have been directed by others who are older. It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and an unlikelihood of reoffending.
[66] However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender, remains serious violent offending.

[26]	We think there is some basis for concluding that, while Mr Ngaweketuhimata and Mr Pui are in the category described in [65], there may be grounds for concluding that Mr Walker should be treated on the basis set out in [66]. As this Court noted in R v K at [22],:

The gravity of a young offender’s offending has necessarily to be balanced against the need to consider his rehabilitation and reintegration into society and the outcome should be least restrictive in the circumstances of the case.

[27]	In R v K, there was a substantial age gap between K and the principal offender. That is not the case here (although two of the offenders in this case have not been identified so their ages are unknown). However, there are in the present case a number of factors which commend a rehabilitative approach, while still giving proper recognition to the seriousness of the offending and the need for a sentence which reflects that.
[28]	The sentencing Judge had before him a pre-sentence report which recorded that Mr Walker lived at home with his mother and step father, siblings, step siblings and his girlfriend and girlfriend’s young child. His girlfriend was due to give birth to Mr Walker’s child earlier this year. His mother is reported as describing Mr Walker as "just such a good kid" and that the offending was "just so out of character". It was noted that Mr Walker had good family support. He had no previous convictions other than for a driving offence. The writer of the report said that Mr Walker was assessed as being motivated to address the factors that contributed to his offending. He was said to be at a low risk of offending, but that risk was seen to be likely to increase unless he took steps to address the situation.
[29]	There was also a psychiatric report before the Judge which noted that Mr Walker had been happy at school and had been bright academically, though had not achieved formal qualification. He had been employed in orchard and pack house work before the offending. The report said that Mr Walker did not suffer any psychiatric illness, drug or alcohol dependence or personality disorder, and assessed him as being at a low risk of re-offending.
[30]	There were also positive references from two of his teachers at Flaxmere College and a number of supportive letters from his family and extended family.
[31]	Mr Walker’s position can be contrasted with that of Mr Ngaweketuhimata and Mr Pui who both had previously served terms of imprisonment for burglary and, as the Judge noted, had apparent gang affiliations.
[32]	We think that Mr Walker’s case was one which commended the sentencing approach set out in [66] of Mako. Mr Walker is young, is a first offender, and he is genuinely motivated to reform. While we do not underestimate in any way the gravity of the offending in the present case, we think that the Judge was wrong not to have recognised these features in relation to Mr Walker and to have taken a different approach to his sentencing than that taken to the sentencing of Mr Ngaweketuhimata and Mr Pui. Accordingly, we allow the appeal, quash the sentence of four and a half years imprisonment imposed in the District Court and impose a sentence of three and a half years.
[33]	We do not believe that the adoption of this sentencing approach in relation to Mr Walker creates any improper disparity in relation to the sentences imposed on Mr Ngaweketuhimata and Mr Pui.

Mr Witoko

Ground one: Ambiguous verdict

[34]	Counsel for Mr Witoko, Mr Forster, made extensive submissions based on the premise that the verdict of the jury in this case was ambiguous, and that the Judge ought to have notified counsel of the basis on which he intended to pass sentence so that a disputed facts hearing could be convened if there were any challenge to those facts.
[35]	Ms Markham disputed that this was a situation of an ambiguous verdict at all. As she put it, the problem of an ambiguous verdict arises where one or more elements of the offence could have been committed in materially different ways, and it is not clear from the verdict which version of events the jury favoured. She said that this was not such a case. Rather, this was a case which called for the trial Judge to form a view of the facts for the purpose of sentencing which was not inconsistent with the verdict. The only issue here was the extent of each individual’s involvement, not the routes by which the verdicts were reached.
[36]	We accept Ms Markham’s submission in that regard.
[37]	In view of that conclusion, the thrust of the submissions made on behalf of Mr Witoko by Mr Forster as to Mr Witoko’s limited role cannot carry significant weight. As we indicated in relation to Mr Walker, we do not think that the Judge can be criticised for treating the culpability of the offenders as being, in broad terms, of the same gravity.

Ground two: Personal characteristics

[38]	The second ground of the appeal is that the Judge did not give sufficient regard to the personal characteristics of Mr Witoko. This aspect of the appeal raises similar issues as arose in relation to the third ground of Mr Walker’s appeal.
[39]	Mr Witoko was 17 at the time of offending. The pre-sentence report indicated that since he was 11 he had lived with his mother in a gang environment, and had not had any proper education. After the offending he was bailed to the address of his father and stepmother in Wellington, and this created a separation between him and his gang associations in Hawkes Bay.
[40]	The Judge also had before him a letter from Mr Witoko’s father and stepmother in which they described the programme of support they had put in place during Mr Witoko’s period on bail. It appears that he made real progress during this period and expressed the desire to continue to live away from gang influences and to improve his reading and maths skills and live within the main stream of society.
[41]	The pre-sentence report describes Mr Witoko as a supporter of the mongrel mob, (but not a prospect or member) since the age of 11 or 12. It reports that he claimed a minor role in the offending and expressed the view that he had participated because he could not get out of it. The probation officer said that Mr Witoko had a moderate motivation to address his offending behaviours and that there had been positive feedback about his behaviour from staff in prison which was commendable and promising. The report continued, somewhat enigmatically:

Mr Witoko is assessed as having a low risk of re-offending, however, due to the serious nature of his current offending, his risk is deemed to be higher.

[42]	It was noted that a custodial sentence was likely, and that when Mr Witoko was released from custody it would be appropriate for him to live in Wellington where he had procedure-social supports and was distant from the gang culture he had been involved in in Hawkes Bay.
[43]	We think that the argument for taking a rehabilitative approach in relation to Mr Witoko is more marginal than the case of Mr Walker. Unlike Mr Walker he had not had a supportive family environment prior to his offending, and indeed appears to have become immersed in the gang culture from a young age. However, the period he spent with his father and stepmother provided a basis for optimism that he would respond to efforts to turn his life around, and we believe that these rehabilitative efforts should be supported in the approach taken to sentencing him.
[44]	Accordingly, while we see the matter as marginal, we have concluded that it was wrong to treat Mr Witoko as being in the same category as the other two offenders in this case, and that a sentence recognising some prospects for rehabilitation ought to have been imposed.
[45]	We allow Mr Witoko’s appeal, quash the sentence of five years imprisonment imposed in the District Court and substitute a sentence of four years imprisonment.

Solicitors:
Gresson Grayson for Appellant Walker
Crown Law Office, Wellington