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WAHO v R [2005] NZCA 68 (27 April 2005)

Last Updated: 9 May 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA319/04

THE QUEEN

v

RANDALL CLINTON WAHO

Hearing: 18 April 2005

Court: Hammond, Robertson and Potter JJ

Counsel: C W J Stevenson for Appellant
E M Thomas for Crown

Judgment: 27 April 2005

JUDGMENT OF THE COURT

The appeals against both conviction and sentence are dismissed.

REASONS

(Given by Potter J)

Introduction

[1] The appellant was convicted following trial by jury on the following counts:

1. Assault of Jane Ryder (to which the accused entered a guilty plea at the commencement of trial);

2. Assault of Robert Walker (verdict of guilty);

3. Causing grievous bodily harm to Mark Graham with intent to cause him grievous bodily harm (verdict of guilty).

[2] The appellant was sentenced to five and a half years imprisonment on Count 3, the grievous bodily harm charge, and two months imprisonment on each of the assault charges, to be served concurrently.
[3] He now appeals the conviction and sentence on Count 3.

Background facts

[4] At around 12.30 a.m. on Thursday 26 June 2003 Mr Hemi-Bateman (who was jointly charged with the appellant and found guilty of the three charges), was at a residential address in Hokio Beach. He became involved in a physical altercation with Robert Walker. The occupants at that address intervened to break up the fight. Mr Hemi-Bateman left the address and went to a second address where the appellant Mr Waho was present with others. Mr Waho and Mr Hemi-Bateman returned with associates to the first address (Mark Graham’s address), for the purposes of retaliation. Mr Hemi-Bateman claimed that there had been some form of stabbing in the first altercation, but there was no evidence that this had happened.
[5] Mr Waho was leading the group on the return to Mark Graham’s address and became involved in a fight with Mark Graham. In the course of the altercation Mark Graham was hit extremely heavily on the head with a baseball bat, and suffered severe injuries. The identity of the person who inflicted these injuries was not established, but the Crown accepted at trial that the appellant was not the principal offender. After the group left the address, Mr Graham was found outside the house at the rear of the property bleeding from the head. His severe head injuries required emergency neuro-surgery in the Wellington Hospital for a depression fracture of the skull. He was in a coma for some twelve days. He has continuing effects from the injury including paralysis of one arm and grave difficulties with his speech.

Section 66(2) Crimes Act

[6] The charges were prosecuted under s 66(2) of the Crimes Act which provides:

Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

[7] It was common ground that to establish an offence under s 66(2) the Crown must prove:

a) An agreement made between two or more people;
b) The agreement was to do something unlawful;
c) The agreement involved the parties to the agreement helping each other to carry it out;
d) That causing grievous bodily harm was known by the accused to be something that was a probable consequence of carrying out the agreement.

[8] By their verdict of guilty on Count 3 the jury found these elements established on the evidence.

Appeal against conviction

[9] The appellant submitted that there was a miscarriage of justice by reason either of one or an accumulation of four grounds:

a) There was insufficient evidence to link the unidentified principal with the appellant, which was required for a common intention pursuant to s 66(2) to be proved.
b) If there was sufficient evidence of the common intention, the trial Judge failed properly to direct the jury of the need for caution when assessing the accused’s state of mind at the relevant time as to the probable consequence of prosecuting the unlawful purpose. In particular he failed to make direct reference to what the appellant claimed was an essential aspect of the evidence for the defence, that there was no evidence that the appellant or indeed the other people alleged to have accompanied him to Mr Graham’s address, brought with them the baseball bat, nor indeed any other weapons.
c) The Judge directed the jury that the Crown merely needed to prove that the accused knew the offence of grievous bodily harm could well happen, rather than directing that they needed to be sure that the accused knew the offence was a real or substantial risk.
d) The Judge allowed inadmissible hearsay evidence to go to the jury upon which the jury could rely to establish the common intention between the accused and the apparent perpetrator of the offence. The evidence in issue was given by Jane Ryder, a former girlfriend of the victim Mark Graham who stated that a person known as "Shorty" (Michael Coles) was heard to say words to the effect:

... he got him, they got him ... Yeah let’s go.

[10] It is convenient to address the first three points together. Counsel for the appellant referred to the evidence of the appellant given at trial that he was approached by Mr Hemi-Bateman in the absence of any group, that he had contact only with Mr Hemi-Bateman prior to arriving at Mark Graham’s address, and that there was no evidence that the appellant had any association with the principal offender (whoever that was) before the blow with the bat to Mark Graham’s head. Counsel submitted that the jury should have been directed as to the need for caution in assessing whether a common intention to commit the offence involving the bat, could have existed between the appellant and the unknown third party.
[11] Mr Stevenson pointed to evidence which, he submitted, clearly indicated that it was the victim Mark Graham who arrived at the door with the baseball bat. He referred in particular to evidence of Jane Ryder that when she came into the kitchen the victim was at the door already holding the baseball bat. However, she could not say that Mark Graham walked to the door with the bat in his hand because she did not see him prior to sighting him at the door with the bat in his hand.
[12] Counsel submitted that the inference was available that the bat was taken from the victim Mark Graham or that he dropped it in a struggle with the appellant and that it was then picked up by a third party and used on him, which, he said was consistent with the appellant’s evidence.
[13] Mr Stevenson further submitted that the Judge should have directed the jury that if they accepted that the bat was only introduced by the victim moments before he was struck with it, that was a significant factor in assessing whether the appellant would have known that violence involving use of the bat would be a probable consequence of any unlawful purpose. Otherwise, he submitted, it would be a "speculative leap" to say that the appellant could have contemplated such violence as resulted when the bat was used.
[14] Further, that this was a dynamic situation which was unfolding quickly and required a specific warning such as that envisaged in R v Doctor CA366/92 20 July 1993.
[15] He further submitted that it was necessary for the Judge to direct the jury concerning "the singularly important fact" that the victim was found some considerable distance from where he had struggled with the appellant.
[16] Mr Thomas for the Crown submitted that the only relevant intention in this case in terms of s 66(2) was the initial intention of the appellant and others to go around to Mark Graham’s place and deal out retribution.
[17] Counsel submitted that it was not critical whether or not the appellant and the group were armed. The evidence about the bat was at best very inconclusive. While there was evidence that at one stage the victim Mark Graham had the bat, there was also evidence from Mr Graham’s son, Jane Ryder and Robert Walker that the bat was not theirs and had not been seen previously at the house. There was an inference available that the bat had in fact been introduced by the group. Regardless, it was not necessary for the Crown to establish that the appellant contemplated that grievous bodily harm could be inflicted using the bat, but simply that he knew really serious harm was a probable consequence of carrying out the common intention of the group, namely to go to Mark Graham’s place and deal out retribution.
[18] Mr Thomas further submitted that the principle in R v Doctor (which concerned a charge of murder and the appropriate directions to the jury as to the common intention that would need to be established to prove a charge of murder on the one hand and manslaughter on the other), that a direction for special caution as to the formation of common intention when events happened quickly, was not applicable in the circumstances of this case. This was not a situation where there was limited opportunity for the common intention to be formed. The common intention relevant in this case was formed well in advance of the events which resulted in injury to Mark Graham. The discussion took place at a different address when Mr Hemi-Bateman approached the appellant and told the appellant what had happened to him. They discussed that matter and decided what to do, namely to return to the address of Mark Graham and to deliver violence in retaliation for the assault on Mr Hemi-Bateman. This was not the unfolding of a dynamic situation where there was little or limited opportunity for the appellant and others involved to foresee the probable consequences of the unlawful purpose they intended.
[19] It was submitted for the Crown that there was ample evidence which established that the appellant knew the commission of the offence was a substantial or real risk or an event that could well happen, which the Crown accepted needed to be established on a subjective basis (R v Pope CA305/87 31 May 1988).
[20] Mr Thomas referred to the following inferences as being available to the jury based on the evidence:

a) Mr Hemi-Bateman was not prepared to let matters lie after his first removal from Mark Graham’s property;
b) Neither was the appellant upon hearing from Mr Hemi-Bateman of what had occurred;
c) They were part of a group that then confronted Mr Graham at his house;
d) Mark Graham was not armed with the baseball bat at the commencement of that confrontation;
e) Given the series of events that had occurred prior to the confrontation the appellant would have been aware that the situation was highly charged; and
f) The motive of the group, including the appellant, in confronting Mr Graham or any other persons at his address, was violent rather than conciliatory.

[21] Counsel submitted that in the circumstances of this case, someone in the group (and it was not necessary to identify who), attacking someone at Mr Graham’s property and causing that person grievous bodily harm, and intending to do so, was a real or substantial risk and something that could well happen. It was not relevant whether the appellant and the group were armed or not. They were going to confront persons with whom there had been a confrontation earlier that evening. Either they were armed or they were going to a location where there were any number of items that could be used as weapons if the situation became inflamed.
[22] Counsel submitted that the Judge in summarising the defence case clearly spelled out for the jury the essential matters they needed to decide and clearly put the defence case to the jury.

Discussion

[23] We generally accept the submissions for the Crown on these grounds. Once the jury were satisfied of proof of the common intention (and there was evidence upon which they could be so satisfied), then any of the persons who were parties to that agreement, including the appellant, were liable for the probable consequences of carrying out that common intention. It was not necessary that the principal party be identified or definitively linked with the appellant.
[24] The summing-up by the trial Judge could have left the jury in no doubt that whether or not the group of which the appellant was part had the bat was an important fact, that it was for the jury to determine whether the group had the bat, and that that was a fact relevant to the jury’s determination of common intention.
[25] In summarising the case for the appellant, the Judge stated :

He (defence counsel) acknowledged that if you, as the Jury, could come to the view that this bat was taken in by the group, that would be a very good indicator for you to infer that they were intending to do something serious to the occupants of the property and he is saying to you, he acknowledged that that is a fair inference. If you came to that view, that this bat came in with the group, then that would help indicate to you that there was a common intention to mete out violence at the property.
His argument is an acknowledgement that says how can you, as a Jury come to a conclusion about that, given what we have heard in respect of who was holding onto the bat, who wasn’t, the variations in evidence concerning that and I don’t make any further comment on it, but Mr Cameron is really saying to you that there isn’t evidence that the bat was brought by the group and he said it depends in this case, pretty much on the positioning of the bat, who had it, who brought it, where it came from and so on.
That, members of the Jury, is very much a Jury issue. He says that bat came from the house, not from the group and he said to you if the group went without the bat, then again, that might be something you’d consider as being an inference you could draw that they didn’t have the common intention to do the damage that was done.

[26] Again, in summarising the case for the appellant’s co-accused, the Judge stated:

She (defence counsel for Mr Hemi-Bateman) turned her attention then to the bat that was used to hit Mr Mark Graham. She says to you it’s known on the evidence that the bat was not one brought to the house and she asked you then to refer to the evidence that you’ve heard relating to the bat.
She is saying to you, well that would be probably a good indicator that there wasn’t a common intention to mete out violence if you established on the evidence that the bat actually came from the house and was not brought to the house by any group. You’d have to accept, she said, that they didn’t have a common intention to mete out the sort of necessary violence to satisfy this charge and that if there was no weapons taken, like the bat, by any members of the group, she asked you to say to yourselves, well should you necessarily infer that a fight would escalate to the point of a wounding with intent to injure? Would that be a probable consequence within the context that you need to consider?
Ms Summers highlighted that by referring to various aspects of the evidence about who was seen with the bat and who wasn’t and that, members of the Jury, she has put it to you was very clearly a factual issue, a Jury issue, that you need to be determining.

[27] While the Judge may not have directed discretely as to the alternative factual scenarios presented by the evidence and the inferences available from them, i.e. whether the baseball bat was brought by the group, or was furnished by Mark Graham or other occupants of the house, and the impact of that on the determination of common intention, in putting the defence case as he did in respect of both accused, the Judge can have left the jury in no doubt as to the evidence the defence regarded as critical to the defence case.
[28] Nor was anything further required by way of a direction from the trial Judge on the basis that this was a "dynamic situation". If the jury was satisfied on the evidence that the common intention to return to the address of Mark Graham to deliver retribution was formed by the appellant and the group, then what occurred at the address was consistent with, and a probable outcome, of the common intention. This was not a situation where, for example, a common intention to inflict a hiding resulted in the heat of the moment in the commission of an act outside the common intention, e.g. a killing, the situation addressed in R v Tomkins [1985] 2 NZLR 253 and R v Doctor.
[29] Further, we are satisfied that the Judge properly directed the jury that the Crown must prove that the appellant knew the offence was a probable consequence of the common intention. He stated this at [41] of the summing-up and then stressing the importance, repeated at [42]:

... if that offence is known to be a probable consequence of carrying out the agreement.

[30] While at [49] he referred to the appellant and the others being parties to any offence which is committed while they are putting their agreement into effect:

... if and only if, that particular offence was known to be something that could well happen while they were carrying out the agreement ...

(which we note is a standard direction in cases under s 66(2)), in putting the defence case he also made it abundantly clear that the proof required of the Crown was that the accused knew intentional infliction of harm:

... was a probable consequence, not a possible consequence ([85])

Again at [103] in putting the defence case for Mr Hemi-Bateman, the Judge twice referred to the need for the evidence to establish knowledge by the accused that what happened to Mr Graham was:

... a probable consequence of this group going on to the property.

[31] Thus the Judge’s summing-up clearly directed the jury to the need for the Crown to prove knowledge by the accused that the consequences were probable, not merely possible. Use of words such as "real or substantial risk" were not required, in the circumstances of this case, to provide an appropriate direction to the jury.
[32] Nor was it necessary for the Judge specifically to give a direction in relation to where Mark Graham was found. This evidence was before the jury to draw from it such inferences as they saw fit.
[33] Finally, we refer to the defence submission that the Judge allowed inadmissible hearsay to go before the jury which was evidence in relation to common intention. We note that this evidence was adduced at the trial without objection or remark.
[34] We do not consider the Judge can be criticised for admitting this evidence. We consider the evidence was admissible as part of the res gestae. It satisfied the requirements for admission of:

a) Relating to the act it accompanies – it is a reasonable inference that the comment would have related to the attack upon Mr Graham or another person at about the same time;
b) The act was in issue or relevant to the issue of wounding by a member of the group;
c) Contemporaneity - the evidence of Mrs Ryder places the statement at about the time these events were occurring and shortly before the group departed;
d) Spontaneity – the statement was spontaneous, and there were no reasons for concern as to the reliability of either "Shorty" in making the statement, or Mrs Ryder in reporting it.
e) Being a statement made by the actor – it was a reasonable inference that "Shorty" was a member of the group, if not the perpetrator of the act against Mark Graham;

The probative value of the evidence is to place "Shorty" (Michael Coles) as part of the group along with others including the appellant and Mr Hemi-Bateman. It does not provide evidence of the common intention which on the basis of evidence which was available to the jury to accept, was earlier formed before the appellant and the group returned to the address with Mr Hemi-Bateman.

[35] In his summary of the defence case the Judge referred to the submission by counsel for the appellant that the jury should be careful about accepting the evidence of Mrs Ryder, in particular in relation to what she overheard "Shorty Coles" saying ("We got him"), because there was no evidence as to whom Shorty Coles was referring, nor was it clear whether he said "We" or I". This adequately alerted the jury that the statement might be equivocal, and hence should not be taken into account.
[36] The circumstances of this case are different from those in the Canadian case of R v Starr (2000) 147 CCC (3d) 449, (SCC) cited in this Court by counsel for the appellant as authority that statements of present intention cannot be used to prove the state of mind of someone other than the declarant, and that the "present intentions" exception to the hearsay rule may not be used to infer that a third party acted in accordance with the declarant’s stated intention.
[37] In that case the prosecution sought to adduce evidence from a witness that prior to an alleged murder, one of the two victims had told her that he was going to go and do something with a person whom she understood to be the accused. The "something" fitted with the Crown’s theory of the case. The judgments of the nine person Supreme Court are detailed and complex; the appeal was allowed by a majority of five to four on this and two other grounds. However, the circumstances of the hearsay evidence adduced in Starr differ considerably from the circumstances in this case. Here the utterance was contemporaneous, spontaneous and gave rise to none of the concerns about reliability or fabrication which concerned some of the members of the Court in Starr where the Court was addressing in effect, a situation of double hearsay (See also R v Ratten [1972] AC 378 (PC); R v Andrews [1987] AC 281 (HL)).
[38] We are satisfied that none of the grounds identified by the appellant, either singly or cumulatively, gives rise to a miscarriage of justice. The appeal against conviction is dismissed.

Sentence appeal

[39] Counsel for the appellant did not dispute that the starting point of six and a half years adopted by the sentencing Judge, having identified that this offending fell within the second category described in R v Hereora [1986] 2 NZLR 164, was appropriate. Rather he contended that the allowance of one year was insufficient to reflect the appellant’s part as a secondary offender to the unknown principal and that insufficient weight was given to the appellant’s limited role in the serious injury that was inflicted on the victim.
[40] The Crown submitted that a starting point higher than six and a half years would have been open to the sentencing Judge and that the Judge correctly identified the following aggravating features: the level of violence; the extent of the harm suffered by the victim; the limited premeditation. Thus, even if a greater allowance than one year may have been appropriate (which the Crown did not support), the final sentence of five and a half years could not be said to be manifestly excessive in all the circumstances.
[41] The Judge noted the appellant’s extensive list of previous convictions, "the sparseness of evidence" concerning whether a weapon was taken to the house by the appellant and the group, and turned his mind to the principle of totality, declining a request by the Crown to impose cumulative sentences in respect of the convictions for assault.
[42] In all the circumstances we are satisfied that the sentence of five and a half years imposed was not wrong in principle, or manifestly excessive. The appeal against sentence is also dismissed.

Solicitors:
Crown Law Office, Wellington

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[2]	The appellant was sentenced to five and a half years imprisonment on Count 3, the grievous bodily harm charge, and two months imprisonment on each of the assault charges, to be served concurrently.
[3]	He now appeals the conviction and sentence on Count 3.

[10]	It is convenient to address the first three points together. Counsel for the appellant referred to the evidence of the appellant given at trial that he was approached by Mr Hemi-Bateman in the absence of any group, that he had contact only with Mr Hemi-Bateman prior to arriving at Mark Graham’s address, and that there was no evidence that the appellant had any association with the principal offender (whoever that was) before the blow with the bat to Mark Graham’s head. Counsel submitted that the jury should have been directed as to the need for caution in assessing whether a common intention to commit the offence involving the bat, could have existed between the appellant and the unknown third party.
[11]	Mr Stevenson pointed to evidence which, he submitted, clearly indicated that it was the victim Mark Graham who arrived at the door with the baseball bat. He referred in particular to evidence of Jane Ryder that when she came into the kitchen the victim was at the door already holding the baseball bat. However, she could not say that Mark Graham walked to the door with the bat in his hand because she did not see him prior to sighting him at the door with the bat in his hand.
[12]	Counsel submitted that the inference was available that the bat was taken from the victim Mark Graham or that he dropped it in a struggle with the appellant and that it was then picked up by a third party and used on him, which, he said was consistent with the appellant’s evidence.
[13]	Mr Stevenson further submitted that the Judge should have directed the jury that if they accepted that the bat was only introduced by the victim moments before he was struck with it, that was a significant factor in assessing whether the appellant would have known that violence involving use of the bat would be a probable consequence of any unlawful purpose. Otherwise, he submitted, it would be a "speculative leap" to say that the appellant could have contemplated such violence as resulted when the bat was used.
[14]	Further, that this was a dynamic situation which was unfolding quickly and required a specific warning such as that envisaged in R v Doctor CA366/92 20 July 1993.
[15]	He further submitted that it was necessary for the Judge to direct the jury concerning "the singularly important fact" that the victim was found some considerable distance from where he had struggled with the appellant.
[16]	Mr Thomas for the Crown submitted that the only relevant intention in this case in terms of s 66(2) was the initial intention of the appellant and others to go around to Mark Graham’s place and deal out retribution.
[17]	Counsel submitted that it was not critical whether or not the appellant and the group were armed. The evidence about the bat was at best very inconclusive. While there was evidence that at one stage the victim Mark Graham had the bat, there was also evidence from Mr Graham’s son, Jane Ryder and Robert Walker that the bat was not theirs and had not been seen previously at the house. There was an inference available that the bat had in fact been introduced by the group. Regardless, it was not necessary for the Crown to establish that the appellant contemplated that grievous bodily harm could be inflicted using the bat, but simply that he knew really serious harm was a probable consequence of carrying out the common intention of the group, namely to go to Mark Graham’s place and deal out retribution.
[18]	Mr Thomas further submitted that the principle in R v Doctor (which concerned a charge of murder and the appropriate directions to the jury as to the common intention that would need to be established to prove a charge of murder on the one hand and manslaughter on the other), that a direction for special caution as to the formation of common intention when events happened quickly, was not applicable in the circumstances of this case. This was not a situation where there was limited opportunity for the common intention to be formed. The common intention relevant in this case was formed well in advance of the events which resulted in injury to Mark Graham. The discussion took place at a different address when Mr Hemi-Bateman approached the appellant and told the appellant what had happened to him. They discussed that matter and decided what to do, namely to return to the address of Mark Graham and to deliver violence in retaliation for the assault on Mr Hemi-Bateman. This was not the unfolding of a dynamic situation where there was little or limited opportunity for the appellant and others involved to foresee the probable consequences of the unlawful purpose they intended.
[19]	It was submitted for the Crown that there was ample evidence which established that the appellant knew the commission of the offence was a substantial or real risk or an event that could well happen, which the Crown accepted needed to be established on a subjective basis (R v Pope CA305/87 31 May 1988).
[20]	Mr Thomas referred to the following inferences as being available to the jury based on the evidence:

[23]	We generally accept the submissions for the Crown on these grounds. Once the jury were satisfied of proof of the common intention (and there was evidence upon which they could be so satisfied), then any of the persons who were parties to that agreement, including the appellant, were liable for the probable consequences of carrying out that common intention. It was not necessary that the principal party be identified or definitively linked with the appellant.
[24]	The summing-up by the trial Judge could have left the jury in no doubt that whether or not the group of which the appellant was part had the bat was an important fact, that it was for the jury to determine whether the group had the bat, and that that was a fact relevant to the jury’s determination of common intention.
[25]	In summarising the case for the appellant, the Judge stated :

[27]	While the Judge may not have directed discretely as to the alternative factual scenarios presented by the evidence and the inferences available from them, i.e. whether the baseball bat was brought by the group, or was furnished by Mark Graham or other occupants of the house, and the impact of that on the determination of common intention, in putting the defence case as he did in respect of both accused, the Judge can have left the jury in no doubt as to the evidence the defence regarded as critical to the defence case.
[28]	Nor was anything further required by way of a direction from the trial Judge on the basis that this was a "dynamic situation". If the jury was satisfied on the evidence that the common intention to return to the address of Mark Graham to deliver retribution was formed by the appellant and the group, then what occurred at the address was consistent with, and a probable outcome, of the common intention. This was not a situation where, for example, a common intention to inflict a hiding resulted in the heat of the moment in the commission of an act outside the common intention, e.g. a killing, the situation addressed in R v Tomkins [1985] 2 NZLR 253 and R v Doctor.
[29]	Further, we are satisfied that the Judge properly directed the jury that the Crown must prove that the appellant knew the offence was a probable consequence of the common intention. He stated this at [41] of the summing-up and then stressing the importance, repeated at [42]:

[31]	Thus the Judge’s summing-up clearly directed the jury to the need for the Crown to prove knowledge by the accused that the consequences were probable, not merely possible. Use of words such as "real or substantial risk" were not required, in the circumstances of this case, to provide an appropriate direction to the jury.
[32]	Nor was it necessary for the Judge specifically to give a direction in relation to where Mark Graham was found. This evidence was before the jury to draw from it such inferences as they saw fit.
[33]	Finally, we refer to the defence submission that the Judge allowed inadmissible hearsay to go before the jury which was evidence in relation to common intention. We note that this evidence was adduced at the trial without objection or remark.
[34]	We do not consider the Judge can be criticised for admitting this evidence. We consider the evidence was admissible as part of the res gestae. It satisfied the requirements for admission of:

[35]	In his summary of the defence case the Judge referred to the submission by counsel for the appellant that the jury should be careful about accepting the evidence of Mrs Ryder, in particular in relation to what she overheard "Shorty Coles" saying ("We got him"), because there was no evidence as to whom Shorty Coles was referring, nor was it clear whether he said "We" or I". This adequately alerted the jury that the statement might be equivocal, and hence should not be taken into account.
[36]	The circumstances of this case are different from those in the Canadian case of R v Starr (2000) 147 CCC (3d) 449, (SCC) cited in this Court by counsel for the appellant as authority that statements of present intention cannot be used to prove the state of mind of someone other than the declarant, and that the "present intentions" exception to the hearsay rule may not be used to infer that a third party acted in accordance with the declarant’s stated intention.
[37]	In that case the prosecution sought to adduce evidence from a witness that prior to an alleged murder, one of the two victims had told her that he was going to go and do something with a person whom she understood to be the accused. The "something" fitted with the Crown’s theory of the case. The judgments of the nine person Supreme Court are detailed and complex; the appeal was allowed by a majority of five to four on this and two other grounds. However, the circumstances of the hearsay evidence adduced in Starr differ considerably from the circumstances in this case. Here the utterance was contemporaneous, spontaneous and gave rise to none of the concerns about reliability or fabrication which concerned some of the members of the Court in Starr where the Court was addressing in effect, a situation of double hearsay (See also R v Ratten [1972] AC 378 (PC); R v Andrews [1987] AC 281 (HL)).
[38]	We are satisfied that none of the grounds identified by the appellant, either singly or cumulatively, gives rise to a miscarriage of justice. The appeal against conviction is dismissed.

[39]	Counsel for the appellant did not dispute that the starting point of six and a half years adopted by the sentencing Judge, having identified that this offending fell within the second category described in R v Hereora [1986] 2 NZLR 164, was appropriate. Rather he contended that the allowance of one year was insufficient to reflect the appellant’s part as a secondary offender to the unknown principal and that insufficient weight was given to the appellant’s limited role in the serious injury that was inflicted on the victim.
[40]	The Crown submitted that a starting point higher than six and a half years would have been open to the sentencing Judge and that the Judge correctly identified the following aggravating features: the level of violence; the extent of the harm suffered by the victim; the limited premeditation. Thus, even if a greater allowance than one year may have been appropriate (which the Crown did not support), the final sentence of five and a half years could not be said to be manifestly excessive in all the circumstances.
[41]	The Judge noted the appellant’s extensive list of previous convictions, "the sparseness of evidence" concerning whether a weapon was taken to the house by the appellant and the group, and turned his mind to the principle of totality, declining a request by the Crown to impose cumulative sentences in respect of the convictions for assault.
[42]	In all the circumstances we are satisfied that the sentence of five and a half years imposed was not wrong in principle, or manifestly excessive. The appeal against sentence is also dismissed.