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You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2006 >> [2006] NZCA 118

The Queen v Allahyai [2006] NZCA 118 (7 June 2006)

Last Updated: 22 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA330/04

THE QUEEN

v

WALI JAVAD ALLAHYAI

Hearing: 25 May 2006

Court: Chambers, Rodney Hansen and Priestley JJ

Counsel: P J Kaye for Appellant
H D M Lawry for Crown

Judgment: 7 June 2006

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS

(Given by Rodney Hansen J)

Introduction

[1] In July 2004 the appellant was tried by Harrison J and a jury on 13 counts. Twelve of the counts involved violence towards his wife; the other was for unlawful possession of a firearm. The appellant was found guilty of 12 of the 13 counts. He was found not guilty of attempting to murder his wife but was found guilty of an alternative count of wounding with intent to cause grievous bodily harm.
[2] He appeals against his conviction on that count alone and against a sentence of ten years imprisonment imposed on that charge. Concurrent terms of imprisonment were imposed on the other charges. The appellant was ordered to serve a minimum term of six years imprisonment.
[3] The sole ground of appeal against conviction is that there is fresh evidence available which is cogent and credible and, if available at trial, might reasonably have led to a different verdict.

Evidence at trial

[4] The appellant was born in Afghanistan in 1976. He went to Canada in 1991 and lived there for seven years until deported back to Afghanistan. He then made his way to New Zealand where he claimed refugee status.
[5] He met his wife, Amanda Hapeta, soon after arriving in New Zealand. They began living together soon after and married in 2001. Ms Hapeta said in evidence the appellant was dominating and possessive and frequently violent towards her. The jury heard of numerous occasions on which he punched and kicked her. Over the period covered by the charges, early 2000 until August 2003, Ms Hapeta said the appellant also stabbed her in three separate incidents, on two occasions using a screwdriver, on the other a knife.
[6] The incident with which this appeal is concerned occurred on 12 August 2003. A few days before, the appellant had been released from prison where he had been held on immigration charges. While he was in prison, Ms Hapeta had moved to a house at 61B Alfriston Road, Manurewa. She shared the house with two sisters, Roiya and Fereba Rasulu. The appellant moved back in with her.
[7] Ms Hapeta’s evidence of what occurred over the next few days is as follows. The day after his release, the appellant brought a gun home. It was in pieces inside a pillowcase. He asked Ms Hapeta to hide it for him. He later retrieved it and assembled it. On 11 August, in the course of an argument between the appellant and Ms Hapeta, he fired the gun in her direction while they were both in the bedroom. The bullet passed through the wardrobe, into the adjoining bedroom, narrowly missing one of the sisters who occupied it. A little later the appellant came up behind Ms Hapeta and pressed the muzzle of the gun to the back of her neck. He kept it there for five minutes or so while demanding that she "tell him the truth". These incidents led to charges of discharging a firearm with reckless disregard for the safety of others and assaulting Ms Hapeta using a firearm as a weapon. They are not challenged in this appeal. The evidence is referred to as providing relevant context to the events of the following day.
[8] On 12 August the two flatmates went to work. Ms Hapeta and the appellant went to the prison to collect some of the appellant’s belongings. On the way home they picked up a puppy from a friend’s house. Back at the house Ms Hapeta sat outside playing with the puppy. She was in a narrow courtyard bounded on one side by the back of the house and on the other by a two-metre high wooden fence. At one end the laundry jutted out, leaving only the narrowest of gaps between that part of the house and the fence. At the other end of the yard was another high wooden fence. Access to the courtyard from the house was from the living room through a ranchslider or through a door leading out from the laundry.
[9] Ms Hapeta was sitting on the ground just outside the ranchslider door. She saw the appellant walk through the living room holding the gun. He stood beside the ranchslider door and fired a shot in the direction of a neighbouring property. Ms Hapeta told him to put the gun away before he did something stupid, turned her back to him and carried on playing with the puppy. She was sitting cross-legged facing the fence. She suddenly felt a burning sensation in her back and fell backwards onto the ground. She could not move her legs and asked the appellant to straighten them, which he did. She asked him to ring an ambulance. He went inside the house. Ms Hapeta assumed he was ringing for an ambulance. Eventually he came outside and brought her a cellphone so she could explain where the ambulance should come. Before the ambulance arrived, the appellant followed the advice of the emergency services to lie her on her side and give her a pillow.
[10] Ms Hapeta was taken to hospital. A bullet was found to have entered her back in the vicinity of her left shoulder. It lodged near her spine. Surgeons were unable to remove the bullet because of the risk that it would leave her a tetraplegic. As it is, at the time of the trial she remained seriously disabled, able to walk only with the aid of a walker.
[11] At this point the narrative was taken up by Mr Glen Matkovich. He had known the appellant for about two years. He said that on the day of the shooting he was moving house. Between 4.00 and 5.00 p.m. he received a call on his cellphone from the appellant as he was transporting the last of his belongings to his new home. The appellant asked him to come to the house and pick him up. He drove to the address. The house is at the bottom of a right-of-way. He mistakenly drove down the driveway of the house next door – number 61A – and drove through a gap in the fence when he realised his mistake.
[12] Mr Matkovich said the appellant came out and spoke to him through the open window of his car. The appellant told him he had "just shot Amanda and to go". Mr Matkovich left immediately. Later, when he parked his car, he found a sawn-off rifle on the back seat. The following day Mr Matkovich said he received a series of phone calls from different people, as a result of which he went to the Puhinui train station and left the gun in the boot of a car. A couple of days later he saw the appellant who asked him if the police could get "bullet residue" from his fingers and clothes. He said the police had swabbed him. Mr Matkovich told the appellant such tests could show up chemical residues.
[13] The appellant gave evidence in his own defence. He denied all allegations of assaults on his wife. He said he did not bring a gun home following his release from prison. He denied using a gun at any time during the days following his release. He agreed that on the day of the shooting he and his wife had brought a puppy home. The appellant said his wife was doing the laundry when he decided to go to the shop to buy cigarettes. On the way he realised he didn’t have enough money. He returned to the house to find Ms Hapeta lying wounded and in pain on the concrete outside. He said he lifted her into a sitting position, lifted her clothing up and saw the wound. He put a pillow under her head and called the ambulance. He confirmed that she completed the 111 call.

New evidence – legal principles

[14] The principles governing the admission of fresh evidence on appeal are well established and were restated in R v Bain [2004] 1 NZLR 638. An appellant who wishes to rely on evidence not called at trial must show that the evidence is sufficiently fresh and sufficiently credible. Normally if the evidence could, with reasonable diligence, have been called at trial, it will not qualify as sufficiently fresh. However, the overriding consideration is the interests of justice. That may permit significant evidence to be called which may not meet the criterion of sufficiently fresh: Bain at [22].
[15] If the further evidence is admitted, the Court will then consider whether its existence demonstrates that there is a real risk that a miscarriage of justice has occurred as a result of the new evidence not being given at trial. Such a risk will exist if the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty: Bain at [24].

The new evidence

[16] The new evidence which Mr Kaye, for the appellant, sought to rely on was given by five witnesses:
 Nicholas Powell, a forensic scientist
 Sawar Rahimi, a friend of the appellant and his wife, and Greg Matkovich
 Roiya Rasulu, one of the two sisters who lived at the address
 Reginald and Talia Whitefield, a married couple who lived next door to the appellant and his wife

Evidence of Nicholas Powell

[17] Mr Powell swore two affidavits and was cross-examined. His evidence was mainly concerned to establish the likely trajectory of the bullet that struck Ms Hapeta. He relied on the position of two blood spatter arrays (in lay terms, clusters of blood spots) found on the concrete of the rear yard at 61B Alfriston Road. Their appearance indicated that they were formed by blood dripping vertically from the wound in Ms Hapeta’s back. Mr Powell said they could therefore assist him to determine where Ms Hapeta was sitting at the time she was shot. For this purpose, he assumed that one of the blood spatters was formed when Ms Hapeta fell backwards from a sitting position after being shot, and the other occurred after she was moved.
[18] Mr Powell then postulated two possible sitting positions – one facing the fence (as Ms Hapeta had said in evidence), the other facing away from the fence towards the ranchslider door. He suggested the former position might be doubted as it indicated (based on weather data he had assembled) that Ms Hapeta would have been sitting on damp concrete.
[19] Mr Powell then sought to determine the likely trajectory of the bullet which struck Ms Hapeta based on the medical evidence and her sitting position as indicated by the blood spatters. If she had been sitting facing the ranchslider door, he said the bullet would have been fired from a point in line with the north-east corner of the back yard, that is, the opposite end to the laundry. If she had been facing the fence, he said the bullet would have been fired from a point in line with the laundry door. Mr Powell said that for Ms Hapeta to have been shot from inside the house through the ranchslider door, she would have had to have been facing in the approximate direction of the laundry door. He concluded that the shot was most unlikely to have been fired from inside the house through the ranchslider door.
[20] The second topic addressed by Mr Powell related to firearm discharge residue particles found on the hand, sweatshirt and jeans of the appellant. At trial evidence was given that the residue found on the sweatshirt supported the proposition that the wearer handled the firearm or had been close to the discharge of a firearm and the residue found on the jeans strongly supported the same proposition.
[21] Mr Powell agreed with this evidence. However, on the assumption that the appellant would say he had fired the gun the evening before the shooting, he expressed the opinion that the evidence lent only slight support to the proposition that the appellant discharged a firearm on the following day.
[22] It is accepted that Mr Powell’s evidence could have been given at trial. He was available to give evidence if approached. There was no explanation for the failure to call him. The evidence is therefore not sufficiently fresh. We have, however, gone on to consider whether the interests of justice, nevertheless, warrant its admission.
[23] Mr Powell’s opinion of the likely trajectory of the bullet which wounded Ms Hapeta is critically dependent on his assumption that the blood spatter arrays mark the position her body was in when she fell backwards after being shot. However, evidence given at trial does not support that assumption.
[24] Ms Hapeta’s inner clothing was heavily bloodstained in the immediate vicinity of the entry wound. Her outer garment, a jersey, was not bloodstained at all. A forensic scientist with the ESR who gave evidence at the trial, Mr Gerhard Wevers, pointed out that this indicated that blood did not pass from the wound through Ms Hapeta’s clothing. The blood spatters are not therefore likely to have been produced when or soon after she fell. They are more likely to have occurred after she had been moved following treatment or for the purpose of receiving treatment.
[25] We also have difficulty with Mr Powell’s hypothesis that, if Ms Hapeta was sitting facing the fence as she said she was, she is unlikely to have been shot from inside the house through the ranchslider doors. Mr Powell said if her evidence were accepted, it is most likely she would have been shot from the direction of the laundry. For this purpose he assumed that Ms Hapeta’s upper body was facing the fence when she was shot. But there is no necessary reason why that should be so. As Mr Powell accepted in cross-examination, she could have turned her upper body in either direction while sitting facing away from the house. He agreed that had she turned to her left with her left shoulder facing towards the house, a shot fired through the open ranchslider door would have inflicted the wound she suffered.
[26] Mr Powell’s opinion of the likely trajectory of the bullet which wounded Ms Hapeta relies on assumptions which are not supported by the evidence. This part of his evidence would add nothing of value to the defence case.
[27] Mr Powell’s evidence in relation to the chemical residues seeks to explain the presence of firearms discharge residue particles on the basis that they could have been left by a shot fired by the appellant the previous day. An immediate difficulty for the appellant is that this is contrary to his evidence at the trial; he said he did not have a gun in the house over the relevant period. It also relies for its force on an assumption that the appellant was wearing the same clothes on both days.
[28] But even allowing for these difficulties, the evidence adds nothing of value to the defence case. The evidence of chemical residues given at the trial would continue to be consistent with and supportive of the prosecution case. Mr Powell’s evidence is not fresh and the interests of justice do not warrant its admission.

Evidence of Sawar Rahini

[29] Sawar Rahini is an Afghan refugee who arrived in New Zealand in 1996. He deposes that he had been friends with the appellant and Ms Hapeta since about 2000. Through them he met Mr Matkovich. He was also friends with the two sisters, Roiya and Fareba Rasuli who lived at the house in Alfriston Road.
[30] Mr Rahini said that while the appellant was in prison Mr Matkovich took him to Ms Hapeta’s address in Alfriston Road and he subsequently visited her there on two occasions when Mr Matkovich was present. Mr Rahini also swore that on the evening of the shooting the appellant and Mr Matkovich together visited the café where he worked. He said the appellant was upset but Mr Matkovich was not.
[31] Mr Rahini’s evidence is relied on to undermine the credibility of Mr Matkovich. Mr Kaye submitted that it contradicted Mr Matkovich’s evidence that he did not know where the appellant and Ms Hapeta lived. The passage of his evidence which addresses this issue needs to be quoted in full. After speaking of the call received from the appellant on his mobile phone, the transcript records the following questions and answers:

What did you decide to do. He wanted you to collect him but your car was full, what did you do .... I went to pick him up.
Did you know the address he was at .... No.
Did you ask him where to get him .... Yeah.
Did he provide you with the address .... Yes.
Did you remember that address off hand today .... No.
All right now what happened when you arrived at his address. Tell us where you went .... I went down the wrong driveway, I went down his neighbour’s driveway.

[32] A careful reading of this evidence does not convey that Mr Matkovich said he did not know where the appellant and Ms Hapeta lived. He was not asked that question. He was asked whether he knew the address the appellant was at, not the address at which the appellant lived. He was not questioned further in evidence-in-chief or cross-examination. In our view, the evidence of Mr Rahini does not call Mr Matkovich’s credibility into question.
[33] Furthermore, the evidence is not fresh. There is no suggestion that Mr Rahini could not have been called to give evidence at the trial. Moreover, there is reason to doubt his credibility. A police officer, Detective Sergeant Wayne Lendrum, has deposed that he interviewed Mr Rahini after the shooting incident. Mr Rahini said that the day after the incident, the appellant told him that he had shot his wife by accident while he was cleaning his gun. He also said that Roiya Rasulu told him of the shot that passed into her bedroom. Detective Sergeant Lendrum had kept the interview confidential as he had treated Mr Rahini as an informer. He felt freed of the constraints that imposed by the affidavit of Mr Rahini.
[34] Mr Rahini’s evidence is therefore neither fresh nor credible. There is nothing to undermine Mr Matkovich’s evidence that he wittingly or unwittingly helped dispose of the gun. His evidence is corroborated in one critical respect by telephone records which show that the appellant phoned him on his mobile phone a short time before the ambulance was called on the day of the shooting. The appellant said in answer to this that he could not recall making such a call.
[35] The application to admit Mr Rahini’s evidence must also fail.

Evidence of Roiya Rasulu

[36] Ms Rasulu gave two statements to the police but was not called as a witness at the trial. She deposed that the first statement she made to the police was "basically correct" whereas the second statement was wrong in several places. She does not elaborate. We do not know from her affidavit what her evidence is on the crucial issues, although she seems to claim that she did not know who fired the shot that passed through the wall into her bedroom. We note also that she makes no mention of Mr Rahini’s evidence that Mr Matkovich visited the house several times when she and her sister were home.
[37] Again, there is no explanation for not calling Ms Rasulu to give evidence at the trial. There is, in any event, nothing which could assist the appellant. The application to admit her evidence is also declined.

Evidence of Reginald and Talia Whitfield

[38] The final two witnesses whose evidence the defence seeks to have admitted are a married couple who lived next door at 61A Alfriston Road. Mrs Whitfield deposes that between 1.00 and 2.00 p.m. on 12 August 2003 she saw a white car driven down their driveway, reverse when it got to the end and then drive through a gap in the boundary fence onto the property next door, number 61B. She did not see the car leave but said her view was blocked by the dividing fence. Mr Whitfield told the police of what his wife saw but no steps were taken to interview her.
[39] The car Mr Whitfield saw appears to have driven the same route Mr Matkovich said he took but there is nothing to indicate that it was his car she saw. She timed her sighting at between 1.00 and 2.00 p.m. and was not at home when Mr Matkovich said he drove to the scene some three hours later.
[40] There is nothing to show that Mr and Mrs Whitfield could not have been called by the defence at trial but the real difficulty with their evidence, as with the other witnesses, is that it would do nothing to assist the appellant.

Conclusion on appeal against conviction

[41] None of the evidence relied on by the appellant meets the criteria for the admission of further evidence on appeal. Without it the appeal against conviction must fail.

Appeal against sentence

Judge’s decision

[42] In his sentencing remarks the Judge began by listing the offences of which the appellant had been convicted and the maximum sentence they carried as follows:

 Wounding with intent to cause grievous bodily harm	14 years imprisonment
 Discharging a firearm with reckless disregard to the safety of others	14 years imprisonment
 Injuring with intent to injure	10 years imprisonment
 Assault with a weapon	5 years imprisonment
 Assault on a female	2 years imprisonment
 Unlawful possession of a firearm	4 years imprisonment

Two of the maximum penalties identified are wrong. The offence of discharging a firearm with reckless disregard for the safety of others carries a maximum penalty of seven years imprisonment and that of injuring with intent to injure carries a maximum penalty of five years imprisonment. We will consider later a submission by Mr Kaye that these errors led to an excessive overall sentence.

[43] After reviewing the facts which, as earlier noted, disclosed serious and escalating violence over a three-year period, Harrison J discussed the appropriate starting point for the most serious offence, that is, wounding with intent to cause grievous bodily harm. He referred to the aggravating features as the use of a weapon; the premeditation involved; the vulnerable position Ms Hapeta was in when shot; and, the Judge said, perhaps most importantly, the effect of the offending on Ms Hapeta. In relation to this last aggravating feature he referred to the appellant having enslaved the victim emotionally and physically until she could no longer resist and to the grievous nature of the injury inflicted by the last near fatal assault.
[44] The Judge noted that the Crown had submitted the starting point should be between 10 and 12 years; the defence had argued for between 8 and 10 years. The Judge decided that a starting point of 10 years imprisonment would be appropriate taking into account that the Crown was not seeking cumulative sentences and the sentence needed to reflect the totality of the offending. He referred also to the then leading authority of R v Hereora [1986] 2 NZLR 164. He said the appellant’s offending fell into the worst of the categories identified in Hereora in that a weapon had been used to inflict serious injury and other grave aggravating features were present.
[45] The Judge identified two additional aggravating features arising from the appellant’s personal circumstances. Much of the offending against Ms Hapeta had been committed while the appellant was on parole. And he had accumulated 16 convictions since arriving in New Zealand in 1999, including a sentence of 18 months imprisonment for injuring with intent to injure. Harrison J said that ordinarily those factors would justify an increase of at least one year in the starting point. He decided against increasing the sentence because it would delay the appellant’s departure from the country. There were no mitigating circumstances.
[46] Harrison J expressed satisfaction that a minimum term of imprisonment was justified by the circumstances of the final offence and that a term of more than one-third was necessary to achieve the statutory objectives. The defence accepted that the appellant qualified for a minimum term of imprisonment but argued that as the appellant would be deported when his term of imprisonment was served, there would be no practical advantage in requiring him to serve a minimum sentence. Notwithstanding the practical appeal of the submission, the Judge saw himself as bound to adopt a principled approach and imposed a minimum term of six years imprisonment on the charge of wounding with intent to cause grievous bodily harm.

Appellant’s submissions

[47] Mr Kaye submitted that the errors made by the Judge when he stated the maximum penalties led to his adopting a higher starting point than was justified. He maintained that a starting point of ten years required the presence of further aggravating features of "gang type" group activity and endangerment to the public. He cited as example R v Murray CA382/02 6 May 2003, R v Curry and ors CA272/00 28 September 2000 and R v Winter CA452-454/96 26 February 1997. In each case gang violence in a public place attracted starting points of ten years or less. In the result it was submitted that the Judge had failed to give effect to the principle in s 8(e) of the Sentencing Act 2002 that the Court take into account the general desirability of consistency with appropriate sentencing levels.
[48] Mr Kaye also argued that the Judge had failed to have sufficient regard to s 8(h) of the Act which requires the sentencing Court to take into account any particular circumstances of the offender that would make an otherwise appropriate sentence disproportionately severe. He relied on the absence of family support for the appellant while he was serving his sentence. He said the appellant is a foreigner who has had real difficulties assimilating to the New Zealand culture. This would make a prison sentence harder for him than for a New Zealand citizen.

Decision

[49] It is inapposite to compare the starting point in this case with those adopted in the cases relied on by Mr Kaye. Each involved a single incident. The starting point in this case was expressly and necessarily chosen to reflect repeated acts of violence over a long period, of which the assault with intent to cause grievous bodily harm was the last and most serious.
[50] Whether measured against the sentences recommended in Hereora or the guidelines laid down in R v Taueki [2005] 3 NZLR 372 which has superseded it, the starting point adopted by the Judge was well within the available range. There were unusually grave aggravating features present which warranted the starting point of up to 12 years proposed in Hereora for such cases. By reference to Taueki, those features brought the offending within Band 3 which provides for a sentence of between 9 and 14 years when three or more aggravating factors are present and the combination is particularly grave. We are satisfied the starting point was not excessive. Indeed, as Harrison J himself acknowledged, a higher starting point could have been justified when regard is had to aggravating factors personal to the appellant.
[51] It may be that a prison sentence will be somewhat harder for the appellant than for a prisoner with a supportive family in New Zealand. However, we are disinclined to place any great weight on this factor. As Mr Lawry submitted, the appellant has lived in English speaking countries for much of the last twelve years. He married a New Zealander and has had a reasonable opportunity to assimilate.
[52] We are also satisfied that the minimum period of imprisonment was an appropriate application of s 86. The lead offence was a cold-blooded and callous act which has destroyed the life of the victim. We do not see the minimum term the appellant has been ordered to serve as by any means excessive.

Result

[53] The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	In July 2004 the appellant was tried by Harrison J and a jury on 13 counts. Twelve of the counts involved violence towards his wife; the other was for unlawful possession of a firearm. The appellant was found guilty of 12 of the 13 counts. He was found not guilty of attempting to murder his wife but was found guilty of an alternative count of wounding with intent to cause grievous bodily harm.
[2]	He appeals against his conviction on that count alone and against a sentence of ten years imprisonment imposed on that charge. Concurrent terms of imprisonment were imposed on the other charges. The appellant was ordered to serve a minimum term of six years imprisonment.
[3]	The sole ground of appeal against conviction is that there is fresh evidence available which is cogent and credible and, if available at trial, might reasonably have led to a different verdict.

[4]	The appellant was born in Afghanistan in 1976. He went to Canada in 1991 and lived there for seven years until deported back to Afghanistan. He then made his way to New Zealand where he claimed refugee status.
[5]	He met his wife, Amanda Hapeta, soon after arriving in New Zealand. They began living together soon after and married in 2001. Ms Hapeta said in evidence the appellant was dominating and possessive and frequently violent towards her. The jury heard of numerous occasions on which he punched and kicked her. Over the period covered by the charges, early 2000 until August 2003, Ms Hapeta said the appellant also stabbed her in three separate incidents, on two occasions using a screwdriver, on the other a knife.
[6]	The incident with which this appeal is concerned occurred on 12 August 2003. A few days before, the appellant had been released from prison where he had been held on immigration charges. While he was in prison, Ms Hapeta had moved to a house at 61B Alfriston Road, Manurewa. She shared the house with two sisters, Roiya and Fereba Rasulu. The appellant moved back in with her.
[7]	Ms Hapeta’s evidence of what occurred over the next few days is as follows. The day after his release, the appellant brought a gun home. It was in pieces inside a pillowcase. He asked Ms Hapeta to hide it for him. He later retrieved it and assembled it. On 11 August, in the course of an argument between the appellant and Ms Hapeta, he fired the gun in her direction while they were both in the bedroom. The bullet passed through the wardrobe, into the adjoining bedroom, narrowly missing one of the sisters who occupied it. A little later the appellant came up behind Ms Hapeta and pressed the muzzle of the gun to the back of her neck. He kept it there for five minutes or so while demanding that she "tell him the truth". These incidents led to charges of discharging a firearm with reckless disregard for the safety of others and assaulting Ms Hapeta using a firearm as a weapon. They are not challenged in this appeal. The evidence is referred to as providing relevant context to the events of the following day.
[8]	On 12 August the two flatmates went to work. Ms Hapeta and the appellant went to the prison to collect some of the appellant’s belongings. On the way home they picked up a puppy from a friend’s house. Back at the house Ms Hapeta sat outside playing with the puppy. She was in a narrow courtyard bounded on one side by the back of the house and on the other by a two-metre high wooden fence. At one end the laundry jutted out, leaving only the narrowest of gaps between that part of the house and the fence. At the other end of the yard was another high wooden fence. Access to the courtyard from the house was from the living room through a ranchslider or through a door leading out from the laundry.
[9]	Ms Hapeta was sitting on the ground just outside the ranchslider door. She saw the appellant walk through the living room holding the gun. He stood beside the ranchslider door and fired a shot in the direction of a neighbouring property. Ms Hapeta told him to put the gun away before he did something stupid, turned her back to him and carried on playing with the puppy. She was sitting cross-legged facing the fence. She suddenly felt a burning sensation in her back and fell backwards onto the ground. She could not move her legs and asked the appellant to straighten them, which he did. She asked him to ring an ambulance. He went inside the house. Ms Hapeta assumed he was ringing for an ambulance. Eventually he came outside and brought her a cellphone so she could explain where the ambulance should come. Before the ambulance arrived, the appellant followed the advice of the emergency services to lie her on her side and give her a pillow.
[10]	Ms Hapeta was taken to hospital. A bullet was found to have entered her back in the vicinity of her left shoulder. It lodged near her spine. Surgeons were unable to remove the bullet because of the risk that it would leave her a tetraplegic. As it is, at the time of the trial she remained seriously disabled, able to walk only with the aid of a walker.
[11]	At this point the narrative was taken up by Mr Glen Matkovich. He had known the appellant for about two years. He said that on the day of the shooting he was moving house. Between 4.00 and 5.00 p.m. he received a call on his cellphone from the appellant as he was transporting the last of his belongings to his new home. The appellant asked him to come to the house and pick him up. He drove to the address. The house is at the bottom of a right-of-way. He mistakenly drove down the driveway of the house next door – number 61A – and drove through a gap in the fence when he realised his mistake.
[12]	Mr Matkovich said the appellant came out and spoke to him through the open window of his car. The appellant told him he had "just shot Amanda and to go". Mr Matkovich left immediately. Later, when he parked his car, he found a sawn-off rifle on the back seat. The following day Mr Matkovich said he received a series of phone calls from different people, as a result of which he went to the Puhinui train station and left the gun in the boot of a car. A couple of days later he saw the appellant who asked him if the police could get "bullet residue" from his fingers and clothes. He said the police had swabbed him. Mr Matkovich told the appellant such tests could show up chemical residues.
[13]	The appellant gave evidence in his own defence. He denied all allegations of assaults on his wife. He said he did not bring a gun home following his release from prison. He denied using a gun at any time during the days following his release. He agreed that on the day of the shooting he and his wife had brought a puppy home. The appellant said his wife was doing the laundry when he decided to go to the shop to buy cigarettes. On the way he realised he didn’t have enough money. He returned to the house to find Ms Hapeta lying wounded and in pain on the concrete outside. He said he lifted her into a sitting position, lifted her clothing up and saw the wound. He put a pillow under her head and called the ambulance. He confirmed that she completed the 111 call.

[16]	The new evidence which Mr Kaye, for the appellant, sought to rely on was given by five witnesses:
	Nicholas Powell, a forensic scientist
	Sawar Rahimi, a friend of the appellant and his wife, and Greg Matkovich
	Roiya Rasulu, one of the two sisters who lived at the address
	Reginald and Talia Whitefield, a married couple who lived next door to the appellant and his wife

[17]	Mr Powell swore two affidavits and was cross-examined. His evidence was mainly concerned to establish the likely trajectory of the bullet that struck Ms Hapeta. He relied on the position of two blood spatter arrays (in lay terms, clusters of blood spots) found on the concrete of the rear yard at 61B Alfriston Road. Their appearance indicated that they were formed by blood dripping vertically from the wound in Ms Hapeta’s back. Mr Powell said they could therefore assist him to determine where Ms Hapeta was sitting at the time she was shot. For this purpose, he assumed that one of the blood spatters was formed when Ms Hapeta fell backwards from a sitting position after being shot, and the other occurred after she was moved.
[18]	Mr Powell then postulated two possible sitting positions – one facing the fence (as Ms Hapeta had said in evidence), the other facing away from the fence towards the ranchslider door. He suggested the former position might be doubted as it indicated (based on weather data he had assembled) that Ms Hapeta would have been sitting on damp concrete.
[19]	Mr Powell then sought to determine the likely trajectory of the bullet which struck Ms Hapeta based on the medical evidence and her sitting position as indicated by the blood spatters. If she had been sitting facing the ranchslider door, he said the bullet would have been fired from a point in line with the north-east corner of the back yard, that is, the opposite end to the laundry. If she had been facing the fence, he said the bullet would have been fired from a point in line with the laundry door. Mr Powell said that for Ms Hapeta to have been shot from inside the house through the ranchslider door, she would have had to have been facing in the approximate direction of the laundry door. He concluded that the shot was most unlikely to have been fired from inside the house through the ranchslider door.
[20]	The second topic addressed by Mr Powell related to firearm discharge residue particles found on the hand, sweatshirt and jeans of the appellant. At trial evidence was given that the residue found on the sweatshirt supported the proposition that the wearer handled the firearm or had been close to the discharge of a firearm and the residue found on the jeans strongly supported the same proposition.
[21]	Mr Powell agreed with this evidence. However, on the assumption that the appellant would say he had fired the gun the evening before the shooting, he expressed the opinion that the evidence lent only slight support to the proposition that the appellant discharged a firearm on the following day.
[22]	It is accepted that Mr Powell’s evidence could have been given at trial. He was available to give evidence if approached. There was no explanation for the failure to call him. The evidence is therefore not sufficiently fresh. We have, however, gone on to consider whether the interests of justice, nevertheless, warrant its admission.
[23]	Mr Powell’s opinion of the likely trajectory of the bullet which wounded Ms Hapeta is critically dependent on his assumption that the blood spatter arrays mark the position her body was in when she fell backwards after being shot. However, evidence given at trial does not support that assumption.
[24]	Ms Hapeta’s inner clothing was heavily bloodstained in the immediate vicinity of the entry wound. Her outer garment, a jersey, was not bloodstained at all. A forensic scientist with the ESR who gave evidence at the trial, Mr Gerhard Wevers, pointed out that this indicated that blood did not pass from the wound through Ms Hapeta’s clothing. The blood spatters are not therefore likely to have been produced when or soon after she fell. They are more likely to have occurred after she had been moved following treatment or for the purpose of receiving treatment.
[25]	We also have difficulty with Mr Powell’s hypothesis that, if Ms Hapeta was sitting facing the fence as she said she was, she is unlikely to have been shot from inside the house through the ranchslider doors. Mr Powell said if her evidence were accepted, it is most likely she would have been shot from the direction of the laundry. For this purpose he assumed that Ms Hapeta’s upper body was facing the fence when she was shot. But there is no necessary reason why that should be so. As Mr Powell accepted in cross-examination, she could have turned her upper body in either direction while sitting facing away from the house. He agreed that had she turned to her left with her left shoulder facing towards the house, a shot fired through the open ranchslider door would have inflicted the wound she suffered.
[26]	Mr Powell’s opinion of the likely trajectory of the bullet which wounded Ms Hapeta relies on assumptions which are not supported by the evidence. This part of his evidence would add nothing of value to the defence case.
[27]	Mr Powell’s evidence in relation to the chemical residues seeks to explain the presence of firearms discharge residue particles on the basis that they could have been left by a shot fired by the appellant the previous day. An immediate difficulty for the appellant is that this is contrary to his evidence at the trial; he said he did not have a gun in the house over the relevant period. It also relies for its force on an assumption that the appellant was wearing the same clothes on both days.
[28]	But even allowing for these difficulties, the evidence adds nothing of value to the defence case. The evidence of chemical residues given at the trial would continue to be consistent with and supportive of the prosecution case. Mr Powell’s evidence is not fresh and the interests of justice do not warrant its admission.

[29]	Sawar Rahini is an Afghan refugee who arrived in New Zealand in 1996. He deposes that he had been friends with the appellant and Ms Hapeta since about 2000. Through them he met Mr Matkovich. He was also friends with the two sisters, Roiya and Fareba Rasuli who lived at the house in Alfriston Road.
[30]	Mr Rahini said that while the appellant was in prison Mr Matkovich took him to Ms Hapeta’s address in Alfriston Road and he subsequently visited her there on two occasions when Mr Matkovich was present. Mr Rahini also swore that on the evening of the shooting the appellant and Mr Matkovich together visited the café where he worked. He said the appellant was upset but Mr Matkovich was not.
[31]	Mr Rahini’s evidence is relied on to undermine the credibility of Mr Matkovich. Mr Kaye submitted that it contradicted Mr Matkovich’s evidence that he did not know where the appellant and Ms Hapeta lived. The passage of his evidence which addresses this issue needs to be quoted in full. After speaking of the call received from the appellant on his mobile phone, the transcript records the following questions and answers:

[32]	A careful reading of this evidence does not convey that Mr Matkovich said he did not know where the appellant and Ms Hapeta lived. He was not asked that question. He was asked whether he knew the address the appellant was at, not the address at which the appellant lived. He was not questioned further in evidence-in-chief or cross-examination. In our view, the evidence of Mr Rahini does not call Mr Matkovich’s credibility into question.
[33]	Furthermore, the evidence is not fresh. There is no suggestion that Mr Rahini could not have been called to give evidence at the trial. Moreover, there is reason to doubt his credibility. A police officer, Detective Sergeant Wayne Lendrum, has deposed that he interviewed Mr Rahini after the shooting incident. Mr Rahini said that the day after the incident, the appellant told him that he had shot his wife by accident while he was cleaning his gun. He also said that Roiya Rasulu told him of the shot that passed into her bedroom. Detective Sergeant Lendrum had kept the interview confidential as he had treated Mr Rahini as an informer. He felt freed of the constraints that imposed by the affidavit of Mr Rahini.
[34]	Mr Rahini’s evidence is therefore neither fresh nor credible. There is nothing to undermine Mr Matkovich’s evidence that he wittingly or unwittingly helped dispose of the gun. His evidence is corroborated in one critical respect by telephone records which show that the appellant phoned him on his mobile phone a short time before the ambulance was called on the day of the shooting. The appellant said in answer to this that he could not recall making such a call.
[35]	The application to admit Mr Rahini’s evidence must also fail.

[38]	The final two witnesses whose evidence the defence seeks to have admitted are a married couple who lived next door at 61A Alfriston Road. Mrs Whitfield deposes that between 1.00 and 2.00 p.m. on 12 August 2003 she saw a white car driven down their driveway, reverse when it got to the end and then drive through a gap in the boundary fence onto the property next door, number 61B. She did not see the car leave but said her view was blocked by the dividing fence. Mr Whitfield told the police of what his wife saw but no steps were taken to interview her.
[39]	The car Mr Whitfield saw appears to have driven the same route Mr Matkovich said he took but there is nothing to indicate that it was his car she saw. She timed her sighting at between 1.00 and 2.00 p.m. and was not at home when Mr Matkovich said he drove to the scene some three hours later.
[40]	There is nothing to show that Mr and Mrs Whitfield could not have been called by the defence at trial but the real difficulty with their evidence, as with the other witnesses, is that it would do nothing to assist the appellant.

[43]	After reviewing the facts which, as earlier noted, disclosed serious and escalating violence over a three-year period, Harrison J discussed the appropriate starting point for the most serious offence, that is, wounding with intent to cause grievous bodily harm. He referred to the aggravating features as the use of a weapon; the premeditation involved; the vulnerable position Ms Hapeta was in when shot; and, the Judge said, perhaps most importantly, the effect of the offending on Ms Hapeta. In relation to this last aggravating feature he referred to the appellant having enslaved the victim emotionally and physically until she could no longer resist and to the grievous nature of the injury inflicted by the last near fatal assault.
[44]	The Judge noted that the Crown had submitted the starting point should be between 10 and 12 years; the defence had argued for between 8 and 10 years. The Judge decided that a starting point of 10 years imprisonment would be appropriate taking into account that the Crown was not seeking cumulative sentences and the sentence needed to reflect the totality of the offending. He referred also to the then leading authority of R v Hereora [1986] 2 NZLR 164. He said the appellant’s offending fell into the worst of the categories identified in Hereora in that a weapon had been used to inflict serious injury and other grave aggravating features were present.
[45]	The Judge identified two additional aggravating features arising from the appellant’s personal circumstances. Much of the offending against Ms Hapeta had been committed while the appellant was on parole. And he had accumulated 16 convictions since arriving in New Zealand in 1999, including a sentence of 18 months imprisonment for injuring with intent to injure. Harrison J said that ordinarily those factors would justify an increase of at least one year in the starting point. He decided against increasing the sentence because it would delay the appellant’s departure from the country. There were no mitigating circumstances.
[46]	Harrison J expressed satisfaction that a minimum term of imprisonment was justified by the circumstances of the final offence and that a term of more than one-third was necessary to achieve the statutory objectives. The defence accepted that the appellant qualified for a minimum term of imprisonment but argued that as the appellant would be deported when his term of imprisonment was served, there would be no practical advantage in requiring him to serve a minimum sentence. Notwithstanding the practical appeal of the submission, the Judge saw himself as bound to adopt a principled approach and imposed a minimum term of six years imprisonment on the charge of wounding with intent to cause grievous bodily harm.

[49]	It is inapposite to compare the starting point in this case with those adopted in the cases relied on by Mr Kaye. Each involved a single incident. The starting point in this case was expressly and necessarily chosen to reflect repeated acts of violence over a long period, of which the assault with intent to cause grievous bodily harm was the last and most serious.
[50]	Whether measured against the sentences recommended in Hereora or the guidelines laid down in R v Taueki [2005] 3 NZLR 372 which has superseded it, the starting point adopted by the Judge was well within the available range. There were unusually grave aggravating features present which warranted the starting point of up to 12 years proposed in Hereora for such cases. By reference to Taueki, those features brought the offending within Band 3 which provides for a sentence of between 9 and 14 years when three or more aggravating factors are present and the combination is particularly grave. We are satisfied the starting point was not excessive. Indeed, as Harrison J himself acknowledged, a higher starting point could have been justified when regard is had to aggravating factors personal to the appellant.
[51]	It may be that a prison sentence will be somewhat harder for the appellant than for a prisoner with a supportive family in New Zealand. However, we are disinclined to place any great weight on this factor. As Mr Lawry submitted, the appellant has lived in English speaking countries for much of the last twelve years. He married a New Zealander and has had a reasonable opportunity to assimilate.
[52]	We are also satisfied that the minimum period of imprisonment was an appropriate application of s 86. The lead offence was a cold-blooded and callous act which has destroyed the life of the victim. We do not see the minimum term the appellant has been ordered to serve as by any means excessive.