The Queen v Hita [2006] NZCA 326 (29 November 2006)

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The Queen v Hita [2006] NZCA 326 (29 November 2006)

Last Updated: 6 December 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA505/05

THE QUEEN



v



TE MAURI PENE HITA

Hearing: 26 October 2006

Court: Arnold, Baragwanath and Wild JJ

Counsel: J A Young for Appellant
M A Corlett for Crown

Judgment: 29 November 2006 at 11 am

JUDGMENT OF THE COURT

A The appeal against conviction, having been abandoned, is formally dismissed.

B Leave is granted to appeal against sentence, but the appeal is dismissed.

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1]	This is an appeal against sentences imposed by Judge Field in the District Court at Manukau on 18 November 2005. The sentences were imposed following convictions entered at the end of a jury trial.
[2]	The appellant advances six grounds to support the submission that the sentences imposed are manifestly excessive. Those sentences are:

Charge	Section in the Crimes Act 1961	Maximum penalty	Sentence imposed
Wounding with intent to cause grievous bodily harm (count 1)	188(1)	14 years	61/2 years
Injuring with intent to injure (count 3)	189(2)	5 years	21/2 years*
Aggravated robbery (counts 4 and 5)	235(b)	14 years	31/2 years*

* Concurrent with the lead sentence i.e. effective total sentence six and a half years imprisonment.

[3]	The Notice of Appeal dated 27 February 2006 was filed out of time. It sought leave to appeal against both conviction and sentence. The appeal against conviction was abandoned. The Crown abides this Court’s decision as to whether
[4]	leave is granted for the sentence appeal. We grant leave for the sentence appeal.
[5]	Ms Young sought leave to file additional evidence in support of the sentence appeal. This comprised certificates and academic transcripts evidencing achievements by the appellant since his imprisonment, and a reference from a previous employer. There was no objection by the Crown to the Court receiving this material. Pursuant to our powers under s 389 Crimes Act 1961, we receive this material as evidence in support of the sentence appeal.

The offending

[6]	We adopt the description of the facts given by Judge Field when sentencing the appellant and one of the co-offenders, Ms Sharhron Mahanga:

[3] .... The two victims in this matter were two tourists. They had stopped at The Falls area with the intention of sleeping there overnight. Their vehicle was approached by you Ms Mahanga and at about the same time Mr Hita. The approach was apparently followed by a request for a light. When the first victim got out of the car he saw you Mr Hita approaching.
[4] There was a brief conversation about what you were doing and then a bottle was swung at his head. This particular victim ducked. Matters then involved a wrestling with you Mr Hita and others then became involved in the attack to a greater or lesser degree. In the course of this the victim was struck with a bottle. He received a serious laceration and other injuries. Ms Mahanga you, of course, also participated in the attack and the violence in respect of each of the two victims.
[5] I have read the victim impact statements and I understand you have each been made aware of the effect that this attack has had on each of them. Mr McGinley suffered bruising to his neck, back and face and a number of cuts and gashes. Mr Dijkstra was struck with the bottle and he had cuts which required stitches. A large piece of his toe was severed in attempting to make his escape, as I understand it, and he suffered other injuries flowing from that. Each of them suffered, of course, financial loss, emotional distress and trauma made worse no doubt by the fact that they were overseas and away from immediate family and support. They need to know that I have read and taken into account the effect that this has had on each of them.

The offender

[7]	Judge Field said this of the appellant:

[10] I now turn to your personal circumstances. Each of you are young. Mr Hita you are 23 now, 22 then. Ms Mahanga you were 17 at the time, now 18. Neither of you had any previous convictions. Neither of you came to notice before this occasion, although Ms Mahanga has had difficulties following it. Each of you have a wealth of family and community support available to you. Of course, neither of you have been sentenced to a term of imprisonment before. That is also something the Court can take into account. The Court must also impose the least restrictive sentence that it is able to do and should not impose a crushing sentence on a young offender.
[11] These are, in my view, matters that the Court can regard as mitigating in relation to you the offenders. As I say I have listened carefully to Reverend Cherrington’s comments concerning you Mr Hita and I have also read the written material that has been presented to me. You have led an exemplary life till now. You have been well thought of by your employer. You do not appear to have had any problems with alcohol or drugs which might explain this offending. You have been an active member of the church. You have used your spare time constructively and I think this could be said to be out of character.

The Judge’s sentencing remarks

[8]

Rather than summarising these, we will refer to them as necessary in dealing with the six grounds advanced in support of the sentence appeal. We turn now to these, but vary the order slightly from that adopted by the appellant’s counsel, and will deal together with three of the grounds which are inseparable.

Appellant party not principal

[9]	The appellant’s submission here is that "the Court may accept that the principal offender was Sharhron Mahanga" and "the Court can glean from sentencing notes that the Court had in mind that JP Hita by his age and experience was the more culpable". Mr John Peara Hita was the third offender convicted of these offences. Because of the unavailability of a pre-sentence report, the Judge adjourned sentencing him to 19 January 2006.
[10]	From the Judge’s summing up it is clear that the Crown closed to the jury on the basis that this was a joint enterprise. The appellant’s conviction on count 3 (injuring the victim Mr McGinley) indicates the jury’s acceptance of this, because the appellant did not himself assault Mr McGinley.
[11]	The Judge’s approach emerges from [4] of his sentencing remarks, set out in [5] above, in particular his remark that:

... others then became involved in the attack to a greater or lesser extent ...

[12]

Clearly the roles each accused played were different, but we accept the Crown’s submission that each played a vital part in the joint enterprise to lure the two victims out of their car, assault and rob them. In that circumstance, we accept the Crown’s submission that a principal/party analysis is inappropriate, or at least unhelpful.

[13]

Even if that were not the case, we do not accept the appellant’s submission that his role was as a party to principal offending by Ms Mahanga. The Judge specifically did not find that Ms Mahanga was the principal offender, who threw the bottle which struck the victim Mr Dykstra on the head causing a deep laceration. As the Crown points out, in [4] of his sentencing remarks the Judge specifically did not attribute blame for this:

In the course of this the victim was struck with a bottle ...

[14]	On the other hand, the appellant was identified by Mr Dykstra as the person who threw, at Mr Dykstra’s head, a bottle which fortunately missed when Mr Dykstra ducked. He also deposed that the bottle thrown by Ms Mahanga smashed at his feet.
[15]	The appellant’s role in the joint enterprise involved these aspects:
	He armed himself with a bottle.
	He threw the bottle at Mr Dykstra’s head.
	He then attempted to overpower Mr Dykstra on the ground.
	Following this, he chased Mr Dykstra and pulled him back off the fence he was climbing over to escape. This caused a wound to Mr Dykstra’s hand which required five stitches.
[16]	Given that level of involvement, we are not persuaded that the appellant was only a party to principal offending by one or both of his co-accused. The first ground of appeal is not made out.

Starting point too high

[17]	In sentencing the appellant, Judge Field recorded that he had already expressed to counsel his view that the appellant’s offending fell within band 2 described by this Court in its sentencing guideline judgment R v Taueki [2005] 3 NZLR 372. Band 2 applies to GBH offending featuring two or three of the aggravating features listed in Taueki at [31]. The sentencing starting point range for band 2 is five to ten years imprisonment.
[18]	The appellant submits his offending falls within band 1, though at the higher end. Offending involving violence at the lower end of the spectrum of GBH offences comes within band 1, with a sentencing starting point range of three to six years. If the Court accepts this, the appellant submits the appropriate starting point for his offending is five years. Alternatively, if it is band 2 offending, then a starting point of six and a half years is appropriate.
[19]	The Crown submits that seven of the aggravating features listed in Taueki were present here. Issue could be taken with one or perhaps two of those, but we accept that the appellant’s offending had at least five of the Taueki aggravating features. Even accepting Ms Young’s concession for the appellant that four of the features were present, that places the appellant’s offending squarely in band 2, which requires only two or three of the aggravating features. There can be no doubt that the Judge correctly sentenced the appellant on the basis that his offending was within Taueki band 2.
[20]	We agree with Mr Corlett’s submission for the Crown that the appellant’s offending can be likened to that described in the following example of band 2 offending given in [39] in Taueki:

(a) Concerted street attack: For a street attack in which a victim is set upon by a group of attackers in an attack involving the use of weapons found at the scene, a starting point at the lower end of band two would be indicated. If the attack involves blows to the head or other serious injuries are caused, or there is premeditation then a starting point higher in the band two spectrum would be required.

[21]	Of the factors identified in that example, the use of weapons, blows to the victims’ heads and some degree of premeditation are all present here, requiring a sentencing start point higher in the band 2 range. As to premeditation, although this may not have predated the offenders’ arrival in the parking area at the Whangarei Falls, this was not an impulsive attack.
[22]	Additionally, the Crown pointed to the aggravating features that two victims were attacked, that the attack facilitated a serious robbery and that gratuitous violence continued after the victims were pursued and one caught as they attempted to escape.
[23]	The Judge’s starting point of seven and a half years imprisonment on the wounding charge was stern. It doubtless reflected the sentencing purposes of denouncing the offenders’ conduct and deterring them and others like-minded from committing similar offences. But we are unable to regard the starting point as manifestly excessive.
[24]	The second ground of appeal also fails.

Sentencing Judge’s remarks about a heavier sentence for Mr JP Hita; and

Excessive weight given to the personal circumstances of Mr JP Hita; and

Parity should not apply

[25]	These three grounds are inextricably bound up, and we deal with them together. Their common thrust is that the Judge erred in not differentiating between the appellant and the two other offenders, and in not imposing on the appellant a lesser sentence to reflect his personal circumstances and lower level of involvement and thus culpability.
[26]	We have already held against the submission that the Judge erred in finding the three prisoners equally culpable. In dealing with these three grounds we therefore focus on the personal circumstances of the three offenders, as ultimately did Ms Young’s submissions.
[27]	In dealing with the first ground, we assume (although there is no record of it) that the Judge indicated, when sentencing the appellant and Ms Mahanga, that he intended imposing a heavier sentence on Mr JP Hita. It may be that the Judge gave that indication, aware that Mr JP Hita would be unable to press the mitigating factors of youth and a clean criminal record. Those were the two main factors that led him to discount the sentences he imposed on the appellant and Ms Mahanga. Mr JP Hita was 35 at the time of the offending, the appellant 22 and Ms Mahanga 17. Mr JP Hita had over 40 previous convictions dating back to 1989, including for assaulting a female in 2000 and again in 2002.
[28]	It seems that the Judge gave that sentencing indication unaware of other personal mitigating factors applying to Mr JP Hita. After all, he adjourned sentencing Mr JP Hita because a pre-sentence report for him was not available.
[29]	We can do no better than set out Judge Field’s sentencing remarks when he sentenced Mr JP Hita on 19 January this year. We do this for two reasons. First, the remarks expressly address parity. Second, they make it clear that while Mr JP Hita could not advance youth and the lack of any relevant previous convictions, there were different reasons for allowing him the same discount in sentence.
[30]	This is what the Judge said:

[6] I am of course concerned at the need for parity of sentencing. In other words similar offending will attract a similar sentence. I gave credit to your two co-offenders for their age, they were comparatively young and for their lack of previous convictions. You of course are aged 35 years and you do have relevant previous convictions, although it must be said some years ago. They seem to have been assaults on a particular female. The most serious of those apparently being in 2000. So you cannot come to the Court as a first offender. As against that you do have particular family circumstances arising from family illnesses and the need to care for two young children, whom you have previously had the fulltime care of. You have indicated a degree of remorse for what has occurred, although you maintain, as you are entitled to do, your not guilty stance in the matter. You have had, as I say, the sole care of two young children up until this occurred and their present caregiver herself has become seriously ill. There has also been a considerable delay in obtaining the pre-sentence report and you have had the additional stress of waiting while that report has been prepared to learn the sentence today. Taking these matters into account I come to the view that it would not be proper to differentiate between you and the two younger offenders.
[7] As I say you have aggravating features such as perhaps your age, if that could be said to be aggravating and your previous convictions, but I am not prepared to hold that simply by virtue of your age alone that you were in a position of control, or that you are the instigator of this necessarily. For that reason, as I say, I am prepared to allow you the same discount as I allowed for the other co-offenders, but for different reasons.

[31]

From the same sentencing starting points, the Judge then imposed on Mr JP Hita the same sentences that he had earlier imposed on the appellant and Ms Mahanga. Certainly in terms of the sentencing discount he gave Mr JP Hita, the sentences he imposed on him could be viewed as merciful. But that was the sentencing Judge’s prerogative. We are satisfied that, looking at the sentences Judge Field imposed on the three offenders, a reasonably minded independent observer, aware of the circumstances of their offending and of the personal circumstances of each offender, would not think that something had gone wrong with the administration of justice. That, of course, is the test where disparity is being advanced: R v Lawson [1982] 2 NZLR 219 at 223 (CA).

[32]

It was on the basis that too short a sentence had been imposed on Mr JP Hita, that Ms Young ultimately founded her submission that the appellant’s lower level of culpability, youth and clean criminal record demanded a reduction in the sentences that the Judge had imposed on him. That submission is not a sound one. As this Court said in R v Rameka [1973] 2 NZLR 592 at 593:

The fact that one of two prisoners jointly indicted has received too short a sentence is not a ground for necessarily interfering with a longer sentence passed on the other. What has to be shown is that the appellant has received too long a sentence.

[33]	We reiterate that we cannot regard the sentences imposed on the appellant as too long.
[34]	These further three grounds of appeal all fail.

Section 8(g) Sentencing Act 2002

[35]

We accept that Judge Field did not refer, in sentencing the appellant, to the requirement that he impose the least restrictive sentences appropriate in the circumstances. Nor did he refer to any other of the sentencing principles set out in s 8 of the Sentencing Act 2002 or to the purposes of sentencing set out in s 7. Sentencing Judges do not need to do that. What they do need to do is give effect to those purposes and apply those principles.

[36]

We agree with the Crown that this last ground, which was not supported by any additional submissions, either written or oral, adds nothing to the other grounds and is something of a make weight.

Result

[37]	Having been abandoned, the appellant’s appeal against conviction is formally dismissed.
[38]	The appellant is granted leave to appeal out of time against sentence, but that appeal is also dismissed.

Solicitors:
Crown Law Office, Wellington