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The Queen v Kara [2007] NZCA 189 (11 May 2007)

Last Updated: 22 May 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA416/06
[2007] NZCA 189

THE QUEEN

v

RAYMOND FRASER KARA

Hearing: 17 April 2007

Court: William Young P, Potter and Fogarty JJ

Counsel: K B F Hastie and M J Inwood for Crown
T W Fournier for Respondent

Judgment: 11 May 2007 at 2pm

JUDGMENT OF THE COURT

A The Solicitor-General is granted leave to appeal.

B The appeal is allowed. The sentence of 31/2 years imprisonment is quashed and a sentence of five years imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1] The Solicitor-General seeks leave to appeal under s 383(2) Crimes Act 1961 against the sentence of 31/2 years imprisonment imposed on the respondent, Raymond Fraser Kara, in the High Court at Christchurch on 18 October 2006 on one count of causing grievous bodily harm with intent to cause grievous bodily harm.
[2] The Solicitor-General says the Crown submitted the Judge erred in two ways:

a) Failing to apply correctly the judgment of this Court in R v Taueki [2005] 3 NZLR 372 to assess the appropriate starting point for the "principal offender" and thus incorrectly assessing the appropriate starting point for the respondent as six years; and
b) Providing an excessive discount for mitigating factors in light of the starting point adopted.

[3] The Crown submitted the minimum sentence that could have been imposed was one of five years imprisonment, reached from a starting point of seven years and allowing a generous discount of two years (or just under 30%).
[4] For the respondent it was submitted that the Judge adopted a principled approach to sentencing, conscientiously considered the relevant factors and justified his findings. The sentence imposed was available in the circumstances.

Factual background

[5] As the result of a brain injury inflicted on Mr Trevor Clague on 15 October 2005, he died in hospital the following day.
[6] On the evening of 14 October 2005, the respondent was out cruising the streets of Christchurch with a group of friends. At approximately 11:00 pm, at a Mobil service station on the corner of Columbo and Huxley Streets, the respondent became involved in an altercation with an acquaintance and grabbed a small wooden baseball bat from the boot of the car in which he was travelling. He advanced on the rival group swinging the bat. He threatened to hurt his acquaintance by hitting him with the bat. Others of his group intervened allowing the acquaintance to leave the premises. The respondent and his friends resumed cruising Columbo Street. The respondent kept the baseball bat with him in the car. He said in a video interview with the police that he did so in case he saw the initial group again.
[7] At approximately 2:00 am on 15 October 2005, the group came across the deceased in the same Mobil service station forecourt. The deceased was clearly intoxicated. The group abused him from the car and then continued up Columbo Street and did a U-turn back towards the deceased. They saw him stumble and fall to the ground, injuring himself.
[8] The respondent and Mr Piilua got out of the car. The respondent had the baseball bat with him. Mr Piilua took the bat from him and the pair began walking towards the deceased who was now standing, but had blood running down his face from injuries caused by his fall to the ground. The respondent said he accompanied Mr Piilua to back him up although he knew the deceased was in no position to fight them. He knew that Mr Piilua intended to hit the deceased with the baseball bat because he knew that Mr Piilua would do almost anything when he was drunk.
[9] When the pair reached the deceased they stopped in front of him blocking the footpath. The respondent put up his clenched fists ready to punch the deceased. There was a brief verbal exchange. Mr Piilua then swung the baseball bat, striking the deceased in the left side of his face. The blow caused the deceased to fall to the ground unconscious. The respondent and Mr Piilua then ran back to the car and left the scene with their group of friends. Witnesses rushed to help the deceased but he died the next day.

Trial process

[10] Mr Piilua and the respondent were charged with the murder of Mr Clague, Mr Piilua as the principal and the respondent as a party. At the close of the Crown case, an application for a s 347 discharge made on behalf of the respondent was partially successful. The trial Judge, Panckhurst J, agreed there was insufficient evidence for the count of murder to proceed to verdict in relation to the respondent.
[11] From the handout provided to the jury, it is apparent the matter was left on the basis that if the jury found Mr Piilua guilty of murder or manslaughter, the respondent might be guilty of manslaughter if the Crown proved beyond reasonable doubt that:

a) The two accused formed an agreement to assault the deceased;
b) The respondent participated in the prosecution of that agreement by intentionally assisting in the assault; and
c) The killing of the deceased was known to the respondent, at the time, to be a probable (likely) consequence of his involvement in the agreement to assault.

[12] Mr Piilua was found guilty of murder. He was subsequently sentenced to life imprisonment with a minimum non-parole period of 12 years.
[13] The jury were unable to agree on the charge of manslaughter in relation to the respondent.
[14] The respondent subsequently pleaded guilty on arraignment on an amended indictment to a count of causing grievous bodily harm with intent to cause grievous bodily harm under s 188(1) of the Crimes Act.

Sentencing

[15] Panckhurst J referred to the sentence for murder imposed on Mr Piilua. He noted the jury were unable to agree whether the respondent was guilty of manslaughter and that, in the light of that disagreement, the Crown reduced the charge to a charge of causing grievous bodily harm with intent to cause grievous bodily harm, to which the respondent entered a guilty plea.
[16] The Judge recognised that in sentencing he was bound by the decision of this Court in Taueki. He recorded that counsel disagreed in respect of both the appropriate approach to sentencing and the appropriate end result.
[17] The Judge observed that Taueki is concerned with principal offenders, whereas the respondent was a secondary offender. The Judge said (at [7]) that he was in:

... a somewhat artificial situation of having to deal with you on the basis of the jury’s disagreement and what that conveys. I take from it that they were not satisfied you appreciated a blow to the head would be struck. In other words, you didn’t see as a probable consequence of joining in this attack that a blow to the head with a fatal outcome was likely. On the other hand, your plea means that you did understand that a blow could well be struck, of a serious kind, such as to cause grievous bodily harm to the victim.

[18] The Judge considered the aggravating features identified in Taueki which were present in this case:
 Serious injury.
 A weapon was used.
 Two people were involved in the attack.
 The deceased was vulnerable on account of his consumption of alcohol.
[19] The Judge said that in assessing the seriousness of the case and removing from consideration that the respondent did not anticipate a blow to the head and death, he considered this to be a category 2 case rather than one in the most serious category of Taueki. He said he reached that conclusion because:

... it was, I think, pretty much a spontaneous attack, it was brief, it was a single blow struck and one, as I have said, which you didn’t anticipate, at least as to its ultimate seriousness. (at [8])

[20] He considered that for a principal offender an appropriate starting point would be 7 to 8 years but in relation to the respondent, who was a secondary offender:

... supporting Mr Piilua as you might put it being "staunch" (at [9])

- he considered an appropriate starting point to be six years imprisonment.

[21] He then turned to mitigating factors, noting that both counsel agreed there were two matters of mitigation to be brought to account. Firstly, the age of the respondent (16 at the time of the offending), and the entry of a prompt guilty plea once the charge had been adjusted to one of causing grievous bodily harm with intent to cause grievous bodily harm.
[22] The Judge observed that the interests of the respondent could not dominate the sentencing process and referred to the opportunities and the past opportunities and warnings the respondent would have received in relation to previous offending. He concluded that an appropriate reduction for the mitigating factors was 21/2 years with a resultant sentence of 31/2 years imprisonment. He declined to impose a minimum period of imprisonment given the secondary role of the respondent in the offending.

Discussion and conclusions

[23] The Judge faced a difficult sentencing exercise, as he recognised when he referred to the "somewhat artificial situation" of having to deal with the respondent on the basis of the jury’s disagreement in respect of manslaughter and the respondent’s subsequent guilty plea to the lesser charge. While the Judge took from the jury’s verdict that they were not satisfied the respondent foresaw that a blow to the head of the deceased would be struck causing death, he nevertheless pleaded guilty to the intentional infliction of grievous bodily harm. So it goes beyond foresight.
[24] As was stated by this Court in Taueki at [42], where there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed. The Judge endeavoured to undertake this exercise by first assessing the degree of culpability of a principal offender in terms of Taueki and then adjusting downwards the starting point so reached, to take account of the fact that the respondent was not the principal but the secondary party in this offending.
[25] We think the artificiality inherent in that approach led to a distorted and wrong outcome. The aggravating features of the offending as identified in Taueki needed to be assessed from the perspective of the respondent, and the combination of those factors then needed to be considered in assessing the appropriate sentencing band and the starting point within that band.
[26] The aggravating features of the offending in which the respondent was involved included:

a) Extreme violence which was quite unprovoked and gratuitous.
b) Premeditation: while the Judge described the attack as "pretty much a spontaneous attack", there was clearly some degree of premeditation in that the group of which the respondent was part, deliberately made a U turn in their car after sighting the deceased, and stopped beside him in order to deliberately confront him. The attack in this case could not be classified as "impulsive or a reaction to an unexpected event", which this Court in Taueki recognised at [31](b) as generally being less culpable than premeditated violence.
c) There was serious, indeed fatal, injury. However, on the basis of the jury’s verdict, it has to be taken into account that the respondent did not anticipate a blow to the head and consequent death.
d) There was use of a weapon, a baseball bat. At [31](d) in Taueki it was recorded that baseball bats and similar weapons, particularly when aimed at the head, can cause significant and permanent injury.
e) There were two people involved in the attack on a single victim. By his presence in support of Mr Piilua and his stance in "staunching up" to the deceased, the respondent added to the culpability of this offending.
f) The victim was vulnerable because of his intoxicated state, which was apparent to the respondent and his co-offender.

[27] The aggravating factors identified above are six in number, which must be considered in combination.
[28] At [26] of the judgment in Taueki, this Court stated:

... It must be recognised that any GBH offence involves very serious offending. This is reflected in the 14-year maximum term. ... The statistics presented by the Crown reflect a problem of serious and often mindless violence which is a matter of widespread and continuing concern within the community.

[29] The incident in which the respondent was involved was an incident of serious and mindless violence with the gravest possible outcome. The number of aggravating factors identified above, in combination place this offending clearly within band 3 of Taueki which was identified by this Court as encompassing serious offending which has three or more of the aggravating features referred to at [31] of the judgment. Offending within band 3 will attract a starting point between 9 and 14 years.
[30] However, taking into account the respondent’s role as a secondary offender and that the respondent did not anticipate that a blow or blows to the head would be struck, nor the likelihood of the ultimate fatal outcome, the offending could appropriately be considered at the higher end in the band 2 spectrum. Offending which falls within band 2 will attract a starting point between 5 and 10 years. We consider the respondent’s offending to be on the cusp between band 2 and band 3 and would require a starting point of seven to eight years.
[31] It was common ground that the youth of the respondent and his early guilty plea were mitigating factors. The Judge allowed a discount for the mitigating factors of 21/2 years (approximately 35%). However, the respondent’s youth has to be viewed against his history of offending which dates back to July 2004 and includes numerous convictions for burglary and a conviction for aggravated robbery in May 2005.
[32] The Judge did not correctly account for the aggravating features of the offending in this case in terms of the guideline judgment in Taueki, so that the starting point of six years adopted was too low and resulted in a sentence which was wrong in principle and manifestly inadequate.
[33] Upon a successful appeal by the Solicitor-General, the sentence is to be adjusted no more than the minimum necessary to remove the element of manifest inadequacy. On this basis we take a starting point of seven years. We consider an appropriate reduction for mitigating circumstances to be two years (approximately 30%), resulting in a sentence of five years imprisonment.

Result

[34] Leave to appeal is granted. The sentence of 31/2 years imprisonment is quashed. A sentence of five years imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington

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[1]	The Solicitor-General seeks leave to appeal under s 383(2) Crimes Act 1961 against the sentence of 31/2 years imprisonment imposed on the respondent, Raymond Fraser Kara, in the High Court at Christchurch on 18 October 2006 on one count of causing grievous bodily harm with intent to cause grievous bodily harm.
[2]	The Solicitor-General says the Crown submitted the Judge erred in two ways:

[3]	The Crown submitted the minimum sentence that could have been imposed was one of five years imprisonment, reached from a starting point of seven years and allowing a generous discount of two years (or just under 30%).
[4]	For the respondent it was submitted that the Judge adopted a principled approach to sentencing, conscientiously considered the relevant factors and justified his findings. The sentence imposed was available in the circumstances.

[5]	As the result of a brain injury inflicted on Mr Trevor Clague on 15 October 2005, he died in hospital the following day.
[6]	On the evening of 14 October 2005, the respondent was out cruising the streets of Christchurch with a group of friends. At approximately 11:00 pm, at a Mobil service station on the corner of Columbo and Huxley Streets, the respondent became involved in an altercation with an acquaintance and grabbed a small wooden baseball bat from the boot of the car in which he was travelling. He advanced on the rival group swinging the bat. He threatened to hurt his acquaintance by hitting him with the bat. Others of his group intervened allowing the acquaintance to leave the premises. The respondent and his friends resumed cruising Columbo Street. The respondent kept the baseball bat with him in the car. He said in a video interview with the police that he did so in case he saw the initial group again.
[7]	At approximately 2:00 am on 15 October 2005, the group came across the deceased in the same Mobil service station forecourt. The deceased was clearly intoxicated. The group abused him from the car and then continued up Columbo Street and did a U-turn back towards the deceased. They saw him stumble and fall to the ground, injuring himself.
[8]	The respondent and Mr Piilua got out of the car. The respondent had the baseball bat with him. Mr Piilua took the bat from him and the pair began walking towards the deceased who was now standing, but had blood running down his face from injuries caused by his fall to the ground. The respondent said he accompanied Mr Piilua to back him up although he knew the deceased was in no position to fight them. He knew that Mr Piilua intended to hit the deceased with the baseball bat because he knew that Mr Piilua would do almost anything when he was drunk.
[9]	When the pair reached the deceased they stopped in front of him blocking the footpath. The respondent put up his clenched fists ready to punch the deceased. There was a brief verbal exchange. Mr Piilua then swung the baseball bat, striking the deceased in the left side of his face. The blow caused the deceased to fall to the ground unconscious. The respondent and Mr Piilua then ran back to the car and left the scene with their group of friends. Witnesses rushed to help the deceased but he died the next day.

[12]	Mr Piilua was found guilty of murder. He was subsequently sentenced to life imprisonment with a minimum non-parole period of 12 years.
[13]	The jury were unable to agree on the charge of manslaughter in relation to the respondent.
[14]	The respondent subsequently pleaded guilty on arraignment on an amended indictment to a count of causing grievous bodily harm with intent to cause grievous bodily harm under s 188(1) of the Crimes Act.

[15]	Panckhurst J referred to the sentence for murder imposed on Mr Piilua. He noted the jury were unable to agree whether the respondent was guilty of manslaughter and that, in the light of that disagreement, the Crown reduced the charge to a charge of causing grievous bodily harm with intent to cause grievous bodily harm, to which the respondent entered a guilty plea.
[16]	The Judge recognised that in sentencing he was bound by the decision of this Court in Taueki. He recorded that counsel disagreed in respect of both the appropriate approach to sentencing and the appropriate end result.
[17]	The Judge observed that Taueki is concerned with principal offenders, whereas the respondent was a secondary offender. The Judge said (at [7]) that he was in:

[18]	The Judge considered the aggravating features identified in Taueki which were present in this case:
	Serious injury.
	A weapon was used.
	Two people were involved in the attack.
	The deceased was vulnerable on account of his consumption of alcohol.
[19]	The Judge said that in assessing the seriousness of the case and removing from consideration that the respondent did not anticipate a blow to the head and death, he considered this to be a category 2 case rather than one in the most serious category of Taueki. He said he reached that conclusion because:

[23]	The Judge faced a difficult sentencing exercise, as he recognised when he referred to the "somewhat artificial situation" of having to deal with the respondent on the basis of the jury’s disagreement in respect of manslaughter and the respondent’s subsequent guilty plea to the lesser charge. While the Judge took from the jury’s verdict that they were not satisfied the respondent foresaw that a blow to the head of the deceased would be struck causing death, he nevertheless pleaded guilty to the intentional infliction of grievous bodily harm. So it goes beyond foresight.
[24]	As was stated by this Court in Taueki at [42], where there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed. The Judge endeavoured to undertake this exercise by first assessing the degree of culpability of a principal offender in terms of Taueki and then adjusting downwards the starting point so reached, to take account of the fact that the respondent was not the principal but the secondary party in this offending.
[25]	We think the artificiality inherent in that approach led to a distorted and wrong outcome. The aggravating features of the offending as identified in Taueki needed to be assessed from the perspective of the respondent, and the combination of those factors then needed to be considered in assessing the appropriate sentencing band and the starting point within that band.
[26]	The aggravating features of the offending in which the respondent was involved included:

[27]	The aggravating factors identified above are six in number, which must be considered in combination.
[28]	At [26] of the judgment in Taueki, this Court stated:

[29]	The incident in which the respondent was involved was an incident of serious and mindless violence with the gravest possible outcome. The number of aggravating factors identified above, in combination place this offending clearly within band 3 of Taueki which was identified by this Court as encompassing serious offending which has three or more of the aggravating features referred to at [31] of the judgment. Offending within band 3 will attract a starting point between 9 and 14 years.
[30]	However, taking into account the respondent’s role as a secondary offender and that the respondent did not anticipate that a blow or blows to the head would be struck, nor the likelihood of the ultimate fatal outcome, the offending could appropriately be considered at the higher end in the band 2 spectrum. Offending which falls within band 2 will attract a starting point between 5 and 10 years. We consider the respondent’s offending to be on the cusp between band 2 and band 3 and would require a starting point of seven to eight years.
[31]	It was common ground that the youth of the respondent and his early guilty plea were mitigating factors. The Judge allowed a discount for the mitigating factors of 21/2 years (approximately 35%). However, the respondent’s youth has to be viewed against his history of offending which dates back to July 2004 and includes numerous convictions for burglary and a conviction for aggravated robbery in May 2005.
[32]	The Judge did not correctly account for the aggravating features of the offending in this case in terms of the guideline judgment in Taueki, so that the starting point of six years adopted was too low and resulted in a sentence which was wrong in principle and manifestly inadequate.
[33]	Upon a successful appeal by the Solicitor-General, the sentence is to be adjusted no more than the minimum necessary to remove the element of manifest inadequacy. On this basis we take a starting point of seven years. We consider an appropriate reduction for mitigating circumstances to be two years (approximately 30%), resulting in a sentence of five years imprisonment.