The Queen v Chankau [2007] NZCA 587 (19 December 2007)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Chankau [2007] NZCA 587 (19 December 2007)

Last Updated: 2 February 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA265/07 [2007] NZCA 587THE QUEEN

v

VAINUUPO STEVE CHANKAU

Hearing: 22 November 2007

Court: Hammond, John Hansen and Miller JJ

Counsel: M F Tuilotolava for Appellant
B J Horsley for Crown

Judgment: 19 December 2007 at 4 pm

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

[1] On 31 March 2006 there was an affray at Waddon Place, Mangere, in which the appellant, who was aged 15 at the time, struck Teuila Mareko, a 51 year old woman, a powerful blow with a wooden kilikiti bat. She suffered serious head injuries.
[2] The appellant was a member of a group called the G-U-Nuts, which the Crown characterised as a youth gang. It alleged that the appellant and his associates chased a member of another gang called the Crips. In his attempt to escape, the Crips member entered the address of the victim. He was said to have been assaulted there by one of the appellant’s associates, who then left the address.
[3] Mrs Mareko and several members of her family followed these people to Waddon Place. Fighting ensued, involving the victim’s family, the appellant and his brother Shane, the co-accused Alexander Siagigi, and Mr Siagigi’s sister Neti. The victim’s family are said to have deployed sticks and fence palings. Mrs Mareko became involved in an attempt to separate the parties.
[4] The appellant claims he did not participate initially. On his account, Neti was hit by a thrown stick and went to a car, where she fetched the bat and gave it to him. In the meantime Mr Siagigi was fighting with an older man and Shane was fighting the victim’s sons. In an attempt to defend his associates, the appellant swung the bat at the older man, who was attacking Mr Siagigi. He missed his intended target, and struck Mrs Mareko across the side of her face. She collapsed, and the accused and his associates fled.
[5] The appellant and Mr Siagigi stood trial on 20 March 2007 on charges respectively of causing grievous bodily harm to Mrs Mareko with intent to cause grievous bodily harm and assaulting a Mr Atafu using a weapon. Both gave evidence. Mr Siagigi was acquitted but the appellant was convicted. Judge Singh sentenced him to seven years imprisonment. He appeals against conviction and sentence.

The summing up

[6] The appellant’s defences at trial were that he had acted in defence of another and/or there was no intent to cause grievous bodily harm. It is said that the Judge inaccurately and incompletely put these defences to the jury, and misdirected the jury on the availability of self-defence. The summing up was said to be unbalanced in that, while the Judge explained that the appellant said that others required protection, he did not refer to those other persons by their names, so having the probable effect of downplaying self-defence.
[7] In his summing up the Judge outlined the elements of the offence, explaining that the Crown had to prove both that Mr Chankau caused grievous bodily harm, that is really serious harm, and that at the time he did so he intended to cause grievous bodily harm to another. It did not matter that he may have intended to cause grievous bodily harm to a person other than the one he actually harmed. There is no challenge to this aspect of the summing up.
[8] The Judge then turned to self-defence, which was raised by both accused. He explained that the appellant had stated in his evidence that he was trying to protect people who were close to him, and whom he believed to be in danger. The law allows a person to protect himself or others. He stressed that the onus was on the Crown to satisfy the jury beyond reasonable doubt that the accused was not acting in self-defence, and he explained the elements of the defence: what did the accused believe was happening at the time; bearing in mind what he believed what was happening at the time, was he acting to defend himself or others; if the jury thought it a reasonable possibility that he did believe that he or others were in danger of bodily harm and intended to act in self-defence or defence of others, was the force used reasonable given what he believed was happening at the time? He emphasised that the law allows use of reasonable force, but if the danger had passed and the person acted in revenge, self-defence and defence of others were not available.
[9] Dealing with inferences, the Judge made it clear that the jury might draw the inference, as the Crown suggested, that the appellant intended to cause grievous bodily harm from the way in which he used the bat; that is, by striking her on her head with the bat held in both hands. Against that, he recorded, the appellant asked the jury to draw an inference from that same act that the appellant was trying to stop another person from attacking other people.
[10] The Judge then summarised the cases for the parties, emphasising that there was no dispute about location, identity and the fact that the victim suffered grievous bodily harm. The appellant admitted that he intended to hit the older man with the bat and struck Mrs Mareko instead. But there was a dispute about intent to cause grievous bodily harm and about self-defence. He summarised both cases briefly. The Crown pointed to evidence that the appellant swung the bat overhead with both hands and whacked the victim, swinging the bat extremely hard while laughing. In relation to self-defence, the Crown contended that the appellant did not know that anyone needed protection and in any event had used excessive force.
[11] Turning to the defence case, the Judge referred to counsel’s submission that the Crown had failed to prove intent to cause grievous bodily harm, highlighting the cross-examination of the appellant in which he denied wanting to hurt the man who was assaulting his cousin; rather, he wanted the man to stop what he was doing. The Judge summarised counsel’s criticisms of an important Crown witness, who had said that the appellant grabbed the bat and whacked Mrs Mareko. He then said:

[74] So quite apart from the intent that Ms Tuilotolava says Crown has failed to prove beyond reasonable doubt, Chankau also raises the defence of defending others close to him. Ms Tuilotolava referred to that piece of evidence about the person throwing a piece of wood at Neti and concerns that Chankau had in that regard. Ms Tuilotolava submits that the Crown has not proved beyond reasonable doubt that Chankau was not acting in self-defence.

The conviction appeal

[12] The appellant contends that the Judge made four errors: he failed to refer to the names of persons that the appellant thought to be in need of assistance (his brother Shane, his friend and cousin Alex Siagigi, and Alex Siagigi’s sister Neti); he treated lack of intent to cause grievous bodily harm as the main issue for the defence, so probably confusing the jury when discussing self-defence of another; he inadequately discussed the subjective perception of the accused about the persons he was wanting to protect, probably leaving the jury with a view that the Judge did not believe the appellant; and he did not make it clear to the jury that acting in defence of others makes the force used lawful provided it is not excessive in the circumstances. With respect to the latter, hitting someone with a bat could be justified in circumstances where others were seen to be using sticks and pieces of wood to hit those requiring protection.

Discussion

[13] We do not think there is substance to any of the criticisms of the summing up. The Judge sensibly dealt with intent first, presumably because self-defence would become relevant only once the Crown had shown that the appellant had struck an intentional blow. By doing so he did not downplay self-defence. As Mr Horsley put it, the question is not whether lack of intent was discussed before self-defence but whether both were correctly explained. The Judge’s explanation of self-defence was orthodox and clear. He did explain that the jury had to consider the circumstances as the appellant understood them to be when considering whether he was acting in defence of others and whether the force used was reasonable, and emphasised that it was for the Crown to exclude the reasonable possibility of self-defence.
[14] It was not necessary, when summing up the defence case, to name those whom the appellant said required protection. They had been clearly identified in the evidence and in counsel’s address. The Judge was entitled to summarise, and had a wide discretion as to the level of detail to which he descended: R v Keremete CA247/03 23 October 2003 at [18]. The summing up was balanced, and does not convey the impression that the Judge had a particular view of the evidence.
[15] During argument, Mr Horsley made the point that Ms Tuilotolava did not call the Judge’s attention to any of the alleged errors in the summing up. It emerged that Ms Tuilotolava was not present because she had other trial commitments. She arranged that counsel for the co-accused would represent the appellant. No miscarriage resulted in this case, but we observe that the summing up is an important phase of the trial and counsel may not withdraw without leave before the trial ends. Leave should not be sought or given unless substitute counsel is able to discharge the responsibilities of defence counsel, which include that of informing the judge of any error or omission in the summing up: R v Miratana CA102/02 4 December 2002.
[16] Ms Tuilotolava did not suggest that there was no evidence on which the jury, acting reasonably, might conclude both that the appellant intended to cause grievous bodily harm and that the Crown had excluded the reasonable possibility of self-defence: R v Munro [2007] NZCA 510. The appellant himself conceded that he knew the bat was heavy and could cause real harm, that he swung it hard with both hands, and that he knew that if he hit his intended target (the man) on the head he would be able to “take him out.”

Sentencing

[17] Judge Singh sentenced the appellant on 31 May 2007. He incorporated the summary of facts as part of his sentencing notes, subject to the deletion of references to Mr Siagigi. He noted that the victim had attended the confrontation because she feared the worst and wanted to bring her family members home. She intervened in an attempt to stop the fight. The appellant said he was intending to strike another person, but the Judge had heard the evidence and concluded, consistent with the jury verdict, that the appellant actually aimed at the victim. He also accepted evidence that after the incident the appellant told his friends he had struck the victim, and laughed about it. The appellant’s behaviour during the trial was inconsistent at times with his expressions of remorse; he was disruptive, and from time to time he attempted to intimidate witnesses with his body language. On the penultimate day of the trial the Judge had warned him not to continue with that behaviour, but the appellant went outside and intimidated a Crown witness. He accepted, however, that the appellant had sobered up since being remanded in custody and was now expressing remorse.
[18] The Judge noted that the charge was a particularly serious one. The offending in this case fell at the top end of band two (5 – 10 years) and the lower end of band three (9 – 14 years) in R v Taueki [2005] 3 NZLR 372 (CA). The five aggravating factors that led him to that conclusion were the extreme violence, serious injury to the victim, use of the bat as a weapon, attack to the victim’s head, and the vulnerability of the victim – a 50 year old unarmed woman who was trying to stop the confrontation.
[19] Having regard to these aggravating factors, and giving particular weight to denunciation, deterrence, and protection of the victim and the community, the Judge adopted a starting point of 10 years imprisonment. He did not appear to treat the appellant’s membership of G-U-Nuts as an aggravating factor, because he recognised that it might be that the group was a church group and sports club, and not a gang.
[20] The only other aggravating factors were the appellant’s conduct subsequent to the offending, in which he laughed whilst telling his friends that he had hit the victim, and his conduct during the trial; in particular, his body language and intimidation of Crown witnesses.
[21] The mitigating factors were the appellant’s youth (he was 15 years old at the time of the offence), his lack of previous convictions and unblemished prior character, his church and family support, and his traditional Samoan apology or ifoga, which the victim had accepted in a very forgiving spirit.
[22] Turning to the pre-sentence report, the probation officer had concluded that the appellant had a low motivation to change because he blamed the victim’s family for the incident and characterised himself as the victim. The Judge referred to the trauma that the victim had suffered, and continued to suffer. Her family and working life have been affected. She suffers dizziness, headaches, and sleeplessness, and experiences recurrent nightmares. She is easily irritated. He noted that it was lucky that she had recovered to the extent that she had. The appellant had fled the scene instead of assisting her. He concluded that a sentence of seven years imprisonment was appropriate.

The sentence appeal

[23] On appeal, Ms Tuilotolava submits that the Judge gave excessive weight to the aggravating factors that led him to characterise the case as a band three case. Given the appellant’s age, the proper conclusion should have been that bravado and peer pressure would have been at work. In reality, Ms Tuilotolava argued, the appellant is a vulnerable young person who requires intensive assistance. A sentence of seven years imprisonment for such a young person is, on this view, crushing.

Discussion

[24] We accept that it was open to the Judge to select a starting point at the top of band two and bottom of band three. His conclusions that the appellant intended to hit Mrs Mareko with the bat and laughed about it afterwards were also consistent with the jury verdict. The only real question raised by the appeal is that of the discount for the appellant’s youth.
[25] Age is a mitigating factor that the court must take into account to the extent applicable to the case: s 9(2)(a) of the Sentencing Act 2002. The younger the offender, the greater its significance.
[26] Anxiety always attends the prospect of sentencing a young person to a lengthy term of imprisonment, for two reasons. First, the court knows that the sentence could be crushing. A long sentence is a substantial proportion of the life the youth has already lived, and imprisonment often weighs heavily on the young. They may suffer high levels of depression, anxiety, suicidal ideation and self-injurious behaviour, and victimisation from other inmates: R v Slade [2005] 2 NZLR 526 at [43] – [45] (CA). Second, the court wants to preserve any prospect of rehabilitation, and recognises that with young offenders there is frequently the hope that with maturity will soon come insight and a reduction in risk to the community.
[27] Accordingly, a significantly reduced sentence for rehabilitative purposes may be appropriate where the youth is or should be treated as a first offender and appears genuinely motivated to reform: R v Mako [2000] 2 NZLR 170 at [66] (CA). Substantial discounts have been given for youth when it is present in combination with other factors such as guilty pleas, remorse, and rehabilitative potential: see, for example, R v K (2003) 20 CRNZ 62 (CA). Absence of previous convictions may be taken as an indication of potential for rehabilitation.
[28] The cases establish, however, that youth alone does not often justify substantial discounts in cases of violent offending: see, for example, R v C CA332/95 28 September 1995 at 6, R v Gatoloai [2007] NZCA 319, R v Clarke [2007] NZCA 164, R v Kaukau [2007] NZCA 66, and R v Burns CA247/04 26 November 2004. There are also cases in which violent offending is especially callous or is of a type that is all too prevalent among young people. In such cases the public interest in denunciation and accountability may prevail: R v Rapira [2003] 3 NZLR 794 at [125] (CA), R v Mahoni (1998) 15 CRNZ 428 at 437 (CA), R v Pehi CA82/99 29 April 1999 at [24].
[29] The appellant was 15 years old at the time of the offence, had no previous convictions, and enjoyed family and church support, all factors that suggest potential for rehabilitation. An ifoga had been offered and accepted. And the Judge accepted that there was, by the time of sentencing, an element of remorse.
[30] But the offending was calculated and extremely violent, and the appellant’s behaviour after the offending and at trial was consistent with absence of genuine remorse. There was no guilty plea, and even at sentencing the appellant continued to characterise himself as the real victim. The impact on Mrs Mareko was severe and enduring. The Judge might have taken a less charitable view of the appellant’s membership of G-U-Nuts, and hence of his previous good character and potential for rehabilitation.
[31] The Judge reduced the starting point by three years. We are not persuaded that the resulting sentence of seven years imprisonment was outside the range available to him. The case does not present the combination of strong mitigating factors that might require a more substantial reduction.

Decision

[32] The appeals against conviction and sentence are dismissed.

Solicitors:
F Tuilotolava, Manukau City for Appellant
Crown Law Office, Wellington