The Queen v Chiyabi [2008] NZCA 10 (20 February 2008)

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The Queen v Chiyabi [2008] NZCA 10 (20 February 2008)

Last Updated: 29 February 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA457/07

[2008] NZCA 10

THE QUEEN

v

BOB MUZYIMBA CHIYABI

Hearing: 13 February 2008

Court: Ellen France, Williams and Heath JJ

Counsel: R A B Barnsdale for Appellant
H D M Lawry for Crown

Judgment: 20 February 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1] As a result of an incident that occurred on 22 December 2006, Mr Chiyabi was charged with one count of threatening to kill two children. The following day, Mr Chiyabi was released on bail by the District Court on condition that he not contact the complainant nor consume alcohol.
[2] On 13 March 2007, while heavily intoxicated, Mr Chiyabi stood outside the complainant’s house and yelled abuse at him. The police were called and arrested him for breach of bail. Mr Chiyabi resisted arrest and, in the course of doing so, assaulted a police officer. The assault was an attempt to head-butt a police officer. Mr Chiyabi was charged with both assaulting a police officer and resisting arrest.
[3] Mr Chiyabi pleaded guilty to the two summary charges arising out of the March 2007 events. A jury found him guilty on the threatening to kill charge, following a trial in July 2007.
[4] While Mr Chiyabi has a lengthy criminal history, his prior convictions were for property and driving offences. He has no prior convictions for violent offending or threatening conduct.
[5] Mr Chiyabi was sentenced in the District Court on all three charges on 10 August 2007. He was sentenced by Judge Spear, who had presided over the jury trial.
[6] The Judge imposed a sentence of two years six months imprisonment on the threatening to kill charge: DC HAM CRI 2007-019-3180 10 August 2007. He added an effective sentence of three months imprisonment on the assault and resisting arrest charges. The cumulative effect was to impose an end sentence of two years nine months imprisonment.
[7] Mr Chiyabi appeals against that sentence on the grounds that it was manifestly excessive.

Background

[8] Mr Chiyabi had been released from a custodial sentence on 6 December 2006. He was on parole at the time of the 22 December 2006 offence.
[9] The threat was made in the context of a complaint, made by his neighbour, of excessive noise coming from Mr Chiyabi’s house during a party. After the police had been called and had shut the party down, Mr Chiyabi confronted his neighbour.
[10] On ascertaining that his neighbour was the person who had made the complaint, Mr Chiyabi threatened to kill the neighbour’s children if the complainant contacted the police about him again. Mr Chiyabi’s neighbour’s children are aged 14 and six years, a son and daughter respectively. Due to the long hours the neighbour and his wife work, their children are sometimes alone in the house.

The District Court sentencing

[11] Sentencing took place against the background of the jury verdicts on the threatening to kill charge. That verdict represented findings that Mr Chiyabi had uttered the words alleged and that they were intended to be taken seriously: R v Meek [1981] 1 NZLR 499 at 502 – 503. In addition, Judge Spear made a finding that the threat “had an immediate and significant effect upon [Mr Chiyabi’s neighbours]” (at [7]).
[12] Having set out the background to the threat, Judge Spear said:

[8] There cannot be anything more frightening for a parent than to know that their children are at risk and that they may not be able to protect them. I am in no doubt at all that the complainant remains intensely troubled by the risk that (he believes) he has subjected his family to because he made a lawful complaint about excessive noise from your party. I am not interested at all in whether you might have intended to carry out the threat. It is the effect of the threat that is significant here.

[9] They are not to be dismissed as just empty words uttered in the heat of the moment. You are a tall well-built man, and easily a person of more impressive stature than the complainant was. You are also part of a family that the complainant would be well aware continue to live next door to him. Of course, it appeared in the course of the trial that it was your brother who was conducting the party, who was responsible for the party. Whether that is exactly right or not is really beside the point. What you have done has gone a long way to destroy the sense of security that the complainant feels about his family and particularly the security of his home. Why did you do that? You did that because you were concerned that someone had the effrontery to interfere with your family’s social life by having a noisy party closed down.

[10] As so far as offending of this type is concerned (that is, threatening to kill), this is a serious threat of its type and close to the most serious. It requires a firm response by the Court.

[13] Dealing first with the threatening to kill charge, Judge Spear regarded the offending on parole, at a time proximate to Mr Chiyabi’s release from prison, as an aggravating feature. In addition, the Judge took into account Mr Chiyabi’s previous convictions, holding that, while none involved violence or threatening conduct, they demonstrated “anti social attitudes” (at [15]).
[14] As a mitigating factor, the Judge took account of the fact that Mr Chiyabi moved to New Zealand in 2002 from South Africa and had found it difficult to settle into life here. He also referred to Mr Chiyabi having been diagnosed as HIV positive, in 2006, and its effect on him.
[15] The Judge expressed concern about Mr Chiyabi’s “serious problem with alcohol” (at [16]). He was conscious of the need for Mr Chiyabi to address that issue and made that clear to him.
[16] The Judge took the view that the aggravating features relevant to the offending and the offender justified a starting point of three years imprisonment. The Judge described the nature of the threat as “horrifying” and observed that “the effect of the threats continues to be felt by the complainant and that is not surprising” (at [19]). A period of six months credit was allowed to recognise the difficulties of a person who was HIV positive serving a prison sentence. That led to an end sentence of two years six months imprisonment.
[17] On the charges of assaulting and resisting police officers the Judge took the view that a further prison sentence of three months was required to reflect the discrete nature of that offending and the fact that it was committed while on bail. On the charge of assault Mr Chiyabi was sentenced to three months imprisonment, concurrent with a period of one month’s imprisonment on the resisting charge. The effective term of three months imprisonment was made cumulative upon the threatening to kill sentence. Mr Barnsdale, for Mr Chiyabi, did not dispute the need for a cumulative sentence.

Competing submissions

[18] Mr Barnsdale submitted that the sentence imposed was out of kilter with those upheld in appellate authorities and ought to be regarded as manifestly excessive. In particular, he referred us to R v Cherri CA80/89 26 July 1989, R v Terry CA45/00 8 June 2000 and R v Penney CA24/04 4 August 2004. He emphasised facts found in respect of each of those cases, submitting that they were, in general, more serious than the threat uttered by Mr Chiyabi.
[19] Mr Barnsdale emphasised that Mr Chiyabi had no history of violent or threatening conduct and submitted there was no evidential foundation for Judge Spear’s finding about the effect of the threats on the complainant and his family.
[20] Overall, Mr Barnsdale submitted that a starting point of 15 months ought to have been taken, with aggravating and mitigating factors cancelling each other out on the basis of an allowance of six months for each. Allowing for a cumulative sentence on the other two charges, Mr Barnsdale submitted that the Court ought to have imposed a sentence of less than two years imprisonment.
[21] Mr Lawry, for the Crown, submitted that the end sentence was within range and could not be characterised as manifestly excessive. Further, he submitted that the sentences imposed on the assault and resisting charges were modest and that the end sentence could also be justified solely on the basis of application of the totality principle. Ultimately, while the sentence was stern, it was not such as to justify appellate intervention.

Analysis

[22] There is no tariff for the offence of threatening to kill. The circumstances in which threats to kill are uttered with an intent that they be taken seriously are diverse and it is difficult to compare cases based solely on the words uttered. This is an area in which aggravating features relevant to a particular offence or offender take on real significance. This is an offence where Judges who have presided over trials are very much in the best position to assess the seriousness of the offending.
[23] In R v Xie [2007] 2 NZLR 240 (CA), this Court emphasised that, when applying the “totality principle” (s 85(4) Sentencing Act 2002), the question of how the “total sentence is made up has never been important”: at [16]. Rather, the goal is to ensure that the end sentence reflected the overall criminality of the offending and the offender: at [17(c)].
[24] This was a case in which a threat was uttered in response to a lawful complaint made by a neighbour about Mr Chiyabi’s conduct. The words uttered were intended to be taken seriously. From the complainant’s perspective, Mr Chiyabi presented as someone who intended to do serious harm to his children.
[25] We find there was sufficient evidence to justify the Judge’s conclusion that the effects of the threat were continuing. The victim impact statement alone was sufficient to justify that finding.
[26] Taken in conjunction with the offending on parole and the later offences of assault and resisting arrest committed while on bail (made in the context of conduct affecting the same complainant), we have no doubt that the totality of the offending justified a starting point of around three years imprisonment. We also think that the Judge, though entitled to give credit for Mr Chiyabi’s status as HIV positive, was (in the circumstances of this case) generous in the allowance he made in this case.
[27] For those reasons, despite apparent differences with sentences imposed in other cases, we are satisfied that the combination of offending justified an end sentence of the length imposed by the sentencing Judge.

Result

[28] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington