[1] In late March 2006 in South Auckland there was a violent confrontation between a group of young men and another young man who was seriously injured. Others who came to his aid were also attacked and injured by the same group. The appellant, Mr Feterika, was convicted of wounding the young man with intent to cause grievous bodily harm (s 188(1) Crimes Act 1961) and sentenced to 10 years’ imprisonment. He was acquitted of three other charges relating to the assault of those who came to the complainant’s aid. The appellant appeals against his conviction and sentence.

Conviction appeal

[2] The appeal against conviction is based on four alleged errors by Judge Wade, the trial Judge. They are:

(i) the Judge’s use of a bank robbery scenario as an analogy when explaining “parties” to the jury;

(ii) the Judge’s jury directions on parties;
(iii) the Judge’s jury directions on self-defence; and
(iv) the Judge’s failure to identify an alternative lesser charge for jury consideration.

(i) Robbery analogy

[3] The Crown case was that members of a youth gang had been searching for members of a rival gang on the evening of the assault. The appellant and others were uttering violent threats towards this other group. When they eventually found the complainant, whom they believed was a member of the rival gang, the appellant yelled out his gang’s name and then punched the complainant in the face. The complainant was then assaulted by a number of members of the gang, some of whom had weapons.
[4] The Crown accepted it could not specifically identify the appellant as an attacker after his initial punch. Its case was primarily that he was a party to the offending by virtue of either s 66(1) or s 66(2) of the Crimes Act 1961.
[5] The Crown case for s 66(1) was based on the proposition that when the appellant yelled out the gang name and punched the complainant this was a signal (encouragement) to others in the group to attack the complainant. The Crown also pointed to the previous discussions between the group in support of their claim that the appellant knew what was going to happen.
[6] The Crown case for s 66(2) was based on evidence that the appellant and other members of the gang discussed assaulting members of the rival gang beforehand. The Crown said that this evidence established a common intention to assault members of the rival gang. The fact the appellant had travelled in a convoy of cars with others who had weapons illustrated the appellant would have known that grievous bodily harm was a probable consequence of prosecuting the plan to assault the other gang members.
[7] The appellant’s case was that there was no common purpose (s 66(2)) in that he had not arrived at the scene with the other gang members nor planned the attack beforehand. He said that he coincidentally came upon the scene. He said that he was acting in self-defence when he struck the complainant, and from then on he had tried to protect the complainant from assault by the others. He denied knowing what was going to happen to the complainant or encouraging others to attack him (s 66(1)).
[8] The appellant says that the bank robbery analogy used by the Judge to help the jury understand the parties directions was inapt and misleading because in the example the Judge gave all those in the robbery had a common intention. This, the appellant says, can be contrasted with the present case where the question of common intention was in issue. Thus, the appellant submits the jury were likely to assume the accused had a common intention and therefore that one of the elements of s 66(2) was proven by the Crown.
[9] In his summing up regarding parties, the Judge dealt initially with s 66(1) and then s 66(2). After describing the elements of subs (2) he said:

A probable consequence simply means something that is not intended to happen, but which everyone knew could well happen. Let me go back yet again to the fictional example of the bank robbery. There’s a discussion before the robbery as to what weapons they use, and they decide they're going to take guns to intimidate the bank staff into handing over money. Then there’s a discussion as to whether or not those guns needed to be loaded, because of course the bank staff wouldn’t know if the firearm is pointed at them whether the gun is loaded or not, and they’d obviously assume that it was. But the bank robbers eventually say to themselves “no we’ll make sure that the guns are loaded so if anybody interrupts us and gets in our way we can deal with them” and that’s what they. So they carry armed weapons, not intending to use them but in case someone intervenes. And if someone in the course of the robbery does intervene and as a result of that gets shot, you may think that was something that could well happen, and therefore although it wasn’t part of the plan, they didn’t go there with the intention of shooting someone, everyone realised that could well happen in that particular case.

[10] These remarks were given to the jury for the purpose of describing how “probable consequence” fitted into s 66(2). The robbery analogy was not intended to illustrate all of the elements of s 66(2). To make the analogy work it had to assume a common intention had been established. Given the question of whether a common intention had been established was in dispute, it may have been better for the Judge, when using this example, to highlight that difference for the jury. However, given the other passages in the summing up, the jury would have been clear that the appellant denied there was any common intention involving him and before there could be a verdict of guilty, the Crown would have to establish this beyond reasonable doubt.
[11] The Judge referred the jury to a decision tree he had provided. As to s 66(2) he said:

Are you satisfied beyond reasonable doubt that (1) some other person wounded the complainant, (2) at the time that other person intended to cause really serious harm, and (3) that the accused agreed with one or more of his associates to assault another or others and assist each other to do so, and (4) the accused knew that really serious harm could well happen during the assault. If ‘yes’ your verdict is guilty, if ‘no’ your verdict is not guilty.

[12] The Judge returned to the robbery analogy when discussing inferences. He said:

So that if for example going back yet again to our bank robbery, if four people burst into the bank at the same time all wearing balaclava helmets, all wearing – carrying sawn off shotguns, the obvious and irresistible inference is they were acting together. These weren't four totally independent bank robbers who have just happened to hit the same bank on the same day at the same time. They're acting as part of a gang, so that's what you do say the Crown in this case. Use your common sense, that tells you and the irresistible inference you must draw is that this was acting under a common intent.

Although given in the context of a direction on inferences, this illustrated for the jury that the Crown had to prove the accused and others had a common intention.

[13] The Judge gave similar directions in relation to the other counts. When he summarised the case for the Crown he emphasised the evidence that the Crown said established common intention. And when the Judge summarised the case for the appellant he also stressed the appellant’s case that the Crown had not proved he had formed a common intention.
[14] The Judge gave the jury the standard tripartite direction regarding the appellant’s evidence. The appellant in evidence denied he had any common intention. The jury therefore knew that if they thought this defence evidence was true or if it made them unsure of the real position then they should acquit. The jury’s verdict necessarily involved a rejection of the appellant’s evidence. In these circumstances there was no miscarriage of justice by the use of the robbery analogy. The jury would have understood the Crown had to prove common intention before they could convict pursuant to s 66(2).
[15] The pattern of the jury’s verdicts was a rejection that the appellant was involved in the attacks on those who came to help the complainant. This suggests the jury convicted the appellant based on s 66(1). If that was the basis of the jury verdict, then the bank robbery analogy, applicable primarily to s 66(2), was hardly relevant to the outcome of the case. We reject this ground of appeal.

(ii) Parties direction

[16] The appellant says the Judge did not adequately distinguish between the evidence relevant to s 66(1) and that relevant to s 66(2) and did not properly identify the appellant’s evidence relevant to the claim he was a secondary offender.
[17] Much of the evidence relating to s 66(1) and s 66(2) overlapped. The Crown case was that the appellant’s remark that he would “smash them” (the other gang), made earlier at the house with the members of his group, and the co-accused’s comments that he was going to “axe them”, were significant. This evidence, together with the fact that the appellant accompanied the others to the scene of the attack and yelled out “CF” (the youth gang’s name) and struck the complainant when he arrived at the scene of the attack were, the Crown said, all factors relevant to both subss (1) and (2) and either subsection could apply.
[18] The Judge gave clear directions as to each of the alternative ways the Crown maintained the accused could be guilty. He accurately identified each of the relevant elements of s 66(1) and s 66(2) in his summing up.
[19] The appellant denied making remarks about smashing the other gang, accompanying the others to the scene of the assault, and yelling out the youth gang’s name immediately prior to striking the complainant. The Judge, as we have said, gave the standard tripartite direction relating to the appellant’s evidence. The jury, therefore, could have been in no doubt that if the appellant’s evidence was or might possibly be true he could not be guilty as a party under either alleged ground.
[20] Counsel for the appellant also complained that in the summing up there needed to be an emphasis on the actual knowledge of probable consequence by each accused separately. The Judge made it clear at the beginning of his summing up that the jury was to consider the case against each accused separately. He identified what it was suggested each accused had done and identified that accused’s response to the Crown case. There is therefore nothing in counsel’s complaint. We are satisfied that no criticism can be made of the Judge’s summing up on this aspect.

(iii) Misdirection on self-defence

[21] The appellant submits that the Judge repeated portions of the Crown submissions that were irrelevant to self-defence and that he failed to properly explain to the jury the appellant’s evidence as to self-defence. He submits that the Judge misdirected the jury when he said:

The law does not protect a person from the consequences of acting out of revenge and retribution.

[22] The Judge, in summarising the Crown case relating to self-defence, described the Crown as pointing to evidence which supported the proposition that the appellant was first out of the convoy of cars when he arrived at the scene, that it was he who went up to the complainant and accosted him and that it was he who punched the complainant, therefore suggesting that the appellant was the aggressor. The appellant says that repeating this evidence might have meant the jury thought that what happened prior to the punch by the appellant was relevant to the issue of self-defence. The appellant submits that the jury should have been told to focus on the circumstances at the time of the assault and what he believed those circumstances to be.
[23] The appellant’s actions immediately before the punch were highly relevant to his state of mind and what the jury considered he believed was happening at the time. If his actions immediately before the punch suggested that he was out to assault members of the rival gang then this would be relevant to self-defence. We reject, therefore, the first complaint by the appellant relating to self-defence.
[24] The second question relates to the claim that the Judge inadequately summarised the appellant’s evidence as to what he considered the situation was immediately before he punched the complainant. It would have been preferable for the Judge, when referring to the appellant’s evidence, to have summarised for the jury the salient points relating to self-defence so that the appellant’s case was emphasised. However, as we have previously remarked, the Judge made it clear that if the jury accepted the appellant’s evidence as truthful, or if they thought his evidence created a reasonable doubt about the Crown case, then they should acquit. Included within that direction is the proposition that if they accepted the appellant’s evidence as to what happened immediately before he punched the complainant, then the Crown would have failed to establish the appellant was not acting in self-defence. Once again, the jury, by convicting the appellant, clearly rejected his version of events.
[25] As to the Judge’s comments about acting out of revenge and retribution, the short point is that the appellant did not claim he punched the complainant for these reasons. At worst, therefore, the Judge’s remarks were superfluous in this trial.
[26] Counsel also complained that although the essential elements of each count, including a parties direction, were provided to the jury in writing they were not given any written material on self-defence.
[27] The issue of self-defence was first raised by counsel for the appellant in her final address to the jury. There was therefore little time for the Judge to prepare such material. There is no obligation on a Judge to provide written directions to the jury on the law. Here the Judge’s directions on self-defence were correct in law.
[28] In any event, the jury’s verdict of guilty is incompatible with the appellant’s claim he was acting in self-defence. The verdict meant the jury concluded the appellant’s punch and calling out the gang name was the signal for the others to attack the complainant which the appellant knew would involve a wounding and grievous bodily harm. Given that conclusion, the appellant’s claim to be acting in self-defence could hardly be available to him. If the jury accepted the thrust of the appellant’s evidence then he would have been acquitted because the Crown had not proved he was a party to the offending rather than any failure to prove self-defence did not apply.
[29] We reject this ground of appeal.

(iv) Lesser or alternative charge

[30] The appellant submits that the Judge should have invoked s 339 of the Crimes Act and included an alternative but lesser charge of, for example, injuring with intent to injure (s 189(2) Crimes Act 1961). This is especially so, the appellant says, because his case was to deny knowledge of weapons and to say that he delivered one punch only in defence of himself and did not anticipate that grievous bodily harm would be caused.
[31] This submission misapprehends the circumstances in which an included but lesser charge might be openly left for a jury. In this case there is no question but that the complainant had been wounded and had suffered grievous bodily harm. As far as the appellant was concerned, therefore, the jury questions were whether the Crown could prove he was a party pursuant to s 66(1) or s 66(2) and disprove that he was acting in self-defence at the time. If the appellant’s evidence was accepted, then he would not have been guilty of any criminal offending. He denied being a party to the offending and said the one punch he did throw was in self-defence. This was therefore not an appropriate occasion to include a lesser charge in the indictment.
[32] We reject this ground of appeal.
[33] The appeal against conviction is therefore dismissed.

Sentencing appeal

[34] The appellant submits the Judge in sentencing failed to take into account that the appellant was a secondary offender, and that the Judge’s failure to take into account relevant mitigating features meant the final sentence of 10 years’ imprisonment was manifestly excessive. In addition, the appellant submits the sentence lacked appropriate comparison with the principal offender.
[35] The Judge said that the aggravating features of the case were the extreme violence, pre-meditation, serious injury, use of weapons, attacking the head, multiple attackers and gang warfare. The victim was admitted to intensive care after the assault because of serious head injuries. In addition, he suffered a broken nose, a cut about his left eye, serious bruising to the back of his head and ligament damage to a shoulder. These aggravating features, the Judge concluded, meant that a starting point in band 3 of R v Taueki [2005] 3 NZLR 372 of 11 years’ imprisonment was appropriate for the offending. The Judge also took into account the appellant’s recent serious record of violent offending. He had been sentenced to two years and three months’ imprisonment in September 2005 for aggravated robbery and was awaiting sentence in the High Court at Auckland on two counts of injuring with intent to injure. In addition, the appellant had committed this offence while he was on bail for other alleged offences and subject to a 24 hour, seven day a week curfew.
[36] The Judge considered these personal aggravating features justified an uplift of 12 months from the starting point of 11 years. However, the Judge took into account that the appellant had some of his existing sentence still to serve and concluded that, overall, a concurrent sentence of 10 years’ imprisonment was appropriate. The appellant had approximately one year of his existing sentence left to serve.
[37] Counsel submitted that the appellant’s lesser involvement in the offending should have reduced the starting point of band 3 of Taueki to the upper range of level 1 or the lower range of level 2. The appellant stressed that, other than the initial punch, there was no evidence of actual involvement by him in the serious injuries suffered.
[38] The Judge addressed these issues at sentencing in this way:

[11] Although you Mr Feterika, did not personally cause that injury, it is plain from the jury’s verdict that they concluded and rightly so, that you were a party to the offending.

[12] As you were found not guilty of another count, your conviction as a party must be upon the basis, that by your own act of violence on the victim you encouraged your companions to join in that cowardly attack. Therefore arguments that you yourself did not cause the fractured skull injury are quite beside the point.

[39] It was not clear whether the jury’s verdict was based on being satisfied the Crown had established s 66(1) or s 66(2) or both. The Judge was entitled to bring his own view of the facts to this issue and conclude this was a s 66(1) case (see s 24 of the Sentencing Act 2002). There was ample evidence to support his conclusion. The jury’s verdict clearly involved rejecting the appellant’s claim that he had simply happened upon the event and that he had been trying to prevent the complainant from being assaulted by other members of the gang.
[40] The Judge’s conclusion as to the appellant’s involvement meant, therefore, that he was one of the leaders of the attack. In those circumstances he could hardly have expected a reduced sentence based on lesser involvement than others.
[41] The appellant submitted that the Judge had not given an adequate reduction in sentence for the appellant’s youth and for his community references. The appellant was 18 years of age at the time of the assault and 19 years of age when sentenced. Over the previous two years he had been convicted of two further very serious violent offences. In those circumstances, it could not have been appropriate, nor could he have expected, a sentence reduction for youth. Nor did his character references justify a reduction in sentence.
[42] The appellant submits that the Court should not have imposed a lengthy sentence because it crushed any hope of rehabilitation. The circumstances of this offending, and the appellant’s past, justified the sentence. Any immediate prospect of rehabilitation, therefore, is appropriately for the prison authorities.
[43] Finally, the appellant submits that there was no appropriate parity between Mr Fafita’s (a co-accused) sentence of five and a half years’ imprisonment and the appellant’s sentence of 10 years’ imprisonment. Mr Fafita had the axe and he attacked the complainant using the axe as a weapon. He pleaded guilty immediately before trial to the same count as that of which the appellant was convicted, wounding with intent to cause grievous bodily harm.
[44] Mr Fafita pleaded guilty after a sentence indication of four and a half years had been given to him. After trial, Judge Wade concluded that such a sentence did not properly reflect the seriousness of the offending. He concluded a proper starting point for Mr Fafita was 11 years’ imprisonment. He allowed a 50 percent reduction for his guilty plea, his youth and other mitigating factors, giving a final sentence of five and a half years. Mr Feterika was offered, but ultimately turned down, the opportunity to change his plea at this stage.
[45] The appellant submits that given Mr Fafita was the primary offender, there was an unfair disparity between his sentence of five and a half years and the appellant’s sentence of 10 years.
[46] We consider a deduction of 50 percent from a starting point of 11 years for Mr Fafita’s sentence was very generous. Mr Fafita pleaded guilty at the last moment before trial. A typical reduction for such a late guilty plea is approximately 15 percent of the appropriate starting sentence. Mr Fafita was 15 years of age when these events occurred and 16 years when sentenced. A further reduction of 35% for his youth and the fact he had never previously been imprisoned was beyond what might typically be given. However, his circumstances were quite different from the appellant’s who was 18 years at offending, and 19 years and a serving prisoner when sentenced.
[47] This Court has said on many occasions that a disparity argument cannot be built on an unjustifiable sentence: R v Te Kaha CA49/05 5 July 2005 at [48]; R v Thompson & Pullen-Burry CA245/98 CA267/98 22 December 1998. The Judge concluded a proper starting point with respect to this appellant was 12 years’ imprisonment. There was no obvious mitigation. The Judge, however, reduced the sentence to 10 years’ imprisonment and effectively reduced it further by making it concurrent with an existing sentence the appellant was then serving for violent offending. These reductions covered any possible mitigation available to the appellant. In our view the sentence was not manifestly excessive and should not be reduced because of any unfair disparity.
[48] The appeal against sentence will be dismissed.

Solicitors:
Crown Law Office, Wellington

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