The appeal against sentence is allowed to the extent of substituting a minimum period of imprisonment of 15 years in lieu of the 16 years imposed on the appellant’s conviction for murder.

REASONS FOR JUDGMENT

(Given by Hugh Williams J)

Introduction

[1] At the conclusion of a jury trial the appellant, Mr Houma, was convicted on charges of murdering a Mr Martin on 2 April 2006, and of injuring a Mr Little on the same day with intent to cause him grievous bodily harm. His co-accused on the murder charge, Messrs Kulitapa, Lanivia and a further accused, a youth, were convicted or pleaded guilty to manslaughter. Messrs Kulitapa and Lanivia were also convicted on the injuring charge.
[2] On 2 April 2008 the trial Judge, Courtney J, sentenced Mr Houma to life imprisonment for the murder with a minimum period of imprisonment of 16 years and a concurrent sentence of six years nine months on the injuring charge.
[3] He has now appealed to this Court against sentence, effectively against the length of the minimum period imposed on the overall ground it is manifestly excessive.
[4] Initially Mr Houma also appealed against his convictions but Counsel advised well before the fixture that that aspect of the appeal would not be pursued. It is formally dismissed.

Facts

[5] The facts may be sufficiently taken from the sentencing Judge’s summary:

[2] This conviction arose from two incidents in the early hours of 2 April 2006. You had spent several hours drinking in and around the Glen Innes area and going to parties in that area. Sometime around 1 am you and other young people congregated in the Maybury Reserve near the Glen Innes shopping centre. Thomas Martin, a local man who had worked that afternoon at the liquor store and spent the night with friends in the area was walking home through the Maybury Reserve. As he entered the reserve there was an exchange between one of your group, Mr Kulitapa, and you and Mr Martin. Although there was no dispute between the three of you within moments Mr Kulitapa had punched Mr Martin to the ground. It is obvious from the evidence that this punch took Mr Martin completely by surprise and knocked him unconscious. Mr Martin was then set upon and kicked several times in the head and body by you and your co-offenders Mr Kulitapa and Mr Lanivia. I was satisfied from the evidence that you, Mr Houma, kicked Mr Martin in the head more than once. At some stage following this assault Mr Martin regained consciousness and tried to stand up. The evidence, which I accept, was that you gave Mr Martin five seconds, presumably to try and escape. This was, of course, impossible because of the injuries that he had sustained. As he got to his feet you punched him again. This was a solid punch that sent him straight to the concrete path. Your group then left the reserve. You left Mr Martin lying injured in the park in the rain without a backward glance. By the time he was found the next morning it was inevitable that he would die from his injuries.

[3] Not content with that assault the three of you made your way across the road to the Glen Innes shopping centre where a lone security guard was doing the rounds of the shopping centre and caught your attention. You yelled to him to run and threatened to smash his face in. Mr Lanivia crept up alongside him. The security guard of course was doing his best to move away purposefully walking towards the mall knowing he could not outrun you. Mr Little, the security guard, is a slightly built man in his fifties. The three of you are a good 30 years younger and you Mr Houma very heavily built. When you got alongside Mr Little Mr Lanivia punched him to the ground and you and Mr Kulitapa moved in to kick and punch him while he lay there. It was never clear from the evidence what it was that caused you to cease your attack but it was lucky for Mr Little because it is pretty obvious that he was at risk of suffering the same fate as Mr Martin. At any rate you left the mall, once again leaving Mr Little lying on the ground without a backward glance and without any thought of getting help for him.

[4] The victim impact statements show the effect of these despicable pieces of drunken thuggery. Mr Martin’s death has left his partner of 14 years alone, his three children without a father. Two are still very young and will not ever know their father. The oldest has strong feelings about the people who took his father from him. Mr Little has described the ongoing effects of his injuries, which forced him to take nine months off work. It took months for the headaches to go, his voice box has still not yet recovered and he has suffered psychological trauma for which he needs counselling still. He feels angry and withdrawn and this had affected relationships with his family.

Sentencing remarks

[6] The Judge followed that summary with reference to applicable sentencing principles including gravity, seriousness and parity between Mr Houma and his co-offenders. She held it would not be unjust to impose a sentence of life imprisonment on the murder conviction and then passed to considering whether the circumstances of the offence were sufficiently serious to warrant a minimum period of imprisonment greater than the 10 years for which s 103(2) of the Sentencing Act 2002 provides.
[7] The Judge considered whether s 104 of the Sentencing Act applied. She took the view the murder was committed with a “high degree of brutality and callousness”: at [8]. She concluded “by a very narrow margin” that s 104 was inapplicable despite Mr Houma’s “taunting of Mr Martin as he struggled to get to his feet and the viciousness of the attack”: at [8].
[8] However, she said, that there was “no doubt in [her] mind that the circumstances of the offending justify a minimum term of imprisonment of more than ten years”: at [9]. That, she thought, would be within statutory principle and the circumstances of the attack on Mr Martin. She said:

[10] First, this attack was utterly unprovoked and you played a crucial role in the attack that led to Mr Martin’s death. There was never a suggestion from any witness or from any of the offenders that Mr Martin had done or said anything that could have justified the treatment meted out to him. Although the first blow came from Mr Kulitapa it was not the fatal one. It was the assault that came immediately afterwards that caused Mr Martin’s death. You were clearly the ringleader in that assault. I was quite satisfied of that hearing the evidence. You and Mr Kulitapa kicked Mr Martin viciously in the head several times. One of the witnesses at trial who gave particularly clear and compelling evidence about the assault said that you kicked Mr Martin in the head more than three times while he was lying on the ground. The witness said you were kicking harder than the others. Mr Martin was, of course, unconscious. The witness described Mr Martin’s head jerking around as it was being kicked. The pathologist’s evidence was that he had sustained at least five blows to the head, probably more.

[11] You then exhibited real callousness when Mr Martin attempted to get to his feet after that sustained kicking. I accept that witness’ evidence that you gave Mr Martin five seconds to get away. That could only be a deliberate taunt because it would have been obvious that Mr Martin was incapable of running anywhere and in fact could barely stand. Notwithstanding his obvious condition you then gave him that full-out punch that knocked him to the concrete path. This blow on the forensic evidence would have caused very serious injuries to Mr Martin’s brain. If not in itself being the fatal injury, [it] would certainly have completed the tearing of any partially torn blood veins caused by the kicking.

[12] Finally, you left Mr Martin literally for dead. It is obvious you did not give him a second thought as you proceeded across the road and on to your next victim. The pathologist, Dr Stables, said that had Mr Martin received earlier medical attention the outcome for him would probably have been quite different. You were the oldest member of this group and it was quite obvious from the evidence from a number of witnesses that you were regarded as the leader of the group. Your behaviour was behaviour that others would follow. The manner of your assault on Mr Martin made it more likely that others would do likewise. The callous way you left Mr Martin lying in the park would have encouraged the others to do likewise.

[9] The Judge took account of Mr Houma’s “very bad criminal record”: at [13]. Though only 21 at sentencing, Mr Houma had 11 previous convictions including Youth Court matters and several for violence, one of which, in the Youth Court in 2002, was for aggravated robbery.
[10] The Judge noted Mr Houma had, “belatedly” expressed remorse, but regarded that as a minor factor. She concluded (at [13]):

Taking all of these factors into account I consider that an appropriate minimum term is fifteen years, which I increase by a year to sixteen years to reflect the overall offending of that night, given that the sentence I will impose in relation to the attack on Mr Little is to be served concurrently.

[11] On the charge of injuring with intent to cause grievous bodily harm, the Judge said it was “a very serious piece of offending”: at [14]. There were the aggravating features of threats, taunting a vulnerable victim and the fact it was an unprovoked attack with no thought for the victim’s condition. She concluded the offending was within the middle to upper range of band 2 in R v Taueki [2005] 3 NZLR 372 (CA), chose a starting point of seven years imprisonment and reduced that to six years nine months for remorse.

Submissions

[12] Mr Edgar said the appellant’s principal concern relating to the minimum period of imprisonment imposed was that the possible application of s 104 was raised by the Judge and, though she held it inapplicable, it was only “by a very narrow margin” and may have affected her view of the appropriate minimum term.
[13] Mr Edgar submitted that brutality and callousness are integral to any murder but the attack on Mr Martin did not involve premeditation, use of weapon or a lengthy attack, all features which often lead to increases in minimum periods of imprisonment above the statutory 10 years. He submitted this was a case of reckless death rather than intentional killing and the Judge’s consideration of s 104 suggested her consideration of the appropriate minimum term to be imposed on Mr Houma was coloured by the criteria in the section.
[14] Mr Edgar’s second main submission related to what he submitted was disparity between the overall sentence imposed on Mr Houma by comparison with his co-offenders. He particularly relied on the appellant’s sentence being increased for the second attack when his co-offenders’ sentences were not increased for that factor.
[15] On that point, it was originally expected that Mr Houma would be sentenced with Messrs Kulitapa and Lanivia, but, for reasons which need not concern us, the appellant’s sentencing was adjourned. That may have been the source of the difference in Courtney J’s approach to sentencing which we later discuss.
[16] Mr Kulitapa was held by the Judge to have kicked the victim in the head more than once. Mr Lanivia only kicked Mr Martin’s body. Mr Kulitapa was found to have been the instigator of the attack on Mr Martin and to have encouraged Messrs Houma and Lanivia in that regard. The Judge took the view that Mr Kulitapa’s actions were a “deliberate and unprovoked attack involving others with you as the instigator and targeting of the victim’s head following the initial punch”. The Judge chose a starting point of nine years imprisonment for him on manslaughter and reduced it to eight and a half years for his age and remorse. A concurrent term of six and a half years was imposed on the charge of injuring with intent to cause grievous bodily harm conviction.
[17] Whilst the starting point was chosen by comparison with similar manslaughter cases, it is noteworthy that at no point in sentencing Mr Kulitapa did the Judge give explicit consideration to the aggravating factor of his being involved in two serious assaults within a short period nor to the imposition of a minimum term of imprisonment. While it is possible the Judge made some allowance for the attack on the second victim by increasing the starting point, we cannot be confident this was so in the absence of any indication to that effect.
[18] The Judge held Mr Lanivia’s culpability as regards Mr Martin was lower than that of his co-offenders. He was not the instigator and did not kick the head, and may have made a “token” attempt to encourage him to avoid the continuing attack. A starting point of eight years imprisonment was selected on the manslaughter conviction which was reduced to seven years for his youth and other personal factors.
[19] Mr Lanivia was regarded as having played a more significant role in the second attack, leading it, taunting the victim, punching and kicking him. His culpability as regards that incident was regarded as equal to his co-offenders. That led to seven years being chosen as the starting point on the injuring with intent to cause grievous bodily harm conviction, with a reduction to a concurrent sentence of six and a half years on account of his age.
[20] As with Mr Kulitapa, the Judge’s sentencing remarks did not consider the possibility of the imposition of a minimum term of imprisonment being aggravated by the two attacks over a brief period.
[21] Shortly before the trial was due to commence the Crown obtained an order severing the fourth accused’s trial from that of his co-accused in order to challenge a pre-trial ruling by appeal. After that was disposed of (R v Z [2008] 3 NZLR 342 (CA)), he pleaded guilty to manslaughter and on 7 October 2008 was sentenced by John Hansen J to five years imprisonment. Eight and a half years imprisonment was chosen as the starting point. Aggravating factors included the unprovoked attack on Mr Martin by kicking him in the head and his commission of two other violent offences only about 24 hours before the attack on Mr Martin which had been proved against him in the Youth Court. Mitigating features included his plea, his age, and his remorse.
[22] The Judge regarded the youth’s culpability as being between that of Messrs Kulitapa and Lanivia. It appears he was not asked to consider the imposition of a minimum term of imprisonment. Interestingly, having read the sentencing notes for Messrs Kulitapa and Lanivia, John Hansen J said that he was not satisfied the starting point for them was increased because of the violent second episode.
[23] In summary, Mr Edgar submitted the 16 year minimum term imposed was manifestly excessive, affected by s 104 considerations and out of line with the sentences imposed on the appellant’s co-offenders, particularly when possible parole eligibility was considered.
[24] For the Crown, Mr Woolford submitted the minimum term imposed was available and accurately reflected the totality of the appellant’s offending, particularly having regard to the identified aggravating features of the murder.
[25] He relied on R v Slade [2005] 2 NZLR 526 (CA) and R v Piilua HC CHCH CRI 2005-009-011878 1 September 2006 as supporting the minimum term imposed.
[26] Slade was a case where the facts were roughly comparable with the present. It involved an unprovoked attack by a group on a young man who later died. There were no weapons. Two of the attackers were convicted of murder and a third of manslaughter. Those convicted of murder were sentenced to life imprisonment with a minimum period of 17 years and the offender convicted of manslaughter was sentenced to nine years imprisonment. The trial Judge held s 104 applied because of the high level of brutality and callousness. His decision was upheld by this Court. However, while the 17 year minimum was upheld in respect of the principal offender, the minimum term was quashed for the other murderer, leaving his minimum at the statutory 10 years.
[27] Mr Piilua was one of a group of young people who abused and then, unprovoked, attacked a man in the street. After punching him to the ground, Mr Piilua hit him with a baseball bat causing injuries from which he died. Mr Piilua, 18 years old at sentence, had a number of previous convictions. With some hesitation, Panckhurst J held s 104 inapplicable, largely because of his view that a single blow with a weapon did not engage the section. He held, however, that it was a murder out of the ordinary range of murders, being gratuitous street violence on a defenceless victim with use of a weapon. He imposed a minimum period of imprisonment of 12 years.
[28] Mr Woolford submitted Mr Houma’s offending was worse than that of Mr Piilua, notwithstanding the latter’s use of a weapon, because of the callousness of the attack on Mr Martin and the appellant’s lack of concern for the victim. He also submitted an uplift of one year in the appellant’s case was appropriate to reflect the attack on the second victim occurring shortly after the first.
[29] As to suggested disparity, Mr Woolford made the point that only Mr Houma was convicted of murder and accordingly wide differences in sentences were to be expected. No inference could be drawn of any possible miscarriage of justice from the differences in sentence: R v Autagavaia [1985] 1 NZLR 398 at 400 (CA). That was particularly the case when the sentencer was the trial judge. Parole eligibility was irrelevant, particularly seen against the statutory minimum term of imprisonment for those convicted of murder.

Discussion and decision

[30] Dealing first with the appeal point arising from the sentencing Judge’s consideration of s 104, we take the view she was fully entitled to describe Mr Houma’s participation in the attack on Mr Martin in the way she did. Though Mr Kulitapa instigated the attack, the jury, by its verdict, plainly regarded Mr Houma’s participation – particularly his kicking and punching the victim in the head – as the most culpable aspect of the assault and the likely cause of death.
[31] In those circumstances, there could be no justified exception taken to the Judge raising the possible application of s 104. Ultimately, she held s 104 inapplicable “by a very narrow margin” but, having reached that view, we do not regard her consideration of the appropriate minimum term of imprisonment as affected by that conclusion.
[32] We agree with her description of the appellant’s part in the attack already cited (at [8] above). That clearly justified the imposition of a minimum term of imprisonment well in excess of the statutory 10 year minimum.
[33] In broad terms, a substantially higher sentence was required for Mr Houma than those imposed on his co-offenders. He was convicted of murder, his co-offenders of manslaughter. He was regarded as the ringleader. He was significantly older. His personal situation differed from those of his co-offenders. In all those circumstances, significantly different sentence lengths were to be expected. Indeed, his conviction for murder engaged the specific sentencing regime prescribed for that offence and the sentencing Judge was required to work through that regime to reach the higher sentence inevitably resulting.
[34] What is really at issue in this appeal is whether the Judge’s choice of a 16 year minimum was excessive in the circumstances and whether the fact that concurrent terms of imprisonment were imposed on the co-offenders with no uplift for the second attack raises a disparity issue.
[35] In that regard, we note the Judge was explicit in increasing the minimum term from 15 to 16 years because of the appellant’s part in the second attack. There is no legal impediment to taking that approach: R v Hoko [2003] NZCA 128; (2003) 20 CRNZ 464 (CA). An uplift of that nature is appropriately applied when a concurrent sentence is being imposed for associated offending to ensure the overall length of the sentence reflects the offender’s culpability for the entire offending.
[36] While the Judge’s approach in that regard is therefore supported by authority, we consider that, where an uplift is to be incorporated in a sentence, there is a certain inconsistency in omitting to apply an uplift to the sentence imposed on co-offenders who received concurrent sentences for the same offending. Put another way, though dealing, of course, with different sentencing situations, when the offending of co-offenders was not thought by the sentencing Judge to warrant an uplift in terms of the guidelines on the use of cumulative and concurrent sentences set out in s 84 of the Sentencing Act it is unclear why the appellant’s overall offending was thought such as to justify an increase in the minimum term of imprisonment imposed on him.
[37] Put yet another way, the appellant was required by s 103(2) of the Sentencing Act to serve a minimum period of imprisonment on his conviction for murder of 10 years. The question therefore for the sentencing Judge was whether the circumstances of the case, including Mr Houma’s circumstances, were such as to justify an increase in that minimum period. Although not adverted to by the sentencing Judge, the exercise was not therefore greatly dissimilar to that required by s 86(2), namely whether the circumstances of the appellant’s co-offenders were sufficiently serious to justify a minimum period of imprisonment for them longer than that specified by s 84(1) of the Parole Act 2002. Yet there is no mention of the Judge turning her mind to that question in the case of Messrs Kulitapa and Lanivia.
[38] It may be the case that the Crown did not seek the imposition of a minimum period of imprisonment on Messrs Kulitapa and Lanivia – the omission of reference to that question from the sentencing notes is a firm indication that such is the case – but nonetheless it was open to the Judge of her own motion to consider that possibility.
[39] However, omission from the sentencing notes for Messrs Kulitapa and Lanivia of any reference to minimum periods of imprisonment or the allowance for the aggravating factor of a second attack following shortly on the first, means it is not easy to distil the extent to which the Judge considered those factors in sentencing them.
[40] In light of that, we felt it appropriate to deal afresh with Mr Houma’s appeal concerning the minimum period of imprisonment imposed on him in order to address any perception of disparity between the appellant and his co-offenders in relation to the uplift on Mr Houma’s sentence.
[41] We consider that something less than the 17 year minimum imposed in Slade but something more than the 12 year minimum imposed in Piilua would have been appropriate. Taking into account the totality of the offending, the appropriate minimum period for the appellant is one of 15 years imprisonment. That reduction in the minimum period of imprisonment reflects in part our concern about the perception of disparity with the co-offenders’ sentences arising from the uplift on Mr Houma’s sentence to reflect his part in the second attack.
[42] It follows that, in our view, the appropriate minimum period of imprisonment to have been imposed on the appellant as reflecting his overall culpability for his actions on the night in question would have been 15 years.

Result

[43] In the result, therefore, the appeal against sentence is allowed to the extent of substituting a minimum period of imprisonment of 15 years in lieu of the 16 years imposed on the appellant’s conviction for murder.

Solicitors:
Crown Law Office, Wellington

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