The Queen v Heitia [2009] NZCA 398 (10 September 2009)

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The Queen v Heitia [2009] NZCA 398 (10 September 2009)

Last Updated: 15 September 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA10/2009

[2009] NZCA 398

THE QUEEN

v

NELSON HEITIA

Hearing: 31 August 2009

Court: Glazebrook, Gendall and Asher JJ

Counsel: Appellant in person
K J Beaton for Crown

Judgment: 10 September 2009 at 3.00 pm

JUDGMENT OF THE COURT

A Application to adduce evidence declined.

B Appeal against sentence dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1] The appellant was convicted by a jury in the Hamilton District Court of wounding with intent to cause grievous bodily harm. He was sentenced to eight years imprisonment and appeals against that sentence.

Background

[2] On the afternoon of 4 September 2007, the appellant, accompanied by five other men, went to a house in Hamilton. One of the occupants of the house was known to an associate of the appellant. The visiting group had not been invited and the reason for their visit is not known. The complainant was present at the house, assisting his uncle who was unwell and asleep in the lounge.
[3] Some form of altercation occurred when the complainant came upon both the appellant and others in the group trying to steal an Eftpos card from his sleeping uncle. He ordered the group from the house and the tempers of the appellant and Mr William Wirihana became inflamed, to the extent that they set upon the complainant. A prolonged violent and vicious attack ensued, in which Mr Wirihana held the complainant whilst the appellant punched him about the head and body and then repeatedly kicked his head and body. District Court Judge Spear presided at the trial and at sentence said:

[8] ...At some stage, [the complainant] ended up on the ground, covering up, trying to protect himself. That did not stop you, however, and you continued with your frenzied attack on him kicking him with your steel capped boots and also your fists.

[9] The next door neighbours witnessed what was happening...They believed that they were watching [the complainant] being beaten to death such was the ferocity of your attack on him.

[4] The complainant suffered intense bruising and swelling to the head and skull and a laceration extending through the full thickness of skin to the underlying bone above the right cheek bone. In addition, he suffered bruising to the eyes and arms.
[5] The appellant’s co-offender, Mr Wirihana, pleaded guilty at an early stage and was sentenced by District Court Judge Burnett to five years and four months’ imprisonment. Her Honour regarded Mr Wirihana as a secondary offender and took a starting point in the region of six and a half to seven and a half years imprisonment and allowed a significant discount for the early guilty plea.
[6] When sentencing the appellant, Judge Spear adopted a starting point of eight years imprisonment based upon the approach mandated in R v Taueki [2005] 3 NZLR 372 (CA). The Judge said he recognised the need for there to be a proper correlation between the sentences imposed on the two offenders. While he did refer to the appellant’s expressions of remorse, he said that he viewed this remorse as relating more to the predicament that the appellant then found himself in. Judge Spear referred to the appellant’s denial of his role in the attack, his claim that he was provoked by racial taunts and the fact that Mr Wirihana was said to be the main offender. Although the appellant has only one previous conviction involving violence, he has a total of over 50 previous convictions so could not call in his aid a blameless record.

Application to adduce evidence

[7] The appellant submitted a statement, said to be an “affidavit” from Mr Wirihana, which he wished to have received in evidence. The statement records in detail what Mr Wirihana asserts occurred during the attack upon the complainant. The statement includes a detailed and intricate narrative asserting, essentially, that the complainant racially abused the appellant, had some form of weapon in the nature of a sharpening steel, commenced the affray and was the aggressor throughout. Mr Wirihana asserts the appellant did not wear steel capped boots, but rather wore jandals.
[8] The Crown opposed the introduction of that statement, or any sworn statement based upon it, in the form of evidence. Mr Wirihana was sentenced based upon an agreed summary of facts, which bore little relation to the content of the statement now sought to be relied upon by the appellant. The appellant gave evidence at his trial as to his version of events, which was somewhat similar to that set out in Mr Wirihana’s statement. Apart from the evidence of the complainant at the trial, there was evidence of eyewitnesses to the attack.
[9] This is not a case where there was, or should be, a disputed facts hearing after a plea of guilty. What was sought to be presented to this Court was really no more than a repetition of the appellant’s evidence that was clearly rejected by the jury. As is conventionally the case, the sentencing Judge was entitled to ascertain from all the evidence that he heard during trial such facts as were relevant in order for him to impose sentence.
[10] Mr Wirihana was a competent and compellable witness (whether for the Crown or the appellant) at the appellant’s trial. His statement now sought to be admitted in evidence does not fall into the category of “fresh” evidence. Potentially helpful evidence of a co-accused, if sought to be introduced post-trial, is not treated as “fresh”. This Court in R v Saggers [2008] NZCA 364 referred to the principles applicable in applications to introduce post-trial, evidence of a co-accused. The Court referred to R v Fryer [1981] 1 NZLR 748 (CA), R v Raukawa CA219/89 26 February 1990, R v Barlow (1996) 13 CRNZ 455 and R v Taylor [2007] 2 NZLR 250 (CA). The principles that emerge are that if a defendant knows that a co-defendant could give evidence favourable to the former and therefore wishes to call it at his or her trial, severance of the trial should be sought. Of course in this case that was not necessary as Mr Wirihana pleaded guilty. But the appellant, if he knew of Mr Wirihana’s evidence (as he must as it parallels his own evidence), cannot be heard to argue on appeal that it, being available, is “fresh”. Even where a co-accused’s evidence is fresh (in that an accused did not know of it at the time of the joint trial and could not reasonably have been expected to discover it), this Court will examine the evidence with real care, being conscious of the risk that a former co-defendant may well give false evidence to assist an appellant, safe in the knowledge that he cannot be prosecuted again for the substantive offence or one like it.
[11] Naturally, the position in this case is that there never had been a joint trial, but there had been, in effect, severance as a result of the plea of guilty by Mr Wirihana. But it is clear that the appellant gave evidence at his trial to a similar effect of that which is now advanced by Mr Wirihana. That evidence was obviously rejected by the jury. We are not satisfied that what Mr Wirihana now says is either fresh or sufficiently cogent to be admitted on a sentence appeal such as this.
[12] Accordingly, leave to adduce evidence along the lines contained in the statement of Mr Wirihana is declined.

Sentence appeal

[13] This was not a case involving low-level violence. It involved a severe and prolonged attack by two men upon the complainant. Moreover, the attack involved four features which contribute to the seriousness of the criminality involved, as discussed in R v Taueki, namely: extreme violence was used; a serious injury occurred; there was an attack to the head; and multiple attackers. No question of excessive self-defence arose and, on the Crown’s case, there was no element of provocation. The Judge accepted the Crown’s submission that a starting point of between eight and nine years imprisonment was appropriate as the offending fell within Band Two in R v Taueki and the appellant’s high culpability warranted a starting point of eight years.
[14] The injuries sustained by the victim have resulted in permanent facial scarring which will require, if funds are available, plastic surgery. We are not persuaded that the starting point was excessive. Any claim to self-defence or other mitigating features surrounding the offence which might have arisen out of the evidence was described by the Judge as obviously absurd and it seems this was seen as such by the jury.
[15] The appellant’s prior criminal history, whilst not taken as aggravating, was, at best, neutral. He could not expect any discount or concession for a guilty plea. Genuine remorse may have attracted some concession as a mitigating feature, but it was open to the Judge to conclude that he did not regard expressions of remorse as being genuine.

The pre-sentence report

[16] Although the probation officer recommended a community-based sentence it was clearly inappropriate and we note that the appellant was assessed as being at high risk of re-offending should he not deal with a propensity for violence.
[17] For offending falling within Band Two of R v Taueki, a substantial term of imprisonment is required as denunciation and deterrence are important in sentencing for crimes of serious violence such as this. Some examples can be seen in recent decisions of this Court in R v Connelly [2008] NZCA 550, R v Konui [2008] NZCA 401 and R v Wi [2009] NZCA 81, where sentences of 10 years; eight years and three months; and seven years imprisonment were upheld for offending falling within Band Two.

Result

[18] Given that the starting point of eight years imprisonment taken by Judge Spear was appropriate and that there are no mitigating factors which would justify the end sentence being reduced, it could not be said that the sentence of eight years imprisonment was manifestly excessive.
[19] Accordingly, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington