[1] Nyal Heke together with Jamie Fitzgerald and Rex Daley were convicted after trial in the District Court of wounding Joseph Lepper at Auckland’s Paremoremo prison with intent to cause him grievous bodily harm. A fourth accused, Bayden Dunn, was acquitted.
[2] All offenders were eligible for preventive detention. The trial Judge, Judge Hubble, sent all three accused to the High Court for sentence. In doing so he gave his view of the relevant facts and in particular whether the offending was premeditated.
[3] In the High Court Hugh Williams J sentenced the appellant to seven and a half years’ imprisonment based, in part, on Judge Hubble’s findings and on his own assessment of the facts.[1]
[4] The appellant’s case is that the evidence given at trial did not justify the sentencing Judge’s conclusions as to premeditation. Further, the appellant says the Judge should have accepted that the appellant had been provoked by the victim’s actions and that the appellant’s initial response to the victim’s actions had been in self-defence. In this appeal the appellant says, therefore, that if this view of the facts were accepted, then the resulting sentence was manifestly excessive. Counsel for the appellant agreed, however, that if the sentencing Judge’s view of the facts was correct then there could be no complaint about the final sentence.
[5] The appellant accepted the process undertaken by the sentencing Judge in making his own assessment of the relevant facts for the purpose of sentencing, and in giving Judge Hubble’s views due weight, was as contemplated by s 24 of the Sentencing Act 2002.

Facts

[6] The appellant and his two co-offenders, Mr Daley and Mr Fitzgerald, were inmates at Auckland prison, Paremoremo. The complainant was on the same landing as Mr Daley and Mr Heke. Mr Fitzgerald was on a different landing although in the same block at the prison. The Crown case was that the offenders believed the victim had previously seriously assaulted Mr Daley’s birth father. The Crown said that the events arose when Mr Heke filled a jug with boiling water and entered the victim’s cell and threw the boiling water at him. Mr Lepper raised his hands to his face and the boiling water hit him on the arm. The appellant was charged with disfiguring Mr Lepper with intent to cause grievous bodily harm. At trial he was found not guilty by the jury.
[7] After the boiling water was thrown the victim punched the appellant and forced him out of his cell. Shortly afterwards the Crown said four men (the accused, including the appellant) entered the cell and attacked the victim with aluminium shanks, obtained from prison windows and sharpened into weapons. The victim was stabbed, kicked and stomped on by the offenders. Eventually prison officers intervened to stop the attack. The victim suffered 25 stab wounds to his body and legs and cuts to his head. He was seriously injured.
[8] The Judge considered the offending was at the top of category two or the bottom of category three of R v Taueki[2] based on the facts as he found them. The appellant’s co-offenders, Mr Fitzgerald and Mr Daley, were sentenced to eight years’ imprisonment for their offending. Both had a more serious past record of violence than Mr Heke.
[9] The appellant gave evidence at trial. He said he acted in self-defence.

Sentencing

[10] Sentencing began before Hugh Williams J on 14 May 2010. The High Court Judge had before him the memorandum from Judge Hubble. Counsel then made submissions on the facts and in particular denied premeditation. In his memorandum Judge Hubble expressed his view of the facts in this way:

[4] ... The first thing that did occur to me is that although there was some reference to Mr Lepper being a “nark” (and there may be some other issues I did not hear about at trial relating to that) the motivating reason for this assault taking place was that Mr Lepper had quite seriously assaulted Mr Daley’s biological father who was a member of a patched Black Power gang.

...

[6] So there was a clear motivation for this assault on Mr Lepper. Mr Lepper can handle himself. It struck me that yes, he did study some of these martial arts and such like, but he also has some considerable mental problems and he is a vulnerable victim for that reason.

[7] I do not accept that Mr Lepper had a weapon of the kind that either two or more of you used against him. I accept certainly that he had a piece of a ringbinder, a piece of metal, which could have been used to inflict a punch wound, but not a serious wound. This was found on a search of his cell. He admitted that he had detached that and kept it somewhere in a drawer. But I do not accept that he was armed at the time you entered his cell.

[8] The offence on this occasion was undoubtedly premeditated for some days prior to this occurring. It was clear to me that there was a motive of retribution against Mr Lepper. The prison cameras had been disabled on this landing. There was the preparation of the shanks. There was aluminium joinery torn off the surrounds of the prison windows and evidence was given that a number of these aluminium surrounds had been removed. I have little doubt that that was the source of the shanks that were used.

[9] Mr Fitzgerald had to purposely get past a cell door that divided his cell from the others. He hid in the showers so that he could join the other two or three of you in this concerted assault. There was evidence of you all discussing it prior to this assault happening. Mr Lepper thinks he overheard it, and there was a considerable degree of organisation.

...

[12] The jury found Mr Heke not guilty of assaulting with intent to disfigure and Mr Heke says that he was the one who was attacked by a pre-emptive strike by Mr Lepper. That was not the impression I got. I agree that it appeared to me that Mr Lepper could see what was about to happen to him with the boiling water and may have lunged at Mr Heke. As a result the water did not hit Mr Lepper in the face, but it certainly got him on the arm and caused a serious burn. But the jury found Mr Heke not guilty of this disfigurement charge.

[13] Nevertheless, the evidence as I saw it was not that you were defending yourself, but that you had prepared this boiling water, illicitly in terms of prison rules, by use of a clever device to place into the jug to create the boiling water and the real intent was to take that boiling water into the cell and toss it over Mr Lepper. I do not think that that is inconsistent with the jury’s verdict that they were of the view that it had not been proved beyond reasonable doubt that what you intended to do was to disfigure him by throwing it at his face.

[14] What then happened was that Mr Fitzgerald entered the cell. In my judgment he was carrying a weapon and also that Mr Daley arrived and that he too was likely to have been carrying a weapon. Mr Lepper’s view was that all of you were carrying weapons. However, only two were found at the scene and it seems possible that Mr Heke may not have been armed because he was carrying a jug of boiling water immediately prior to the assault. He would have had to have a shank, (and they were quite large implements), stuck into his belt, or something of that nature.

...

[16] So in my judgment this was a jointly planned enterprise in which all three of you participated as principals and some 25 stab wounds were identified on the victim. At least one of the stab wounds was in his back. I think that was inflicted by Mr Fitzgerald who jumped on the bunk, moved in behind Mr Lepper, held him in a headlock with one hand and, in my judgment, probably inflicted the serious stab wound, which if it had met with his liver might well have killed him. However, it narrowly missed doing so.

[11] Hugh Williams J said:

[4] Fortunately, when Judge Hubble issued his ruling on 28 October 2009 declining jurisdiction for you to be sentenced in the District Court, he, as trial Judge, set out his views as to the facts disclosed by evidence at the trial and the facts expressed or implied that were essential to the finding of guilt. His ruling was, therefore, the equivalent of a trial Judge’s memorandum issued under s 24 of the Sentencing Act 2002 though, until recently, no opportunity was provided for defence counsel to have any input to dispute the Judge’s view of the facts.

...

[66] The real question, the real dispute, is whether this was a premeditated attack. Counsel both in the District Court and again today have been at pains to try and dispute aspects of the offending which Judge Hubble mentioned when he concluded this was a premeditated attack.

[67] Whether there was premeditation is open to doubt, to some degree at least, but there was certainly preparation for this attack. The manufacturing of the shanks is an obvious example, and, possibly, the boiling water. There may be a dispute about whether the cameras were disarmed or whether there was any retribution but again it may be those are of little importance. There was some preparation in Mr Fitzgerald using a ruse to get himself on the right side of the landing.

[68] It cannot be disputed that it was no coincidence that all three of you were there in that cell, at the same time. It cannot be disputed that all three of you participated in the attack on Mr Lepper, that none of you withdrew, and that the attack continued until the Prison guards broke it up. None of you stopped the attack. It cannot be disputed that all of you used weapons in the sense of shanks or boiling water or fists and you were fighting. And so, even if Judge Hubble’s suggestion this was part of a jointly-planned exercise may be doubtful, all three of you participated in this assault, as principals, as the Judge said. And in an assault where a number of injuries were sustained.

Discussion

[12] The appellant submitted that the verdict by the jury on count one, the disfiguring count, meant the jury accepted Mr Heke’s claim that when he threw the hot water he was acting in self-defence. This conclusion, therefore, meant the sentencing Judge had to proceed on the basis that the initial response by Mr Heke had been in self-defence and his reaction in throwing the water had been provoked by Mr Lepper’s attempt to stab him.
[13] After discussion with the Court, Mr Heaslip accepted that the basis of the jury’s verdict could not be known. It was possible the jury accepted the Crown could not disprove self-defence, because they could not reject the appellant’s claim he had thrown the water while defending himself from an attack by the victim. However it was also possible that the jury were not convinced that the appellant had disfigured Mr Lepper with intent to cause him grievous bodily harm.
[14] Counsel therefore accepted that the jury’s verdict on count one left open for the sentencing Judge to determine whether this had been a premeditated attack or one in response to the victim’s attempts to stab the appellant.
[15] The question arises therefore what level of review of the sentencing Judge’s factual conclusion is appropriate for this Court on appeal. Section 24 of the Sentencing Act 2002 provides as follows:

24 Proof of facts

(1) In determining a sentence or other disposition of the case, a court—

(a) may accept as proved any fact that was disclosed by evidence at the hearing or trial and any facts agreed on by the prosecutor and the offender; and

(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—

(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:

(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the hearing or trial:

(c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate [beyond a reasonable doubt] any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:

(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence:

(e) either party may cross-examine any witness called by the other party.

(3) For the purposes of this section,—

aggravating fact means any fact that—

(a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and

(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

mitigating fact means any fact that—

(a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and

(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

[16] The section anticipates where there has been a trial that the sentencing court may accept as proved any fact given in evidence at that trial.[3] The sentencing Judge in this case reached his conclusion as to premeditation, self-defence and provocation in part based on Judge Hubble’s memorandum assessing the trial evidence and in part based on his own assessment of that evidence.
[17] The Supreme Court in Austin, Nichols & Co v Stichting Lodestar said:[4]

[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[17] In the present appeal there was no basis for caution in differing from the assessment of the tribunal appealed from. The case entailed no question of credibility. It turned on a judgment of fact and degree, not the exercise of discretion entrusted to the tribunal. We are of the view that the Court of Appeal was not correct to suggest that, because the decision turned on a value judgment apparently open to the Assistant Commissioner, “the High Court Judge ought not to have embarked on a reconsideration of the issue without considering, and giving weight to the Assistant Commissioner’s conclusion”. The High Court Judge was obliged to reconsider the issue. He was entitled to use the reasons of the Assistant Commissioner to assist him in reaching his own conclusion, but the weight he placed on them was a matter for him.

[18] This Court has concluded that the level of appellate review referred to in [16] of Austin, Nichols above does not apply to appeals from a discretion, the category of most sentence decisions.[5]
[19] However s 24 requires an assessment of evidence by the sentencing Judge, whether from the evidence already given at trial or evidence to be called, relevant to a determination of an appropriate sentence. It is not a discretionary exercise by the Judge, it is the determination of relevant facts. We therefore consider that the standard of appellate review of s 24 fact finding requires us to consider the evidence given and reach our own opinion on the facts in dispute. Here it is for this Court to give its opinion as to whether there was premeditation by the accused, whether initially he was acting in self-defence and whether his initial actions were provoked by the actions of the victim. This approach is in accordance with the Supreme Court’s view expressed at [16] of Austin Nichols.
[20] In undertaking this evidence review we acknowledge the advantage enjoyed by Judge Hubble as trial Judge. The sentencing Judge, however, was in no better position than we are to assess the facts relevant to premeditation, self-defence and provocation.
[21] We therefore have undertaken a review of the evidence in this trial. We make two initial observations. Any conclusions about the facts must be consistent with the jury verdicts in count one and count two of the indictment. Secondly, the whole of the appellant’s evidence could not have been accepted by the jury given his conviction on count two. The thrust of the appellant’s evidence was that he had been attacked by the victim with a metal shank and all his actions that day were solely to defend himself. The jury must have rejected this claim given their verdict on count two.
[22] At trial, three of the four accused, Mr Heke, Mr Fitzgerald and Mr Dunn, gave evidence. All denied possession or use of aluminium shanks to stab the victim. Mr Heke claimed the events began when he took a jug with hot water into the victim’s cell and offered the victim coffee. The appellant said the victim immediately pulled out a sharpened aluminium shank and tried to stab him. The appellant said he threw the jug of hot water at the victim’s hand which held the shank. A fight then ensued between the two of them. Any violence from Mr Heke was to fight off the attempts by the victim to stab him with the aluminium shank. Mr Heke said it was only then that others entered the cell. Mr Heke accepted that others may have had shanks and stabbed the victim but said he had not seen anyone else with a shank nor had he seen the victim stabbed. He had not stabbed the victim.
[23] Mr Fitzgerald accepted he had punched the victim. He said he had done so in self-defence. He denied stabbing Mr Lepper. Mr Fitzgerald said he intervened because he saw that Mr Heke was being seriously beaten by Mr Lepper in the cell.
[24] Mr Dunn said he had not entered Mr Lepper’s cell. He had only been part of the incident in the sense that he told those inside Mr Lepper’s cell to stop fighting. Other than a scrape to Mr Heke’s hand none of the offenders had any injuries.
[25] Mr Lepper’s evidence was that Mr Heke had, unprovoked, thrown hot water towards his face. When he threw his arms up to protect his face his arms had been burnt. He said that he then punched Mr Heke, driving him out of the cell. Immediately afterwards Mr Heke and three others returned to the cell, some had aluminium shanks and he was then stabbed, beaten, kicked and stomped. Mr Lepper denied ever having or using any aluminium shank.
[26] The verdict of the jury indicated they must have rejected the evidence given by Mr Heke and Mr Fitzgerald, the thrust of which was that no one they saw had aluminium shanks or used them to stab Mr Lepper and that their actions were throughout entirely in self-defence. The jury must have been satisfied that the Crown had proved their actions were not in self-defence. This was hardly surprising given Mr Lepper’s injuries. He had 25 stab wounds and a number of serious injuries. None of the offenders had any injuries of note. The logical inference in those circumstances, as Hugh Williams J observed, was that it was the offenders who brought the sharpened shanks to the cell and it was they who attacked and stabbed Mr Lepper. This action was not in defence of Mr Heke.
[27] As to premeditation the evidence pointed strongly toward the conclusion that this assault was planned. The presence of Mr Fitzgerald on the landing, which involved him hiding in the shower so that he could be on the landing that day, the possession of the shanks by some or all of the offenders, the initial confrontation between Mr Heke and the victim and the arrival of the offenders in the victim’s cell immediately after the initial event all pointed strongly towards a pre-planned attack initiated by Mr Heke throwing the boiling water at the victim.
[28] To return to the basis on which Mr Heke was sentenced. The Judge said whether there was premeditation was open to doubt, but “there was certainly preparation for this attack”. He referred to the manufacturing of the shanks and possibly the preparation of boiling water. We consider there was ample evidence to justify that modest conclusion as to preparation by the Judge. The Judge was also entitled to reject the suggestion that Mr Heke’s actions were initially in self-defence or that he had been provoked somehow. On the facts the Judge was entitled to infer, and we consider correct to do so, that this event began by the unprovoked actions of Mr Heke in throwing boiling water at Mr Lepper.
[29] Given those factual conclusions and counsel’s concession we are satisfied that the sentence imposed was well within the range available. It was not manifestly excessive.
[30] The appeal is therefore dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent

[1] R v Heke HC Auckland CRI-2008-044-8370, 4 June 2010.
[2] R v Taueki [2005] 3 NZLR 372 (CA).
[3] Subsection (1).
[4] Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[5] Blackstone v Blackstone [2008] NZCA 312.

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