[1] Following trial in the District Court at Gisborne both appellants were found guilty of being parties to the wounding of an innocent bystander with intent to cause grevious bodily harm during the course of a group attack in Gisborne. The jury also found Mr Simeon guilty of unlawful assembly, Mr Ataria having pleaded guilty to that charge at the beginning of the trial. Sentences of six and a half years and six years imprisonment respectively were imposed on Mr Simeon and Mr Ataria.
[2] Mr Ataria appeals against both conviction and sentence. Mr Simeon appeals against sentence only.
[3] Although Mr Ataria’s conviction appeal was originally advanced on the primary basis that evidence relating to blood and DNA found on his clothing and shoe was inadmissible, it became apparent during the hearing of the appeal that this argument was untenable. Thereafter the appeal focused on two grounds: first, the Judge failed to properly direct the jury in relation to those matters; secondly, the jury’s verdict was unreasonable or cannot be supported having regard to the evidence.[1]
[4] Both sentence appeals allege that the sentences imposed on the appellants were manifestly excessive. The appellants also allege that there is an unjustifiable disparity between their sentences and those imposed on their co-offenders.

Background

[5] At around 9 pm on 29 June 2008 a group of 15-20 associates or supporters of the Mongrel Mob gathered in a street where members of the rival Black Power gang were known to reside. Most of the group were wearing gang insignia and many were armed with bats and sticks. As they marched up Halley Street they were yelling out “Sieg Heil”. A neighbour said “It was like an army thing happening. It was very frightening”. Being fearful that violence was about to erupt, she rang the police.
[6] The victim, a 20 year old man who was not associated with either gang, heard the commotion and walked up his driveway to find out what was going on. He saw a group of five or six people (who had broken away from the main group) standing near the end of his driveway. Some of them were carrying hockey sticks. When the group reached the victim one of them asked his name, and then the name of his father.
[7] Mr Simeon was the only person in the group that the victim was able to identify. The victim said that Mr Simeon punched him twice on the head while other members of the group stood “right behind him”. Then another person hit him twice on the head with a hockey stick. After Mr Simeon had punched him again, the victim managed to wrest the hockey stick away from the person wielding it and hit his assailant with it. As the attack progressed the victim and his assailants were moving down the victim’s driveway towards the victim’s house.
[8] The victim’s evidence was that although there were only two people hitting him at that stage, there were others on the driveway and they were yelling and chanting “Sieg Heil” and “all of that”. Mr Simeon then hit the victim again, knocking him to the ground, and while he was on the ground the victim was kicked and struck on the back of the head with a hockey stick. The victim thought probably five or six people had been hitting or kicking him and he heard people say words to the effect “Let’s do him, do him good, finish him”.
[9] When he managed to stand up the victim was hit over the head with a Jim Beam bottle and he fell to the ground again, screaming for help. He heard sirens. Eventually he heard people yelling from the back “Let’s go” and others saying “No, let’s finish him”, following which the attackers ran away.
[10] As a result of the attack the victim suffered fractures in the vicinity of one of his eyes, as well as cuts, grazing and bruising. He was hospitalised for two days and was off work for a week. Apart from a scar, there was no long term or permanent injury.
[11] In his video interview Mr Ataria acknowledged that he was in Halley Street with a number of Mongrel Mob supporters that night, having gone there looking for a fight. But he claimed that he had not gone down the victim’s driveway and said that he was not involved in the attack on the victim. He did not give evidence at trial.

Other evidence

[12] The other evidence against Mr Ataria falls into three broad categories: his somewhat spectacular arrival at the victim’s address after the police were in attendance; the locating of one of his shoes by a tracker dog; and discovery of the victim’s blood on his clothing and one of his shoes.

Mr Ataria’s arrival at the victim’s address

[13] Senior Sergeant Sycamore was in the first police vehicle to arrive at the scene. After arresting someone in Halley Street, the police officers drove down the victim’s driveway and stopped near the house. Then the senior sergeant spoke with the victim who was “bleeding profusely and had quite significant injuries on his head and face”. Other people were also present.
[14] It was the senior sergeant’s evidence that while he was talking with people at the victim’s address:

Mr Ataria came running down the road yelling “I’m gonna f-ing get him,” or words to that effect at the top of his voice and then he ran full speed into the back of my patrol vehicle ... the window’s exploded ... I thought he was looking to engage in another fight with somebody despite my presence so I deployed the pepper spray...

The senior sergeant said that after the appellant had been pepper sprayed, he ended up on the ground by the driver’s door of the patrol car where he was handcuffed by another officer who took him into custody.

[15] Under cross-examination the senior sergeant denied that he had dragged Mr Ataria from the back of the police car to the driver’s door, and said that he had no reason to do so. The officer refuted defence counsel’s suggestion that grazes to Mr Ataria had happened in that way. His response was that the grazes could have arisen when Mr Ataria ran into the back of the patrol car. Senior Sergeant Sycamore also denied that Mr Ataria had at any stage been close to the victim, commenting that he was not letting anyone close to Mr Ataria because it could have been a “recipe for disaster”. Later, under re-examination, he said that he was conscious of keeping people away from Mr Ataria because “tensions were high”.

Locating of Mr Ataria’s shoe

[16] A police doghandler and his dog were deployed at the scene. The police dog followed a “track” across a neighbouring property to a drainage reserve and then along the drainage reserve for some distance until locating a shoe on the opposite side of the drain. It is not disputed that the shoe belonged to Mr Ataria (he was only wearing one shoe when he was arrested). From the position of the shoe the dog tracked out of the drainage reserve, along an access way, and back into Halley Street. The dog also followed another track which ended up some distance from the scene.
[17] According to the Crown, Mr Ataria had fled the victim’s property via the drian, lost his shoe in the drain, and then returned to Halley Street before running down the victim’s driveway into the back of the police car. The Crown claimed that this scenario was supported by the route taken by the tracker dog, the abandoned shoe on that route, and the mud on Mr Ataria’s hoodie, the bottom of his trousers, and his sock (which the Crown attributed to Mr Ataria going into the drain).
[18] That scenario was rejected by the defence. The defence scenario was that Mr Ataria had been chased by a person with a bat, while he was running along Halley Street he lost his shoe which was unlaced, and someone else had picked up the shoe and eventually thrown it away. On the defence theory the mud was attributable to Mr Ataria being dragged from the back of the patrol car to the driver’s door by Senior Sergeant Sycamore after Mr Ataria had been pepper sprayed.

Blood on Mr Ataria’s clothing

[19] A visual inspection of Mr Ataria’s clothing by an ESR scientist indicated blood on his hooded sweatshirt, his trousers, and one of his shoes (the shoe that he was wearing when he ran into the back of the police car). DNA analysis linked five small spots of blood (one inside the hoodie, two on midriff of the trousers and two on the shoe) with the victim. The scientific evidence did not establish when and how the spots of blood had been deposited on Mr Ataria’s clothing and shoe. No DNA analysis of the remaining blood was possible and the scientific evidence was unable to establish whether it was human blood.
[20] Before trial Mr Ataria challenged the admissibility of the scientific evidence that the Crown intended to lead about the blood. For Mr Ataria, Ms Vidal argued in the District Court that the evidence should be confined to the five spots positively identified as having come from the victim. She contended that the remainder of the evidence had no probative value and was unfairly prejudicial to Mr Ataria.
[21] In his pre-trial ruling Judge Gittos concluded that the jury should have the benefit of the whole of the evidence of the expert who examined the stains rather than “have it selectively covered, given that the clothing must be exhibited and that the jury themselves may draw adverse conclusions from other markings that are not commented on if they are not properly and fairly explained.”[2] In the event, the items of clothing were not produced at trial, but this is not a matter of moment in the present context.

Mr Ataria’s conviction appeal

Argument in support

Ms Vidal emphasised that there was no direct evidence that Mr Ataria was a party to the assault on the victim and that the Crown’s case was entirely

circumstantial. On her analysis the Crown’s case was completely reliant on the blood evidence which, she submitted, was insufficient to found the conviction. Thus the conviction was unsafe.

[22] On Ms Vidal’s argument it was not open to the jury to infer that Mr Ataria was a party to the assault. She reasoned:

Without there being direct evidence of the appellant’s involvement in the assault, or even any evidence as to his proximity to the victim at the time of the assault, an inference cannot be drawn about his involvement in the assault solely from the presence of the victim’s blood on the appellant. The Crown must first exclude the possibility of the victim’s blood being deposited on the appellant at another time such as during the appellant’s arrest at the scene, before it can be suggested that inferences can be drawn establishing the appellant’s involvement in the assault by the mere presence of the victim’s blood.

Two possible scenarios were advanced to us (and to the jury) about how the victim’s blood could have been deposited on Mr Ataria’s clothing and shoe: either the victim unintentionally “flicked” blood on Mr Ataria when they were in close proximity immediately before his arrest; alternatively, it happened when Mr Ataria was being dragged through the victim’s blood by the senior sergeant following the pepper spraying.

[23] Given these possibilities Ms Vidal contended that the jury could not have legitimately drawn the inference that the victim’s blood was deposited on the appellant as a result of his involvement in the assault. She claimed that such an inference would require the jury to speculate and fill gaps in the Crown’s evidence that could not be legitimately filled. Ms Vidal noted that the Crown’s scientists had conceded that they could not establish how and when the blood had come onto Mr Atari’s clothing and shoe (which was consistent with the evidence of Dr Cropp, a defence witness). She also claimed that the pattern of the spots and the location of the two spots on the waistband of Mr Ataria’s trousers were more compatible with the defence scenarios.
[24] While the primary focus of Ms Vidal’s argument was on the inability of the jury to draw the necessary inference, she also alleged that the Judge had misdirected the jury. The thrust of this submission was that the Judge had effectively led the jury to believe that it was for the defence to establish the possibilities that it had advanced as to how the five droplets of blood had been deposited on the appellant’s clothing and shoe.

Crown’s response

[25] Ms Edwards submitted that it was for the jury to assess the ESR and defence evidence. She argued that on the evidence before it the jury was entitled to infer that the appellant was an active participant in the attack on the victim and to reject, as not reasonably tenable, the alternative explanation offered by the defence as to how the blood was deposited on the appellant’s clothing and shoe.
[26] According to the Crown the Judge gave appropriate directions as to inferential reasoning; he had comprehensively reviewed the Crown and defence cases in relation to blood stains and the other circumstantial evidence against the appellant, including evidence of the police dog following the scent; throughout he had emphasised that the assessment of the evidence was for the jury; there had been no misdirection; and the verdict reached by the jury was open to it on the evidence.

Discussion

[27] On our analysis the Crown’s case against Mr Ataria was a good deal stronger than Ms Vidal’s argument acknowledges. While the five spots of the victim’s blood on Mr Ataria’s clothing and shoe were obviously an important plank of the Crown case, they were by no means the only plank. Apart from that evidence, the Crown was able to rely on Mr Ataria’s concession that he was present in Halley Street (having gone there looking for a fight), the evidence surrounding Mr Ataria’s missing shoe, and the senior sergeant’s evidence about Mr Ataria arriving on the scene yelling that he was going to get someone.
[28] We do not accept that the Judge misdirected the jury. As to the jury’s ability to draw inferences, the Judge provided standard directions and, importantly, told the jury:

[12] But if there is more than one possibility that might arise from the collective set of circumstances that you have got in front of you, then it would be wrong to draw any inference because of course that would be speculating or guessing. So if there is more than one reasonable possibility that derives, and you cannot draw a reliable inference, then you should certainly never draw an inference adverse to an accused person in that circumstance. It is only if everything points irresistibly to that conclusion that you should allow yourselves to go down that path. Now I have spent some time on that because it is central to the issues that the trial presents you when it comes to the matter of intent in this case.

There is no challenge to that direction, nor could there be. With the benefit of that direction the jury could not have been under any illusion about the inferences that they could, or could not, draw on the evidence before them.

[29] With particular reference to the victim’s blood on Mr Ataria’s clothing and shoe the Judge, having traversed the Crown’s argument that the only rational likelihood was that it had been deposited in the course of the appellant’s active participation in the beating of the victim, made these observations:

[48] Well the suggestion put to you by defence counsel in relation to that was that perhaps Mr Warner’s blood had got onto the clothing and in particular onto the shoes, I think, and then onto the hood, by Mr Warner sort of flicking it off with his hands when he had touched his bleeding wounds. And it was certainly put to Mr Warner that he was bleeding freely and that he had touched his wounds and that he had wiped his hands on his clothing. But it was not put to him at all that he was waving his hands about or had flicked blood in any particular way.

[49] And you will recall there was quite a discourse between defence counsel and the ESR scientist about how far blood travels and whether wet hands that had been washed with water might simulate the behaviour of blood and so forth. And all of that was quite hypothetical really because there is no evidence that Mr Warner was flicking his hands about as somebody might do if they had them immersed in blood or had a lot of blood on them. So there is that difficulty there, the Crown points out, where there simply is not any evidence that Mr Warner behaved in that way. Certainly he said that he approached Mr Ataria on the ground to try and see what was going on at that point, and according to his evidence he got to within about three feet or so of him, but the evidence of Sergeant Sycamore was that he was careful to keep people away from Mr Ataria because he had him handcuffed on the ground and he did not went people to be attacking him. And so if you accept what he says, the opportunity for Mr Warner to get up to him and flick blood all over him in these various locations, would, you might think, be pretty limited. It is a matter for you members of the jury. The Crown suggests that that is a fanciful proposition and that the likelihood is that the blood got there in the course of a fight or a beating.

It was entirely proper for the Judge to note that the “flicking” scenario had not been put and that the evidence from the victim and senior sergeant counted against it. Both those observations were an accurate reflection of the evidence before the Court. Ultimately, as the Judge said, it was for the jury to decide.

[30] Finally, we have not been persuaded that the jury’s verdict was unreasonable or against the weight of evidence. The test was stated by the Supreme Court in Owen v R:[3]

[5] Section 385(1)(a) contains two distinct, albeit overlapping, concepts. The first concerns a verdict which is unreasonable. A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. The second concept concerns a verdict which cannot be supported having regard to the evidence. That will be so when there is no evidence capable of supporting it.

There was ample evidence upon which the jury could have been reasonably satisfied to the required standard that Mr Ataria was a party to the assault on the victim. The weight to be given to the individual pieces of evidence was for the jury who had the benefit of seeing and hearing the witness. On the evidence before them it is scarcely surprising that the jury found the wounding with intent charge against Mr Ataria to have been proved.

[31] Mr Ataria’s appeal against conviction is dismissed.

Sentence appeals

Background to appellants

[32] When Mr Simeon was sentenced he was 20 years of age, having been 18 at the time of the offending. He has a previous conviction from 2007 for wounding with intent to cause grievous bodily harm. According to the probation officer he has a gang connection (which Mr Simeon denies) and a propensity for violence. Imprisonment was recommended.
[33] Mr Ataria was the oldest of the offenders. He was 23 at the time of sentencing, having just turned 22 when the offending took place. He has no previous convictions for violence. While he had a brief association with the Mongrel Mob through his previously estranged father immediately prior to his offending, his mother is very supportive and he had indicated to the probation officer that he intended to move away from the gang connection. Imprisonment was recommended by the probation officer.

Sentencing in District Court

[34] In response to a submission on behalf of both appellants that they had played no role or a minimal role in the attack, the Judge commented that “It would seem the jury found otherwise”. He continued:

[9] When a group of people involve themselves collectively in violence against somebody else, they must all take responsibility for the actions of the group. It may be that the particular injuries inflicted with the bottle or the hockey stick might have been blows struck by somebody else. What was perfectly clear from the evidence was that both of you were identified as people who were involved from the beginning and were there until the end. The suggestion, Mr Ataria that you were not there when this man was being injured is rather belied by the fact that blood, coming from him, was found on your clothing and shoes in various different locations. So you were close enough to him to get sprinkled liberally with blood that came from him, not just in one location but in a number. The evidence on that really is quite damning in connecting you close to the events that were going down.

The Judge then went on to describe the impact on the victim and said that the public needed to be protected from “gratuitous and unnecessary violence of this kind”.

[35] The following aggravating features were identified:

(a) while the Judge hesitated to describe the violence as “extreme”, he observed that “it may have ended up that way”;

(b) premeditation by virtue of the appellants being part of a group “who went there for a purpose and took weapons along, which were used”;

(d) weapons – a hockey stick and a bottle – were used;

(e) multiple attackers;

(f) a home invasion in the sense that the attack took place on the victim’s driveway;

(g) gang warfare was involved.

Taking those matters into account the Judge concluded that the offending was at the middle of the second band of R v Taueki[4] and justified a starting point in the order of seven years imprisonment. He rejected the Crown’s contention that the starting point should be nine years.

[36] Judge Gittos then considered the sentences imposed on the younger co-offenders who had been charged in the Youth Court. He noted that one offender, Mr Marsh, who had been aged 16 years at the time of the offending, had been charged in the Youth Court but sent to the District Court for sentencing.[5] Although the Judge sentencing Mr Marsh had indicated a starting point of four years imprisonment, Judge Gittos considered that that starting point was relative to Mr Marsh’s offending rather than a benchmark for other offenders. On that basis, he rejected Ms Vidal’s suggestion that the appropriate starting point for Mr Ataria was four years imprisonment.
[37] Turning to the personal aggravating and mitigating factors relating to each of the appellants the Judge noted that they were both “relatively young men”. Nevertheless, they had reached an age where they had to accept the adult consequences for offending. The Judge also noted that while Mr Ataria was older than Mr Simeon he had a less significant criminal background than Mr Simeon and that Mr Ataria’s references spoke well of him. Those matters attracted a discount of 12 months for each of the appellants.
[38] In the end result Mr Ataria was sentenced to six years imprisonment and Mr Simeon to six and a half years imprisonment. The additional six months for Mr Simeon reflected his previous conviction for wounding with intent.

The sentence appeals

[39] Both appellants claim that the sentences imposed on them were manifestly excessive. They claim that the Judge erred by failing to take into account the fact that neither appellant used a weapon against the victim. While Mr Simeon acknowledges that he used his fists, his position is that the significant injuries were caused by the hockey stick and bottle. The argument for Mr Ataria is that while the finding of guilt indicates that he was a party, there is no evidence at all that he was physically involved. For both appellants it was emphasised that s 8(a) of the Sentencing Act 2002 required the Judge to take into account the degree of culpability of each offender and that s 8(g) required the Court to impose the least restrictive outcome that was appropriate in all the circumstances.
[40] Counsel for the appellants also argued that the sentences were manifestly excessive in light of the sentences imposed on the co-offenders. In particular they refer to the sentence of eight months home detention together with 300 hours community work imposed on Mr Marsh. They contended that Judge Gittos misdirected himself by adopting a starting point three years higher than the starting point adopted for Mr Marsh. They also note that one of the young offenders dealt with in the Youth Court had been discharged and another had received a sentence of 100 hours community work and six months supervision. They complain that they were not permitted access to the Youth Court sentencing material relating to those offenders.

Discussion

[41] Having presided over the trial of the two appellants the Judge was well placed to assess their culpability. As the Judge noted, the jury had found them both guilty of being parties to the assault. We do not accept that the Judge erred when he approached the matter on the basis of collective responsibility.
[42] As this Court observed in Taueki, the greater the number of attackers and the greater the disparity between the number of the attacking group and the victim, the greater the culpability will be.[6] In this case, the victim was heavily outnumbered by a group acting in concert. Mr Simeon struck the first blow. The events that followed were fuelled by the group who were chanting and encouraging those striking the blows. It was Mr Simeon who delivered a blow which resulted in the victim falling to the ground the first time, following which the victim was viciously attacked. The victim’s evidence was that there were probably five or six people hitting or kicking him while he was on the ground. The presence of the victim’s blood on Mr Ataria’s clothing and shoe supports the inference that Mr Ataria was closely involved.
[43] The Judge’s starting point in the middle of band 2 of Taueki was appropriate. This was effectively a concerted street attack by a group which involved the use of weapons as described in Taueki.[7] It was made worse by virtue of the group going on to the victim’s property, not to mention the many other aggravating features identified by the Judge. The range for band 2 is five – 10 years and the Judge’s decision to start at the middle of the band was, if anything, merciful. The 12 months discount for mitigating factors cannot be criticised. Nor can the six month uplift in Mr Simeon’s case for similar offending in the recent past.
[44] While we can understand that the appellants may feel a sense of grievance when their sentences are compared with the sentences imposed on their young co-offenders, we have not been persuaded that this is a situation requiring intervention by this Court. Obviously Judge Gittos considered that the starting point for the Marsh sentencing was low and we agree with his assessment. In any event, this Court has cautioned against comparisons between sentences imposed in the District Court and High Court with those imposed in the Youth Court, or even those imposed on youths who have been referred to the District Court or High Court for sentencing.[8]

Result

[45] Mr Simeon’s appeal against sentence is dismissed. Mr Ataria’s appeal against conviction and sentence also is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] Crimes Act 1961, s 385(1)(a).
[2] R v Ataria & Simeon DC Gisborne CRI-2008-016-3226, 11 November 2009 at [5].
[3] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37.

[4] R v Taueki [2005] 3 NZLR 372 (CA).
[5] R v Marsh DC Gisborne CRI-2008-216-114, 25 June 2009.
[6] At [31] (h).
[7] At [39].
[8] R v Hawkes CA133/93, 9 September 1993 at 3; R v Wikaira CA166/93, 6 July 1993 at 4.

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/559.html