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Haimona v R [2011] NZCA 375 (9 August 2011)

Last Updated: 16 August 2011


IN THE COURT OF APPEAL OF NEW ZEALAND
CA895/2010
[2011] NZCA 375

BETWEEN RENATA MICHAEL HAIMONA
Appellant

AND THE QUEEN
Respondent

CA90/2011

AND BETWEEN JOSEPH PINI PAUL
Appellant

AND THE QUEEN
Respondent

Hearing: 5 July 2011

Court: Glazebrook, Rodney Hansen and MacKenzie JJ

Counsel: R Vigor-Brown and L Te Kani for Haimona
C J Tennet for Paul
J M Jelas for Respondent

Judgment: 9 August 2011 at 3 pm

JUDGMENT OF THE COURT

A Mr Haimona’s appeal against conviction is dismissed.

B Both appeals against sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)


Introduction

[1] Mr Haimona was convicted at trial before Judge Rollo and a jury in August 2010 on a count of wounding with intent to cause grievous bodily harm and discharged on a further count of wounding with intent to injure. Mr Paul pleaded guilty at the close of the Crown case to both counts. A third accused was discharged on the count of wounding with intent to injure and acquitted on the count of wounding with intent to cause grievous bodily harm. Mr Haimona was sentenced to eight years and six months imprisonment, and Mr Paul to eight years and nine months imprisonment, with minimum periods of imprisonment of four years in each case.[1] Mr Haimona appeals against his conviction and sentence. Mr Paul appeals against sentence.

Facts

[2] On the evening of 20 December 2008, the two victims, young men both aged 18, were attending a dance social at the Bethlehem Community Hall. They were outside the hall when a vehicle with four males and two females stopped. One of the occupants of the vehicle began swearing at the two young men and challenged them to a fight. They attacked the two victims. We deal later with the details of what occurred. One of the victims, Mr Brownlie-Blackburn, was very seriously injured. He underwent a CT scan which confirmed fractures to his skull as well as haemorrhaging to both sides of his brain. The injuries were critical and life threatening and he was flown by helicopter to Waikato Hospital for further treatment. He was in a coma for an extended period and an assessment indicated that he would require an extended period of rehabilitation, possibly as long as 18 to 24 months, to relearn basic skills such as walking and eating. The second victim, Mr Heagren, was not seriously injured and was able to summon help from inside the community hall. When he returned outside he saw the offenders climb back into the vehicle and drive off at speed.

Mr Haimona’s conviction appeal

[3] Mr Haimona was convicted on count one, wounding Mr Brownlie-Blackburn with intent to cause grievous bodily harm. He was discharged pursuant to s 347 of the Crimes Act 1961 on count two, wounding Mr Heagren with intent to injure. He raises three issues in relation to that conviction:
[4] The Crown case was that all three accused were parties to the attacks on both victims. The Crown case on this issue was put to the jury in counsel’s opening address in these terms:

... What the Crown says is that all of the accused are criminally responsible for what occurred as a party. All of them were involved in the final stage of the attack on Mr Brownley-Blackburn when he was lying on the pathway. All of them either kicked, punched or stomped Mr Brownley-Blackburn, or supported the others by their presence while one or more of the others so attacked Mr Brownley-Blackburn. The Crown says the presence of the other accused gave active support to the one delivering the blows that wounded Mr Brownley-Blackburn.

[5] In closing, counsel for the Crown described the respective factual contentions in these terms:

The Crown scenario is that of Mr Heagren who is in part supported by Tracey Allan and Courtney MacLean and that is that the three accused were surrounding Mr Brownley-Blackburn who was lying that concrete path shown in photograph 8 and while surrounding him they were punching and kicking him. So that is the factual basis of count 1.

As against that you have the evidence of the accused Haimona and the out of Court statement of the accused Soderholm which is to the effect that the point Mr Heagren came up the ramp to go into the hall Mr Brownley-Blackburn was lying on the path and he and the accused Soderholm were grappling each other and punching each other, but at that time nobody was standing on the concrete path, that Mr Soderholm says that Mr Haimona was there but doesn’t say where, and then at that time, the point that Mr Haimona says he’s on the garden near the tree trunk, Mr Paul comes out of nowhere from behind, runs past him and delivers a soccer kick to the area of Mr Brownely-Blackburn’s right shoulder and I think Mr Soderholm, in his video statement, called it a stomp. So that is the, as it were, clear division between the Crown and the defence cases. So the Crown case is based upon Mr Heagren’s evidence, is that the two accused are either principals or parties, the Crown is unable to say which. In other words they were each involved in kicking, punching so they either delivered the blow or blows that caused the head injury or by their participation they were supporting the person who delivered the blow or blows that caused that head injury.

[6] Mr Te Kani, in his closing address for Mr Haimona, described the defence scenario in these terms:

Now, I want to turn to the evidence of Mr Haimona and in his evidence he explains that he’s a close cousin to the other two accused. He accepts that he was drinking but what he says is that Mr Brownley-Blackburn was making comments in a derogatory manner, calling him a black cunt. A fight ensues and a lot of discussion has been made about him acting in concert but in fact it’s the opposite, isn’t it. Mr Haimona acts on his own. There is no evidence, no shred of evidence to suggest that he turns around and says, “Bro, lets go deal to this guy right now, lets go, he’s mocking me, lets deal to him.” There’s nothing of that in the evidence, nothing. He acts alone. He then throws Mr Brownley-Blackburn into the garden. Mr Soderholm and Mr Brownley-Blackburn fight and exchange blows on the ground and we say that it was Joseph Paul who came in suddenly and without warning, kicked Will Brownley-Blackburn in the head, and that has always been our case. And he further states that Mr Paul ran past him and kicked Mr Will Brownley-Blackburn in the head like a soccer kick.

[7] At the close of the Crown case, Mr Paul initially pleaded guilty to count two. Both other accused were discharged under s 347 of the Crimes Act on that count. The following morning, before the defence had opened, Mr Paul pleaded guilty to count one.
[8] The possibility that a lesser charge might be left to the jury in relation to count one for Mr Haimona was first raised in a discussion with the judge following Mr Paul’s plea of guilty. Mr Vigor-Brown had wished to interview Mr Paul, following his plea, but Mr Paul had not agreed to be interviewed. Mr Vigor-Brown submitted that the difficulty from his point of view was to determine the basis upon which Mr Paul pleaded guilty, whether as a principal or as a party. In the course of the discussion with the judge, Mr Hollister-Jones, for the Crown, made it clear that his case was as he had opened, namely that all three were parties to the offending in count one. The following exchange took place:

Mr Hollister-Jones:

So the evidence to date is that we’ve got three of the accused surrounding Mr Brownley-Blackburn kicking and punching him and he doesn’t get up. So that’s my party’s case and that’s what I’ll be inviting the jury to adopt and I’ll be inviting them to reject the Paul principal scenario.

The Court:

That then leaves the jury in the position where if they feel that the two accused have some culpability, is it that culpability or is it a lesser culpability which the evidence is not before the Court. Do they then say well we should punish them anyway for this wrongdoing, we therefore will bring in a plea of guilty to a very serious charge, or they acquit them of the charge.

Mr Hollister-Jones:

Well I’ve decided I will live or die on that and if they’re acquitted, so be it.

The Court:

Yes, the danger is of course is that they may be convicted because the jury see they’ve got Hobson’s choice, they’ve got clear wrongdoing, they might find on the evidence, by these two men, they’ve got one charge only before them and they will assume that the Court process is such that that therefore is the appropriate charge for them, and I’ve got to say, Mr Hollister-Jones, that’s not the view which I have. I consider on the evidence so far is that we have a fight that has gone on between Mr Brownley-Blackburn and Mr Haimona and Mr Soderholm that’s ended up on the ground, Mr Haimona’s been standing over beside the two other men who are fighting on the ground still. We have the comments, “Stay on the ground, bro” or words to that effect, it’s then we know that Mr Soderholm gets up and so do we then only have Mr Brownley-Blackburn on the ground and we then have the kicking which would seem to be, according to Mr Heagren, occurring and we have the stomp that occurs and the jury, I don’t think, will accept the fact that these two young men countenanced that there would be that degree of violence involved in what was going on.

[9] Mr Hollister-Jones went on to question the judge’s view, having regard to the evidence as it then stood. After further discussion with counsel, the judge said:

Well no, can I interrupt you. I’m not going to be amending the indictment of my own volition when there is critical evidence which might mean that the basis on which I’ve been looking at the case has shifted. It’s got to be done as a matter of fairness to all concerned, not only the accused but also the Crown.

[10] In the end, the indictment was not amended to include an alternative count to count one. Nor did the judge, in summing up, leave to the jury any alternative as an included count under s 339 of the Crimes Act. Mr Vigor-Brown submits that the trial judge had at least initially been concerned that Mr Haimona was at risk of being convicted on count one when, as the trial judge then viewed the matter, he might not have countenanced the degree of violence in what was going on. He submits that the risk was real and substantial and the only method of ameliorating the situation was to have included in the indictment a lesser charge of assault. He submits that it was open to the jury to find on the evidence to the overall effect that one kick or stomp had caused the significant head injury to the victim, and that the kick or stomp had been delivered by Mr Paul.
[11] Mr Vigor-Brown’s request for an amendment to the indictment was made under s 335(1) of the Crimes Act, which provides:

If on the trial of an indictment there appears to be a variance between the proof and the charge in any count of the indictment either as [filed] or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.

[12] In this case, it could not be said that there was a variance between the proof and the charge. It was for the jury to determine whether count one was proved, in respect of each accused. It would not have been appropriate to have amended count one to substitute a lesser charge. We doubt whether s 335 could have been properly invoked to add an alternative charge, so that the jury would have to consider both charges. However, we need not consider that point in detail because we are of the view that, if s 335 did potentially permit the addition of a further count, the judge was right to refuse it. The contents of the indictment are a matter for the Crown prosecutor. The Court will not lightly interfere with the exercise of the prosecutor’s discretion as to the counts to be included. The Crown case was that all three accused participated in the attack and that each of them either inflicted blows or kicks which wounded Mr Brownlie-Blackburn, or by participating in the attack and inflicting assaults (which might not, by themselves, have been sufficient to wound the victim), assisted or encouraged the infliction of the more serious injuries. In those circumstances, we consider that it would have been unrealistic to leave with the jury the possibility of bringing in a verdict that Mr Haimona had assaulted the victim, but had not, in doing so, aided or encouraged the infliction of the wounds by another of the attackers. The Crown case was that if the accused were found to have participated in the attack by assaulting Mr Brownlie-Blackburn, then they were either guilty as a party to count one, or they were not guilty at all. As Mr Hollister-Jones had said, he would “live or die on that”.
[13] Another way in which an alternative count can be left to a jury is under s 339(1) which provides:

Every count shall be deemed divisible; and if the commission of the crime charged, as described in the enactment creating the crime or as charged in the count, includes the commission of any other crime, the person accused may be convicted of any crime so included which is proved, although the whole crime charged is not proved; or he may be convicted of an attempt to commit any crime so included.

[14] This Court in R v Mokaraka[2] restated a number of well established principles for applying s 339. As relevant here, these are:[3]
[15] In applying these principles here, the way in which the case was put to the jury is important. The defence case included a denial that Mr Haimona kicked Mr Brownlie-Blackburn on the pathway. The defence therefore denied an assault at the crucial point. That was clear from counsel’s closing, where Mr Te Kani said:

... When we opened for the accused Haimona it was on the basis that we say that Mr Paul did the kicking. He was the one that caused the grievous bodily harm to Will Brownley-Blackburn. And we said that from the beginning. We said that from the beginning, Mr Vigor-Brown said that when he addressed you, when he opened the case for the defence, and I say it to you now.

We effectively hung our colours to the mast. We said that Mr Paul was the kicker, no-one else, he was the principal, and that is what Mr Haimona has said all along. That is what he has said throughout this trial, that it wasn’t him, and it was Mr Paul. And Mr Paul has put his hand up. You know that. The Judge has told you that. And that is exactly what has happened.

[16] The judge summed up the essence of the cases in these terms:

[9] The essence of the prosecution case against Mr Haimona and Mr Soderholm is that they were jointly involved, together with Mr Paul, in the kicking that occurred on the pathway by the building and just for clarity’s sake, I will refer in the course of my summing up, to the “ramp” as being that path which has the railing going up and the pathway behind the tree, beside the toilets being the “pathway”. So the “ramp” and the “pathway”.

[10] The Crown case is that these three men were all involved in kicking Mr Brownley-Blackburn on the ground, on the pathway, that they knew what they were doing. One of them was kicking in the head. When you kick in the head, that is intended to cause serious harm to the victim and that by being involved in that kicking, whether kicking other parts of the body, they were assisting each other in bringing about really serious harm to Mr Brownley-Blackburn which of course, is regrettably what happened. So the Crown says that these two men, because they were acting together with Mr Paul in that kicking on the pathway, are parties to what happened. They actively were involved in bringing about this result, they intended that result and therefore you should find them guilty.

[11] Well, the defence case is different. It says that you cannot rely on the Crown evidence to support the fact that these two men were also involved in the kicking on the pathway, together with Mr Paul. Each of Mr Haimona and Mr Soderholm says Mr Paul was the person who kicked and I am using the word “kicked”, I accept that Mr Soderholm in his video interview, the second one, referred to stomping, but when I am talking about kicking, unless I distinguish it, I am meaning that action of kicking or stomping by the main offender, if I put it in those terms.

[12] So the defence say, each of them, it was Mr Paul who came suddenly on the scene, unexpectedly, and delivered the telling kick or stomp to the head of Mr Brownley-Blackburn. So the defence is first, neither of the men was actually kicking on the pathway, which is a direct denial of the Crown case and secondly, even if you were to find that they were kicking, they did not have any knowledge that Mr Paul would kick Mr Brownley-Blackburn in the head, so therefore they are not parties to the charge of wounding with intent to cause grievous bodily harm.

[17] In these circumstances, the possibility of an included charge of assault could not arise, on the principal defence for Mr Haimona, that he had not kicked Mr Brownlie-Blackburn on the pathway. It could arise only on the alternative defence summarised by the judge at [12], lack of intent. That was an issue for the jury. We consider that to have left to the jury an included count of assault, in the event that the jury found that Mr Haimona had kicked Mr Brownlie-Blackburn on the pathway, but did not have the requisite intent to establish the more serious charge, would have involved a serious risk of distracting the jury from the real point of the case.
[18] There is a further complexity in that Mr Haimona did, in his evidence, admit an assault on Mr Brownlie-Blackburn, at an earlier point in the fracas. It was on the basis of that admission that Mr Vigor-Brown in this Court sought to distinguish the case of R v Feterika.[4] He said in his submissions:

I seek to distinguish Feterika’s case, on the grounds that in the present instance, the appellant Haimona accepted criminal offending (i.e. the initial assault). However, in Feterika’s case, there was a complete denial of any criminal offending.

[19] In our view, that admission of an earlier assault on Mr Brownlie-Blackburn strengthens, rather than weakens, the case against leaving an included charge of assault to the jury. On the very clear summary of the respective cases for Crown and defence given by the judge, as set out above, the focus of the jury was placed squarely on events while Mr Brownlie-Blackburn was lying on the pathway. It would have been entirely inappropriate to leave with the jury an included charge of assault based on that earlier assault, which was not the assault relied upon by the Crown as making Mr Haimona liable as a party to the more serious offence.
[20] On the first ground of appeal, we consider that the judge’s decision not to amend the indictment was correct. As to the risk which Mr Vigor-Brown identifies, that the jury might convict on count one “simply to ensure that he did not get clean away with what on any view was disgraceful conduct”, the Crown was entitled to run its case on that basis. It is pertinent to observe that the Crown case against Mr Soderholm was essentially the same as that against Mr Haimona and Mr Soderholm was acquitted.
[21] The second ground of appeal relates to the direction given in respect of count one, relating to the possibility of the jury convicting the appellant to ensure he did not escape responsibility for his conduct. The judge in his summing up used a question trail which posed three questions in relation to the case against Mr Haimona. The questions related to:
[22] The Judge elaborated on the question trail in summing up. That question trail clearly focused the jury on the relevant issues, and directed them to return a not guilty verdict in the event of a negative answer to any of them. In doing so the judge said:

[17] ... If you are not satisfied beyond reasonable doubt that Mr Haimona was involved in the kicking of Mr Brownley-Blackburn on the pathway, whether he is at the head, the feet or the body, if you are satisfied he was not involved in that kicking, then you would find him not guilty of count 1. That is the Crown position in this case, it is all or nothing involved in the incident on the pathway, regardless of the fact that Mr Haimona said he acknowledged he had assaulted Mr Brownley-Blackburn. This is not what the case is about. What the case is about and the Crown has framed it in this way, is the incident on the pathway. The Crown alleges the three men were involved in kicking and it flows from there. The Crown accepts that if you do not find that Mr Haimona, in this instance, was involved in that kicking in some way, then you find him not guilty. ...

[23] In addition, the judge gave the usual direction to the jury to put to one side any feelings of sympathy, anger, or distaste. We are satisfied that the directions made it quite clear to the jury that they should not convict on count one simply to avoid Mr Haimona escaping responsibility for his conduct. This ground of appeal must fail.
[24] The third issue is the way in which the judge dealt with Mr Paul’s plea of guilty to count one. Following the plea, the judge advised the jury that a plea had been entered, in order to explain why Mr Paul was no longer among the accused. In summing up, the trial judge dealt with Mr Paul’s position in these terms:

[45] What about the fact that Mr Paul then pleaded guilty after the close of the Crown case to count 1? Well, what I have got to say to you is that that plea is irrelevant to the case against the remaining two accused and in assessing the evidence for or against those accused, you should entirely put his guilty plea out of your mind, and the reason for that is we cannot speculate, or you cannot speculate, as to why Mr Paul may have decided that he should plead guilty to count 1. It could be that he accepted he was the kicker. It could be that he accepted that he was an assistant. It could possibly be that he had some other reason. We do not know and you must not speculate. All you can focus on, in terms of Mr Paul, is to look at the evidence that relates to his physical actions within the drama that has been played out in this trial and look at that evidence as part of the evidence that you can take into account in deciding whether the Crown has proved the case against Mr Haimona and whether the Crown has proved the case against Mr Soderholm.

[25] Mr Vigor-Brown submits that it was artificial to direct the jury that Mr Paul’s plea was irrelevant. We do not agree. The direction must be viewed as a whole. The important point was for the jury to focus on Mr Paul’s actions as disclosed by the evidence. We consider that the direction dealt with the implications of Mr Paul’s guilty plea correctly, and appropriately focused the jury on the matters which they were to consider so far as Mr Paul’s involvement in the incident was concerned. This ground of appeal, too, must fail.
[26] The appeal against conviction is dismissed.

Sentence appeal

(a) The sentencing notes

[27] Both appellants were sentenced by Judge Rollo on 1 December 2010. The judge said that he was satisfied that Mr Haimona was responsible for initiating the fight by walking from the vehicle directly across to Mr Brownlie-Blackburn and engaging in a fight with him. Mr Paul became involved immediately thereafter, engaging with Mr Heagren who moved to try and stop the attack on his friend Mr Brownlie-Blackburn. The judge said that this was an unprovoked albeit spontaneous attack on two young men fuelled by a propensity for violence by both offenders and the consumption of alcohol. He noted that the Crown ran its case against both on the basis that, in respect of the count of wounding with intent to cause grievous bodily harm, it could not identify which of them was the person who delivered the most serious kick to the head of Mr Brownlie-Blackburn that brought about the brain injury causing him to become unconscious and nearly die.
[28] The judge approached sentencing on the basis that both appellants had a joint responsibility for the wounding of Mr Brownlie-Blackburn and the effects that he suffered. Dealing with the R v Taueki[5] factors, the judge found a number of aggravating circumstances: the attack to the head of each victim; that there were multiple offenders; the vulnerability of Mr Brownlie-Blackburn who had been knocked to the ground and was vulnerable to blows particularly from the feet; the violence was unprovoked and gratuitous; there was serious injury suffered; and the effect of the offending on Mr Brownlie-Blackburn.
[29] The judge accepted the Crown’s submission that the appropriate starting point for count one was nine years imprisonment. He treated the offending properly to be seen at the top of band two or perhaps at the very bottom of band three of Taueki. To that starting point of nine years on count one, the judge added three months for each appellant, to reflect their previous appearance in the Youth Court. For Mr Paul, he added a further year for count two, injuring with intent to injure. He then allowed certain discounts. For Mr Haimona he made allowance for his offer to attend a restorative justice conference, his youth, some good qualities which he has and his expression of remorse. He allowed a reduction of nine months, to reach an end point of eight years and six months. For Mr Paul he made allowance for attendance at a restorative justice conference, apologies, an offer of amends, an acceptance of responsibility, his good qualities and good prospects for rehabilitation and his late pleas at the end of the Crown case. He allowed a discount of 18 months, to an end sentence of eight years and nine months. In each case he imposed a minimum period of imprisonment of four years.

(b) Submissions

[30] For Mr Haimona, Mr Vigor-Brown acknowledges that had Mr Haimona been found to be the principal offender then the starting point of nine years would have been appropriate. He submits that as a party sharing collective responsibility the starting point should have been in the vicinity of eight years. He further submits that a small allowance should have been made for Mr Haimona’s personal circumstances in that he had held a stable job for a four year period and was working towards a qualification. He submits that the case falls squarely within band two of Taueki.
[31] For Mr Paul, Mr Tennet submits that the judge was wrong to see the matter at the top of band two or the very bottom of band three of Taueki, and that the judge’s analysis of the six aggravating factors was incorrect. He submits that while this was a concerted street attack involving three men on two it was not premeditated and no weapons were used. He acknowledges that the serious injury caused to Mr Brownlie-Blackburn would take it out of band one, but submits that it is only just out of band one and is at the lower level of band two. As to the six aggravating factors, he submits that while there were multiple attackers the group was not large. He submits that the victim was not vulnerable. He submits that there was no extreme violence because it was not prolonged. He acknowledges that there was serious injury but says that to take into account in addition the effect of the offending carries a risk of double counting the serious injury and the effects on the victim. He submits that the matter falls in the middle of band two and not towards band three.
[32] As to the uplift for the count of injuring with intent to injure, counsel submits that the judge should have considered the attack as one transaction and treated it as a matter of concurrent sentencing, and then to have given Mr Haimona a discount from a starting point to reflect the incident as a whole to acknowledge that he was not facing sentence on injuring with intent. He submits that the uplift was plainly wrong and that the total starting point for the total incident of ten years was excessive.
[33] Mr Tennet further submits that the three month uplift to both offenders for Youth Court appearances was wrong in law. He refers to Geros v R.[6]
[34] He further submits that the overall discount of 18 months was only 14.6 per cent of the end sentence and was insufficient to allow for the guilty plea and the remorse inherent in it. He submits that in this case a higher discount for remorse would have been justified and submits that a discount of ten per cent on that account would not be out of line. He submits that, on the starting point adopted by the judge, a two year (20 per cent) discount would have been appropriate.
[35] Counsel for the Crown submits it was appropriate for the judge to proceed on the basis of collective responsibility, given that he had been unable to distinguish between the culpability of the offenders. Counsel submits that the placement of the offending in Taueki band two was open to him, and a proper assessment. Counsel submits that the seriousness of the injuries and the effect on the victim have been appropriately weighed. She submits that it would have been inappropriate to take both charges into account in fixing the starting point, and to give Mr Haimona a discount from that starting point. Counsel further submits that all adjustments made to the starting point were appropriate and that neither of the end sentences is manifestly excessive.

(c) Discussion

[36] We consider that the judge was correct to adopt the same starting point for both offenders. Both appellants participated in the attack on Mr Brownlie-Blackburn. Mr Haimona had been the instigator of the incident. As trial judge, the sentencing judge had the advantage of hearing all the evidence in making his assessment. This Court should be slow to differ from the trial judge’s assessment. We see no grounds to do so. We consider that the judge was correct to view the offenders as having approximately equal culpability for the offending so as to justify this use of the same starting point. We consider that the nine year starting point for count one was appropriate. We do not consider that the judge’s assessment of the seriousness of the injuries and the effect on the victim has led to any double counting, or to an inappropriate weighting of these factors. The injuries to Mr Brownlie-Blackburn were horrendous. Their consequences will be life-long. We agree with the judge’s assessment of the matter as being at the top of band two (five to ten years) or the bottom of band three (nine to 14 years). The starting point of nine years is clearly within the available range.
[37] We also consider that the judge was correct to adopt the approach which he did, of setting separate starting points for counts one and two, given that Mr Haimona was to be sentenced only on count one. The approach suggested by Mr Tennet would be an available approach if both offenders had faced both counts. Because they did not, count two was irrelevant for Mr Haimona and should not have been taken into account, by being factored into the starting point and then deducted as Mr Tennet suggests. We consider that the uplift of one year was well within the available range.
[38] Mr Tennet is correct in his submission that the Youth Court appearances did not fall within s 9(1)(j) of the Sentencing Act 2002. However, the Youth Court history was not irrelevant. In Geros, this Court said:[7]

Mr Pyke submitted that proceedings in the Youth Court do not result in a conviction. Accordingly, he submitted, s 9(1)(j) of the Sentencing Act 2002, which provides that the Court must, when sentencing, take into account, so far as applicable, “the number, seriousness, date, relevance, and nature of any previous convictions of the offender”, did not apply. It is true that a Youth Court history cannot be taken into account under that paragraph, but that does not mean the Youth Court history is irrelevant. As this Court held in R v Putt, the sentencing court is not limited to a consideration of the aggravating or mitigating factors listed in s 9(1) and s 9(2) but may consider, by virtue of s 9(4), other factors as “the court thinks fit”. This court went on to quote what Anderson J had said in Kohere v Police:

[While the Youth Court] behavioural history does not amount to prior convictions, it must be the case that such history can have some relevance in determining what is an appropriate sentence for the person appearing in the court of criminal record.

[39] An uplift of three months to reflect the adverse personal qualities of the appellants was within the available range. We consider that the discount allowed to Mr Paul for his late guilty pleas, and the belated remorse inherent in them, was not ungenerous.
[40] For these reasons, both appeals against sentence are dismissed.

Solicitors:
Moana Law, Rotorua for Appellants
Crown Law Office, Wellington for Respondent


[1] R v Haimona DC Tauranga CRI-2009-270-100, 1 December 2010.
[2] R v Mokaraka [2002] 1 NZLR 793 (CA).
[3] At [13]–[17].
[4] R v Feterika [2008] NZCA 127.
[5] R v Taueki [2005] 3 NZLR 372 (CA).
[6] Geros v R [2011] NZCA 122.
[7] At [16].

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