Tuhiwai v R [2012] NZCA 209 (25 May 2012)

Last Updated: 30 May 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA737/2011 [2012] NZCA 209

BETWEEN WILLIAM TUHIWAI Appellant

AND THE QUEEN Respondent

CA662/2011

AND BETWEEN HAYDEN MARTIN Appellant

AND THE QUEEN Respondent

Hearing: 15 May 2012

Court: Randerson, Keane and Asher JJ

Counsel: L J Postlewaight for Appellant Tuhiwai A B Fairley for Appellant Martin K A L Bicknell for Respondent

Judgment: 25 May 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

1. The appeal by Mr Tuhiwai against sentence is allowed. The sentence of nine years imprisonment is quashed and a sentence of seven and a half years imprisonment is substituted.
   
2. The appeal by Mr Martin against sentence is allowed. The sentence of four years imprisonment on the charge under s 188(2) of the Crimes Act 1961 is quashed and a sentence of three years is substituted on that charge. The cumulative sentence of 16 months imposed for the separate offending remains in place.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellants were tried in the District Court at Whangarei before a jury and Judge David Harvey for violent offending resulting in serious injury to a young man. Each faced jointly laid charges under ss 188(1) and (2) of the Crimes Act 1961 and a third charge of robbery which is no longer at issue.
[2] The appellant Mr Tuhiwai was convicted under s 188(1) of wounding the victim with intent to cause grievous bodily harm. He was sentenced by Judge Harvey to nine years imprisonment.[1]
[3] The appellant Mr Martin was acquitted of the charge under s 188(1) but was convicted of a lesser charge under s 188(2) of the Crimes Act of wounding the victim with intent to injure him. Judge Harvey sentenced Mr Martin to four years imprisonment on that charge. He was also sentenced for separate offending to 16 months imprisonment. Judge Harvey ordered this was to be served cumulatively on the four year term for the offending under s 188(2). This resulted in a total effective term of five years four months imprisonment.[2]
[4] Mr Tuhiwai initially appealed against both conviction and sentence but now pursues only the sentence appeal. Mr Martin also appeals against his sentence on the charge under s 188(2). There is no challenge to the additional sentence of 16 months for the separate offending.

The facts

[5] The victim was part of a group of young people who had been to a dress-up party. In the early hours of the morning of 7 November 2009 in Whangarei township they encountered another group of young men of which Mr Tuhiwai and Mr Martin were members. It appears that the second group took umbrage at some comments made by the first group and an altercation took place. The Judge found that Mr Tuhiwai swung a baseball bat at the victim but it missed and hit someone else. The victim was carrying a cane as part of his regalia. He used it to strike Mr Tuhiwai in the head area. The Judge found that the victim was acting in self-defence and was perfectly justified in doing that.
[6] Matters then escalated. The victim was pursued in a motor vehicle driven by Mr Tuhiwai. Mr Martin was captured by CCTV sitting on the front of the car waving the baseball bat. Others with no apparent connection to Mr Tuhiwai’s group joined in.
[7] The Judge described Mr Tuhiwai’s role in these terms:[3]

You effectively hunted him down, cornered him, and then you and the group that you were with started to assault him in a vicious, violent, cowardly and brutal way. When it was all over, you, Mr Tuhiwai, expressed why it was that this had taken place. You said, “Tooth for tooth, mother fucker”. That makes it abundantly clear to me that this was a revenge attack where you, and the group with you, decided to wreak whatever havoc you possibly could upon this person whom had mildly offended you and then, as a result of your violent attack upon he and his friend, he had attempted to defend himself. ...

[8] The Judge found there was kicking, punching and stomping by the group of which Mr Tuhiwai and Mr Martin were part. According to the victim, he was punched, knocked to the ground and then kicked while on the ground. He also said he was stomped in the face while his head was on the kerb. A police officer who travelled in the ambulance with the victim to the hospital observed a shoe imprint on his forehead. It is not clear which member or members of the group were involved in stomping on the victim. The Judge made no finding in that respect.
[9] The victim also said he was struck with a baseball bat by Mr Martin. However, we accept the jury must have rejected the victim’s evidence on that point since the Crown case against Mr Martin under s 188(1) relied on the allegation that he had used the baseball bat on the victim and Mr Martin was acquitted on that charge. The Judge accepted that Mr Martin had struck the victim twice.
[10] The victim was taken to hospital. He suffered a laceration under the left eye. A CT scan revealed a small medial wall blowout fracture to that eye. There was also a small oblique fracture to the back of the skull with overlying scalp haematoma. The victim suffered from blurred vision to the left eye, headaches and fatigue. He was off work for several months. The blurred vision was continuing at the time he provided a victim impact statement prior to sentencing.

The Judge’s approach to sentencing

Mr Tuhiwai

[11] In approaching the sentence for Mr Tuhiwai, the Judge found that the incident involved a serious and concerted street attack which fell within band 3 of the decision of this Court in R v Taueki.[4] That meant a starting point of between nine and fourteen years imprisonment.
[12] The Judge regarded the aggravating circumstances as including the nature of the attack which he had described as vicious, violent, cowardly and brutal; the fact that the victim was vulnerable and had suffered serious injuries; and the retributive words uttered by Mr Tuhiwai after the attack was over. The Judge accepted that no weapon was involved.
[13] In the Judge’s view, denunciation and deterrence were important factors in the sentencing process. He referred to the community being “sick and tired of this level of street violence”. The community was, he said, entitled to a firm response from the court.
[14] In terms of mitigating factors, the Judge accepted that some allowance should be made for Mr Tuhiwai’s youth (he was just short of 20 years of age at the time of the offending); he had no serious history of violent offending; he had family responsibilities and had expressed some remorse (although the Judge said it was difficult to determine whether that was genuine remorse and regret for the victim). The Judge also noted that Mr Tuhiwai had been on restrictive bail conditions.
[15] Judge Harvey adopted a starting point of ten years imprisonment and reduced that by one year for Mr Tuhiwai’s age, to reach a final sentence of nine years. He made no explicit reduction for remorse, family circumstances, or the restrictive bail conditions.

Mr Martin

[16] The Judge recognised that Mr Martin’s involvement was “somewhat less” than that of Mr Tuhiwai. This was reflected in Mr Martin’s acquittal on the more serious count under s 188(1). The Judge also recognised that Mr Martin fell to be sentenced on the basis of this Court’s decision in R v Harris.[5] However, in a passage criticised by Mr Fairley for Mr Martin, the Judge went on to say in respect of Mr Martin:[6]

... I think the only thing that differentiates you from him is that you did not make the remark that he did at the end of the assault that indicated the premeditative nature of it all, but you certainly were a part, or associated with that by virtue of your presence and your actions. There can be no doubt that the seriousness of the injury, when coupled with those aggravating circumstances, in my view, brings it within Band 3 of R v Harris.

[17] The Judge considered Mr Martin was entitled to some discount for his youth since, he too, was just short of 20 years of age at the time of the offending. The Judge adopted a starting point for Mr Martin’s sentence of five years and gave him a credit of one year to arrive at the end point of four years (before consideration of the separate offending already mentioned).

Mr Tuhiwai’s grounds of appeal

[18] Mrs Postlewaight submitted on Mr Tuhiwai’s behalf that the nine year sentence imposed was excessive. She submitted that the Judge had erred in determining that the case fell within band 3 of Taueki. An allowance should have been made for the time Mr Tuhiwai spent on restrictive bail conditions.
[19] In her written submissions, counsel submitted the starting point lay between bands 1 and 2 of Taueki and that the starting point should have been between five to seven years. However, in her oral submissions she accepted that the offending properly fell within band 2 of Taueki. Given Mr Tuhiwai’s youth and other personal circumstances, she submitted the ultimate sentence should have been in the range of seven to eight years. A further discount of three to six months would have been appropriate for Mr Tuhiwai’s restrictive bail conditions.
[20] Mrs Postlewaight accepted there were a number of factors present which have been identified as aggravating circumstances in Taueki. These were the degree of violence involved including kicking, punching and stomping to the head; the presence of multiple attackers; the vulnerability of the victim; and the relatively serious consequences to him. However, she submitted that the violence, while serious, was not in the extreme category; the offending was precipitated by an impulsive reaction to the earlier provocation; the degree of premeditation was relatively slight; the attack was not unduly prolonged; and the injuries, while serious, have not resulted in significant long-term or permanent disability. She also emphasised that no weapons were involved.
[21] Mrs Postlewaight referred us to the decision of this Court in Rangihuna v R[7] where a starting point of six years and six months imprisonment was upheld in circumstances where five of the aggravating features identified in Taueki were present. These included more than one attacker; the use of a dog as a weapon; a vulnerable victim; and relatively serious injuries to the victim. This Court considered the starting point was well within range and probably at the lower end of it. We observe that the circumstances of that case could well have justified a higher starting point.
[22] Mrs Postlewaight also cited Bowman v R[8] where a four and a half year starting point was adopted but we do not view that case as being of assistance since the factual context is well removed from the present case.
[23] Ms Bicknell submitted on behalf of the Crown that at least five Taueki aggravating factors were present, none of which could be discounted on the basis suggested by Mrs Postlewaight. In her submission, the case fell squarely within band 3 and a starting point of ten years was available. Ms Bicknell accepted, however, that the Judge could properly have applied a discount of between two to six months for the 12 months the appellant has spent on restrictive bail conditions involving a 24 hour curfew.[9]

Discussion - Tuhiwai

[24] This was undoubtedly a serious attack on a vulnerable victim. The fact that the victim was pursued in a motor vehicle driven by Mr Tuhiwai with Mr Martin sitting on the bonnet waving a baseball bat signified an intention to cause serious harm to the victim and demonstrates the effects of the admitted consumption of alcohol by both the appellants. Once the victim was cornered, he was set upon by Mr Tuhiwai, Mr Martin and others. The attack involved punching, kicking and stomping on the victim’s head while he lay on the pavement. The injuries were relatively serious and there was a degree of premeditation as indicated by Mr Tuhiwai’s use of his car to pursue the victim and by Mr Tuhiwai’s remarks after the attack was over.
[25] The Judge was also entitled to take into account (although he did not mention it in his sentencing notes) that, six months before the subject offending, Mr Tuhiwai was sentenced to 200 hours community work and nine months supervision for three burglaries committed in 2007. He remained under supervision at the time of the subject offending.
[26] On the other hand, no weapons were used and the attack was short-lived. We accept that events happened quickly and that undue weight should not be given to the element of premeditation. The victim’s injuries, while serious, have fortunately not led to the severe long-term consequences sometimes resulting from injuries of this type.
[27] Our assessment overall is that the Judge was right to emphasise the need for deterrence and denunciation of the level of violence involved in this case, but we consider nevertheless that the starting point was too high. As this Court has repeatedly emphasised, the bands suggested in Taueki are not to be applied in a formulaic or mathematical manner. The presence of three or more of the aggravating factors identified in Taueki does not automatically dictate band 3 for sentencing purposes. The combination of the aggravating factors must be “particularly grave”.[10] Each case requires assessment of the offender’s culpability in all the circumstances.
[28] We place the offending close to the top end of band 2 of Taueki.[11] A starting point of nine years was appropriate. From that point there should be deducted one year for Mr Tuhiwai’s youth and a further six months to reflect his personal circumstances and the restrictive bail conditions. The resulting sentence is seven and a half years imprisonment.

Result - Tuhiwai

[29] The sentence of nine years for Mr Tuhiwai is quashed and a sentence of seven and a half years is substituted.

Mr Martin

[30] The nub of Mr Fairley’s submission on behalf of Mr Martin is that the Judge had allowed himself to be influenced by Mr Tuhiwai’s more serious conduct even though Mr Martin was acquitted of the more serious count under s 188(1). In this respect, Mr Fairley drew our attention to the passage from the Judge’s sentencing notes which we have quoted at [16] above.
[31] Mr Fairley acknowledged that the task of the sentencing judge was difficult. Despite being acquitted of the use of the baseball bat and his role being more limited than that of Mr Tuhiwai, Mr Martin had nevertheless joined in the group attack on the victim which resulted in the injuries suffered. Mr Fairley accepted that Mr Martin’s offending properly fell within band 3 of Harris but submitted that the starting point could have been in the three to four year range rather than five years as adopted by the Judge. A discount of up to 18 months was justified to allow for Mr Martin’s youth and good character. The ultimate sentence should have been between three and three and a half years for the offending under s 188(2).
[32] Ms Bicknell submitted that the Judge had not overlooked Mr Martin’s less significant involvement in the offending. It was open to the Judge to take into account that Mr Martin had participated in a group attack. While the precise effect of the blows he had struck could not be determined, he must take responsibility for what had happened. The sentence was within range and was not manifestly excessive.
[33] While we accept that, in the passage identified by Mr Fairley, the Judge appears to have drawn little distinction between Mr Martin and Mr Tuhiwai, we have no doubt, reading the sentencing remarks as a whole, that the Judge was fully aware that Mr Martin’s role was less significant than that of Mr Tuhiwai. He drew that distinction in at least two places in his remarks.
[34] The Judge was also well aware of the distinction between the offending by Mr Tuhiwai under s 188(1) and that committed by Mr Martin under s 188(2). Most obviously, the application of Harris to Mr Martin’s case and the adoption of a starting point of half that adopted for Mr Tuhiwai shows clearly that the Judge was aware of the distinction between the roles of the two men.
[35] It is not easy to discern from the jury’s verdicts how Mr Martin was acquitted of the more serious charge given the common involvement of both men in the attack and Mr Tuhiwai’s conviction under s 188(1). However, the jury must have considered that Mr Martin’s actions were more consistent with an intention to injure rather than to cause grievous bodily harm. In that respect, there was some evidence that he did not enter the attack until later in the piece.
[36] Nevertheless, as the Judge found, Mr Martin had to accept responsibility for the injuries sustained by the victim even though his role in the attack was regarded by the jury as less significant than that of Mr Tuhiwai.
[37] It needs to be kept in mind that the offence of wounding with intent to injure under s 188(2) carries a maximum term of seven years imprisonment. In Harris this Court was concerned with an offence under s 189(2) of injuring with intent to injure. That offence carries a maximum term of five years. This Court indicated in Harris that, for serious injury, starting points of 18 months to the maximum of five years could be justified (classifying injuries of this kind at the band 3 level).
[38] In Grimshaw-Jones v R[12] this Court considered an appeal against sentence on two counts of wounding with reckless disregard under s 188(2). Harris was considered to be of assistance in relation to sentencing levels under s 188(2).[13] A starting point of two years and eight months imprisonment was regarded as “by no means excessive” in that case.
[39] Here, we are dealing with intentional rather than reckless behaviour. In general, intentional conduct is treated more seriously in terms of culpability. We have concluded, however, that the proper starting point for Mr Martin’s role in the attack was four years rather than five years imprisonment. Weight must be given to the jury’s evident view that Mr Martin’s role in the attack was significantly less than that of Mr Tuhiwai and that he was not to be regarded as a party to the more serious charge under s 188(1). A reduction of one year for Mr Martin’s youth and personal circumstances was appropriate.

Result - Martin

[40] Mr Martin’s sentence of four years imprisonment on the charge under s 188(2) of the Crimes Act is quashed and a sentence of three years imprisonment is substituted. For the avoidance of doubt, the additional 16 month term of imprisonment for the separate offending remains in place and is cumulative upon the substituted sentence under s 188(2).

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Tuhiwai DC Whangarei CRI 2009-088-5461, 21 September 2011.
[2] R v Martin DC Whangarei CRI 2009-088-5461, 21 September 2011.
[3] At [7].
[4] R v Taueki [2005] 3 NZLR 372(CA).
[5] R v Harris [2008] NZCA 528.
[6] At [26].
[7] Rangihuna v R [2010] NZCA 540.
[8] Bowman v R [2010] NZCA 162.
[9] Keown v R [2010] NZCA 492 at [12]; Sudol v R [2011] NZCA 189 at [26].
[10] R v Taueki at [40]–[41](a).
[11] At [39](a).
[12] Grimshaw-Jones v R [2010] NZCA 490.
[13] At [10].