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Court of Appeal of New Zealand |
Last Updated: 6 November 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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AND BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
22 October 2013 |
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Court: |
Stevens, White and French JJ |
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Counsel: |
J J Corby for Charles Kara R J E Brown for Takahi Kara M J Lillico for Respondent |
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Judgment: |
1 November 2013 at 11.30 am |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
[1] Following trial in the Auckland District Court Charles and Takahi Kara were convicted of burglary, wounding with intent to cause grievous bodily harm, and male assaults female. Both were sentenced by Judge Wade on 27 November 2012: Charles Kara to nine years, three months’ imprisonment, and Takahi Kara to eight years’ imprisonment.[1]
[2] Charles Kara originally appealed both his convictions and his sentence, but has now abandoned his conviction appeal.[2] Takahi Kara appeals his sentence.
[3] Takahi Kara’s appeal was filed out of time. The respondent has not opposed an extension of time. Accordingly the application for an extension of time to appeal is granted.
Background
[4] The complainants were Jing Li, her former partner Paul Morris, and their two children, aged three and five years. In July 2011 Ms Li and her children were living at a property in Point England, Auckland, to which they had moved following the Christchurch earthquakes. Mr Morris was visiting for his elder son’s fifth birthday.
[5] At 2 am on 2 July the complainants were awoken by a loud noise. When Ms Li and Mr Morris went to investigate they were confronted by four men inside their house. The men demanded money and claimed they were owed money by the former occupants of the house. Mr Morris attempted to reason with the intruders. He was then struck by one or more of the men and fell down. He got up and was attacked again, collapsing unconscious on the ground. Although he has very little recollection of events after this point, Mr Morris received injuries consistent with being struck about the head and body multiple times. Of particular seriousness was a lifethreatening blood clot on his brain which required emergency surgery. He needed 45 stitches and suffered bruising over his entire body.
[6] Ms Li was also punched about the body and kneed by the men. She was then grabbed and shoved into the bedroom where her sons had been sleeping. When she attempted to leave she discovered that the bedroom door was being held shut from the outside. Ms Li escaped out of the bedroom window and ran to a neighbour’s home to seek help. She had to leave the children behind in the bedroom on their own.
[7] The evidence as to the role each of the offenders played in the attack was limited. Ms Li identified Charles Kara as one of the men who had demanded money from her and grabbed her about the collar as well as being involved (with the other three) in the assault on Mr Morris. Ms Li’s evidence was that all of the men asked her for money. Takahi Kara’s handprint was found on the wall in the hallway, which was consistent with him holding the handle of the children’s bedroom shut to prevent Ms Li leaving the bedroom. At trial the Crown case was presented on the basis that because all four men had formed a common intention to break into the complainants’ home, each was liable as a party for offending committed by any one of them in the prosecution of the common purpose.[3]
[8] Two co-offenders, Mr Hobson and Mr Kei, pleaded guilty before trial. Charles Kara admitted entering the property but claimed he had done so in order to attempt to stop his associates from breaking into the property. He denied assaulting the complainants or demanding money. Takahi Kara claimed to have no recollection of the events as a result of his intoxication and drug taking.
Sentencing decision
[9] Both appellants were sentenced on the basis that the wounding with intent to cause grievous bodily harm was the lead offence. Judge Wade described as follows what occurred when the adult victims were woken:[4]
... Once outside the bedroom they were confronted by four men inside the house and it seems plain that the intruders had gained entry by forcing open the patio doors at the rear of the property. It has been suggested that perhaps the intruders were not aware that the house in question was occupied. However, I am driven to the conclusion that the intruders knew perfectly well that to be the case, because once they were confronting the occupiers, instead of turning tail and running out as one might have expected, if they were not thinking of meeting the occupiers, they instead immediately began attacking them. Furthermore, demands were made for money. It is quite plain, therefore, that the intruders knew full well that the house they were bursting into was an occupied house, it was occupied with young children in it and the purpose of breaking into it was to do mischief or injury to the occupiers as well as demanding money from them. This is about as bad a home invasion as it is possible to imagine.
[10] Next the Judge considered the aggravating features of the offending. These included: the use of extreme violence, the home invasion element, the attack to the head, and the vulnerability of the victims. The Judge considered that the offending fell at the bottom of band three of R v Taueki,[5] and a starting point of nine years’ imprisonment was adopted for both appellants. This was consistent with the nine year starting points adopted for Mr Hobson and Mr Kei.[6]
[11] The Judge rejected the submission that Takahi Kara ought to be sentenced on the basis that he played a lesser role in the offending, concluding:[7]
So far as you, Takahi Kara, are concerned, Mr Brown submitted on your behalf that I should sentence you on the basis that you played a lesser role. However, because different offenders were dealt with on different occasions, and it is far from clear who it was who did particularly what, it is impossible to determine what role you individually played. But at the end of the day, I am satisfied that it does not matter, that is because the Crown case from start to finish was that each of you formed a common intention to burgle the house next door, knowing full well that the house was occupied and that part of the purpose was to extort money from the occupiers of the house. Therefore, the causing of serious injury to the occupiers was well known to be something that could well happen and in those circumstances, it seems to me, to be entirely artificial to draw distinctions on the basis of who may have done what.
[12] As to personal factors, the Judge noted that Charles Kara was described in his probation report as having “a poor attitude towards authority” and “no empathy at all for the victims”.[8] Although he provided a letter of remorse on the date of sentencing, the Judge considered that this was “far too little, far too late”.[9] Charles Kara had 11 prior convictions for violent offending, the last of which was in October 2007. Judge Wade imposed an uplift of six months’ imprisonment for previous offending, reduced to three months to reflect time spent on electronically monitored (EM) bail. Charles Kara’s end sentence was therefore nine years, three months’ imprisonment.
[13] Similarly, in relation to Takahi Kara, Judge Wade placed little weight on a letter of remorse, given the observation in his probation report that he did not express any empathy toward the victims. Takahi Kara had two prior convictions for dishonesty and one for disorderly behaviour. The Judge allowed a discount of 12 months to reflect the fact that Takahi Kara was 10 years younger than his cousin and had not served a prison sentence before. The end sentence was one of eight years’ imprisonment.
[14] Concurrent sentences of 18 months’ imprisonment were imposed on each appellant on the male assaults female charge and three years’ imprisonment on the burglary charge.
Charles Kara
[15] Mr Corby for Charles Kara submits that the sentence is manifestly excessive because the starting point was too high and insufficient credit was given for time spent on EM bail and an overall “de-escalation” in offending. He submits that an end sentence of seven years’ imprisonment would be appropriate.
Starting point
[16] Mr Corby does not challenge the Judge’s conclusions as to the nature of this attack. Rather he submits that the offending properly falls within band two of Taueki. Although the violence resulted in a significant injury it was not in itself extreme. In addition, the attack to the head and the vulnerability of the victims ought not to be considered as separate factors as they were already taken into account when considering the seriousness of the injury and the fact that the offending constituted a home invasion. Accordingly, there were only three Taueki factors present (home invasion, serious injury, and multiple attackers) and the offending should be categorised as band two.
[17] We are satisfied that Mr Corby’s submission is without merit. Band three of Taueki is intended to encompass serious offending which has three or more of the specified aggravating features where the combination of aggravating features “is particularly grave”.[10] We agree with Mr Lillico for the Crown that six of the Taueki aggravating factors were present in this offending to varying degrees. In addition to the home invasion, multiple attackers and serious injury (accepted by Mr Corby), there was an attack to the head of Mr Morris, vulnerability (sleeping victims and the presence of two young children) and facilitation of crime (demanding money).
[18] There was no error in considering the attack to the head as an aggravating feature as the Judge was cautious about the risk of double counting.[11] Furthermore, the victims’ vulnerability went beyond the fact of the home invasion because the attack on Mr Morris continued after he had fallen to the ground. We also note that the overall criminality included the cowardly attack on Ms Li as she sought to protect her young children, and her (and the children’s) confinement in a room separated from her injured partner. For these reasons, we are satisfied that the offending fell well within band three. A starting point of nine years was clearly within range.[12]
Time spent on EM bail
[19] Charles Kara was granted an effective discount of three months’ imprisonment to account for the 11 months he spent on EM bail. Mr Corby submits that this discount was insufficient. Mr Lillico emphasises the evaluative nature of assessing any discount for EM bail. The discount given in this case is consistent with the decision of this Court in Purua v R where a discount of six months for 22 months spent on EM bail was upheld.[13] Accordingly, he submits that the present discount of three months cannot be in error.
[20] This Court has previously declined to adopt an “arithmetical approach” to discounts for EM bail.[14] A broad range of discounts have been endorsed.[15] Further, the Sentencing Act 2002 has recently been amended[16] so that time spent on bail with an EM condition is now a recognised mitigating factor under s 9 of that Act. Section 9(3A) now provides that the Court must take into account the time spent on bail with an EM condition, the relative restrictiveness of that condition, the offender’s compliance with that condition, and any other relevant matter. We do not consider that a discount of three months was in error: it too was within range.
Allowance for “de-escalation”
[21] Mr Corby also submits in his written material that the Judge ought to have recognised the “de-escalation” in the seriousness of Charles Kara’s offending. Since 1994 Charles Kara has been convicted of fighting (1999), common assault (2005), and male assaults female (two convictions in 2006 and one in 2007). At the hearing Mr Corby realistically did not press this point.
[22] We consider there was no error on the Judge’s part. Rather than the violent offending of Charles Kara “de-escalating”, it had continued at a steady rate since 2005. We see no proper basis to suggest that there should be an adjustment to the uplift for previous violent offending.
[23] Overall we consider that the final sentence of nine years and three months’ imprisonment was well within range. It cannot be said to have been manifestly excessive.
Takahi Kara
[24] Mr Brown submits that the sentence is manifestly excessive because the Judge failed to recognise Takahi Kara’s lesser role in the offending and failed to give credit for his remorse and his time spent under restrictive bail conditions. Counsel rather optimistically suggests that an end sentence of two years’ imprisonment would be appropriate.
Lesser role in the offending
[25] Mr Brown correctly argues that degree of culpability is a mandatory consideration under s 8(a) of the Sentencing Act. He contends a lower starting point ought to have been adopted to reflect Takahi Kara’s “significantly lesser” involvement in the offending.
[26] Mr Brown accepts that the Crown case was presented on the basis that the offenders had all formed a common intention to break into the property, and therefore each was a party to every offence committed by any one of them in prosecution of the common purpose if that offence was known to be a probable consequence of the prosecution of the common purpose.[17] However, he submits that there was no reason why this ought to translate into identical liability for the criminality involved.
[27] Counsel refers to R v Laumemea where Asher J recognised the potential for different levels of culpability in the context of burglary, robbery and aggravated wounding committed by multiple attackers:[18]
I have decided that I should give you the benefit of the doubt on the point of whether you were the principal kicker. I have no doubt that you were encouraging and assisting, at least up to a certain point in the assault on the complainant. However, I am not satisfied that you were the principal violent offender. Your culpability is nevertheless grave, but not as grave as it would have been if you were the person carrying out the primary kicking and striking the victim with the wooden axe.
[28] Counsel submits that, although Takahi Kara had played no active part in the assault on Ms Li, the Judge failed to account for the reduced gravity of his offending. A properly constructed sentence would have adopted a considerably lower starting point to reflect this. Mr Lillico submits that given the common intention of the four offenders their degree of culpability was about the same, although the exact nature of their individual circumstances may have differed. Where it is difficult to determine the role played by individual offenders in gang offending, all offenders should share in the criminal responsibility for group actions.[19]
[29] The law on this issue is settled. Every offender must be considered on the basis of his or her individual culpability.[20] This extends to situations where convictions are achieved on the basis of party liability. In making assessments of criminal culpability the sentencing judge need not draw “fine distinctions”.[21] However, in situations of party liability the Court must not be too quick to conclude that certain offenders carry a lesser degree of culpability for the offending. As noted in R v Mako:[22]
... there is no justification for treating those assigned roles other than of confronting the victim as less culpable unless they are truly less than full participants. The lookout, the getaway, may in fact be the ringleader.
[30] The critical question is whether there is evidence to support Takahi Kara’s contention that he is less culpable than his co-offenders. We are satisfied that the answer must be “no”. Mr Morris described seeing all four offenders line up in a row one behind another in the hallway immediately before the assault began. Ms Li’s evidence suggests that all four were involved in the attack on Mr Morris and in demanding money from her. Further, Takahi Kara’s palm print was found in a position on the hallway wall suggesting he was the one who held the bedroom door shut thereby detaining Ms Li and the two young children in the bedroom. These factors support the conclusion that he was an active participant in the implementation of a joint plan. The Judge’s reasoning set out at [11] above cannot be faulted. Takahi Kara’s lack of recollection does not assist him as this was caused by the voluntary consumption of alcoho[23]and drugs.23 Accordingly, there was no error in declining to reduce the starting point on the basis that Takahi Kara was less culpable than his three co-offenders.
Remorse
[31] Mr Brown submits that a “modest discount” was appropriate to acknowledge Takahi Kara’s expressions of remorse and his rehabilitative efforts. The letter of apology came at a late stage and is likely to have provided modest comfort to the complainants. Mr Lillico submits that Judge Wade was entitled to decline to grant a discount given that the letters only came after pleas of not guilty and a jury trial. A disputed facts hearing, as opposed to a trial, could have provided a means of establishing Takahi Kara’s level of culpability.
[32] In Hessell v R the Supreme Court noted that no discount will be warranted when the professed remorse is no more than self-pity.[24] Like the Judge, we see no genuine remorse. Takahi Kara pleaded not guilty and maintained his innocence to the probation report writer. The report itself noted that he showed no empathy for his victims. Accordingly, we consider that the Judge did not err in refusing a discount on this basis.
Restrictive bail conditions
[33] Finally, Mr Brown submits that the Judge erred in failing to allow a discount for the period of approximately 12 months that Takahi Kara spent on bail with a 24 hour curfew: a discount of at least three months was required. Mr Lillico submits that the Judge did not err in failing to allow a discount because Takahi Kara was not on EM bail and was therefore considerably less restricted than he might have been. At one point he was allowed to travel to Kaitaia to attend a tangi. Furthermore, a discount of 11 per cent was allowed for the fact that Takahi Kara was 10 years younger than his cousin and had not previously served a sentence of imprisonment. Mr Lillico submits this discount was generous, given that Takahi Kara was 24 years old and had four previous convictions.
[34] We accept Mr Lillico’s submission. The discount of 11 per cent was very generous in the circumstances. Given this, the Judge’s decision not to allow a further discount for time spent on bail did not render the sentence manifestly excessive.
Result
[35] The application made by Takahi Kara for an extension of time to appeal is granted.
[36] Both of the sentence appeals are dismissed.
Solicitors:
Crown Law
Office, Wellington for Respondent
[1] R v Kara DC Auckland CRI-2011-019-5337, 27 November 2012 [sentencing decision].
[2] A notice of abandonment was filed on 10 October 2013. This appeal was assigned to the Permanent Court on the basis of the conviction appeal.
[3] Crimes Act 1961, s 66(2).
[4] Sentencing decision at [3].
[5] R v Taueki [2005] 3 NZLR 372 (CA).
[6] R v Hobson DC Auckland CRI-2011-019-5337, 19 October 2012 and R v Kei DC Auckland CRI2011-019-5337, 6 June 2012.
[7] At [21].
[8] At [18].
[9] At [19].
[10] R v Taueki at [40].
[11] At [11].
[12] We note that nine years’ imprisonment falls inside the upper limit specified for band two offending (five to ten years’ imprisonment).
[13] Purua v R [2011] NZCA 489.
[14] Purua v R at [9]; R v Tamou [2008] NZCA 88 at [19]; and Keown v R [2010] NZCA 492 at [12].
[15] See, for example, Beckham v R [2012] NZCA 603, [2013] 1 NZLR 613 (six month discount for eight months on EM bail); Keown v R (four month discount for 18 months on EM bail); Schuster v R [2011] NZCA 343 (three month discount for eight months on EM bail).
[16] Bail Amendment Act 2013, s 42.
[17] Crimes Act, s 66(2).
[18] R v Laumemea [2012] NZHC 651 at [21].
[19] R v Fatu [1989] 3 NZLR 419 (CA) at 431 and R v Misitea [1987] 2 NZLR 257 (CA).
[20] Sentencing Act 2002, s 8(a).
[21] Solicitor-General v Lam (1997) 15 CRNZ 18 (CA) at 25.
[22] R v Mako [2000] 2 NZLR 170 (CA) at [64].
[23] Sentencing Act, s 9(3).
[24] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
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