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Court of Appeal of New Zealand |
Last Updated: 24 December 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: |
11 November 2013 |
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Court: |
Wild, Asher and Dobson JJ |
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Counsel: |
V C Nisbet and P A Walker for Namana
N Levy for Thompson
H W Ebersohn for Respondent |
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Judgment: |
11 December 2013 at 3 pm |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Both appellants appeal against their conviction and sentence.
[2] The two appellants, together with Nigel Archibald and Ngahina Matiaha, were tried in the District Court at Wellington in November 2012. Together with Mr Archibald, both appellants were charged with aggravated robbery. The two appellants and Mr Matiaha were also charged with wounding with intent to cause grievous bodily harm. The jury found the two appellants guilty of both charges, Mr Archibald guilty of aggravated robbery and Mr Matiaha guilty on the wounding charge.
[3] Judge Mill sentenced the two appellants together with Messrs Archibald and Matiaha on 30 January this year.[1] Mr Namana was sentenced to an effective sentence of nine years imprisonment, Mr Thompson to 10 years. Mr Archibald was sentenced to three years imprisonment and Mr Matiaha to two years three months imprisonment.
[4] Mr Namana appeals his conviction on the grounds that the Judge failed adequately to:
- direct the jury about the unreliability of the evidence of the Crown’s two main witnesses, Messrs Howes and Hodson; and
- caution the jury about prejudice, given that all four accused were involved in the Nomads gang, and that the events which featured in the trial were gang related.
[5] On his appeal against sentence, Mr Namana’s submission is that the Judge’s sentencing starting point of eight years imprisonment on the aggravated robbery charge was too high, resulting in a sentence that is manifestly excessive. The submission is that the appropriate starting point was six to seven years.
[6] Mr Thompson’s appeal against conviction is differently grounded. He submits that his trial counsel, Ms Elder, did not put his defence resulting in a miscarriage of justice. There is no dispute that the agreed defence was an alibi one – that Mr Thompson could not have been involved in either the aggravated robbery or the wounding, because he was elsewhere at the relevant time. Mr Thompson had told the police he was at the home of his co-accused Mr Archibald throughout the evening when the offending occurred.
[7] On his sentence appeal, Mr Thompson submits that his sentence of 10 years imprisonment is manifestly excessive, and that the disparity with the sentence of four years imprisonment imposed on Mr Howes, who was also involved in the aggravated robbery but was sentenced separately, is gross and unjustifiable.
What happened
The aggravated robbery
[8] On the evening of 26 July 2011 a number of men associated with the Nomads Gang were at a gathering at Mr Howes’ home on Colombo Rd, Masterton. Some of the men there were Masterton Nomads. They included Mr Howes himself, but also Mr Hodson (Mr Howes’ 17 year old son), and Messrs Western, Hemi and Tiltyard. A number of the men were Carterton Nomads, including both appellants, and Messrs Archibald and Matiaha.
[9] At some stage during the evening Mr Howes decided that more cannabis was needed, and suggested robbing a tinny house in Masterton where it was thought there would be cannabis and also cash. It seems most of the others present thought this was a silly idea. Nevertheless, Mr Howes and two other men embarked on the robbery. In the statements he made to the police on 28 July 2011 and 2 February 2012, Mr Howes identified the two other robbers as Messrs Thompson and Matiaha.
[10] In his evidence at the appellants’ trial, Mr Howes said the two other robbers were Mr Thompson, who had the rifle, and Mr Namana. This change caught all counsel by surprise. Mr Namana had been charged with the aggravated robbery on the basis of Mr Hodson’s statement to the police. Mr Hodson had told the police he saw Mr Archibald take a sawn off .22 calibre rifle out of the fireplace on Colombo Rd and pass it out the window to Mr Namana. Mr Hodson also told the police that he had not seen any of the robbers leave the Colombo Rd address but, after the rifle had been passed out the window, he had noticed that Mr Thompson and Mr Namana were no longer there, and he assumed they had gone to do the robbery. He said that Messrs Archibald and Matiaha were still at the Colombo Rd address. Mr Hodson repeated this account in his evidence at the trial.
[11] The three robbers drove in a white Nissan hatchback car to the tinny house on Church St in Masterton.[2] Mr Howes knocked on the door which was answered by the female complainant in the robbery, Ms Rameka. Mr Howes and Mr Thompson burst into the house, Mr Thompson brandishing the firearm. Mr Namana followed. Messrs Namana and Thompson had their faces covered but Mr Howes did not. The two victims subsequently identified Mr Howes from a photo montage.
[12] The male complainant, Mr Brown, was sleeping on the lounge floor. After kicking him awake, the robbers demanded drugs and money. After they were told there were none, Ms Rameka was taken into the kitchen where, a little later, Mr Thompson, pointing the rifle at her, made her bend over and kiss his boots.
[13] Mr Brown was taken into the children’s bedroom (the children were not in the house) where Mr Namana punched him and again demanded drugs. Mr Brown lashed out in response and was getting the better of Mr Namana, who called out for help. This came in the form of Mr Thompson armed with the rifle. Mr Brown then stopped fighting and was again assaulted by both Messrs Namana and Thompson.
[14] While this was happening, Ms Rameka fled to a neighbour’s house and called the police. As she fled she noticed a white car outside the gate of her Church St home.
[15] When they realised Ms Rameka had fled, the robbers left the house, taking a laptop and a tinny of cannabis they had taken from Ms Rameka. Mr Brown ran after them and threw a brick at their car as it left. He described the car as a white Nissan Pulsar hatchback 89/91 model.
[16] An argument developed between the three robbers as they were driving back to Colombo Rd. It appears that Mr Howes was blamed for the failed robbery plan and for leaving the rifle behind. In evidence Mr Howes said that Mr Thompson punched him a couple of times in the head in the car.
The wounding
[17] Back at the house things turned really sour. Mr Howes’ evidence was that he was set upon, initially by Messrs Thompson and Namana. He was punched in the face until he fell down and then kicked in the body and head. Mr Howes recalled Mr Matiaha joining in and kicking him just before he lost consciousness.
[18] In his evidence Mr Hodson said that about 30–45 minutes after he noticed Mr Thompson (and also Mr Namana) was no longer at the Colombo Rd property, Mr Thompson came into the kitchen the property in a frantic mood. He told Mr Archibald to go with him but told Mr Hodson to “fuck off” when Mr Hodson tried to follow. Mr Hodson said he became concerned about his father (Mr Howes). He went round the side of the house and saw his father lying on the ground behind the white car with blood everywhere. He said that every time his father tried to get up he was kicked and punched back down by Messrs Thompson and Namana. Mr Matiaha joined in and kicked his father in the head. Mr Thompson kept saying to Mr Hodson “fuck off, fuck off, he almost got us killed” and “he fucked up, he left the gun at the house”.
[19] In his evidence Mr Howes recalled drifting in and out of consciousness. He remembered being taken to the shower, and falling out of the shower cabinet as he started to lose consciousness again and being placed on a mattress where the Armed Offenders’ Squad subsequently found him.
[20] After his father had been cleaned up in the shower and put on the mattress, Mr Hodson gave evidence that Mr Matiaha came in and urinated on his father and removed his Nomad’s T-shirt.
[21] Constables who arrived at the Colombo Rd property at 11.20 pm gave evidence that they saw a white Nissan Sentra car reversing out of the drive, but then driving back in when its occupants saw the police. One of the police officers identified Mr Matiaha as the man who was standing at the entrance to the driveway who suggested to the police “nothing to see here, you should keep on moving”.
Mr Namana’s appeal against conviction
[22] First, Mr Nisbet submitted that the case demanded that the Judge give the jury a special caution about accepting as reliable the evidence of Messrs Howes and Hodson. He supported this submission with these points:
- the “radical” and “concerning” (Mr Nisbet’s descriptions) change in Mr Howes’ evidence, he identifying Mr Namana rather than (in previous statements to the police) Mr Matiaha as one of his two co-robbers;
- both the key Crown witnesses (Messrs Howes and Hodson) were associated with the Nomads Gang, and the relevant events were gang related;
- those two key witnesses were themselves related – father and son, and both had motives to lie; and
- the men at the gathering on Colombo Rd were all, to a greater or lesser extent, affected by drink and drugs.
[23] Because both Messrs Howes and Hodson had motives to give false evidence, Mr Nisbet submitted that s 122(2)(c) of the Evidence Act 2006 applied here. Section 122(2) requires a Judge in a criminal jury trial to consider warning the jury of the need for caution in deciding whether to accept evidence, or in relation to the weight attributed to evidence:
(c) ... given by a witness who may have a motive to give false evidence that is prejudicial to a defendant.
In giving the warning, it is not necessary for a Judge to use a particular form of words: s 122(4).
[24] Assuming s 122(2)(c) applied, we are satisfied that Judge Mill adequately directed the jury in terms of s 122(1). The Judge’s directions are in the following part of his summing up:[3]
[39] Now the Crown, of course, going back to your document, rely on the evidence of Andrew Howes and Tyler Hodson to say Mr Thompson was there and also there is evidence of his car being at that address of ... Colombo Street that night. Now a lot has been said about Andrew Howes and Tyler Hodson’s evidence and you will recall what has been said by counsel.
[40] Now it is important, it is important when you look at their evidence, that you consider whether they both or either of them have a motive to lie. The question is, is their evidence reliable? In this respect I have to say this, the evidence of Andrew Howes and Tyler Hodson is critical to the cases against all of the accused and you have to accept their evidence to find them guilty and their evidence was strongly challenged in cross-examination by all of the lawyers for the accused and essentially they were both accused of falsely implicating the accused men for various reasons, for example to gain a discount on sentence or a lighter sentence, to have charges reduced in seriousness or perhaps to save their friends from suspicion or being charged. As I recall they were the main criticisms, there may have been others.
[41] Now what you make of their evidence is entirely a matter for you but you must consider these criticisms and whether these people had motives to lie about what happened when you are deciding to accept their evidence as reliable and truthful. In the end it is for you to decide but also you will need to consider whether Mr Howes’ evidence that it was Mr Namana and not Mr Matiaha who was with him at ... Church Street, you will have to consider whether that is reliable too, given that he positively identified Mr Matiaha earlier on and has said in fact on two times, prior to him giving evidence the other day, that it was Mr Matiaha who was with him and the defence suggest to you that if he can be wrong about who that was, how can you rely on him when he says now that it was Mr Namana who was with him. These are matters entirely for you but please take those matters into account when assessing the evidence.
...
[44] Now the defence challenge to Mr Hodson’s evidence is essentially that he is not telling the truth and I talked about that just a moment ago. But I just want to talk about one other possibility which Mr Nisbet, in fact raised in his address to you. Tyler Hodson gave evidence that he identified Mr Namana and indeed Mr Thompson as standing outside the window when the rifle was allegedly handed out. And he also identified them later in the driveway, when he says his father was being seriously assaulted.
[45] As I said before, the challenge essentially to his evidence is that he is lying. But if you consider that he is not lying about that, he is an honest witness about that and he is saying what he believes he saw, then I just have to caution you about that in this way. An honest witness who identifies something they see or someone they see, can be a mistaken witness. And a mistaken identification, of course, can result in a serious miscarriage of justice and a mistaken witness can be a convincing witness. So caution is required.
[46] There is some challenges, of course, to his evidence and Mr Nisbet challenged him as far as Mr Namana was concerned, is that actually the conditions were not that good for seeing someone outside the house that night. And although Mr Hodson claimed there was lighting, there was nothing in the photographs that showed that would be the case.
[47] So you have to think about that. If he was an honest witness who believed what he was saying, how well did he know this person, Mr Namana, and indeed Mr Thompson who he said was out there. And how good was the opportunity for him to see them out there when the rifle was handed out. And there is also [counsel for Mr Archibald]’s description, which you may take into account, of what was going on in the house that night. There was quite a lot going on, there was quite a lot of drug taking, a lot of drinking and a lot of pill popping and Mr Hodson said he was participating in at least some of that and there were people moving around. So you have to take those matters into account. It was perhaps a stressful situation or a confusing situation where the witness was under the influence. I am not saying you cannot accept his evidence but you must, again, just caution yourself in that way.
[25] Secondly, Mr Nisbet submitted that s 126 of the Evidence Act required the Judge to warn the jury about Mr Hodson’s identification of Mr Namana. Mr Nisbet did not press this submission, and we think rightly so. Paragraphs [45] to [47] of the Judge’s summing up adequately comply with s 126.
[26] Thirdly, Mr Nisbet submitted the Judge’s caution about prejudice arising from the appellants’ gang membership was inadequate. This was what the Judge said:
[5] And in doing that, in assessing the inferences you draw from the evidence, you will of course apply your collective common sense and your knowledge of human nature. You are here as representatives of our community and you are expected to apply your fair and wise judgement to this case. And in doing so, as has been mentioned by counsel, you must put aside any feelings of prejudice or sympathy one way or the other. You must reach your verdicts in a dispassionate and calm manner. And of course there are a number of things on which you could have feelings in this case. You may have a poor opinion on gangs or what they do or allegedly do. You may not agree with drug taking or drug dealing or benefit fraud or drinking to excess. You may be sorry for some of the people that have appeared in this trial. You may have been dismayed at Mr Matiaha’s attitude during his interview and the profanity that he used. But if you have any of those feelings about those things you must put those to one side. You must not judge people in that way. You should judge the accused men as you would want to be judged yourself.
[27] Mr Nisbet’s response, when the Court inquired what more the Judge could reasonably have said, was that the Judge could have “said it again and again”.
[28] We see no force in any of Mr Nisbet’s criticisms of the Judge’s summing up, which is comprehensive and fair. It follows that Mr Namana’s appeal against conviction is dismissed.
Mr Namana’s appeal against sentence
[29] As we mentioned in [5] above, the nub of Mr Namana’s sentence appeal is that the Judge, in taking the aggravated robbery as the lead charge, ought to have adopted a sentencing starting point of six to seven years imprisonment, rather than eight years.
[30] The Judge identified these aggravating features of the robbery:
- some planning, though not the most sophisticated;
- unlawful entry into a private dwelling – a home invasion;
- the wearing of disguises by Messrs Namana and Thompson;
- use of a firearm, in particular to intimidate or threaten both victims; and
- threats of violence and actual violence toward Mr Brown and threatening and insulting behaviour toward Ms Rameka.
[31] The Judge then referred to R v Mako, which is this Court’s guideline decision on sentences for aggravated robbery.[4] He observed that “a starting point of up to 10 years could be appropriate”, given the sort of aggravating features he had identified.[5] He added a cautionary proviso, because some of the aggravating features were common to all three robbers, and Mr Howes had earlier been sentenced to four years imprisonment.
[32] The Judge clearly had in mind the following paragraph in R v Mako:
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
[33] The “home invasion provisions” referred to in that passage were repealed by the Sentencing Act 2002. However, s 9(1)(b) of that Act included, as an aggravating factor that the Court must take into account where it applied, “that the offence involved unlawful entry into, or unlawful presence in, a dwelling place”.
[34] After pointing that out, this Court in R v Fenton stated:[6]
Although the Sentencing Act does not repeat the automatic three-year uplift of the maximum penalties that was enacted in 1999, the clear intent remains that home invasion should be reflected in an increased sentence.
[35] More recently, in Tiori v R, after reviewing a number of sentencing decisions, this Court observed:[7]
[15] These cases demonstrate that a “home invasion” element is a seriously aggravating factor in aggravated burglary cases, justifying a significantly higher starting point than would otherwise be appropriate. The way in which that outcome is achieved is, however, different from the approach adopted in the home invasion legislation.
[36] As we have noted, Mr Nisbet submits that the eight years sentencing starting point adopted by the Judge was one if not two years too high. To assess whether there is force in this submission we have reviewed the sentencing decisions summarised in the appendix to this judgment. That review has satisfied us that the eight year starting point adopted by the Judge, though stern, was not manifestly too high.
[37] The result is that Mr Namana’s appeal against sentence is also dismissed.
Mr Thompson’s appeal against conviction
[38] At the heart of this appeal was Ms Levy’s submission that Ms Elder had simply not put Mr Thompson’s agreed alibi defence, either to the Crown’s witnesses when cross-examining them, or to the jury in her closing address.
[39] Dealing first with cross-examination, Ms Levy referred us to a number of passages in Ms Elder’s cross-examination of Mr Howes, and to one in particular in her cross-examination of Mr Hodson.
[40] It is certainly correct that nowhere did Ms Elder directly confront Mr Howes or Mr Hodson, by putting to them that they were lying when they said Mr Thompson was one of the men at the Colombo Rd gathering, and was involved both in the robbery and the wounding. But we do not accept Ms Levy’s submission that the way Ms Elder framed her questions involved any implicit acceptance that Mr Thompson was at Colombo Rd on the night in question, thereby giving the lie to his alibi defence.
[41] Rather, the whole focus of Ms Elder’s cross-examinations of Messrs Thompson and Hodson was to attempt to expose their evidence as untruthful, in particular because of their motives to lie and the inconsistencies and unsatisfactory aspects of their accounts of what happened.
[42] We reiterate that we see nothing in Ms Elder’s questioning which would have indicated to the jury that Mr Thompson was no longer relying on his alibi defence.
[43] Nor did Ms Elder give any such indication in her closing address to the jury. Again, she did not expressly put the alibi defence. She did say this much:[8]
Now you saw them [Messrs Howes and Hodson] give evidence, and you saw the other accused give evidence, and you saw Paul Thompson’s video and you might think that there’s a big difference in the way that he interacted with the police, in the sort of way that he presented himself, and the information that he gave to the police compared to the others, and I suggest to you that there was a big difference about the way he presented to the police. ...
So I suggest to you that you can take a lot from the way that Paul Thompson presented and the spontaneity and the clarity with which he spoke to the police about what he was doing that night, where he was that night, who his friends were. He didn’t shy away from the fact that he had mates in the gang, Ngahina [Matiaha] particularly. ...
[44] We accept, of course, that Ms Elder could have mentioned Mr Thompson’s alibi defence in her closing address to the jury. She could have suggested to the jury that the alibi must leave them with a reasonable doubt about Mr Thompson’s participation in the offending. Another counsel defending Mr Thompson might have done that. But such a course would not have been without risk. Which course to adopt was very much a tactical decision for defence counsel, either course being acceptable trial advocacy. Certainly, the course Ms Elder adopted could not give rise to a real risk of a miscarriage of justice.
[45] The Crown had, of course, addressed the jury before the defence closings. So Ms Elder knew the jury was in no doubt that Mr Thompson’s alibi defence was very much alive. In closing, the prosecutor had said this to the jury:[9]
And then let’s look at Paul Thompson’s alibi, and you’ll have that statement that he pre-prepared and brought to the police station. He wrote his alibi before going to the police and he said in his DVD interview at page 3 of the transcript when Detective Keane told him that he’d like to gain an account he said, “Yeah, I just, um, wrote out the paper and he, and took it to him to sign”, referring to taking it to a lawyer to sign. So Paul Thompson tells police about his alibi, that he was at Nigel Archibald’s house. And in fact Nigel Archibald confirms Paul’s version when spoken to by police in September. But the Crown says to you that you should put this evidence to one side because they have just sorted out their story between themselves to get it around the evidence that the police already know.
And Paul Thompson just happens, by coincidence, to have his signature on his pre-prepared statement witnessed by Nigel Archibald’s lawyer, Nigel Archibald’s lawyer. Well Nigel Archibald, the person supporting and relying on the same alibi, another unfortunate coincidence? The Crown says no. Paul Thompson and Nigel Archibald have sorted out their story before Paul Thompson came to the police with his pre-prepared statement and before Nigel Archibald talked to police. Because if you have a think about it, Nigel Archibald said in his statement that he had, “Heard through the grapevine people had been arrested and stuff”, though we know Nigel doesn’t supply an alibi for Ngahina because, the Crown says, he already knew that Ngahina had told police that [he] was at [the Colombo Rd property] on that night.
[46] Further, the Judge summed up on Mr Thompson’s alibi defence, and Ms Levy made no criticism of the way in which he did that. She did submit that it did not cure what she submitted was Ms Elder’s omission to close to the jury on the alibi. This is how the Judge summed up the alibi:[10]
[33] Now a very important piece of evidence is his statement to the police where he gives a detailed alibi and there is also a statement from Nigel Archibald that he was at his place, that is Nigel’s place that night. I have got a note there, “alibi direction”, that is to remind me to tell you something that is not in there.
[34] Now both Mr Thompson and Mr Archibald have said that they were at Mr Archibald’s home and they said that they were there together and this raises a defence known as the defence of alibi. Now because an alibi is claimed, it does not mean the defence has to prove anything. The onus of proving the case remains on the Crown to prove beyond reasonable doubt that the person is guilty.
[35] If you accept, however, that Mr Thompson was at Mr Archibald’s house when the robbery and wounding occurred or if you are left with a reasonable doubt on this point as to whether he was there or not, you must find him not guilty on both charges.
[36] If you reject this evidence, that is you do not believe it, it does not follow that Mr Thompson is guilty. You must still decide, on the evidence that you accept, whether the Crown have proved the various elements beyond reasonable doubt before you find him guilty.
[47] In terms of her cross-examination, it is readily understandable why Ms Elder chose not to accuse either Mr Howes or Mr Hodson directly of lying, when they said Mr Thompson was at the Colombo Rd gathering and involved in the robbery and wounding. To do so would have provided a platform for either or both witnesses to confirm their evidence that Mr Thompson was there and involved, and perhaps to add some damaging detail or recollection reinforcing their evidence.
[48] Ms Elder was on much safer and more fertile ground in attacking the credibility of Messrs Howes and Hodson, because each man’s credibility was wide open to attack. When he got into the witness box at the trial, Mr Howes had without warning changed his story in a most material respect. It is perhaps surprising that he could previously have been mistaken in thinking that Mr Matiaha was one of the other two robbers. Mr Hodson had initially declined to say anything, and then claimed not to know about the events at all until he was in difficulties with the law himself, when he abruptly cooperated with the police with a great deal of detailed information. The assistance of both men was acknowledged in the sentences imposed on each. In Mr Hodson’s case, the sentence was to come up for sentence if called upon.
[49] It needs to be acknowledged that Mr Thompson’s alibi defence had its weaknesses, which the Crown exploited in closing, in the passage we have set out in [45] above. Mr Thompson had stated to the police he was at Mr Archibald’s house all evening. He was, of course, entitled to rely on that statement, and not expose himself to cross-examination by giving evidence in his trial. And s 33 of the Evidence Act prevented the prosecutor commenting on that. Nonetheless, that left Mr Thompson’s reliance on his alibi to be seen by the jury in a weaker light. Mr Archibald’s defence was much the same: that he was at home all that evening and that Mr Thompson was there too. Like Mr Thompson, Mr Archibald had made a statement to the police but he did not give evidence either. In the way she closed to the jury, Ms Elder seems to us to have been conscious of those weaknesses, and thought that the jury would likely have been a little unsympathetic to her hammering Mr Thompson’s alibi defence too much.
[50] A final point is that Ms Levy, in reply, submitted that Ms Elder was in breach of s 92 of the Evidence Act in not putting the alibi defence to Messrs Howes and Hodson squarely in cross-examination. There was no breach of s 92. Even if there had been a breach, it had no repercussions, as Ms Levy readily accepted. So her belated invocation of s 92 was incorrect, and anyway tantamount to putting up a straw man so it could be knocked down. Briefly, s 92 had no application because:
- Messrs Howes and Hughes could not squarely respond to Mr Thompson’s claimed alibi. They had given evidence that Mr Thompson was at the gathering at Mr Howes’ home on Colombo Rd and they had been challenged on that. Putting the alibi as well would not have advanced matters.
- None of the sanctions set out in s 92(2)(a)–(c) could apply. All are designed to protect the party whose witness is being cross-examined. The Crown would not have wanted to recall Messrs Howes and Hodson in order to ask them about Mr Thompson’s claimed alibi, nor would the Crown have wanted the contradictory evidence of Messrs Howes and Hodson excluded.
[51] Section 92 is the codification of what used to be the rule in Browne v Dunn.[11] Section 92 aims both to achieve fairness and to prevent ambush, essentially two sides of the same coin. As to fairness, it is difficult to improve on this succinct statement about the rule by Harrison J in Tootell v Police:[12]
This is a fundamental rule of fairness. It also serves the purpose of enabling the [jury] to make a comparative evaluation of the evidence of both complainant and defendant when taxed with the other’s story.
Here, the Crown obviously did not see itself as ambushed by Ms Elder’s cross-examination of Messrs Howes and Hodson. It had known of Mr Thompson’s alleged alibi since he made his statement at the police station shortly after the offending occurred.
[52] We are satisfied that Mr Thompson’s alibi defence was squarely before the jury. Accordingly, there can be no question of a miscarriage of justice resulting from that defence not being properly put.
[53] In the result, Mr Thompson’s appeal against conviction is dismissed.
Mr Thompson’s appeal against sentence
Disparity
[54] First, Ms Levy submitted that the disparity between the sentence of four years imprisonment imposed on Mr Howes and the 10 years imposed on Mr Thompson was too great to withstand the well established disparity test. We do not accept that. It was Mr Howes’ guilty plea to the aggravated robbery and his cooperation with the police in respect of the robbery and wounding charges that led to his sentence being much lower. Notwithstanding Ms Levy’s efforts to discount those factors, we consider they adequately explain the disparity and could not lead an independent objective observer to conclude that the administration of justice has miscarried.
Sentence manifestly excessive
[55] Secondly, Ms Levy submitted the sentence imposed on Mr Thompson was simply manifestly excessive.
[56] The Judge’s sentencing starting point for Mr Thompson on the aggravated robbery was nine years imprisonment. The additional year over his starting point for Mr Namana fairly reflected the fact that Mr Thompson was armed with the rifle, and used it to threaten and subdue both victims of the robbery.
[57] The considerations that led us to dismiss Mr Namana’s appeal against sentence apply equally to Mr Thompson. His appeal also must be dismissed.
Result
[58] Mr Namana’s appeal, both against conviction and sentence, is dismissed.
[59] Mr Thompson’s appeal, which is also against both conviction and sentence, is also dismissed.
Solicitors:
Crown Law
Office, Wellington for Respondent
APPENDIX
A review of a selection of decisions of the Court of Appeal from
2008 to 2013 involving appeals against sentences for aggravated robbery
involving a home invasion element.
[1] R v Archibald DC Wellington CRI-2011-035-1557, 30 January 2013 [Sentencing notes].
[2] The relevance of this is that Mr Thompson accepted he had owned a white Nissan Sentra hatchback registration FZD397. He claimed to have sold it “ages ago” but he and Mr Matiaha were in it when the police stopped the car in Petone, Wellington on 15 June 2011.
[3] R v Archibald DC Wellington CRI-2011-035-1557, 23 November 2012 [Summing up].
[4] R v Mako [2000] 2 NZLR 170 (CA).
[5] Sentencing notes, above n 1, at [23].
[6] R v Fenton [2008] NZCA 379 at [12].
[7] Tiori v R [2011] NZCA 355.
[8] Closing address of Ms Elder for Thompson, Case on Appeal at 356–357.
[9] Closing address of G Kelly for the Crown, Case on Appeal at 334–335.
[10] Summing up, above n 3.
[11] Browne v Dunn (1893) 6 R 57 (HL)
[12] Tootell v Police HC Rotorua CRI-2005-470-37, 16 November 2005 at [9].
[14] The sentence appeal was allowed on the basis that the Judge did not adequately take into account mitigating factors.
[17] Subsequent events were the subject of charges not relevant to this review.
[27] At [11].
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