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Court of Appeal of New Zealand |
Last Updated: 8 April 2014
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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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Hearing: |
6 March 2014 |
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Court: |
Miller, Goddard and Clifford JJ |
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Counsel: |
A M Simperingham and E Bruce for Appellant
D R La Hood for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Introduction
[1] On 23 January 2012 Roman Skorek was murdered in Kuirau Park, Rotorua. Four assailants beat him, causing head injuries that would have killed him had two of them not followed the beating by inflicting serious knife wounds, one of which was the immediate cause of death.
[2] The two offenders who used the knife, Rawiri Samuel, aged 21 and Simon Herewini, aged 19, pleaded guilty to murder. The other two, William Edwards, aged 15, and Leslie Glen, who had just turned 14, were also charged with murder. Mr Samuel pleaded guilty at an early stage, and the other three were committed to the High Court for trial.
[3] In February 2013 the Crown moved for leave to amend the indictment. The amended indictment charged Mr Herewini with murder and Messrs Edwards and Glen with causing grievous bodily harm with intent to do so. To that count they pleaded guilty in August 2013, shortly before trial.
[4] Mr Edwards and Mr Glen were sentenced together in the High Court at Rotorua on 4 October 2013. Collins J sentenced them respectively to prison terms of four years, three months and two years, six months.[1]
[5] This judgment responds to Mr Glen’s appeal. He appealed his sentence and made a late challenge to conviction. With respect to conviction, he did not deny guilt. Rather, he contended that, the murder charge having been abandoned, he ought to have been returned to the Youth Court for a Judge of that Court to decide whether to sentence him there or commit him to an adult Court.
[6] With respect to the sentence appeal, Mr Glen contended that the starting point adopted, six years, was too long, and the discounts given, totalling 62 per cent of the starting point, were inadequate. In particular, the Judge did not give him credit for 18 months spent on electronically monitored bail (EM bail) or his excellent prospects of rehabilitation. The end sentence, he contended, ought to have been home detention or, failing that, imprisonment of two years and one day.
The facts
[7] The following is drawn from the summary of facts on which Mr Glen was sentenced.
[8] On the afternoon of 23 January 2012 the four offenders consumed alcohol in Kuirau Park, Rotorua. There they met Mr Skorek, a 64 year old visitor to Rotorua. He engaged in a lengthy conversation with the group. It seems that Mr Skorek was sexually interested in Mr Herewini and exhibited it by staring at his crotch. Seeing this, Mr Herewini responded with verbal abuse. The others calmed him down, then the group left Mr Skorek. Some time later they returned to the park and again encountered him.
[9] After drinking with the group for a time Mr Skorek invited Mr Herewini, who was very drunk, to take a walk with him. Angered at this, Mr Samuel followed, with the others following him in turn. Mr Samuel assaulted Mr Skorek and the others joined in, punching him until he was overpowered and collapsed to the ground. There he was kicked repeatedly about the head and body. The assault continued for about 10 to 20 minutes.
[10] The offenders then left Mr Skorek unconscious in the park, taking his backpack. In it they found a knife. They then discussed the problem that Mr Skorek was still alive and might identify them. A decision was made to return and kill him. They found Mr Skorek making a snoring noise, with his head and arms twitching. Mr Samuel and Mr Herewini both stabbed him.
[11] The immediate cause of Mr Skorek’s death was a stab wound to the chest, which severed the carotid artery, but a subdural bleed resulting from a depressed skull fracture, which happened during the first attack, would have killed him in any event.
[12] The principal offenders were Messrs Samuel and Herewini. They led the first attack, and Mr Herewini kicked Mr Skorek numerous times in the head. They both used the knife.
[13] Mr Edwards kicked Mr Skorek numerous times as he lay on the ground, these kicks being inflicted to the body and head. He witnessed the stabbing.
[14] Mr Glen was initially reluctant to become involved. He was crying. But he eventually took what was described as a full part in the attack. He kicked Mr Skorek in the chest and legs on multiple occasions, and jumped on him while he was on the ground. He did not inflict the head injuries. After the first attack he used his cellphone to shine a light on Mr Skorek, showing the group that he was seriously injured. He too witnessed the stabbing. Messrs Herewini and Samuel pressured him to use the knife too, but he refused and again became distressed.
The course of proceedings
[15] As noted, all four offenders were initially charged with murder. Mr Samuel pleaded guilty on 29 March 2012. The others were committed to the High Court for trial. The amended indictment was filed on 4 February 2013, shortly before the trial was to begin. It was filed, we are told, with the agreement of all counsel, so the granting of leave would seem to have been a formality. As events turned out, however, the trial was adjourned until September. A fitness issue had arisen for Mr Edwards.
[16] By mid-2013 Mr Herewini had indicated that he would plead guilty to murder. The Crown then initiated discussions which led to Messrs Edwards and Glen pleading guilty to the wounding charge. The pleas were entered on 26 August.
[17] Messrs Edwards and Glen came up for sentence before Collins J on 4 October 2013 at Rotorua. Mr Herewini was sentenced on the same day, but separately. He and Mr Samuel were both sentenced to life imprisonment.
The conviction appeal
[18] Mr Simperingham initially filed an appeal against conviction and sentence, but the conviction appeal was filed in error. It was then abandoned. Counsel sought to reinstate it just before the hearing. In the circumstances we approach the application, as did the Crown, as an application for an extension of time to appeal. Nothing turns on this. The important point is that exceptional circumstances must be shown before the Court will entertain an appeal against conviction following a guilty plea.[2]
[19] Mr Simperingham initially presented the issue as one of jurisdiction: whether the High Court could decide the case at all, the indictment having been amended. In oral argument he accepted that the High Court could sentence Mr Glen but argued that the Judge ought instead to have remitted the case to the Youth Court for a judge of that Court to consider whether to accept jurisdiction or to commit him back to the High Court for sentence. We record that counsel did not suggest this course to Collins J at sentencing.
[20] For the Crown, Mr La Hood contended that, Mr Glen having been committed to the High Court, that court had jurisdiction to sentence or otherwise deal with him. He reserved the Crown’s position on whether there is jurisdiction to send an offender to the Youth Court at all in circumstances such as these. He was content to argue that if the High Court has such jurisdiction it would not have been exercised in this case and, in any event, no question of a miscarriage of justice arises.
[21] The starting point is that a youth charged with murder must be committed to the High Court for trial or sentence. There is no suggestion that the original committal was defective. An indictment had been filed. Nor is it in dispute that had Mr Glen been charged from the outset with grievous bodily harm offence only, the Youth Court would have had jurisdiction to deal with the case. A judge of that Court would have been required to decide whether to commit him to the High Court for trial.
[22] It has been held that in circumstances such as the present, where a lesser charge is substituted for one of murder, the High Court has a discretion whether to determine guilt and impose sentence. In R v PK Fisher J held that the High Court may continue to deal with the case provided the counts in the indictment concern the same overall incident and allege broadly the same culpable conduct by the youth.[3] In S (CA284/02) v R this Court substantially agreed with Fisher J, but went on to state that:[4]
[14] The matter can, in our opinion, be expressed quite simply. There is no inconsistency between ss 272(3) [of the Children, Young Persons, and Their Families Act 1989] and 345(1) [of the Crimes Act 1961]. Section 272(3) is dealing with the originating stage of a criminal process. Once the High Court becomes seized of the matter, its processes engage. Those include the operation of the provisions of the Crimes Act, including s 345(1). Dealing respectively with the originating phase and the subsequent phase of a single process, the provisions are mutually consistent.
[23] Mr La Hood was prepared to accept for present purposes that R v PK states the law correctly, but he drew our attention to the passage just quoted and noted that the Children, Young Persons and Their Families Act 1989 requires a committal hearing in the Youth Court for a young offender who has been “charged”,[5] while the High Court’s processes at the time involved the filing of an indictment containing counts founded on Youth Court committal evidence. He suggested that in a case such as the present no question would arise of a preliminary hearing being held in the Youth Court, for the amended indictment would not amount to a “charge”.
[24] We need not decide whether the High Court had jurisdiction to send Mr Glen back to the Youth Court. We will assume in Mr Glen’s favour that the High Court might have stayed its hand while the Youth Court went through a committal process on a grievous bodily harm charge, allowing the Crown to withdraw the indictment subsequently if the Youth Court retained the case. Having made that assumption, we are satisfied that no miscarriage of justice occurred and no exceptional circumstances exist to warrant a conviction appeal. Had the police charged Mr Glen with causing grievous bodily harm with intent to do so, it is all but inevitable that a Youth Court Judge would have committed him to the High Court. It was not merely a question of sentencing; the decision would have been made when the Crown sought leave to file the amended indictment – that is, while Mr Glen’s guilt and that of his co-offenders remained to be established at trial. No question would arise of Mr Glen again being “charged” after he pleaded guilty.
[25] We add that the appeal was plainly motivated by a belief that Mr Glen would have been treated more leniently in the Youth Court, but Mr Simperingham identified no principled reason why that would have been so. Counsel emphasised that youth justice principles must be applied in the Youth Court, but it is now settled law that the sentencing discount afforded to youth in an adult court is not limited to any given percentage even where a tariff case such as R v Taueki applies.[6] In Pouwhare v R this Court held that the sentencing Judge had erred by adopting 50 per cent as the maximum discount available for youth on sentencing in an adult court; youth can sometimes justify radical discounts, unconstrained by any normative percentage.[7]
The sentencing
[26] Justice Collins recognised that Mr Edwards was aged 15 at the time of the offending, and was vulnerable and immature, with cognitive and functioning skills below normal. He was a follower in the offending. He was remorseful and motivated to reform, but he had a significant offending history and his reoffending risk was high. He attacked Mr Skorek’s head. It was a group attack involving serious violence and grave injury. Applying the Taueki criteria, the Judge adopted a starting point of 11 years imprisonment.[8] He treated Mr Edwards as a principal offender.
[27] The Judge recognised that Mr Glen was 14 at the time of the offending. He had been subject to few parental boundaries in Rotorua, but following arrest had been bailed to live with his grandparents in Waipukurau, where he had demonstrated substantial potential for rehabilitation. Although susceptible to peer pressure, he had no history of offending. The probation officer had recommended a community-based sentence. The Judge noted that Mr Glen had attacked Mr Skorek’s body, so had not caused the head injuries. Further, he had pleaded guilty as a party. Given his lesser role in the offending, the Judge adopted a starting point of six years imprisonment.[9]
[28] Having regard to age and commitment to reform both offenders were given a discount of 50 per cent for youth. Mr Edwards was given a further discount of close to 23 per cent for his guilty plea, and Mr Glen about 12 per cent. The guilty plea delay in Mr Edwards’ case was occasioned by the fitness to plead issue, hence the larger discount.
[29] The Judge recorded that Mr Glen had been on EM bail, but he gave no additional discount for it. Under s 9(2)(h) of the Sentencing Act 2002, time on EM bail had since 4 September 2013 been a mitigating factor that a sentencing court must take into account to the extent applicable to the case.
The sentence appeal
[30] Mr Glen has been in custody since sentencing, and we are told that he will appear before the Parole Board for the first time on 9 May next. Mr Simperingham accordingly urged us to impose a short sentence of home detention which would reflect time served, or to substitute a sentence of two years and one day. A sentence of two years or less would result in Mr Glen being ineligible for release until he had served half the sentence.[10]
[31] In his written submissions Mr Simperingham contended that the starting point was excessive having regard to Mr Glen’s status as a mere party and lack of culpability, particularly with respect to the stabbing which followed the assault.
[32] Mr La Hood responded that the starting point was lenient; indeed, remarkably so. Mr Glen was an active participant in a serious group attack that would have killed Mr Skorek but for the subsequent stabbing. It is difficult to reconcile the starting point with that adopted for Mr Edwards. There was very little difference in culpability between Mr Glen and Mr Edwards, and it is well established that fine distinctions need not be drawn among offenders involved in a group assault. It seems likely that the Judge incorporated an element of youth discount in the starting point.
[33] There is much force in Mr La Hood’s submissions. Indeed, Mr Simperingham all but conceded in oral argument that the starting point for Mr Glen was generous. We agree. We are not prepared to say that it was too low, however. We prefer the view that it was open to the Judge, having regard to Mr Glen’s immaturity and secondary role. There is an element of double counting for youth in the Judge’s approach, but a radical discount was appropriate in this case. The same result might have been achieved by giving a larger discount from the starting point which Taueki would indicate for a fully participating adult offender. The Judge was not limited to the 50 per cent that he adopted for youth. We accept that the starting point is very much less than that adopted for Mr Edwards, but Mr Edwards has not appealed.
[34] Mr Simperingham challenged the discount of about 12 per cent for the guilty plea, but we are not persuaded that the Judge erred. Not until July 2013 did Mr Glen intimate that he would plead guilty, and the trial had already been adjourned once.
[35] We have accepted that no discount was given for the 18 months spent on EM bail. The terms of bail involved a 24-hour curfew, although Mr Glen was permitted to leave the house to attend approved activities. It was a long period, especially from the perspective of a youth. Some allowance was appropriate in this case.
[36] But having regard to the extremely serious nature of the offending, Mr Glen’s substantial participation as one of the assailants, and the discounts that were given for other mitigating factors, we are not satisfied that an adjustment need be made on appeal. The question is whether the end sentence of two years, six months imprisonment was plainly excessive for this most serious offence. We are not persuaded that it was.
Decision
[37] We decline to extend time for filing an appeal against conviction.
[38] The appeal against sentence is dismissed.
Solicitors:
Woodward Chrisp,
Gisborne for Appellant
Crown Law Office, Wellington for Respondent
[1] R v Edwards [2013] NZHC 2569 [High Court decision].
[2] R v Le Page [2005] 2 NZLR 845 (CA) at [16].
[3] R v PK HC Auckland T014047, 3 July 2002 at [26].
[4] S (CA284/02) v R CA284/02, 31 October 2002.
[5] Children, Young Persons, and Their Families Act 1989, ss 273–275.
[6] R v Taueki [2005] 3 NZLR 372 (CA).
[7] Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].
[8] High Court decision, above n 1, at [30].
[9] At [31].
[10] Sentencing Act 2002, s 86.
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