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Hurinui v R [2014] NZCA 290 (1 July 2014)

Last Updated: 12 July 2014

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
12 June 2014
Court:
French, Venning and Mallon JJ
Counsel:
R G Glover for Appellant D R La Hood for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeal against conviction is dismissed.
  2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

[1] Following a jury trial in the District Court at Christchurch Michelle Hurinui was found guilty of a charge of assault with a weapon. Judge MacAskill sentenced her to 18 months’ imprisonment.[1]
[2] Ms Hurinui appeals against her conviction and sentence.

Background

[3] Ms Hurinui lived at 17 Korora Street, Christchurch. Ms McWilliams and her partner lived next door at number 19. The victim of the assault was the sister of Ms McWilliam’s partner. It was the victim’s 21st birthday on 30 January 2013 and about 10 people were at Ms McWilliams’ place on 29 January to celebrate. At about 10.30 pm that night there was a confrontation between a group of people associated with Ms Hurinui and the group at number 19.
[4] The confrontation escalated to a fight involving several people. One of the victim’s female friends became engaged in a fight with a female from number 17. When the victim went to pull her friend out of the fight she was hit on the forehead with a baseball bat wielded by Ms Hurinui.
[5] The blow caused significant injury. It split the victim’s skin over her forehead. The wound required 15 stitches. The victim experienced discomfort and soreness to her forehead for several weeks. At the time of trial she was still suffering from headaches.
[6] Ms Hurinui’s defence was that someone else had administered the blow rather than her. Counsel suggested that either someone else had deliberately hit the victim, or the victim may have been hit by Ms McWilliams by mistake when Ms McWilliams was using a child’s plastic scooter to hit another female. The jury rejected those arguments.
[7] In his sentencing remarks, the Judge indicated that he considered the jury was right to reject the alternative theories offered by the defence. He noted that at no time was the victim engaged in violence. She was intervening to help bring it to an end. Ms Hurinui had no reason to hit the victim.
[8] The probation officer who completed the pre-sentence report did not consider Ms Hurinui suitable for home detention but recommended intensive supervision and community detention. The Judge considered the seriousness of the offending precluded a community based sentence. The Judge was satisfied that this was calculated violence with the potential to cause very serious injury. He was concerned at the use of a weapon by Ms Hurinui, bearing in mind this was not the first time she had used a weapon to commit serious violence. The Judge was aware of Ms Hurinui’s responsibilities in relation to four children but did not consider her obligations to them warranted a more merciful approach or a sentence other than imprisonment.
[9] The Judge took a start point of 18 months. He did not add an uplift for Ms Hurinui’s prior offending. There were no mitigating factors. Ms Hurinui was not remorseful, maintained she was not guilty and did not accept responsibility for the offending. That left 18 months as the end sentence.

The appeal against conviction

[10] The sole ground advanced by Mr Glover in support of the appeal against conviction is that the Judge was wrong to permit evidence that some of the people involved in the incident had gang associations.[2] Mr Glover submitted that evidence was extremely prejudicial. It had no probative value. Its admission led to a miscarriage of justice.
[11] The Crown proposed to lead evidence from at least three witnesses who referred to the fact that some of the people associated with 17 Korora Street that night were members of a gang. The issue was not dealt with prior to trial. After the jury had been empanelled but before the case opened, trial defence counsel took objection to the evidence as irrelevant and unfairly prejudicial.
[12] The Judge ruled against the objection.[3] He ruled the evidence admissible for the following reasons:[4]

(e) The gang associations of these persons helps explain why they were equipped with baseball bats and other offensive weapons, which had been carried in their vehicle. It explains why the weapons disappeared from the scene before they could be seized by the Police, a vehicle having left the scene.

(f) The defendant's association with gang members who have propensity for violence might well legitimately add credibility to the Crown's case that she used a baseball bat to strike the complainant.

(g) It would be completely artificial to attempt to expunge from the case all reference to a feature of the incident, that is, the involvement of gang members, especially when the nature of the confrontation might well suggest to the jury that there was a gang dimension in any event. It would be better for the defence, in my opinion, if the issue were confronted and dealt with by the defence as best it can, rather than to leave the implication of gang involvement completely unaddressed.

(h) I shall address the risk of unfair prejudice to the defendant by an appropriate jury direction. ...

[13] Mr Glover submitted that it was clear someone had assaulted the victim with a baseball bat. The issue in the case was whether Ms Hurinui or someone else was responsible for that. In the circumstances the probative value of the gang association was outweighed by the risk it would have an unfairly prejudicial effect on the proceeding.[5] He submitted the Judge should have excluded the evidence. The gang associations of Ms Hurinui, if she had any, were irrelevant to whether she struck the victim but could well have excited prejudice in the minds of the jury.
[14] We agree with aspects of Mr Glover’s criticism of the reasons the Judge gave for admitting the evidence of the gang association. For example the suggestions that it was open for Ms Hurinui to disassociate herself from having any connection with the gang and that the gang association helped to explain why vehicles disappeared from the scene before they could be seized by the police are either wrong in principle or somewhat speculative. Further, the Crown did not intend to use the evidence as propensity evidence as suggested by the Judge’s reasoning at (f).
[15] However we consider that the evidence was relevant and probative to set the background to the incident and to explain how or why an apparently quiet gathering turned into a fight between two sets of people at neighbouring properties involving weapons such as a baseball bat. A young man at the party at 19 Korora Street was wearing a red cap. He was mistaken as a Mongrel Mob member or supporter by some of the people at Ms Hurinui’s home who were members of a rival gang. He was challenged to a fight and was ultimately set upon. Some of the group at Ms Hurinui’s place then armed themselves with bats and other weapons, such as pieces of wood with nails or screws protruding from them, and joined in. It was during this altercation that the victim tried to pull the female from her group away from the fight and was hit on the forehead by Ms Hurinui wielding the baseball bat.
[16] The evidence was relevant as contextual evidence. In the absence of the evidence of the gang association that led to the fight in the first place, the jury would have been asked to consider the issue in a vacuum, rather than in context. In Poutai v R this Court accepted that the admission of evidence of gang connections could, in an appropriate case, be relevant and admissible in order to ensure the jury was not given a misleading version of events:[6]

[15] Furthermore, as Duffy J found, exclusion of this evidence would have created an artificial picture for the jury and an unfairness for the Crown. The jury would have been deprived of evidence of what the Crown says was the real reason for the assailants' participation. Ms Edwards for the Crown rightly submits that without the evidence the jury would have had to assume that each of the four attackers was motivated solely by a sense of injustice that Mr Te Hira had engaged in sexual activity with Mr Poutai's partner while he was in prison. It is contrary to the interests of justice to present a jury with an unnecessarily misleading version of events.

[17] We note that in the present case Ms Hurinui put all matters of her involvement (including how the blow might have been caused) in issue.
[18] There is also force in Mr La Hood’s submission that to require the witnesses to give an account of the altercation without reference to the gang affiliation that sparked the fight and the use of weapons would have been unrealistic and artificial. In Key v R this Court observed:[7]

[34] The first point to make about that submission is that the Judge, at the time she made her ruling, was not to know exactly what was and was not in dispute. No formal admissions to the effect stated in Ms Dyhrberg’s submissions had been made. The relevance of evidence is to be tested at the time the dispute as to admissibility arises, not with hindsight. In any event, we are quite satisfied the Judge’s ruling was correct. There is no automatic right to have references to gang membership excised. Here Mr Key’s membership of the BT Dubs and the fact that those at the Fulton Crescent house were gang members were highly relevant to any assessment of what happened and why it happened. The sanitised version the defence suggested and which Ms Dyhrberg still contends for would have presented to the jury a misleading picture.

[19] To exclude the evidence would have led to a “sanitised” and misleading picture for the jury in this case. Further, as the Judge observed, it is likely the evidence would have slipped out from one of the witnesses at some stage.
[20] We are also satisfied that the risk of unfair prejudice to Ms Hurinui was addressed by the Judge’s directions. In Mahomed v R the minority referred directly to the risk arising from evidence of gang involvement and said:[8]

(d) The risk of unfair prejudice to the defendant arising out of evidence of other misconduct to the victim is likely to be less than with orthodox similar fact evidence. This is because the misconduct is usually not extraneous to the alleged offending and thus the associated evidence will not portray the defendant as being generally of bad character. In criminal trials it is routine for evidence of direct relevance to the alleged offending to reflect badly on the defendant, perhaps in terms of the defendant being a gang member, ... . The risk of unfair prejudice associated with such evidence is usually addressed simply by the judge warning the jury in general terms against being influenced by prejudice or emotion.

[21] In the present case the Judge gave the standard warning but went further and gave the following specific direction:

[6] It is part of the context of the Crown's case that some of the people at 17 Korora Street were friends or associates of the defendant and were members of the Black Power or [Crips] gangs and that the misidentification of [F] or [M] as a member of a rival gang led to the violence.

[7] Quite often the courts exclude evidence of gang associations to avoid any risk that the defendant may be unfairly prejudiced in the minds of the jury by any association with a gang known for its antisocial behaviour or criminal activities. In this case this evidence has been admitted because the incident with which you are concerned and the evidence to which it relates can only be properly understood in the context that includes references to gangs. The Crown does not rely on the references to gang associates as part of its case against the defendant and you must not take them into account for this purpose.

[8] You must be alert to the risk of being unfair to the defendant. If you conclude that the defendant had an association with gang members, do not assume that she is violent or necessarily guilty of the crime charged.

[22] For the above reasons we are satisfied that the evidence was properly admitted. Any potential for it to prejudice the jury against Ms Hurinui was more than adequately dealt with by the Judge’s directions.

The appeal against sentence

[23] Mr Glover clarified the appellant no longer has a suitable address for home detention and does not pursue that sentence as an option. He accepted that in the circumstances anything less than a custodial sentence is unrealistic.
[24] However, Mr Glover submitted that the start and end point of 18 months’ imprisonment was too high. He submitted there were no guideline judgments and referred to the cases of O’Keefe v Police and Le Marquand v Police as suggested comparators.[9] In O’Keefe an assault with a weapon involving a rock thrown at a victim striking the victim on the head led to a starting point of eight or nine months with an end result of six months due to a guilty plea. In Le Marquand the appellant struck the victim twice across the back of the head with a metal window weight, knocking him to the ground where he struck a third time between the shoulder blades. Both men were hospitalised. The victim received stitches and had to take a week off work. The sentencing Judge took a start point of 18 months but reduced it to 12 months to recognise mitigating factors. On appeal Rodney Hansen J concluded the Judge erred in principle by refusing home detention, noting the particular background to the offending in that case.
[25] Mr Glover submitted the assault with a baseball bat was more serious than the attack in O’Keefe but less serious than that in Le Marquand. He submitted the Judge had failed to have regard to the need to impose the least restrictive outcome and argued for an end sentence in the region of nine to 10 months.
[26] In Nuku v R this Court considered the appropriate bands for charges under ss 189(2), 191(2) and 188(2) of the Crimes Act 1961.[10] The Crown submitted that, although the Court did not expressly refer to s 202C, the same methodology as that used in Nuku should be applied given that s 202C carries the same maximum penalty as a conviction under s 189(2). Mr Glover accepted that the principles expressed in Nuku were applicable to this case.
[27] Having regard to this Court’s comments in Nuku and the factors in ss 7, 8 and 9 of the Sentencing Act 2002, we consider that the unprovoked use of a heavy weapon, a baseball bat, to the head, resulting in serious injuries to a forehead supported the starting point of 18 months’ imprisonment taken by the Judge. We also observe that it would have been open for the Judge to have imposed an uplift for Ms Hurinui’s previous convictions for violence. We note that she has previous convictions for possession of an offensive weapon, assaulting police (x 5), injuring with intent to injure and aggravated robbery, all of which disclose a propensity for violence.
[28] There were no mitigating factors. The lack of remorse was stark in this case. The sentence of 18 months’ imprisonment was clearly open to the Judge.

Result

[29] The appeal against conviction is dismissed.
[30] The appeal against sentence is dismissed.


Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Hurinui DC Christchurch CRI-2013-009-2641, 5 February 2014.

[2] Mr Glover was not trial counsel.

[3] R v Hurinui DC Christchurch CRI-2013-009-2641, 19 November 2013.

[4] At [3].

[5] Evidence Act 2006, s 8(1)(a).

[6] Poutai v R [2010] NZCA 182.

[7] Key v R [2010] NZCA 115.

[8] Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [57].

[9] O’Keefe v Police [2013] NZHC 613; and Le Marquand v Police HC New Plymouth CRI-2009-443-32, 11 February 2010.

[10] Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

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