Pui v R [2014] NZCA 332 (16 July 2014)

Last Updated: 27 July 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA132/2014 [2014] NZCA 332
BETWEEN	TUWHARE HOANI MANA PUI Appellant
AND	THE QUEEN Respondent
CA169/2014
AND BETWEEN	DANIEL WAKA MINOGUE Appellant
AND	THE QUEEN Respondent
CA203/2014
AND BETWEEN	JOSHUA JADE KIRIONA Appellant
AND	THE QUEEN Respondent

Hearing:	9 July 2014
Court:	Wild, Ronald Young and Cooper JJ
Counsel:	S J Zindel and J A Herd for Appellants Pui and Minogue AJD Bamford for Appellant Kiriona C A Harold for Respondent
Judgment:	16 July 2014 at 2.30 pm

JUDGMENT OF THE COURT

The appeals, each against sentence, are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1] Reginald Mischeski and Hayley Krammer live at their home in Canvastown with their two young children. At about 11 pm on 24 September 2012 the three appellants arrived at their house, assaulted them and demanded drugs and money. At trial the appellants were convicted of burglary. Mr Minogue was found guilty of injuring Ms Krammer with reckless disregard but Mr Kiriona and Mr Pui were found not guilty of that charge. Mr Minogue was found not guilty of threatening to kill Ms Krammer. All of the appellants were found not guilty of aggravated robbery and of wounding Mr Mischeski with intent to cause grievous bodily harm.
[2] In the Nelson District Court, the trial Judge, Judge Tuohy, sentenced Mr Kiriona and Mr Pui to three years and nine months’ imprisonment each^[1] and Mr Minogue to five years’ imprisonment.^[2] Each appellant appeals against his sentence. The appellants say the Judge effectively sentenced them for an aggravated robbery, a charge they were all acquitted of, and took an incorrect view of the facts. They say as a result the starting point the Judge adopted was too high and the ultimate sentence was clearly excessive.

The Crown case at trial

[3] The Crown case was that Mr Joshua Kiriona’s older brother James had arranged for Joshua, Mr Minogue and Mr Pui to go to Mr Mischeski’s home to try to take drugs and money from him. The Crown said that when the three men arrived at the house, Mr Mischeski was on the deck having a cigarette. They confronted Mr Mischeski and he was punched in the mouth. A fight then began between the appellants and Mr Mischeski. Mr Mischeski was on top of Mr Kiriona when Mr Pui grabbed gardening loppers and struck Mr Mischeski on the head a number of times.
[4] In the meantime Mr Minogue went to the house, kicked at the door and tried to intimidate Ms Krammer into letting him inside. She did so. Mr Minogue then punched Ms Krammer twice in the face and demanded pills. He then grabbed a bag of Mr Mischeski’s pain relief pills and some tobacco. Ms Krammer told Mr Minogue to leave. He then kicked her forcefully in the stomach. She was heavily pregnant at the time.
[5] In the meantime Mr Kiriona left the property. Mr Mischeski offered to give Mr Pui his cannabis which had been buried in a tin in the garden. They located the cannabis and Mr Pui left. At about this time Mr Minogue appears to have left the house. Mr Mischeski was treated for a fractured skull, gashes to the side of his head, scratches and bruising. Ms Krammer suffered no permanent effect and her unborn baby was not injured.

The defence case at trial

[6] The defence case at trial was quite different. Mr Kiriona said Mr Mischeski was a methamphetamine manufacturer. He had given Mr Kiriona $1,000 to buy ingredients for manufacture. Mr Kiriona had spent the money without buying the ingredients. The appellants had gone to Mr Mischeski’s house to repay the $1,000 by trying to pass off a gram of the drug euphoria as methamphetamine. Mr Kiriona said that when Mr Mischeski realised he was not being provided with methamphetamine, he attacked Mr Kiriona. Mr Pui and Mr Minogue said that they were in the car when they heard yelling and screaming. They went to find out what was going on. There was then a fight between the men with an exchange of blows including the use of the garden loppers. Mr Minogue said that when he saw Ms Krammer go into the house he thought that she was going to get a weapon. Ms Krammer then came at him with the knife. He defended himself and kicked her in the leg.

The Judge’s sentencing

[7] The Judge at sentencing recognised that he needed to resolve the factual basis on which sentencing was to proceed, particularly given the mix of verdicts. As to the basis on which the appellants were being sentenced for the burglary the Judge said:^[3]

[3] My view is that you were found guilty of burglary because all three of you entered the property at Canvastown with intent to rob Reg Mischeski of drugs, most likely methamphetamine, which you believed that he possessed. That view is consistent with the evidence, including parts of your own evidence relating to Mr Mischeski. ...

[8] The Judge said that his conclusion regarding the burglary charge was not inconsistent with the rejection by the jury of the aggravated robbery charge. He considered that that charge was likely rejected by the jury because they could not be satisfied that the appellants had stolen the two items listed in the charge. That had been a major thrust of the appellants’ case at trial. The Judge, therefore, said that the jury’s not guilty verdict did not mean that they had rejected the Crown case that the three appellants had gone to Mr Mischeski’s house to rob him of illicit drugs.
[9] The Judge accepted that Mr Mischeski was struck in the face by one of the three accused when they first arrived at the property. As to the not guilty finding on the wounding charge, the Judge reasoned that the Crown had not been able to prove beyond reasonable doubt that Mr Pui, in using the garden loppers, was not acting in defence of Mr Kiriona. The Judge said, therefore, that the burglary really had the characteristics of an attempted aggravated robbery.
[10] The Judge said that there were aspects of this Court’s judgment in R v Mako (accepting that it dealt with aggravated robbery) which captured the essence of what happened here and could inform the start sentence.^[4] In particular, the Judge noted this paragraph from 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 7 years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.

[11] The Judge acknowledged there were differences in the present case. They included the maximum penalty (14 years for aggravated robbery versus 10 years for burglary) and the fact there were no weapons in this case and no entry to the house other than by Mr Minogue. The actual violence that the Judge took into account was only the initial punch.
[12] The Judge set the starting point for all appellants at three years and nine months’ imprisonment. He rejected any uplift for the appellants’ previous convictions. He did not consider there were any other relevant mitigating or aggravating factors and imposed a sentence of three years and nine months’ imprisonment with regard to Mr Pui and Mr Kiriona.
[13] As to Mr Minogue, the Judge uplifted his sentence of three years and nine months’ imprisonment by 15 months for the injuring with reckless disregard charge relating to Ms Krammer.

The appeal grounds – Mr Pui and Mr Minogue

[14] The three appellants challenge the start sentence with respect to the burglary. Mr Minogue does not challenge the 15 month uplift for the injuring with reckless disregard charge. He accepts that whatever sentence is settled for the burglary charge it will be increased by 15 months’ imprisonment.
[15] Mr Zindel represented Mr Pui and Mr Minogue. His submissions, as we understand them, were:

• (a) There was no evidence on which the Judge could have concluded at sentencing that the appellants were at Mr Mischeski’s house to get drugs by force. The appellants were effectively sentenced on the basis that they had been convicted of aggravated robbery. This was an error. It meant the Judge adopted a start sentence that was too high and thus the sentences imposed were clearly excessive.
• (b) On the authority of R v Moananui, given there was conflicting evidence as to the basis for the sentencing, the Judge should have sentenced the appellants on the basis of the most favourable view of the facts consistent with the jury’s verdict.^[5] Here, the sentencing Judge had taken the worst view of the facts from the appellants’ point of view. This Court should review the Judge’s factual conclusions reached in his sentencing remarks and reach its own conclusions. If this Court did so it should conclude that the Judge’s assessment of the circumstances of the offending were not justified. This, in turn, meant that the start sentence for the offending was excessive and the final sentence clearly excessive.

[16] As to Mr Zindel’s first appeal point, we are satisfied that there was evidence upon which the Judge could conclude that the appellants intended to rob Mr Mischeski and his partner of drugs. Mr Mischeski’s evidence was that when he was first aware of the three men on his deck he asked them why they were there. One of them said they wanted “drugs and money”. There was other evidence at trial that alleged Mr Mischeski was involved in methamphetamine manufacture and the appellant’s presence was a “hit” to obtain drugs. The Judge was entitled to accept this evidence as to the appellants’ motive. On that basis he was entitled to conclude that the appellants were there to steal drugs.
[17] Immediately after the arrival of the three men on the deck, one of them punched Mr Mischeski in the face. This illustrated support for the Judge’s conclusion that the appellants were intent on a robbery, stealing the drugs by force or threat of force.
[18] The Judge did not sentence the appellants as if they had been convicted of an aggravated robbery. The Judge in his sentencing remarks identified why he considered the jury had rejected the aggravated robbery charge. The case before the jury was that one of the possible intents behind the burglary was an intent to rob Mr Mischeski of drugs. The Judge, as he was entitled to, concluded this was the appellants’ intention.
[19] We therefore reject Mr Zindel’s first ground of appeal.
[20] As to Mr Zindel’s second ground of appeal, s 24 of the Sentencing Act 2002 now governs proof of facts at sentencing after a guilty verdict at trial. It provides:

24 Proof of facts

(1) In determining a sentence or other disposition of the case, a court—

(a) may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and

(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—

(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:

(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:

(c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:

(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence:

(e) either party may cross-examine any witness called by the other party.

(3) For the purposes of this section,—

aggravating fact means any fact that—

(a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and

(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

mitigating fact means any fact that—

(a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and

(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

[21] There is nothing in s 24 which supports counsel’s submission of a presumption in favour of resolving factual conflicts in a manner favourable to a defendant at sentencing. Nor did this Court in R v Moananui say this was the approach a court should take at sentencing.
[22] In R v Moananui this Court said:^[6]

If there is conflicting evidence the Judge will have to make his own assessment of the facts, giving the benefit of any reasonable doubt to the accused.

[23] That observation reflects nothing more than what is said in s 24(2)(c): that before a Judge can take an aggravating fact into account that fact must be adequately proved. Beyond that, it says nothing about any preference in favour of a defendant.
[24] Counsel for the appellants did not identify for the Judge at sentencing any particular facts they asserted were in dispute beyond those identified at trial. The Judge had already heard all of the relevant evidence at trial. The Judge carefully identified those facts he accepted and those he rejected consistent with the jury’s verdict. This is the process anticipated by s 24. We are satisfied that the Judge’s factual conclusions at sentencing were justified by the evidence.
[25] We therefore reject Mr Zindel’s second ground of appeal. Neither of Mr Zindel’s appeal points convinces us the sentence was clearly excessive.

Mr Kiriona’s appeal grounds

[26] Mr Bamford for Mr Kiriona had a slightly different appeal point. He submitted that the sentencing Judge had been wrong to conclude that the three men had always had an intention to rob Mr Mischeski of drugs. He said that the original intent had been to steal the drugs, but it was only when they walked onto the deck of Mr Mischeski’s house that they formed the intent to steal the drugs with a threat of violence.
[27] This submission is based on a proposition that Mr Kiriona knew where the cannabis had been buried in the garden. Mr Kiriona and the other appellants had entered the property near the garden where the cannabis was buried. However, Mr Mischeski was on the deck of the house and saw them enter the property. Mr Bamford submits that in those circumstances the three men could not simply dig up the drugs in the garden and leave, but had confronted Mr Mischeski on the deck. It was then that the intent to rob had arisen.
[28] The Judge was, therefore, wrong to conclude that the three men always had a robbery in mind. It was just as possible they had in mind theft which had turned into a robbery because of the particular circumstances. If the Judge had adopted the appellants’ view of the facts then the starting sentence should have been 40 per cent less than the sentence of three years and nine months’ imprisonment imposed.
[29] As to Mr Kiriona’s appeal, the Judge noted that the jury must have rejected the appellants’ explanation as to why they went to the house. He said:^[7]

[6] The jury must have accepted the Crown case, and Mr Mischeski’s evidence, that you all three travelled from Nelson for the specific purpose of entering Mr Mischeski’s home property, all three of you together, for the purpose of robbing him, that is obtaining drugs of some sort from him by the threat of violence or, if necessary, actual violence, that you parked the car away from the house and entered not up the driveway but from the vegetation on the boundary in order to surprise him. So that is the necessary corollary of the jury’s verdict of guilty on my view of the evidence.

[30] Mr Kiriona arrived at the house disguised. This was not consistent with the claim he was intending only to steal Mr Mischeski’s drugs without confrontation. There was also text message evidence that a “hit” on the Mischeski house was being planned for that evening.
[31] Counsel for Mr Kiriona accepted that he had not made any sentencing submissions to the Judge that distinguished between the earlier and later intents.
[32] We are satisfied the Judge’s conclusion that the three men went to the house to rob Mr Mischeski of drugs was open on the evidence at trial. Immediately after the three appellants arrived at the house they demanded drugs and money and assaulted Mr Mischeski. The inference was open from this evidence alone that the three men had been planning this all along. Accordingly, we reject this ground of appeal.
[33] Having rejected each of the appellants’ grounds of appeal, we dismiss the appeal.

Solicitors:
Bamford Law, Nelson for Appellant Kiriona
Crown Law Office, Wellington for Respondent

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^[1] R v Pui DC Nelson CRI-2012-042-2746, 12 March 2014 [Sentencing notes].

^[2] R v Minogue DC Nelson CRI-2012-042-2746, 12 March 2014.

^[3] Sentencing notes, above n 1.

^[4] R v Mako [2000] 2 NZLR 170 (CA).

^[5] R v Moananui [1983] NZCA 66; [1983] NZLR 537 (CA) at 543.

^[6] At 543.

^[7] Sentencing notes, above n 1.