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Te Awa v R [2014] NZCA 615 (15 December 2014)

Last Updated: 13 January 2015

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
BETWEEN
 Appellant
AND
 Respondent
Hearing:
11 November 2014
Court:
Harrison, French and Dobson JJ
Counsel:
P J Kaye for Appellant Te Awa G C Gotlieb for Appellant Addison K Raftery and A J Pollett for Respondent
Judgment:



JUDGMENT OF THE COURT

  1. The applications for leave to adduce fresh evidence are dismissed.

B Mr Te Awa’s appeal against conviction is dismissed.

  1. Mr Te Awa’s appeal against sentence is allowed. The minimum period of imprisonment of 21 years is quashed and replaced with a minimum period of imprisonment of 20 years.
  1. Mr Addison’s appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Te Awa and Mr Addison were tried together in the High Court at Auckland on charges arising out of the disappearance of Ms Rae Portman.
[2] The jury found Mr Te Awa guilty of murder and kidnapping. He was convicted and sentenced by Toogood J to life imprisonment with a minimum period of 21 years on the murder charge, and nine years’ imprisonment on the kidnapping charge.[1] He now appeals both convictions and his sentence.
[3] Mr Addison was found guilty of kidnapping and two drug dealing offences. Justice Toogood sentenced him to 12 years’ imprisonment with a minimum period of six years.[2] Mr Addison now appeals his conviction for kidnapping and his sentence.

Factual background

[4] Ms Portman and Mr Addison were both involved in dealing methamphetamine.
[5] The Crown case was that in June 2012 Ms Portman was pressuring Mr Addison to repay a drug debt he owed her. In order to give her a fright and get her to leave him alone, Mr Addison engaged his “muscle man” Mr Te Awa to kidnap her. The plan was for Ms Portman to be abducted and taken to a remote area where she would be released to find her way home.
[6] According to the Crown, Mr Te Awa kidnapped Ms Portman in Auckland on 20 June 2012. He bound and gagged her and then, with the assistance of another man, Mr Lee Rigby, he put her in a small space between the upright back seat and the rear hatch of her car. Mr Rigby was a drug runner for Mr Addison.
[7] Mr Rigby then drove Ms Portman, bound and gagged in her car, to the Waikato. They followed behind Mr Te Awa, who was driving another vehicle. After a five hour journey involving three stops, they drove to a remote industrial site in Hamilton. Once there, Mr Te Awa pulled Ms Portman into a sitting position in the back of her car, placed a motorcycle strop around her neck and garrotted her.
[8] After the murder Mr Rigby drove the body to a Ngāruawāhia address, where it was left for several hours while he and Mr Te Awa returned to Auckland. The Crown claimed Mr Te Awa later returned to Ngāruawāhia, transferred the body to his own vehicle and transported it to a farm near Clevedon, where he concealed it in a plastic pool liner and left it for several days. According to the Crown case, Mr Te Awa subsequently buried the body in a farm pit covered with rubbish bags.
[9] The body remained there for several months before being discovered by police.
[10] After the body was discovered, police charged Mr Te Awa with kidnapping and murder. Mr Addison was charged with kidnapping and drug offences. He was not charged with murder. The Crown accepted that Mr Addison had only intended Mr Te Awa to kidnap Ms Portman and did not know that Mr Te Awa would go beyond what had been agreed and kill her.
[11] Mr Rigby was also charged with kidnapping. He pleaded guilty to that offence and was sentenced before the trial of Mr Te Awa and Mr Addison. At their trial, he was a key Crown witness. The defence run by both men was that they had nothing to do with the disappearance of Ms Portman. The jury found both men guilty of all charges.

Mr Te Awa’s appeal against conviction

[12] Mr Te Awa advanced two grounds of appeal:[3]

The new evidence

[13] The new evidence consists of evidence from a Mr Perry about a conversation he had with Mr Rigby and evidence from a solicitor about a conversation she had with Ms Portman regarding a violent partner.
[14] In his affidavit, Mr Perry deposes that in January or February 2013 he met Mr Rigby in an exercise yard at Waikeria Prison. He says they struck up a conversation about why each of them was in prison and that during the course of that conversation the following exchange took place:

Q: Did Friday [Mr Te Awa] kill Rae?

A: I don’t know.

Q How did she die?

A: I don’t know.

Q: Oh true so you weren’t even there when she got wasted?

A: No man I don’t know nothing about it at all or who did it.

Q: Do you reckon Friday done it though?

A: I don’t know man.

Q: I know Friday and he aint dumb enough to go killing someone and then sell their car to a scrap dealer so the cops can trace it back to him.

A: Yeah I know he wouldn’t do that.

Q: Who do you reckon killed her?

A: Fuck I aint got a clue man last time I seen her she was alive.

[15] Mr Perry further states that Mr Rigby then said he was going to “go guilty to his charges” to get a reduced sentence. Mr Perry never saw Mr Rigby again.
[16] The statements attributed to Mr Rigby by Mr Perry are completely at odds with the evidence Mr Rigby gave at Mr Te Awa’s trial, where he claimed to be an eye witness to the kidnapping and the murder.
[17] However, having seen and heard Mr Perry under cross-examination by Mr Raftery for the Crown, we do not find his evidence credible. He has been in the same prison as Mr Te Awa, and in our assessment his evidence has all the hallmarks of a fabrication. According to unchallenged information obtained by the Crown, Mr Rigby was not at Waikeria prison during the relevant period and the two men (Messrs Rigby and Perry) have never been in the same prison at the same time. Further, Mr Perry’s story is inherently implausible. Mr Perry stated at the hearing in this Court that he had not made a written note of the conversation at the time. Yet, over a year later, he purports to be able to give a verbatim account. His attempts to distance himself from Mr Te Awa also lacked credibility.
[18] As for the second item of new evidence, counsel Mr Kaye accepted that if we did not find Mr Perry’s evidence credible, then the other evidence on its own could not justify quashing the conviction. We agree with that assessment. At trial, the jury was made aware that Ms Portman had a violent partner and had also been subjected to violence by others involved in the drug world. The evidence of the solicitor does not take matters any further.
[19] We therefore dismiss Mr Te Awa’s application for leave to adduce fresh evidence.

Admission of statements made to the police by Mr Drawbridge

[20] Mr Drawbridge was a former lover of Mr Te Awa. He lived at one of the addresses the Crown claimed Mr Rigby and Mr Te Awa visited on their way to the industrial site where Ms Portman was murdered.
[21] Before the trial, Mr Drawbridge made two statements to the police implicating Mr Te Awa in the offending.
[22] In the first statement, he said that early in the morning of 21 June 2012 he had been woken by Mr Te Awa and another man arriving at his property in separate vehicles. Mr Drawbridge saw Mr Te Awa standing at the rear hatch of a black car, pushing down what appeared to be a live body wrapped in sheets and blankets. He heard the body making a strangled groan, like someone gagged.
[23] In the second statement, Mr Drawbridge repeated and expanded upon his allegations about the events of 21 June 2012. He also recounted for the first time a visit he and Mr Te Awa had made a few days later to the Clevedon farm property. He said Mr Te Awa had told him to wait inside the property, but he followed him to the side of a garage where he saw Mr Te Awa bending over a blond, female body wrapped in plastic.
[24] The Crown called Mr Drawbridge as a witness at trial. He was uncooperative. After receiving submissions from counsel, Toogood J granted leave to the Crown under s 89 of the Evidence Act 2006 to ask leading questions. Mr Drawbridge continued to be uncooperative, however, and on the application of the prosecutor the Judge declared him hostile. Subsequently, Toogood J granted an application to adduce the two written statements as evidence of the truth of their contents.[4]
[25] On appeal, Mr Kaye submitted that although the Judge was correct to declare Mr Drawbridge hostile, he should not have admitted the statements. In Mr Kaye’s submission, the statements should have been excluded under s 8 of the Evidence Act because their probative value was outweighed by the risk they would have a prejudicial effect. In particular, it was unfair because Mr Kaye was unable to crossexamine Mr Drawbridge effectively and there was a risk the jury would have given undue weight to the statements on the basis of their written form.
[26] We do not accept those submissions.
[27] In our view, the statements were properly admitted in terms of ss 7 and 8 of the Evidence Act. Their contents were highly relevant and apparently reliable, supported as they were by other independent evidence including the account given by Mr Rigby of the events of 21 June. There was no suggestion of any collusion between Mr Drawbridge and Mr Rigby. Nor was there any suggestion that Mr Drawbridge had any motive to make false allegations against Mr Te Awa.
[28] We note that in Morgan v R the Supreme Court said that issues of fairness may arise if the hostility of the witness results in the accused being unable to crossexamine sensibly on the statement.[5] Contrary to Mr Kaye’s submission, we are satisfied that is not the case here. Mr Kaye was able to cross-examine Mr Drawbridge about inconsistencies between the statements and his failure to mention the visit to the Clevedon property in the first statement. Mr Kaye elicited responses from Mr Drawbridge that were favourable to Mr Te Awa, including admissions that his statements to the police were not true. The cross-examination was brief but as Mr Kaye conceded that was a tactical decision. In our view, Mr Kaye’s decision was wise. To continue cross-examining Mr Drawbridge would have carried risk. As it was, Mr Kaye had achieved all that he could possibly hope to achieve.
[29] As regards the weight to be placed on the statements, the Judge gave the jury comprehensive and carefully considered directions regarding the factors they should consider when weighing the evidence.
[30] In our view this second ground of appeal also lacks merit.
[31] Mr Te Awa’s appeal against conviction is accordingly dismissed.

Mr Te Awa’s appeal against sentence

[32] The issue on appeal is whether a minimum period of 21 years’ imprisonment was manifestly excessive.
[33] In order to address that issue, it is necessary for us to set out in greater detail the circumstances of the kidnapping and the murder as found by the Judge at sentencing.
[34] The Judge found that Mr Te Awa had made a serious threat to Mr Rigby to ensure his participation in the kidnapping[6] and that Mr Te Awa had formed the intention to kill Ms Portman from the time he had bound and gagged her.[7] The Judge acknowledged that Ms Portman did not suffer any violent injury during the kidnapping, but stated that she was forced to endure what the Judge described as a “terrifying ordeal” over several hours.[8] Ms Portman was slightly built and four months pregnant. Mr Te Awa bound her hands and ankles tightly behind her with insulation tape, in a manner described in evidence as hog-tied. There was expert evidence that the confined space in the car, the concertinaed position Mr Te Awa had placed her in, the pregnancy, the sheet over her head and the gag across her mouth would have combined to make breathing difficult for Ms Portman. As the Judge said, added to those factors the fear and stress she suffered would have been “unbearable”, particularly the times when Messrs Te Awa and Rigby stopped their vehicles, which would have made her apprehensive as to what might be about to happen to her and her unborn baby.[9] During at least one of the stops, Mr Te Awa handled her roughly, pushing her back down into the car when she was crying and struggling to sit up.[10]
[35] As for the circumstances of the killing itself, the Judge described as “chilling” the methodical, unemotional and determined way in which Mr Te Awa ended Ms Portman’s life.[11]
[36] Section 104 of the Sentencing Act 2002 states that the court must impose a minimum period of imprisonment of at least 17 years in certain listed categories of murder, unless satisfied that it would be manifestly unjust to do so.
[37] It is not disputed that s 104 was engaged on the facts of this case. The murder fell into two of the listed categories, namely that it was committed in the course of another serious offence (the kidnapping) and that it was committed with a high level of cruelty and callousness.[12]
[38] In imposing a minimum period of 21 years, the Judge adopted the following reasoning. He referred to the statement of this Court in R v Baker that where more than one of the s 104 categories applies, the starting point should be greater than 17 years.[13] He then said that he had considered broadly comparable cases, particularly R v Bracken, which had also involved a kidnapping and a murder.[14] Justice Toogood said that although the method of killing in Bracken was more brutal, Mr Te Awa’s offending had resulted in the loss of two lives, that of Ms Portman and her unborn child.[15] Further, Mr Te Awa’s conduct after the murder – hiding the body in a rubbish tip in an attempt to prevent it ever being found – had caused great anxiety to her family and friends over several months.[16]
[39] Consistently with the approach taken in Bracken, Toogood J adopted as an initial starting point a minimum term of imprisonment of 20 years. He then uplifted that by a further year:[17]

... on account of your previous convictions, including for serious violent offending, but particularly your complete lack of remorse and refusal to accept responsibility for those actions. Those latter factors are significant in terms of the prospect of your rehabilitation and I also take into account that two lives were lost here.

[40] On appeal, Mr Kaye submitted that although the 17 year minimum applied, to increase it by four years was manifestly excessive. In particular, a further year for the previous convictions was not justified. Mr Kaye contended that the minimum period should have been closer to 17 years than 21 years.
[41] We accept that the Judge erred in taking lack of remorse into account as an aggravating factor. Remorse where it exists is a mitigating factor, but its absence is not an aggravating factor.[18]
[42] We also agree that Mr Te Awa’s previous convictions were not sufficient to justify an uplift of 12 months. Mr Te Awa has an extensive criminal record, but his convictions have largely been for dishonesty offending. The only relevant convictions are from 2005, when he was convicted on two counts of indecent assault on a boy under 12 and one count of unlawful sexual connection with a boy under 12, receiving a term of imprisonment of five years; and August 2013, when he was convicted on one count of assault with a blunt instrument, receiving a sentence of one year and 11 months’ imprisonment.
[43] In order to rectify these two errors, we have decided that the minimum period of imprisonment should be reduced by one year to 20 years’ imprisonment. That is still a high minimum period, but for the reasons identified by the Judge (other than lack of remorse and previous convictions) we consider that it is warranted.
[44] Mr Te Awa’s appeal against sentence is therefore allowed. The minimum period of imprisonment of 21 years is quashed and replaced with a minimum period of imprisonment of 20 years.

Mr Addison’s appeal against conviction for kidnapping

[45] Counsel for Mr Addison raised four grounds of appeal:

The new evidence

[46] The new evidence Mr Addison wishes to adduce is an affidavit sworn by a Mr Krammer, who is serving a prison sentence in the same prison as Mr Addison.[19] Mr Krammer refers to a conversation he says took place between him and Mr Te Awa several months prior to the trial, while both he and Mr Te Awa were in prison on remand. According to Mr Krammer, Mr Te Awa admitted to the murder, told him considerable detail about it and also said that Mr Addison had nothing to do with the kidnapping.
[47] Mr Krammer was also cross-examined at the appeal hearing. In our view, his evidence is not credible. There is no evidence suggesting Mr Te Awa has ever admitted the murder to anyone, family or friend. It defies belief that he would be so candid with a complete stranger, especially one who on Mr Krammer’s own account had approached him in the first instance to talk about Mr Te Awa taking a car without permission. Apart from the fact that Mr Te Awa supposedly mentioned Mr Addison’s name as a person who owed him and could put the car situation right, there is no logical reason why Mr Te Awa would have suddenly moved on from that topic to confess to murder.
[48] Further, the details of Mr Krammer’s account do not withstand scrutiny. In cross-examination he refused to give the full name of the owner of the car, saying only that his name was “John”. When it was suggested to him that Mr Te Awa was not the sort of person to be confronted with allegations of theft, he acknowledged being aware of Mr Te Awa’s reputation for violence but said that before approaching him about the car, he had befriended him and developed a rapport. That, however, was inconsistent with his affidavit, in which Mr Krammer baldly states: “I did not know Friday [Mr Te Awa] before I went to talk to him on my friend’s behalf”.
[49] Mr Krammer’s explanations for coming forward now and not earlier also do not ring true. He says he did not come forward earlier because the matter did not interest him. Yet although he apparently saw nothing wrong with letting an innocent man stand trial for and be convicted of a serious crime, now he “strongly” feels “compelled to assist” because he knows Mr Addison will not do time well and has been subjected to violence at the hands of other inmates.
[50] In submissions, counsel Mr Gotlieb suggested the evidence was credible because Mr Krammer could only have obtained the information he had about the murder from Mr Te Awa. We do not accept that argument. In the circumstances, it is more likely that the information has come from Mr Addison after the trial and/or from media reports. The trial attracted considerable publicity.
[51] The proposed new evidence is not credible and we therefore dismiss the application for leave to adduce it.

Failure of trial Judge to give adequate directions on prejudice

[52] Prior to the trial, Lang J granted an application by the Crown for Mr Addison and Mr Te Awa to be tried together.[20] Mr Addison appealed that ruling to this Court. The primary ground of appeal was that because the evidence against Mr Te Awa was overwhelming and his conduct was so callous and repugnant, the jury would be unfairly prejudiced against Mr Addison. In counsel’s submission, there was a real risk that Mr Addison would be found guilty by association rather than being tried with regard to the actual evidence against him, which was not strong. This Court dismissed the appeal.[21]
[53] In their respective decisions, both this Court and Lang J emphasised the value and importance of appropriate jury directions to reduce the risk of unfair prejudice. Justice Lang gave the following example, which was approved by this Court:[22]

By way of example, the Judge may choose to interrupt Mr Rigby’s evidence when he reaches the point where he and Mr Te Awa are about to leave Mr Addison’s address to travel to Hamilton. The Judge may at that point elect to give the jury a warning that the evidence they are about to hear is relevant only to the two charges that Mr Te Awa faces.

[54] Justice Toogood did not give the specific direction suggested by Lang J. On appeal, Mr Gotlieb was critical of that omission. He submitted that such a direction should have been given both during the course of Mr Rigby’s evidence and again in the summing-up. In his submission the jury should also have been specifically reminded that there was no evidence Mr Addison had any input into determining the circumstances of Ms Portman’s confinement and told that they should put aside the horrific nature of the crime when considering the evidence against Mr Addison. Mr Gotlieb accepted that the Judge had given some directions on prejudice, but contended that they came too late and fell short of what the case truly required. As a result, there was a real risk the jury could have been improperly influenced by evidence admissible only against Mr Te Awa when reaching its verdict in relation to the kidnapping count against Mr Addison.
[55] We disagree.
[56] The chronology of the case was not complex and it was made very clear to the jury by the Crown in its opening and closing addresses that it was accepted Mr Addison had nothing to do with the murder. Mr Rigby’s evidence was unequivocally to that effect and it was a matter emphasised by Mr Addison’s counsel.
[57] It is correct that Toogood J did not give any direction during Mr Rigby’s evidence. However, mid-trial, the day after Mr Rigby had completed his evidence, the Judge gave a direction about how the jury should treat his evidence. The Judge said:

And you’ll remember I said to you at the start of the trial that in a sense we are conducting two trials at once here because Mr Addison is not charged with murder and Mr Te Awa is not charged with any drug offence. Now Mr Rigby’s evidence covered all of those matters, the drug dealing, the alleged drug dealing, the alleged kidnapping and the alleged murder.

Now you need to be very careful, please to distinguish so far as his evidence is concerned between that which strictly relates to Mr Addison and that is confined to allegations of drug dealing and kidnapping and that which is confined to Mr Te Awa and that is kidnapping and murder and not drugs. So just be wary, and you’ll be warned about this later, defence counsel and the Crown prosecutor will no doubt talk about this and I will certainly say something about this – that you should not simply apply everything that a witness says to all of the counts in the indictment, be very careful to distinguish between the Crown’s case against Mr Addison, on the one hand, and the Crown’s case against Mr Te Awa, on the other.

[58] Justice Toogood returned to the topic again in his summing-up. He reminded the jury that Mr Addison was not charged with murder. He warned them against allowing emotional reactions engendered by the disturbing nature of some of the evidence to intrude on their decision-making. He also directed them to be particularly careful to give the Crown’s case against each man careful consideration, and not to lump them together. In another part of the summing-up, the Judge reiterated the Crown position that there was no evidence Mr Addison intended more than a kidnapping and that things went horribly wrong as far as he was concerned, that Mr Te Awa for some reason decided that simply scaring Ms Portman was insufficient and that he made the decision to murder her on his own.
[59] There was no obligation on the trial Judge to address the risk of prejudice precisely in the way suggested by Lang J. The suggestion was just that, a suggestion, something the trial Judge might choose to do. In our view, the way Toogood J dealt with the issue was appropriate and in the context of the trial as a whole was sufficient to counter the risk of unfair prejudice.

Directions regarding corroboration of Mr Rigby’s evidence

[60] Mr Gotlieb argued that the Judge gave inadequate directions about corroboration of Mr Rigby’s evidence, resulting in a miscarriage of justice warranting a retrial.
[61] In particular, Mr Gotlieb was critical of a passage in the summing-up where the Judge put the Crown position that Mr Rigby’s evidence could be relied upon because it was corroborated by other evidence. In Mr Gotlieb’s submission, the comments would have significantly bolstered Mr Rigby’s credibility in the eyes of the jury. This was unfairly prejudicial to Mr Addison because although there was ample corroboration of Mr Rigby’s evidence against Mr Te Awa, there was little or no corroboration of Mr Rigby’s allegations against Mr Addison. Yet the Judge did not make the distinction. Nor did the Judge highlight evidence that contradicted evidence given by Mr Rigby relating to Mr Addison.
[62] We do not accept that argument. There was no obligation on the Judge to give any direction about corroboration. The word “corroboration” was only mentioned because that was the word used by the Crown and the Judge was putting the Crown position.
[63] At the beginning of the summing-up, the Judge told the jury he would be saying something about how they should approach the evidence of Mr Rigby. He did so later as a separate topic. He reiterated that Mr Rigby had a motive to lie and that they should treat his evidence with some caution.
[64] We are satisfied that viewed as a whole the summing-up was balanced and that Mr Addison’s defence was fully and fairly put to the jury.
[65] Further, in our view Mr Gotlieb’s argument ignores the reality that the jury was likely to either accept or reject Mr Rigby’s evidence in its entirety.

Failure of trial counsel to cross-examine a police witness

[66] The evidence established that while Mr Rigby was being interviewed by the police, the video recording system was turned off for 15 minutes. When the recording resumed, Mr Rigby was much more forthcoming than he had been beforehand. He withdrew an earlier request for a lawyer and told the police the version of events that he was later to give at trial.
[67] One of the two police officers involved in conducting the video interview, Detective Sergeant Bolton, gave evidence for the Crown.
[68] In his closing address, trial counsel made much of the 15 minute gap. He invited the jury to infer that something improper must have happened during the unrecorded period to persuade Mr Rigby to change his story. Counsel used the graphic phrase that something was “rotten in the state of Denmark”.
[69] Counsel had not, however, cross-examined Detective Sergeant Bolton and in his summing-up the Judge mentioned that an allegation of any underhand deal or impropriety had not been put to the police.
[70] On appeal, Mr Gotlieb submitted that the Judge was entitled to make the comment but that it was only able to be made because of the failure of trial counsel to cross-examine. The circumstances of the police interview were suspicious and it ought to have been clearly open to the jury to draw the inference that something underhand had happened. If the jury had drawn that inference, it could have greatly damaged Mr Rigby’s credibility, which was at the very heart of the case. As it was, the Judge’s comment meant there was no realistic prospect the inference would be drawn and so the disadvantage to Mr Addison’s defence was considerable.
[71] In our view, that submission significantly overstates the position. We agree that ideally counsel should have cross-examined the officer about the 15 minute break, but it is highly unlikely that any benefit would have been gained. Trial counsel had already cross-examined Mr Rigby about the gap and he had adamantly denied that any deal had been done.
[72] The failure to cross-examine the officer is not in our assessment something likely to have affected the outcome of the trial and has not resulted in any miscarriage of justice.
[73] In our view, none of the grounds advanced by Mr Gotlieb are sustainable. Mr Addison’s appeal against conviction is accordingly dismissed.

Mr Addison’s appeal against sentence

[74] In addition to being found guilty of kidnapping, Mr Addison was also found guilty of one representative count of supplying methamphetamine and one count of possessing a precursor substance for the purpose of manufacturing methamphetamine.
[75] Text message evidence established that between 14 June 2012 and 29 July 2012, Mr Addison conducted 28 transactions involving methamphetamine in quantities ranging from 0.25 of a gram to a gram. The total amount was between nine and 10 grams of methamphetamine. The count relating to the precursor substance involved a quantity that could have been used to manufacture between 45 and 67.5 grams of pure methamphetamine.
[76] At sentencing, Toogood J took the kidnapping as the lead offence and adopted a starting point of eight years’ imprisonment.[23]
[77] Turning to the drug offending, the Judge applied the guideline decision R v Fatu and found that the appropriate sentence for the methamphetamine dealing if taken alone would be around four years’ imprisonment.[24] He added an uplift of a further two years for the charge of possessing a precursor substance.[25] When added to the eight year starting point for the kidnapping, that resulted in a total period of imprisonment of 14 years.
[78] The Judge went on to say that while the kidnapping and the drug offences were separate offences and of a different kind, he accepted they were related in both time and circumstance. Accordingly, it was necessary to set an end sentence that was in proportion to the totality of the offending. In the Judge’s view, an appropriate reduction on account of totality was two years, leaving an end sentence of 12 years’ imprisonment.[26]
[79] The Judge said that the most straightforward way to structure the sentence was by imposing a term of imprisonment of 12 years on the kidnapping charge, with concurrent sentences of six years’ imprisonment and two years’ imprisonment respectively for the two drug offences.[27] As already mentioned, he also imposed a minimum period of imprisonment of six years.
[80] On appeal, Mr Gotlieb advanced three main arguments:

Parity with Mr Rigby

[81] Mr Rigby had been sentenced in the District Court, where a starting point of seven years was adopted on the kidnapping charge. Justice Toogood was aware of this but considered that Mr Addison’s culpability was greater than Mr Rigby’s, justifying an eight year starting point. His reasons for the one year difference were as follows:[28]
[82] Mr Gotlieb submitted that the Judge was wrong to distinguish between Mr Rigby and Mr Addison. In his submission, Mr Addison’s culpability was comparable and the overall starting point should have been the same. Mr Gotlieb further contended that there was nothing in the evidence to support the Judge’s conclusion about Mr Addison’s knowledge of Ms Portman’s feisty personality. He argued that Mr Addison should have been sentenced on the basis that he could not have expected Mr Te Awa to use more than minimum necessary force to accomplish the task. The especially restrictive and unpleasant nature of her confinement was an aggravating feature relating to Mr Rigby, not Mr Addison. Mr Gotlieb also took issue with the Judge’s reliance on lack of remorse.
[83] As noted in Mr Te Awa’s sentence appeal, we agree that it is wrong to treat lack of remorse as an aggravating factor. However it is clear that the Judge was not relying on a lack of remorse as such. Rather it was the callousness of Mr Addison’s conduct towards the family that the Judge considered significant. In any event, there was in our assessment ample justification for viewing Mr Addison’s culpability as greater than that of Mr Rigby simply on the basis of his role as the instigator or mastermind and his knowledge of Ms Portman’s pregnant condition.

Application of the totality principle

[84] Mr Gotlieb submitted that the Judge gave an insufficient reduction for totality in terms of s 85 of the Sentencing Act. In particular, he contended that the two drugrelated counts were interconnected and therefore concurrent sentences should have been imposed, meaning a total of four years for the drug offences. Allowance should then have been made for the connection to the kidnapping, leading to an end sentence of nine or 10 years’ imprisonment as opposed to 12 years.
[85] We disagree. We are unable to discern any error in the Judge’s treatment of the totality principle and consider an overall sentence of 12 years’ imprisonment to be within range.

Minimum period of imprisonment

[86] In imposing a minimum period of imprisonment, the Judge had this to say:[29]

[45] Offenders are normally eligible for parole after serving one-third of their sentence. The Court may impose a minimum period of imprisonment longer than the usual one-third of sentence, however, if it is satisfied that doing so is necessary to fulfil the sentencing purposes of holding the offender accountable; denunciation and deterrence; and community protection. Notwithstanding Mr Ryan’s submissions to the contrary, I consider that, given the seriousness of the kidnapping and the aggravating factors I have mentioned, possible release after one-third of the overall sentence would be a clearly inadequate response in the eyes of the community. Looking at your overall culpability, particularly in respect of what happened to Ms Portman and your lack of remorse for your role in it, I am satisfied that your offending meets this threshold and that a minimum period of imprisonment of six years – or 50 per cent of the total end sentence – is appropriate. Deciding how much longer than the minimum period you will actually serve will be a matter for the parole Board.

[87] Mr Gotlieb’s argument was two-fold.
[88] First he submitted that to a significant degree the Judge calculated the length of the minimum period by reference to the drug offending. Yet the drug offending fell well below what would normally justify a minimum period of imprisonment. While there was a connection between the drug offending and the kidnapping, it was not so pronounced as to allow a minimum period of imprisonment to be considered with regard to all the offending together.
[89] Secondly, Mr Gotlieb submitted that the Judge failed to take into account that Mr Addison had been assessed as having a low risk of reoffending and as being motivated to address his rehabilitative needs. Mr Gotlieb contended that this was highly relevant to the issue of whether a minimum period of imprisonment was necessary to protect the public and meant a minimum period was not justified.
[90] The imposition of minimum periods of imprisonment is governed by s 86 of the Sentencing Act. It states:
  1. Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

...

[91] Section 86 contemplates that a minimum period of imprisonment can only be imposed in relation to a particular sentence for “a particular offence”. In this case, the minimum period was imposed only in relation to the kidnapping offence. The way in which the Judge structured the sentence was orthodox and appropriate.
[92] We accept that the Judge did not expressly take into account the positive aspects of the pre-sentence report. However, protection of the public is only one of the listed purposes under s 86(2) and the section does not require all purposes to be present. It is clear from the passage quoted above that the Judge’s focus was on denunciation, accountability and general deterrence, rather than protection of the public.
[93] In our view, the imposition of a minimum period of 50 per cent of the sentence on the kidnapping charge was justified. Appellate intervention is not warranted.
[94] Mr Addison’s appeal against sentence is therefore also dismissed.







Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Te Awa [2014] NZHC 65.

[2] R v Te Awa, above n 1.

[3] At the hearing, counsel accepted that a third ground concerning an allegedly inattentive juror could not be pursued.

[4] R v Te Awa HC Auckland CRI-2012-055-4249, 14 November 2013 (Bench Note (No 4) of Toogood J).

[5] Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508 at [40].

[6] R v Te Awa, above n 1, at [7].

[7] At [10].

[8] At [17].

[9] At [9].

[10] At [9].

[11] At [12].

[12] Sentencing Act 2002, s104(1)(d) and (e).

[13] At [55] citing R v Baker [2007] NZCA 277 at [23].

[14] At [56] citing R v Bracken [2012] NZHC 3158.

[15] At [57]. The Judge said he was unable to say Mr Te Awa was aware Ms Portman was pregnant, but that he was still required to take into account the unborn child in relation to the harm caused by the offending.

[16] At [57].

[17] At [58].

[18] R v Miers (1994) 11 CRNZ 307 (CA) at 313.

[19] We only discovered after the appeal hearing that the appellant had filed two versions of Mr Krammer’s affidavit. The existence of the two versions was not explained at the hearing. We have therefore treated the one relied on by all parties at the hearing as the intended evidence of Mr Krammer.

[20] R v Te Awa [2013] NZHC 2099.

[21] Addison v R [2013] NZCA 482.

[22] R v Te Awa, above n 20, at [44] and Addison v R, above n 21, at [22]–[26].

[23] R v Te Awa, above n 1, at [38].

[24] At [41] citing R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

[25] At [42].

[26] At [43]–[44].

[27] At [44].

[28] At [34]–[37].

[29] Footnotes omitted.

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