Daniels v R [2018] NZCA 62 (21 March 2018)

Last Updated: 9 April 2018

IN THE COURT OF APPEAL OF NEW ZEALAND
CA179/2017 [2018] NZCA 62
BETWEEN	HONE RANKIN DANIELS Appellant
AND	THE QUEEN Respondent

Hearing:	27 February 2018
Court:	Gilbert, Simon France and Whata JJ
Counsel:	G W Walsh and M J James for Appellant Z R Johnston for Respondent
Judgment:	21 March 2018 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
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REASONS OF THE COURT

(Given by Whata J)

[1] Mr Daniels was convicted and sentenced to five years and 10 months’ imprisonment on charges of possession of methamphetamine for supply, offering to supply methamphetamine, assault with intent to injure, and three charges of threatening to kill. He appeals against his convictions on the assault and threatening to kill charges. The appeal against conviction is based on new alibi evidence. Mr Daniels appeals against his sentence claiming it was manifestly excessive.

Background

[2] Mr Daniels was a street dealer in methamphetamine. The evidence at trial pointed to at least seven occasions where Mr Daniels had supplied methamphetamine and 28 occasions where he had offered to supply methamphetamine. Approximately 13 grams was found to be involved.
[3] The background to the assault and threatening to kill charges is described in a statement to the police made by the complainant, who was Mr Daniels’ partner at the time. She would later retract several parts of that statement. The parts which survived, however, were enough to convince the jury of Mr Daniels’ guilt on the assault and threatening to kill charges. This is a summary of those parts.
[4] On 9 May 2015, Mr Daniels was unwell and spent the morning in bed at the complainant’s home. At about 1 or 2 pm, Mr Daniels woke up and was upset when he did not find the complainant next to him in bed. They had an argument and Mr Daniels left. Later that day, Mr Daniels rang the complainant and asked what she was doing. She told him that she was going out with a friend.
[5] At some stage, the complainant’s friend picked her up and dropped her off at a Clarkin Road address. Mr Daniels then arrived at the Clarkin Road address. He became aggressive. He yelled at her “Do you want me to punch your head in?” She ran to the bathroom and he threatened her again. She ran out the back door and went to a neighbour’s house. She waited there for about half an hour. She told a flatmate what had happened and the flatmate rang the police. She did not want to talk to the police because she was afraid of what Mr Daniels might do. Later she was picked up by one of Mr Daniels’ friends who then picked up Mr Daniels.
[6] They drove around for a time and then, at about 2 am, the complainant was dropped off at the Clarkin Road address. The complainant says Mr Daniels spent Sunday, 10 May 2015, with his daughter because it was her birthday. One of Mr Daniels’ friends went to the complainant’s house and found out that the complainant’s flatmate had called the police. She told Mr Daniels this. At some stage, Mr Daniels came back to the Clarkin Road address and told the complainant to get in the car. He drove to a carpark and one of his associates pulled up next to them. Mr Daniels said to his associate that the complainant had been speaking to the police and had told them everything. He then turned around and grabbed the complainant by the neck and started choking her. She had trouble breathing but did not lose consciousness. She says Mr Daniels then pulled out a knife and turned to his associate and said “I need to cut her up”. He went on to say “We need to kill her. We need to put her in the boot”. He was waving the knife around while saying this. Mr Daniels later told the complainant that she needed to get out of town and he dropped her off at home. He said that if she went to the police, he would kill her sister and her sister’s baby.

New evidence

[7] Ms Fontaine Anne Terei has sworn an affidavit. Ms Terei is the former partner of Mr Daniels and has one child with him. She has a clear memory of Sunday, 10 May 2015 because it was their daughter’s eleventh birthday. Ms Terei provides a detailed account of her movements with Mr Daniels from about 10 am through to Mr Daniels’ curfew at 8 pm.

Appeal against conviction

The charges

[8] The appeal against conviction relates to the following offences:

• (a) assault with intent to injure on 10 May 2015;
• (b) two charges of threatening to kill the complainant on 9 May and 10 May 2015; and
• (c) threatening to kill the complainant’s sister on 10 May 2015.

Submissions

[9] Mr Walsh submits the evidence of Ms Terei becomes critical from the appellant’s perspective as relevant alibi evidence in relation to events alleged to have occurred on 10 May 2015. It is said to provide a plausible account of the appellant’s whereabouts between at least as early as 8 am to about 8 pm on 10 May 2015. Mr Walsh concedes the evidence is not fresh as it could have been obtained for the trial with reasonable diligence. But the entire episode was kept from Ms Terei to avoid her becoming aware that Mr Daniels was having an affair. The evidence is said to be a credible and detailed account of the appellant’s whereabouts at critical times. If the evidence is accepted, he submits that it provides a complete answer to the later charges of assault with intent to injure and threatening to kill. Mr Walsh submits that the evidence impacts on the safety of the convictions.

Threshold

[10] The new evidence is not fresh. With reasonable diligence, it could have been obtained for trial. The central issue therefore is whether there is a risk of a miscarriage of justice if it is excluded.^[1] The resolution of this issue depends on the credibility and cogency of the evidence.^[2]

Assessment

[11] We are satisfied there will be no miscarriage of justice if the evidence is excluded. The evidence lacks probative cogency on a material issue. As the Crown submits, the precise timing of events was never an issue at trial. Significantly, even if Ms Terei’s evidence is accepted as true, it is not inconsistent with the complainant’s evidence that Mr Daniels spent Sunday with his daughter because it was her birthday. There was no dispute about this at trial. It was, in short, an assumed fact that Mr Daniels spent the day with his daughter. At most, Ms Terei’s evidence could do no more than emphasise this assumed fact. Furthermore, we see merit in the Crown’s submission that it can be assumed the tactical decision was made not to call alibi evidence given that, on the face of the record, Ms Terei’s statement was not inconsistent with the complainant’s police statement.

Sentence appeal

[12] Mr Daniels was found guilty of supplying methamphetamine, offering to supply methamphetamine, assault with intent to injure, and three counts of threatening to kill. Judge Spears adopted a starting point of four years’ imprisonment on the methamphetamine charges. He uplifted this by 18 months for assaulting with intent to injure and, on three occasions, threatening to kill the complainant and her sister. A further uplift of four months for prior offending was added to this start point. An end sentence of five years 10 months’ imprisonment was imposed.
[13] Mr Walsh submits both the start point of four years for the drug offending and the end sentence of five years 10 months were too high. He further submits the cumulative uplift of 22 months was excessive having regard to the totality principle. It is accepted that the sentencing Judge correctly identified that the offending fell within band two of R v Fatu which states that starting points of three to nine years’ imprisonment are appropriate for supply of methamphetamine between five grams and 250 grams.^[3] However, Mr Walsh says sentences for comparable offending have attracted starting points of between three and three and a half years.^[4] In terms of the uplifts, Mr Walsh refers to Taingahue v NZ Police.^[5] In that case, sentences of nine to 12 months’ imprisonment were identified as appropriate for assaults with intent to injure.

Assessment

[14] The key issue is whether the sentence was fairly within the range of sentences available for offending of the present type and scale.^[6] It involves two dealing charges involving approximately 13 grams of methamphetamine.

[15] A starting point of four years is not out of the range for this offending. It was the starting point suggested as appropriate by the Court in Sun v Police for offending involving a slightly larger quantity of methamphetamine (14.5 grams).^[7] In addition, while starting points of three years and six months’ imprisonment have been adopted for similar levels of methamphetamine offending, it is important to take into account the role played and the charges faced by Mr Daniels. He was charged as a supplier and active street dealer. This distinguishes this case from the facts in R v Whakatihi cited by Mr Walsh. A starting point of three and a half years’ imprisonment was adopted in Whakatihi but that was for a single charge of possession for supply of 14 grams of methamphetamine.^[8]

[16] Similarly, an uplift of 22 months for the violence offending and prior convictions is not excessive. Strangulation is serious violence offending, particularly in a domestic context involving a vulnerable victim. There were multiple threats to kill, including a threat against the complainant’s sister. In combination, this offending was markedly more serious than the offending in Taingahue. That case involved a start point sentence of 12 months for a single assault with intent to injure.^[9] Furthermore, Mr Daniels’ offending was in response to the complainant allegedly speaking to the police about his drug offending. This was an aggravating factor. While he was not charged with attempting to pervert the course of justice, intimidation of this kind must be deterred. If anything, the uplift was light.

[17] The appeal against conviction and sentence is dismissed.




Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and Pora v R [2015] UKPC 9, [2016] 1 NZLR 277 at [39].

^[2] H (CA240/2015) v R [2016] NZCA 57 at [25].

^[3] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [34].

^[4] Referring to R v Whakatihi HC Palmerston North CRI-2011-054-463, 12 October 2012; R v McIntosh [2012] NZHC 3110 and Sun v Police [2015] NZHC 414.

^[5] Taingahue v Police HC Wellington CRI-2009-485-75, 17 August 2009 at [16].

^[6] Criminal Procedure Act 2011, s 250.

^[7] Sun v Police, above n 4, at [3]–[5].

^[8] R v Whakatihi, above n 4, at [2]–[3], and [15].

^[9] Taingahue v Police, above n 5, at [16].