Mark v R [2019] NZCA 121 (17 April 2019)

Last Updated: 1 May 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA655/2017 [2019] NZCA 121

	BETWEEN	RIINGI PUNI MARK Appellant
	AND	THE QUEEN Respondent

Hearing:	8 April 2019
Court:	Miller, Collins and Toogood JJ
Counsel:	B L Sellars QC (standby counsel) for Appellant JEL Carruthers for Respondent
Judgment:	17 April 2019 at 11.30 am

JUDGMENT OF THE COURT

1. The application for leave to adduce new evidence is granted.
2. The appeal against sentence is allowed.

100. The sentence is quashed.

4. The case is remitted back to the District Court for re-sentencing.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] On 6 February 2014, Ms Mark stabbed Mr Thompson multiple times with a knife causing him life threatening injuries. At the time, Ms Mark and Mr Thompson had been in a relationship for approximately three years. It was a relationship that was marred by violence.
[2] Ms Mark was convicted of wounding with intent to cause grievous bodily harm, following a trial by jury presided over by Judge MacKenzie in the District Court at Rotorua. Ms Mark’s defence at trial was that she and Mr Thompson were attacked by several men, who were responsible for Mr Thompson’s injuries.
[3] Ms Mark was sentenced on 27 October 2017 to five years and six months’ imprisonment.^[1] She now appeals that sentence.
[4] In support of her appeal Ms Mark has filed an affidavit setting out a completely new account of the events that occurred on 6 February 2014. She now says that Mr Thompson attacked her and that she responded with force. In essence, she says that she should have been sentenced on the basis that she used excessive self-defence.

Background

[5] Ms Mark’s early life was in a gang environment. She was exposed to frequent bouts of domestic violence and substance abuse. Her relationship with Mr Thompson, like her previous relationships, involved considerable violence. There is evidence of the police having been called to 14 domestic violence incidents between Ms Mark and Mr Thompson.
[6] Ms Mark says in her affidavit that on 6 February 2014, she and Mr Thompson had been celebrating his birthday with a small group of associates. Mr Thompson drank heavily and used synthetic cannabis. At one point in the evening Ms Mark and Mr Thompson left the party. Evidence relied upon by the Crown at Ms Mark’s trial suggested that she and Mr Thompson left the party after Ms Mark became concerned about the attention he was paying to another woman. They drove to a friend’s place at which point, according to Ms Mark, Mr Thompson became “really violent”. She says he started to hit her with a bottle, at which point she grabbed a knife that probably belonged to him and stabbed him multiple times. Mr Thompson lost consciousness and was taken to Tokoroa Hospital and from there he was flown to Waikato Hospital. He was later returned to Tokoroa Hospital where he spent several weeks recovering.
[7] Ms Mark also suffered injuries, including lacerations to her left hand and forearm. She spent four days in hospital recovering from her injuries.
[8] The jury heard evidence from Ms Webb, who went to Ms Mark’s place just before midnight on 6 February 2014. Ms Mark was wrapping her arm in a towel and told Ms Webb that she and Mr Thompson had had a fight and that her arm was bleeding. Ms Webb could see the towel was covered in blood. Ms Mark told Ms Webb that she had seriously injured Mr Thompson and that she wanted to go to the hospital to see if he was still alive.
[9] The jury also heard evidence from Ms Makoare, the daughter of Ms Webb, who also saw Ms Mark at around the time Ms Webb was about to drive Ms Mark to Tokoroa Hospital. Ms Makoare said in her evidence that Ms Mark told her that she and Mr Thompson had had a fight “and they stabbed each other, she stabbed him, he stabbed her”.
[10] The Crown case was that Ms Mark was responsible for Mr Thompson’s injuries, which she inflicted after becoming enraged by his flirtatious behaviour.
[11] Ms Mark did not give evidence at her trial. She relied on the statements she had made to the police that she and Mr Thompson had been “jumped” by a group of men who stabbed Mr Thompson, and also injured her. This defence was generally consistent with a statement Mr Thompson made to police when he was recovering in hospital, in which he said that although he could not remember much, he did recall that he and Ms Mark were at a party and “they got jumped” and that he told Ms Mark to run. Mr Thompson said the next thing he knew he was waking up in hospital. He made that comment to police several days after he had asked Ms Mark in the hospital, “Did we get jumped?”, to which Ms Mark had replied “Yeah”.
[12] In convicting Ms Mark, the jury must have rejected her claim that she and Mr Thompson were “jumped” by unknown assailants. The jury must also have been satisfied beyond reasonable doubt that Ms Mark was responsible for wounding Mr Thompson.
[13] When sentencing Ms Mark, Judge MacKenzie described the attack upon Mr Thompson as “gratuitous”.^[2] Ms Mark is concerned about the fairness of that observation because, as she now explains, she stabbed Mr Thompson in the context of defending herself from his attack. In saying this, Ms Mark explains that she wishes to take full responsibility for her actions and that she accepts she repeatedly stabbed Mr Thompson with a knife.
[14] Ms Mark explains that it is only since she has received psychological therapy and counselling in prison that she has been able to gain an insight into her offending and that she has now “truly taken responsibility” for her actions.

Section 24 of the Sentencing Act 2002

[15] Section 24(1) of the Sentencing Act 2002 provides that the sentencing Judge “must accept as proved all facts ... that are essential to ... a finding of guilt” and “may accept as proved any fact that was disclosed by evidence at the trial”. If at sentencing the defendant asserts a mitigating fact that is disputed by the prosecution, “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”.^[3] If the defendant wishes to rely on a disputed fact not covered by the evidence adduced at trial, then he or she may adduce evidence as to its existence at sentencing.^[4] Relevantly, the prosecution “must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence ... that is not wholly implausible or manifestly false”.^[5]

Fresh evidence

[16] The principles for assessing the admissibility of fresh evidence for appeals against conviction are now well established.^[6] There is no reason why different principles should be engaged where an appellant wishes to adduce fresh evidence for an appeal against sentence. Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.

Analysis

[17] The first question is whether or not Ms Mark’s affidavit should be admitted. That question is answered by applying the steps set out at [16]. We have reached the following conclusions:

• (a) The evidence that Ms Mark wishes to adduce is not fresh. Even allowing for her explanation that her eyes have only been opened since receiving psychological counselling, the evidence she now wishes to put forward could have been presented prior to sentencing.
• (b) We find the evidence is credible. It is entirely consistent with the extensive history of abuse that was a hallmark of the relationship between Ms Mark and Mr Thompson. Ms Mark sets out in detail the history of that abuse. The evidence could also be consistent with the injuries sustained by her on 6 February 2014. We need not say any more on these issues.
• (c) We also think that had Judge MacKenzie been provided the benefit of understanding Ms Mark’s new account of the events on 6 February 2014, she may well have treated Ms Mark’s actions as “excessive self-defence” and reduced the sentence.

[18] In reaching these conclusions, we stress Ms Mark’s new evidence does not undermine the safety of her conviction. She is not claiming to have a defence to the charge. What she is saying is that there are mitigating factors that ought properly to be assessed by the sentencing Judge.
[19] We also note that while the evidence in Ms Mark’s affidavit is inconsistent with the defence advanced on her behalf at trial, it is not inconsistent with the essential aspects of the jury’s verdict, namely that it was Ms Mark who stabbed Mr Thompson. It is only for that reason that Ms Mark is able to advance a different account at sentencing. Defendants should, however, not be encouraged by this possibility to advance conflicting accounts at trial and sentencing. First, if there is no basis for the new account, then the sentencing Judge could dismiss it as “wholly implausible or manifestly false”.^[7] Second, inconsistency with the defence advanced at trial will inevitably impact on the credibility of the defendant’s new account.^[8]
[20] In our assessment, the appropriate course is to allow Ms Mark’s appeal against sentence and remit her case back to the District Court for that Court to follow the procedure set out in s 24 of the Sentencing Act and reach its own conclusions on the merits of Ms Mark’s new evidence and what, if any, significance it has upon the sentence imposed by Judge MacKenzie. This will also give the Crown the opportunity to test, and respond to, Ms Mark’s allegations, if it wishes.^[9]
[21] As noted by this Court in Archer v R, where a similar outcome was reached, no fault can be attributed to the sentencing Judge in this case.^[10] The only issue is whether she imposed the right sentence in light of all the circumstances. Our assessment of the evidence now advanced by Ms Mark casts real doubt about the appropriateness of the sentence imposed. That, however, will be a matter for the District Court to evaluate after following the processes set out in s 24 of the Sentencing Act.

Result

[22] Leave to adduce new evidence is granted.
[23] The appeal against sentence is allowed.
[24] The sentence is quashed.
[25] This case is remitted back to the District Court for re-sentencing.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Mark [2017] NZDC 24557.

^[2] R v Mark, above n 1, at [8].

^[3] Sentencing Act 2002, s 24(2)(a).

^[4] Section 24(2)(b).

^[5] Section 24(2)(c).

^[6] Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

^[7] Sentencing Act, s 24(2)(c).

^[8] Although, in the present case, it may be of some relevance that Ms Mark did not give evidence at her trial.

^[9] Sentencing Act, s 24(2)(e).

^[10] Archer v R [2017] NZCA 52 at [23].