Yad-Elohim v R [2024] NZCA 206 (4 June 2024)

Last Updated: 10 June 2024

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

CA79/2024 [2024] NZCA 206

	BETWEEN	GABRIEL YAD-ELOHIM Applicant
	AND	THE KING Respondent

Court:	Wylie, Lang and Campbell JJ
Counsel:	R M Mansfield KC for Applicant J A A Mara for Respondent
Judgment: (On the papers)	4 June 2024 at 10 am

JUDGMENT OF THE COURT

The application for an extension of time within which to appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

• [1] Mr Yad‑Elohim was found guilty of murder by a jury in the High Court at Auckland. On 20 September 2018, van Bohemen J sentenced him to life imprisonment.^[1] The Judge also made an order that Mr Yad‑Elohim was required to serve a minimum period of 13 years’ imprisonment before being eligible to apply for parole.^[2]
• [2] Mr Yad‑Elohim appealed against conviction, but his appeal was dismissed by this Court in a judgment delivered on 1 May 2023.^[3] Mr Yad‑Elohim now seeks leave for an extension of time within which to appeal against sentence. If granted leave, Mr Yad‑Elohim proposes to argue that it was manifestly unjust for the Judge to impose a sentence of life imprisonment.
• [3] Mr Yad‑Elohim filed his notice of appeal against sentence more than five years out of time. The Crown opposes leave for an extension of time within which to appeal being granted. It contends Mr Yad‑Elohim has not provided an adequate explanation for the delay and the merits of the proposed appeal are not strong.
• [4] In a minute issued on 20 March 2024, Ellis J directed that the application for leave was to be dealt with separately to the appeal. We now determine the application for leave based on the written submissions filed by counsel for Mr Yad‑Elohim and the Crown.

The offending

• [5] Mr Yad‑Elohim was charged with the murder of Michael Mulholland. Mr Yad‑Elohim had never met Mr Mulholland prior to the incident giving rise to the charge.
• [6] In his sentencing remarks, van Bohemen J described the events that led to Mr Mulholland’s death as follows:

[2] There was never any doubt that you killed Mr Mulholland. The assault was captured on CCTV footage at the scene. You went to Mr Mulholland’s apartment building with Ms Uru, with whom you had a slight acquaintance and whom you had approached on the street to buy drugs. Ms Uru, who was known to Mr Mulholland, persuaded you to hand over $200 and to stay on the landing below Mr Mulholland’s apartment while she bought the drugs for you. You say Ms Uru had told you Mr Mulholland had gang associations. You remained on the landing awaiting Ms Uru’s return. But she did not return. She had climbed over the balcony at Mr Mulholland’s apartment, clambered back to the ground and ran away with your money. As Ms Uru admitted in evidence, that had always been her plan.

[3] After a while, you became suspicious and went up to Mr Mulholland’s apartment and knocked on the door. Mr Mulholland opened the door and you spoke briefly with him. It appears he denied any knowledge of Ms Uru. You then grabbed Mr Mulholland, headbutted him twice, dragged him out of the doorway onto the landing, and punched him in the head. Mr Mulholland fell to the ground beside the wall, apparently already unconscious. He remained on the floor inert through the attack that followed.

[4] You attacked Mr Mulholland round the head, hitting him repeatedly with your elbow and fists, before kicking and stomping on his head and body for around four minutes. At one point, you left the landing and walked down the stairwell before returning and kicking Mr Mulholland about the head, body and legs for a further three minutes. It is estimated that you inflicted approximately 90 blows on Mr Mulholland in the course of this sustained attack. Mr Mulholland died as a result of the blunt force trauma you inflicted to his head, face and abdomen. You were arrested on Karangahape Road the following day by police officers who recognised you from the CCTV footage of the attack.

[5] It is accepted that you suffer from a severe mental disorder, chronic schizophrenia, which may have been exacerbated by your having taken methamphetamine some time earlier as you have since acknowledged.

• [7] The sole issue at trial was whether Mr Yad‑Elohim was insane at the time he killed Mr Mulholland. Expert psychiatric evidence was called by the Crown and on Mr Yad‑Elohim’s behalf. The experts agreed that Mr Yad‑Elohim had been psychotic and was suffering from a disease of the mind at the time he attacked Mr Mulholland. The psychiatrists also agreed that Mr Yad‑Elohim continued to display active psychotic symptoms following his arrest. Further, they agreed that his schizophrenia was a continuing condition.
• [8] The issue for the jury was whether the disease had rendered Mr Yad‑Elohim incapable of understanding the nature of his actions and whether they were morally wrong. The jury’s verdict means they decided those issues in favour of the Crown.
• [9] Mr Yad‑Elohim appealed against conviction on two grounds. First, he contended that Wylie J had erred in finding him fit to stand trial in a judgment delivered approximately two weeks prior to the commencement of the trial.^[4] Secondly, Mr Yad‑Elohim contended that the trial Judge erred in the directions he gave to the jury regarding the issue of insanity. This Court found against Mr Yad‑Elohim on both issues.^[5]

Relevant principles

• [10] The question for present purposes is whether it is in the interests of justice, taking into account all relevant circumstances, to grant the extension sought by Mr Yad‑Elohim.^[6] As the Crown points out, leave to appeal will only be granted in exceptional circumstances where there has been a delay of several years.^[7]
• [11] Two questions arise when undertaking this analysis: first, why the proposed appeal was filed out of time; and secondly, whether the proposed appeal has merit.^[8] As this Court explained in R v Lee, leave is more likely to be granted where the delay is short and explained than it cases where the delay is longer.^[9] The Court noted that a long delay is a major factor weighing against leave being granted and, if unexplained, will usually be decisive.^[10]

The reasons for the delay in filing the appeal against sentence

The explanation

• [12] Mr Yad‑Elohim has not filed any evidence to explain his delay in filing the appeal against sentence. Instead, his counsel, Mr Mansfield KC, seeks to provide an explanation in the written submissions filed in support of the application.
• [13] Mr Mansfield says that he filed an appeal against sentence, together with an application for leave for an extension of time, on 20 December 2023. The Registry records show that these documents were accepted for filing on 8 February 2024.
• [14] Regardless of which date is used, the appeal was filed more than five years out of time. Mr Mansfield asserts that when he was assigned as Mr Yad‑Elohim’s counsel in March 2019, the focus was very much on the appeal against conviction. He says this involved complex issues that required significant time, effort and resources to address. He was required to file and serve evidence by several witnesses, including two psychiatrists.
• [15] Mr Mansfield says that Mr Yad‑Elohim always intended to appeal against sentence but the appeal against conviction took precedence. He also says there was economy in having the appeal against conviction and the appeal against sentence being heard separately. Mr Mansfield contends that the Crown has not been prejudiced by the late filing of the appeal against sentence.

Our assessment

• [16] We have doubts as to whether Mr Yad‑Elohim has always genuinely intended to appeal against sentence. If this was so, it would have been a simple matter for Mr Mansfield to file an appeal against sentence at the same time as the appeal against conviction. If he thought it appropriate, Mr Mansfield could then have suggested that the appeal against conviction be heard separately from the appeal against sentence.
• [17] We consider it likely, however, that the Court would have required the two appeals to be heard together. The issue of Mr Yad‑Elohim’s mental state was a central issue in the appeal against conviction and, as we shall shortly explain, it would also be an important feature of the appeal against sentence. The panel that heard the appeal against conviction would therefore have been well equipped to deal with the appeal against sentence.
• [18] We consider it more likely that Mr Yad‑Elohim did not turn his mind to the appeal against sentence until after his appeal against conviction was dismissed. We therefore proceed on the basis that the delay has not been adequately explained.

The merits of the proposed appeal

• [19] Section 102 of the Sentencing Act 2002 relevantly provides as follows:

102 Presumption in favour of life imprisonment for murder

(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.

(2) If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.

...

• [20] The Judge determined that it would not be manifestly unjust to impose a sentence of life imprisonment in the following paragraphs of his sentencing remarks:^[11]

[30] It has been established by the Court of Appeal that the presumption of life imprisonment will only be displaced in “rare” and “exceptional” cases,^[12] reflecting the sanctity of human life and society’s condemnation of those who unlawfully take it.^[13] While the Court of Appeal has recently recognised that the wording of s 102(1) of the Sentencing Act reflects Parliament's acceptance that the power vested in a High Court judge should not be unduly proscribed and allows all circumstances to be taken into account so long as they relate to the offence or the offender,^[14] it is common ground between the Crown and your counsel that departure from the presumption of life imprisonment is not appropriate in your circumstances.

[31] I agree that, given the gravity and severity of your offending and the public interest in allowing the Parole Board and, if appropriate, the mental health services to determine when you are fit and well enough to re‑enter the community, it is not manifestly unjust to sentence you to life imprisonment. I reach that conclusion notwithstanding the question of your mental state.

• [21] In his written submissions, Mr Mansfield explains the issue to be raised on the proposed appeal as follows:

The Applicant intends to appeal his sentence on the basis the Sentencing Judge erred in finding it was not manifestly unjust that he be sentenced to life imprisonment.

Respectfully, the Sentencing Judge’s reasons for this determination are brief. This will no doubt be because Trial Counsel and the Crown agreed it was not manifestly unjust [for] the Applicant [to] be sentenced to life imprisonment. However, because the Sentencing Judge’s reasons are as brief as they are, it is not clear whether the Sentencing Judge considered all circumstances relating to the offending and the Applicant, including but not limited to the causative contribution of the Applicant’s mental health to his offending as well as the nexus of anger (feeling ripped off from the purchase of methamphetamine) and influence of methamphetamine on the offending.

• [22] Mr Mansfield’s submission that the Judge may not have considered all circumstances relevant to the offending, including the causative contribution of Mr Yad‑Elohim’s mental health issues, needs to be examined having regard to the process undertaken by the Judge at sentencing.
• [23] As will be evident from Mr Mansfield’s submissions, Mr Yad‑Elohim’s trial counsel agreed with the Crown that it would not be manifestly unjust for Mr Yad‑Elohim to receive a sentence of life imprisonment. The focus at sentencing was instead on whether s 104 of the Sentencing Act was engaged. This requires the court to impose a minimum term of at least 17 years’ imprisonment where the offending satisfies certain specified criteria. The Crown argued that s 104(1)(e) and (g) were engaged because of the high level of brutality involved in the murder and the vulnerability of the victim.
• [24] The Judge accepted the Crown’s submission that s 104 applied but only because of the brutality involved in the attack that led to Mr Mulholland’s death. He did not consider Mr Mulholland was sufficiently vulnerable to engage s 104(1)(g).^[15] The Judge then determined that, but for the application of s 104, a minimum term of 15 years imprisonment’ would have been appropriate.^[16] He considered this should be reduced by two years to reflect the severe mental health issues from which Mr Yad‑Elohim was suffering at the time of the incident leading to the charge.^[17] The Judge then determined that it would be manifestly unjust to impose a minimum term of 17 years’ imprisonment because the offending fell outside the legislative policy underpinning s 104.^[18] This led the Judge to impose a minimum term of 13 years imprisonment.
• [25] The Judge expressly took the causative contribution of Mr Yad‑Elohim’s mental health issues into account at three separate stages in this process. The first of these was when he held that the offending would ordinarily warrant a minimum term of imprisonment of 15 years:

[48] If left untreated, your schizophrenia manifests as an abnormal state of mind with delusions and auditory hallucinations, creating an intermittent disorder of perception and cognition to such an extent that you pose a risk to others as has been demonstrated on at least two occasions prior to your attack on Mr Mulholland. You say that at the time of the offending you were hearing auditory hallucinations telling you to kill Mr Mulholland. You admit to having taken methamphetamine 10 to 12 hours previously and that you were angry and resentful for not receiving the drugs for which you had paid, and that you felt both fearful and disrespected.

[49] While your drug use may have played a role, this was not advanced at trial and was not established on the facts before me. Even so, the psychiatric evidence strongly indicates that your mental health issues were a significant factor in your attack on and murder of Mr Mulholland, even if not directly causative. While this did not mean you were not fit for trial or that you were not sane at the time, I am satisfied your abnormal mental state contributed to your actions in taking Mr Mulholland’s life.

[50] For all these reasons, I consider that your culpability was diminished and is not commensurate with the violence you inflicted on Mr Mulholland. Your response to the circumstances in which you found yourself, while not entirely out of character, were a marked escalation in your behaviour and attributable to the psychosis you were suffering. For these reasons, I consider that a starting point of 15 years as a minimum term of imprisonment is appropriate.

• [26] The Judge then took Mr Yad‑Elohim’s mental health issues into account again when reducing the minimum term of imprisonment from 15 to 13 years:^[19]

[53] With regard to your mental illness as a personal mitigating feature, I am satisfied that your mental health issues moderate the relevance of your case in terms of general deterrence and of specific deterrence when your offending is caused at least in part by mental health issues which may be ameliorated by appropriate treatment.

[54] With regard to remorse, you expressed shock upon learning Mr Mulholland had died and until what Mr Goodwin said this morning, you have not shown any genuine remorse for your actions. Indeed, you have demonstrated limited insight into your offending and, so far, little motivation to change your behaviours. I accept this is likely to be another manifestation of your illness, but it means remorse cannot be taken into account as a mitigating factor.

[55] Overall, I am satisfied that your severe mental health issues warrant a reduction of two years from the “starting point” of 15 years and that a 13 year minimum period of imprisonment is appropriate. I have also had regard to cases with similarities to your offending and mental health issues, bearing in mind, however, that there was no guilty plea in this case.

• [27] The Judge then took the same issues into account again in holding that it would be manifestly unjust to impose a minimum term of 17 years’ imprisonment:

[60] While the jury rejected your defence of insanity, I accept that at the time of offending you were under a significant mental disorder which had a substantial impact on your decision‑making and your comprehension of the consequences of your actions. Given the link between your mental illness and your offending, my overall impression of your case is that it does fall outside the legislative policy behind s 104 that murders with the features specified in that section are sufficiently serious to justify at least a minimum term of imprisonment of 17 years. Accordingly, I am satisfied that a minimum term of imprisonment of 17 years in your case would be manifestly unjust.

• [28] These passages confirm that the Judge took all relevant circumstances into account, including the causative contribution of Mr Yad-Elohim’s mental health issues. Having done so, the Judge concluded that a minimum term of 13 years’ imprisonment was appropriate. This largely disposes of Mr Mansfield’s argument that the Judge may not have taken all relevant circumstances into account when making his assessment under s 102.
• [29] For completeness, however, we propose to briefly review the factors relied upon by the Judge in finding that life imprisonment was appropriate. We focus on the mental health issues that contributed to the offending.
• [30] As the Crown accepts, mental health issues that have a causative link to offending are likely to be relevant to any assessment under s 102 of the Sentencing Act. However, the authorities show that they will often not be sufficient to displace the presumption in favour of life imprisonment under s 102. In Tu v R, for example, the evidence established that the appellant’s schizophrenia and autism spectrum disorder contributed to the offending to some extent.^[20] Nevertheless, it did not moderate the culpability of the offending sufficiently to mean that life imprisonment would be manifestly unjust.^[21] Similarly, in Van Hemert v R the Supreme Court was satisfied that life imprisonment was not manifestly unjust even though it accepted that the appellant’s mental health issues reduced his overall culpability.^[22] In reaching this conclusion, the Court noted that an important consideration in this context is the need to protect the community.^[23] Public risk is a countervailing consideration relevant to the exercise of the Court’s discretion. The Court noted that in this context, psychiatric assessments and evidence of remorse may be of considerable importance in making an assessment as to public safety.^[24]
• [31] In the present case, we consider several factors inform the assessment under s 102 of the Sentencing Act. The first flows from the fact that Mr Yad‑Elohim was prepared to beat to death a person whom he did not know and with whom he had no quarrel. This was not an isolated incident. The Judge noted that, if left untreated, Mr Yad-Elohim’s schizophrenia creates “an intermittent disorder of perception and cognition to the extent that [he] pose[s] a risk to others”.^[25] This had been demonstrated on at least two occasions prior to the attack on Mr Mulholland. We consider this factor brings to the fore the need to protect the community from similar offending by Mr Yad‑Elohim in the future.
• [32] In Van Hemert, the Supreme Court noted that, although it may not preclude a finding of manifest injustice under s 102, significant brutality would normally be a factor pointing strongly against it.^[26] The brutality and prolonged nature of Mr Yad‑Elohim’s offending clearly militates against a finding of manifest injustice in the present case. Further, although Mr Yad‑Elohim expressed remorse through his counsel at sentencing, the Judge noted that he had little insight into the offending and could be given no credit for remorse.^[27]
• [33] Taking these factors into account we see no evidence to suggest the Judge erred in imposing a sentence of life imprisonment. We therefore assess the merits of the appeal to be weak.

Result

• [34] The application for an extension of time within which to appeal against sentence is dismissed.

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent

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^[1] R v Yad-Elohim [2018] NZHC 2494 [sentencing notes].

^[2] At [64].

^[3] Yad-Elohim v R [2023] NZCA 136 [conviction appeal].

^[4] R v Yad‑Elohim [2018] NZHC 1785.

^[5] Conviction appeal, above n 3, at [118] and [119].

^[6] R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA) at [96]–[99].

^[7] At [115].

^[8] Smith v R [2020] NZCA 221 at [3].

^[9] R v Lee, above n 6, at [115].

^[10] At [115].

^[11] Sentencing notes, above n 1.

^[12] R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 (CA); R v Smail [2006] NZCA 253; [2007] 1 NZLR 411 (CA); R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775; and Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369.

^[13] R v Cunnard [2014] NZCA 138 at [16].

^[14] At [15].

^[15] Sentencing notes, above n 1, at [39].

^[16] At [50].

^[17] At [55].

^[18] At [60].

^[19] Footnote omitted.

^[20] Tu v R [2023] NZCA 53 at [31].

^[21] At [31].

^[22] Van Hemert v R [2023] NZSC 116, [2023] 1 NZLR 412 at [81]–[82] and [95] per Glazebrook, O’Regan, Ellen France and Kós JJ.

^[23] At [81] and [83] per Glazebrook, O’Regan, Ellen France and Kós JJ.

^[24] At [81] per Glazebrook, O’Regan, Ellen France and Kós JJ.

^[25] Sentencing notes, above n 1, at [48].

^[26] Van Hemert v R, above n 22, at [68] per Glazebrook, O’Regan, Ellen France and Kós JJ.

^[27] Sentencing notes, above n 1, at [54].