Akuhata v R

Case [2020] NZCA 19

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
 CA466/2017
 [2020] NZCA 19
BETWEEN

JIMMY PETER AKUHATA
Appellant

AND

THE QUEEN
Respondent
Hearing:

12 November 2019

Court:

Wild, Whata and Katz JJ

Counsel:

A J Ellis and B J R Keith for Appellant
K S Grau and J M Irwin for Respondent

Judgment:

20 February 2020 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal against conviction is granted.

BThe appeal against conviction is dismissed.

CThe application for an extension of time to appeal against sentence is refused.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Para No

Wild and Katz JJ

Whata J

Table of contents

Para No

Introduction

Court’s approach to this appeal

The Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP (MIP) Act)

Background

The grounds of appeal

A: Ground 2: The s 9 CP (MIP) Act hearing was unfair and the decision lacked reasons

Actus Reus
Time of death
No robust defence
Mr Akuhata unfit for the s 9 hearing
No reasoning

B: Ground 4: No neuropsychologist or radiology report on brain damage, or psychologist/psychiatrist’s report as to appellant’s state of mind when making “admissions”

C: Ground 6: Detention at the Mason Clinic arbitrary, unlawful and a breach of ss 9, 22 and 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA)

Detention in Mason Clinic unlawful and/or arbitrary?
Not treated with humanity?
Periods of detention unlawfully long?
Dr Pillai’s assessments and report unlawful?
Error on Ms Cull’s part?

D: Ground 4: (sic)  No right to counsel, to silence, or to refuse medication

Rights to silence, to legal advice, and to refuse medication breached?
Mrs Visser and Drs Goodwin and Pillai not independent of each other?

E: Ground 5: The s 14 CP (MIP) Act hearing was unfair

F: Ground 1: Mr Akuhata’s guilty plea wrongly entered

Judicial error or impropriety?
Improper pressure from counsel and family?
Other errors on Ms Cull’s part?

G: Ground 8: Totality

Conclusions on the appeal against conviction

Sentence appeal

WHATA J  [159]
Result

Introduction

  1. This is a somewhat unusual appeal against both conviction and sentence. 

  2. After pleading guilty to a charge of murder, Mr Akuhata was sentenced, on 20 May 2015, to life imprisonment with a minimum non-parole period of 15 years.[1]

  3. This appeal was filed on 17 August 2017 and is thus over two years out of time.  However, the appeal against conviction is essentially a challenge to the procedure under the Criminal Procedure (Mentally Impaired Persons) Act 2003 Mr Akuhata went through before he was found fit to stand trial, and subsequently pleaded guilty. 

  4. Given the spectre of mental impairment, delays in obtaining further reports for the appeal and Mr Ellis’ absence for the first half of this year, and in the absence of any real objection from the Crown, we extend time for the appeal against conviction and will consider it…

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Details
AGLC
Akuhata v R [2020] NZCA 19
Case
[2020] NZCA 19
Decision Date

CaseChat Overview and Summary

In the case of Akuhata v R, the appellant, Mr. Akuhata, appealed against his sentencing, arguing that the sentencing judge did not adequately consider his cultural background as a Māori man of Ngā Puhi descent. The central issue was whether the sentencing judge should have called for a report under section 27 of the Sentencing Act 2002, which allows a court to hear from a person or persons on the offender’s personal, family, whānau, community, and cultural background. Mr. Akuhata's lawyer, Ms. Cull, did not request this under section 27(1), and there was no suggestion made by the sentencing judge under section 27(5).

The Court had to determine whether the failure to engage with section 27 was a proper basis for reconsidering the sentence, and if the appellant had provided enough information to show that the failure to engage with section 27 resulted in the overlooking of significant matters impacting the sentence. The Court found that the appellant's failure to provide further cultural or background material pursuant to section 27 for the hearing of the appeal hindered a comprehensive review. The Court held that without knowing what material might have been produced by exercising section 27(5), it could not determine if the sentencing judge’s decision not to call for such a report was erroneous. The Court concluded that the appeal against sentence was not successful as the appellant did not provide sufficient evidence that the failure to engage with section 27 resulted in a significant oversight.

The Court ultimately upheld the original sentence, emphasizing the importance of providing detailed background information to adequately assess cultural factors in sentencing. The decision underscores the need for both defence counsel and the court to actively consider and document cultural and background factors that might influence sentencing decisions.

Orders

Orders of the court

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Background

Background to the litigation

Second, it is submitted Ellis J should have called for a report under s 27 of the Sentencing Act 2002. The relevant part of that section provides:27 Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender(1) If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on—(a) the personal, family, whanau, community, and cultural background of the offender:(b) the way in which that background may have related to the commission of the offence:(c)any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence:(d) how support from the family, whanau, or community may be available to help prevent further offending by the offender:(e) how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.… At sentencing, Ms Cull did not request Ellis J, pursuant to s 27(1), to hear from any person or persons. When Ms Cull represented Mr Akuhata at his sentencing, she had been practising from Kaikohe in Northland for some 14 years. She would have been only too aware of the social deprivation among Northland Māori and its consequences in terms of criminal offending. As we have noted, Mr Akuhata is a Māori man of Ngā Puhi descent. We think it significant that Mr Ellis did not, in cross-examining Ms Cull before us, put it to her that she had erred in not utilising s 27 for Mr Akuhata’s sentencing. However — and perhaps somewhat inconsistently — Mr Ellis did submit that Ellis J could and should have used her power under s 27(5) to suggest to Ms Cull that it may assist the Court to hear from a person or persons under s 27. Section 27(5) provides:…(5) If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1). In his dissent on this s 27 issue, Whata J has referred to this Court’s comments on s 27 in Zhang v R.[33] He could also have mentioned his own, earlier, judgment in Solicitor-General v Heta,[34] which provided context to s 27 and drew attention to its utility. Heta was referred to, with obvious approval, in Zhang.[35][33]Zhang v R [2019] NZCA 507.[34]Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.[35]Zhang, above n 33, at [159]. We accept that a failure to engage s 27 could provide a proper basis to reconsider sentence, in an appropriate case. But the appellant must provide enough information to satisfy the Court that the failure to engage the s 27 process has resulted in the overlooking of matters that may have impacted on sentence. Our main difficulty with Mr Ellis’ submission is that he did not seek this Court’s leave to file further cultural/background material pursuant to s 27 for the hearing of this appeal. We must thus deal with Mr Ellis’ criticism of the sentencing judge for not exercising her s 27(5) power without knowing what material the exercise of that power might have produced.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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