Hemaloto v The Queen
[2014] NZCA 335
•18 July 2014 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA676/2013 [2014] NZCA 335 |
| BETWEEN | PEDRO PETELO PUA HEMALOTO |
| AND | THE QUEEN |
| Hearing: | 18 June 2014 |
Court: | White, Keane and MacKenzie JJ |
Counsel: | C J Tennet and V L Pomeroy for Appellant |
Judgment: | 18 July 2014 at 10.00 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
Introduction
On Thursday 5 May 2011, in the early hours of the morning, there was an incident in Wyndham Street, Auckland, involving a large number of people, during which a bystander (the first victim), aged 18, who had assisted a doorman, (the second victim), was knocked to the ground and subjected for two minutes to extreme violence. He suffered fractures to his skull, bleeding to his brain, and facial and other injuries. He was in a critical condition in hospital for several days.
The appellant, Pedro Hemaloto, aged 22, and his younger brother, Sean Hemaloto, aged 19 at the time of the offending, were charged with offences against the victims, as were two others. A trial in the Auckland District Court before Judge Cunningham and a jury over twelve days ensued.
Before trial Sean Hemaloto pleaded guilty to assaulting the second victim. At trial Jonathan Latu, aged 23, denied and was acquitted of causing the second victim injury with that intent, and of assaulting him. Sean Hemaloto, Jessie Julio, aged 18, and Pedro Hemaloto, were charged with, and denied, causing the first victim grievous bodily harm with intent to cause him harm to that degree. At trial all three were found guilty of that offence.
The Crown’s case was that Sean Hemaloto had led the attack on the first victim and that he had, when the first victim was reduced to the ground, kicked him to, or stamped on, his head. On sentence Judge Cunningham, sentenced him to imprisonment for five years. On the Crown case Jessie Julio was also implicated in that attack to the first victim’s head and was sentenced to imprisonment for four years and seven months.
On the Crown case, the appellant, Pedro Hemaloto, was significantly less involved, and had earlier tried to restrain his brother. But, when interviewed after his arrest and shown a photograph in which he was standing over the first victim alongside his brother, he admitted kicking the first victim once to his torso. On the Crown case, he committed that assault during the attack to the first victim’s head, or just afterwards; and must have assaulted the first victim more extensively.
On sentencing, Judge Cunningham held Mr Hemaloto accountable for the single kick to the torso he admitted, but also held that he must have inflicted that kick when the assault to the first victim’s head was happening, or soon after; and to that extent participated in the more serious assault. She sentenced him (as a party) to imprisonment for four years. He appeals both his conviction and sentence.
Grounds of appeal
On his appeal against conviction, Mr Hemaloto takes no issue with the way in which the Judge directed the jury as to their role in deciding whether he was a principal offender or a secondary party, or with the question trail the Judge gave to the jury. He takes issue with the way in which the Judge responded to two questions from the jury after they had retired to consider their verdict. He contends that a miscarriage of justice resulted.
At about 10 am on 5 July, on the second day on which the jury considered its verdict, the jury asked the Judge the first question: “Can we please get in writing the information regarding contributing, encouraging or helping as it applys [sic] to the charges?” The Judge, after consulting counsel, referred the jury back to the question trail. Mr Hemaloto contends she should have repeated to the jury her jury directions, and restated the Crown and defence cases.
At 11.56 am that morning, the jury asked the second question: “We have reached a verdict but is it appropriate for us to add comments for your consideration?” The Judge, after speaking to counsel, took the jury’s verdict without comment. Mr Hemaloto contends that she should have received any comments. The jury might still have been concerned about their first question, as it related to him, or might have wished in his case to add a rider for mercy to their verdict.
On his appeal against sentence, Mr Hemaloto first contends that the Judge was wrong to hold that he kicked the first victim, during the assault to the first victim’s head or soon afterwards. At trial he had denied that and, on the evidence, the Judge could not have concluded otherwise. Secondly, he contends, the Judge should not have sentenced him from a global starting point, together with his brother and Mr Julio. She should have fixed a discrete starting point reflecting his lesser part in the offending.
Finally, Mr Hemaloto contends the Judge did not allow him a sufficient discount for his remorse and willingness to take part in a restorative justice process.
Extent of involvement
The extent to which Mr Hemaloto was involved in the general assault on the first victim is relevant contextually to his appeal against conviction and is directly relevant to his first two grounds of appeal against sentence.
At trial all three accused, none of whom gave or called evidence, contested the Crown’s case that they were the aggressors that night, and as to the first victim’s assault the Crown accepted that others might have been involved. They, in turn, denied they played any part in that assault, and Pedro Hemaloto’s case was that he had merely pulled his brother away.
On this appeal, Mr Hemaloto’s counsel produced a synopsis of the eyewitness evidence to show that neither the jury nor the Judge could have safely concluded that Mr Hemaloto kicked the first victim during the assault to the first victim’s head, or must have been aware that it had happened. But at trial he was fixed with his admissions, when interviewed on 20 May 2011, after his arrest.
Interview admissions
At the beginning of the interview Mr Hemaloto said that all he had done was to extract his brother. But when the interviewing officer showed him a photograph in which the first victim was on the ground, he agreed that, amongst those standing over the first victim, he was the one wearing the white long sleeved top and black jeans:
Q.Yeah and it looks like you[’re] kicking the person that’s on the ground so you’ve said you didn’t get involved at all with that person on the ground but from this picture and I know it’s a little bit tricky to see …
A.I swear I did not kick him.
Q.Its not a very clear picture okay and Sean looks like he’s doing the same if not stomping on his head is this Sean here in the black?
A.Yep.
Mr Hemaloto disclaimed knowing what part his brother had played, and who the others were, but admitted, “Yeah I kicked him but I kicked him in the gut”; and that he did so after he had had what the officer described as “a fight with a guy”; and that he did so “just once” and that his reason was this, “cause I already saw them like Sean’s other mates and that like kicking him so then after that I thought I don’t know I was just angry”.
The officer put it to Mr Hemaloto that, if he had not kicked the first victim in the head himself, he had seen the first victim being kicked in the head, to which he replied, “Um I didn’t see them kicking him I just saw a couple of them they just I don’t know picking him up and that”. But he then admitted that he did see those standing around the first victim’s head kicking him. He again said that he kicked the first victim himself because he was “frustrated and angry because of what had happened”. And, when asked, what happened after he kicked the first victim, he said “I can’t recall I just kicked him then walked off”.
The officer put to Mr Hemaloto that a group had joined in kicking and punching the first victim to the head, once he was on the ground; that the first victim had not been able to move or defend himself and appeared lifeless; that this went on for a couple of minutes; and that Sean Hemaloto was involved. Mr Hemaloto confirmed that his brother was there.
The officer put to Mr Hemaloto, finally, that a bystander had described Sean Hemeloto was really “angus”, and Mr Hemaloto responded by saying that all he himself did was kick the first victim once and he added this:
That was to his stomach and the only reason why I did that was because I was angry because they bought the fight back, like I’m not a violent guy I hardly go out and fight and I stay away from it but then I was just angry because we had a good time until everything turned into shit.
In these admissions, which are founded on photograph 7, which we have reviewed, we are satisfied that Pedro Hemaloto admitted, however reluctantly, what the photograph made it difficult for him to deny; that he and his brother were engaged in the assault, while the first victim was on the ground, and that others were involved. In those admissions, the jury had a secure basis for their verdict and the Judge for her findings on sentence.
The only issue that there can be, on his appeal against conviction, is whether, in the two questions the jury asked, especially the first, they showed that they were so unclear about whether and why Mr Hemaloto’s admission made him at least a secondary party to the offence, that the Judge had to repeat her directions.
Summing up
In her summing‑up the Judge began by telling the jury that, just as she had described at the top of her question trail, the three accused could be culpable as principals or parties. She then said this, speaking concretely of the assault on the first victim:
You can be liable either as a principal, namely you were the person or one of the persons who was kicking him in the head or stomping on his head or punching him in the head. But you can be equally liable as a party by assisting, helping or encouraging another person to commit the offence.
... You are a principal if the Crown proves that you were a person who punched, kicked or stomped on the head of [the first victim]. If the accused person was one of those who actually landed blows to the head then that accused is committing the offence of causing grievous bodily harm with the intention to do so as a principal offender.
You can be a party to the offence of causing grievous bodily harm with the intention to do so if you assisted, helped or encouraged another person to punch, kick or stomp on the head of [the first victim]. Mere presence is not enough. The assistance, help or encouragement can take various forms and in this case the Crown rely on four of them.
The Crown contended, the Judge said, that, to be a party, it was enough to take part in the assault without participating in the assault to the first victim’s head, by being part of a group at that time to support those who committed that assault, or to make up the numbers with that intent, or to prevent others from helping the first victim.
The Judge then directed the jury that they had to be sure that the accused they were considering was one of those “raining blows down on [the first victim]”. That was the key issue in the case. She recounted the Crown and defence cases as they related to each accused, set against the question trail, beginning with Sean Hemaloto. When she came to Pedro Hemaloto, she said this:
Pedro admitted in his interview that he went up to the group around the guy who was hurt and kicked that person in the gut. If you accept that this is all he did, then the Crown says that he is guilty as a party. That’s because a kick to the stomach is not a kick to the head. So he is not guilty as a principal. It is the broken bones and the bleeds in the brain that are the serious harm to [the first victim], not the blows to his body. But if you join in the assault by a kick to the gut, when you know that others are punching, kicking or stomping on his head, you are liable as a party.
The Judge then told the jury that while the Crown accepted that Mr Hemaloto had tried to extract his brother and had only admitted to one kick, the Crown contended he was with his brother all night, he had earlier in the night sent texts to enlist support, and after the assault had sent texts in which he had said, speaking of the first victim and his friends, “they asked for it”. The Crown contended, indeed, that Mr Hemaloto was a principal party.
The Judge then put Mr Hemaloto’s case emphasising his attempts to extract his brother and that he had only become involved once he had been hit himself. After that, his case was, he only kicked the first victim to the torso and out of frustration. He was not part of the group that assaulted the first victim. Nor did he encourage that group. Nor did he cause the first victim grievous bodily harm.
The Judge concluded:
If you are satisfied that he is either liable because he actually did the kicking or stomping on the head of [the first victim] or he assisted help [sic] to encourage another person to punch, kick or stomp on the head of [the first victim], then you must also be satisfied that there was really serious harm to [the first victim] and you will not have any difficulty with that. But here, especially as a party, you have to be satisfied that Pedro Hemaloto knew that other people involved in the incident, intended to cause really serious harm to [the first victim] and intended to assist help or encourage that person. And really the defence position is it was one kick out of frustration and he did not know what other people were doing to the guy on the ground.
As we have said, Mr Hemaloto takes no issue with these directions. Nor could he do so. The Judge clearly set out for the jury the issues they had to decide in his case, fairly stating the Crown case and his own response. The question trail was equally clear.
Question trail
At the beginning of the question trail the Judge distinguished between principal and party liability under the heading “parties”:
In this count the Crown says that each accused was either a principal or a party to causing grievous bodily harm to [the first victim].
A person can be equally liable as a party to an offence by assisting, helping or encouraging another person to commit the offence. You must intend to assist, help or encourage the other person.
The Judge then set out the three questions the jury needed to be decide, beginning with the first and crucial question:
Are you sure that [each accused]
either: punched kicked or stomped on the head of [the first victim] as he lay on the ground?
or: assisted, helped or encouraged another person to punch kick or stomp on the head of [the first victim] as he lay on the ground?
The second question, the answer to which could not have been in issue on the evidence, was, “Are you sure that the kicking punching or stomping on the head resulted in really serious harm to [the first victim]?” The third question was:
At the time that this occurred, are you sure that [each accused]
either: intended to cause really serious harm to [the first victim]?
or: (in the case of a party) knew that the other person intended to cause really serious harm to [the first victim] and intended to assist, help or encourage that person?
In this question trail, we are satisfied, the judge set out exactly and correctly the questions the jury had to answer; and, when set against her summing up, as it related to Mr Hemaloto, equipped the jury to decide whether he was culpable of the offence charged as a principal or a party.[1]
Question responses appropriate
[1]Singh v R [2014] NZCA 306 at [1]–[3] and [12].
To succeed in his appeal against conviction, Mr Hemaloto must demonstrate, against that incontestable background, that, in her response to the jury’s first question especially, the Judge misdirected the jury, and so materially, that a miscarriage of justice resulted.[2] His basis for doing so is speculative.
[2]R v Vaihu [2009] NZCA 111 at [68].
The Judge’s response was entirely appropriate. Her directions to the jury were full and correct and her question trail clear and concise. There was no need for her to restate her directions or do more than respond in a literal way to the jury’s request to be given directions “in writing” on party liability. The jury already had written directions in the question trail and had no need for anything more.
The Judge’s response to the second question was equally correct. In asking that question the jury first confirmed that they had reached their verdict. They must then have resolved their concern about party liability, the subject of their first question, two hours before. Any other possibility is speculative.[3] The second possibility Mr Hemaloto advances, that the jury wished to add a rider of mercy in his case, assumes that the comment they wanted to make was linked to their first question two hours before, that it concerned him, and that it involved the possibility of a rider for mercy. In these respects it is equally speculative.
[3]R v Tuahine [2009] NZCA 422 at [14].
If, however, the jury had wished to add a rider of mercy to its verdict as it related to him, the fact that the Judge did not receive that recommendation does not render the verdict unsafe. Had the Judge permitted the jury to add that rider, she still would have had to instruct them that this was a matter for sentence.[4]
Sentence findings
[4]R v Childs CA164/00, 24 August 2000 at [11]–[12].
In contending that the Judge overstated his part in the assault, Mr Hemaloto does not dispute the Judge’s findings as to the nature of the wider assault:[5]
There were a group of at least three and possibly more people around [the first victim]. Onlookers who were on the street that night who gave evidence said that there were a number of people around [the first victim]. They described his body as being lifeless, and they said that from the way in which it moved when he was kicked and assaulted and they said that it went on for two minutes.
[5]R v Hemaloto DC Auckland CRI-2011-004-9446, 5 September 2013, at [11].
The findings Mr Hemaloto contests are those that relate to him specifically and they are these:[6]
I accept that Pedro Hemaloto initially was trying to stop his brother from fighting. It is also my view that Sean Hemaloto was one of, if not the main, attacker on [the first victim]. While Pedro had tried to stop his brother from fighting earlier in the night, he became involved in the attack on [the first victim].
For the purposes of sentencing Pedro Hemaloto, I intend to proceed on the basis of what he said in his interview, namely that he delivered one kick to the body. However, that was at a time when he knew that others were kicking [the first victim] in the head and stomping him on the head, therefore, he is guilty as a party.
[6]At [9]–[10].
For the reasons we have given, we are satisfied that these findings were open to the Judge, and that resolves Mr Hemaloto’s first ground of appeal.
Starting point challenge
In Mr Hemaloto’s second ground of appeal, in which he contends that the Judge should have taken a discrete starting point in his case, as opposed to the others, he contends that he is not to be associated with them in their more serious assault. On the Judge’s findings, that has to be artificial.
That more general assault, as the Judge held, lay within band two of R v Taueki.[7] It had two of the three aggravating features identified in Taueki: what the Judge described as “serious injury … violence directed at the head … and multiple offenders”.[8] While it was not within band three, it was the culmination of a “multitude of assaults”.[9] The Judge rightly held that the more serious assault warranted an eight year starting point.[10]
[7]R v Taueki [2005] 3 NZLR 372 (CA).
[8]R v Hemaloto, above n 5, at [18].
[9]At [20].
[10]At [23].
The Judge also recognised, correctly, that Sean Hemaloto was “the catalyst for what occurred that night” and that “Pedro Hemaloto is in a different position because there was a lot of evidence that he was trying to stop his brother from fighting and trying to stop the fighting in general” but decided, nevertheless, to take a global starting point.[11] Her starting point, she held, had to recognise that the assault left “[the first victim] … on the ground unconscious … lifeless and defenceless”; and that all three for sentence must have recognised that to be so.[12] She was also confident she could distinguish between the three by discount.
[11]R v Hemaloto, above n 5, at [21]–[23].
[12]At [23].
The 15 per cent discount the Judge gave for Mr Hemaloto for his lesser assault balanced the relatively minor nature of that assault against the extreme context in which he committed it, the very serious assault then being carried out by the others to the first victim’s head.[13] His resulting starting point was in the vicinity six years and 10 months, at the lower end of band two of Taueki. That was a discrete starting point and it was proportionate to his offence.
Remorse
[13]At [29].
Finally, we do not accept that the Judge was obliged to give Mr Hemaloto any distinct credit for remorse, even though, as she said herself, he showed the clearest sense of remorse in his police interview, as compared with his co-offenders. To be offset against that are the text messages he sent out before, and particularly after, the assault, which do not assist him. It was also open to the Judge to consider that the 50 per cent discount she had allowed him from her starting point encompassed any credit for remorse.
Result
We dismiss Mr Hemaloto’s appeal against both his conviction and sentence.
Solicitors:
Crown Solicitor, Auckland for Respondent
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