Howard v R
[2018] NZCA 633
•21 December 2018 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA189/2018 [2018] NZCA 633 |
| BETWEEN | KERSHAW NGATAPIRI HOWARD |
| AND | THE QUEEN |
| Hearing: | 25 October 2018 |
Court: | Brown, Courtney and Katz JJ |
Counsel: | J W Mackey for Appellant |
Judgment: | 21 December 2018 at 12.30 pm |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe appellant’s sentence of 10 years and three months’ imprisonment for intentionally causing grievous bodily harm is quashed and substituted with a sentence of seven years and 10 months’ imprisonment, cumulative on the sentence for CRN 16044005935.
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REASONS OF THE COURT
(Given by Courtney J)
Introduction
In the early hours of 28 June 2015, there was an incident at an address in the Auckland suburb of Point England in which a young man, Owen Talatau, was shot in the face. Following a trial before Judge R G Ronayne and a jury, the appellant, Kershaw Howard, was convicted of being party to causing grievous bodily harm with intent to do so and of presenting a firearm. The Judge imposed a sentence of 10 years and three months’ imprisonment to be served cumulatively on a sentence of four years and two months’ imprisonment for aggravated robbery that Mr Howard was already serving.[1]
[1]R v Howard [2018] NZDC 5820.
Mr Howard appeals the sentence on the basis that the Judge erred by:[2]
(a)sentencing on an incorrect factual basis;
(b)taking too high a starting point; and
(c)failing to consider totality.
The offending
[2]Mr Howard also filed an appeal against conviction, but this was subsequently abandoned.
Mr Howard was 27 years old at the time of the offending. The principal offender in the assault on Owen Talatau was Mr Howard’s 16-year-old neighbour, Tevita Tukia.
On the night of 27 June 2015, a group had gathered at the Talatau family home to socialise and watch a rugby game. At some time after midnight, Mr Tukia walked past the address. There was a scuffle between him and Owen Talatau’s friend, Allen Malau. Mr Tukia was drunk. Other people present told him to go home, which he did.
Some hours later, a neighbour of Tevita Tukia and Mr Howard saw Mr Tukia go to Mr Howard’s house and Mr Howard give Mr Tukia a rifle. The two then drove off in Mr Howard’s white Mercedes. At about 3 am, Owen Talatau saw Mr Tukia return to the Talatau property in the vehicle. There seemed to be other people in the vehicle but only Tevita Tukia got out. He was holding a metal object (possibly a machete) and stood outside the house hitting the front fence and screaming and cursing. Eventually he got back into the vehicle and it drove away.
At about 3.30 am, the white Mercedes returned to the Talatau property. There were at least three people in it, including Mr Howard, Mr Tukia and Mr Tukia’s father. Those still present at the Talatau’s address included Owen Talatau and his brother Oliver Talatau, Owen’s partner, Jacinta Tatireta, and their friends, Allen Malau and Elifasa Sopi. At about the same time, Tevita Tukia’s sister, Meleana Tukia, who had been out looking for her brother, also arrived at the address. Of all those present it appears that only Meleana Tukia was sober.
Within a short time Tevita Tukia tried to engage Allen Malau in a fight. Meleana Tukia tried to calm her brother down. Mr Tukia Snr became involved in a fight with some of the other people. All the witnesses were agreed that Tevita Tukia pointed the rifle at Owen Talatau and shot him. There were, however, inconsistencies in the various accounts as to what Mr Howard was doing during this time and how the rifle came to be in Tevita Tukia’s hands.
First and second grounds of appeal: the factual basis for sentencing and the starting point
The first two grounds of appeal overlap so we deal with them together. Mr Mackey, for Mr Howard, argued that the Judge wrongly sentenced Mr Howard on the basis that his culpability was equal to that of Mr Tukia and, as a result, took too high a starting point.
The factual basis for sentencing
The Judge sentenced on the basis that Mr Howard had handed the gun to Mr Tukia immediately before Mr Tukia shot Owen Talatau. Mr Mackey, for Mr Howard, argued that there was no evidential foundation for the Judge to proceed on that basis.
The Crown case had been that Mr Howard was in the Mercedes when it arrived at the Talatau property at 3.30 am, and that he got out of the vehicle with the gun and pointed it at Allen Malau before handing it to Tevita Tukia, who then shot Owen Talatau. But other witnesses described Mr Tukia being handed the gun by an unidentified person sitting in the vehicle. The Judge sentenced Mr Howard on the following basis:[3]
… Mr Tukia exited the front passenger door of your vehicle and began yelling and swearing at the group. You exited the vehicle, you were holding the rifle and you pointed it in the direction of the group. Mr Tukia’s father became involved in a physical altercation with at least one person at the address; at some point during that altercation he was lying on the ground.
The victim of your offending, Mr Talatau, was standing near to where the altercation was taking place. You gave the rifle to Tukia, he raised it up pointing it directly at the victim who was standing approximately 10 metres from him, he fired the weapon resulting in one round hitting the victim in the face. …
(Emphasis added.)
[3]R v Howard, above n 1, at [4]–[5].
Under s 24(1) of the Sentencing Act 2002, a court 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 the evidence at the trial”. Where the evidence at trial would support more than one factual conclusion, it is the Judge’s responsibility to identify the facts he or she finds established, provided that the finding is not inconsistent with the jury’s verdict.[4] The position is summarised in R v Connelly:[5]
The Judge in a jury trial is effectively the thirteenth fact finder. Where, following a verdict(s) of guilty the Judge is required to sentence a prisoner the Judge is entitled, where the evidence supports it, to reach his or her own view of the facts relevant to sentencing provided that such a view is not inconsistent with the verdict … The Judge is not bound to accept the version of facts most favourable to the prisoner.
[4] R v Lunjevich [2012] NZCA 454 at [9]; and B (CA58/16) v R [2016] NZCA 432 at [75]–[76].
[5]R v Connelly [2008] NZCA 550 at [14].
The Crown case focused on Ms Tukia’s evidence; in closing, the prosecutor did not refer to the evidence of the other witnesses at the scene, all of whom differed from Ms Tukia. Ms Tukia gave evidence of seeing her brother arrive at the address in the white Mercedes. She said that there were four people in the car, three of whom she knew. She saw her brother get out of the car from the rear passenger seat. She walked down towards the car to speak to her brother. Allen Malau had also come down. She saw Mr Tukia and Allen “going off at each other”. She then described seeing “Ski” (Mr Howard) get out of the car. She said:
Um he had a gun and he held it up, and it was pointing towards Allen.
She told Mr Howard to put the gun away. At that stage, her father, Mr Tukia Snr, got out of the car. He got out from the rear seat on the driver’s side. Ms Tukia told her father to get back into the car, which he did. But later he got out again Ms Tukia described what happened next:
A:Allen and – oh Owen and Oliver and their group also came down towards where myself and my brother and Allen and (inaudible) … I (inaudible) … got out of the car again and ended up in a fight with some boys or a boy. I don’t know their names. And that time my brother was still just trying to fight with Allen just over the glasses or whatever it was, ah, he was still doing the same thing. I, like, thought my dad would be alright, like, he could take the hiding … I stopped focusing on my brother (inaudible) tell them to stop bashing my dad and then the time that I turned away from my brother, he ended up with the gun. I heard it, the gunshot. By then they, or the person that was giving my dad a hiding, stood back but when I turned my brother had the gun.
Q:And how much time would you say passed from when you last saw Ski pointing the gun at Allen to the time that your brother had the gun?
A:I just turned to tell him to leave my dad alone and my brother had the gun.
Q:And at this point your dad’s being beaten up by someone?
A:Yes.
Q:Focused on him, is that right?
A:Yes.
Q:And then you said you turned around and the next thing you see is your brother Tevita’s holding the gun and then your brother shot the gun?
A:Yes he shot once.
(Emphasis added.)
In comparison, Owen Talatau said:
So after Tevita was calling for his dad he quickly ran back to the person sitting in the passenger seat of the vehicle where he received the rifle and that’s where he started turning then pointing it at us.
Oliver Talatau did not see how Mr Tukia got the rifle. Jacinta Tatireta, whose evidence was read by consent, saw a male get out of the left rear door of the vehicle, approach the front passenger door and the male in the passenger seat hand the first man a firearm. Shortly afterwards she heard a loud clicking noise and saw Owen Talatau holding his face.
Allen Malau, whose statement was read by consent, was standing in the middle of the road further up from the address. He said that a man got out of the left rear passenger door and pulled out a “gat (a long barrel of a rifle gun)” and then pointed it first at him, then at two of the people with him, each in turn, and then at Owen, whom he shot.
Elifasa Sopi (whose statement was read by consent) said:
The guy’s sister was talking to the guy that had been threatening Allen and had managed to get him to go back to the car. This guy’s dad was winding everything up again and was making everything worse again. This made this … young guy who had been talking to Allen angry again.
This guy went to the car and was passed something by the driver which turned out to be what looked like as a rifle type weapon.
He pointed this rifle in an aiming type hold as if looking down a range at … Ollie that were about ten metres away from him.
Although it was open to the jury to find that that an unidentified person handed Mr Tukia the rifle from inside the car, it was equally open to it to infer from Ms Tukia’s evidence that Mr Howard got out of the vehicle with the gun and then handed it to Mr Tukia. In our view, the jury must have accepted Ms Tukia’s account because only that account could have supported the guilty verdict on the charge of presenting a firearm; only Ms Tukia described Mr Howard pointing the firearm at other members of the group. It follows that Mr Howard had the firearm initially and Mr Tukia could only have obtained it from Mr Howard.
In these circumstances, the Judge was bound to sentence on the basis that Mr Howard handed the gun to Mr Tukia. There was, therefore, no error in the factual basis on which the sentencing proceeded.
The starting point
Mr Mackey’s alternative argument was that the Judge took a starting point that was higher than that taken for the principal offender, Mr Tukia, and failed to properly reflect Mr Howard’s actual culpability.
Mr Tukia had been sentenced the previous week by Judge H M Taumaunu, who had identified nine years’ imprisonment as an appropriate starting point for the offending but adjusted it to eight years to reflect the influence of Mr Tukia’s father:[6]
If the influence of the father was not a factor in this case, I would have had no difficulty in simply accepting the Crown’s position that the starting point should be nine years’ imprisonment. I have reached the conclusion today that there should be some adjustments to that starting point to reflect the true nature of the influence of the father in terms of this offending and I adopt the starting point of eight years’ imprisonment to reflect that particular factor, bearing in mind the other aggravating factors that I have already borne in mind.
(Emphasis added.)
[6]Police v Tukia [2016] NZDC 4420 at [21].
It appears that Judge Ronayne did not have access to Judge Taumaunu’s sentencing notes and did not fully appreciate the basis on which Mr Tukia’s sentencing proceeded. He simply said that it had been drawn to his attention that the starting point taken for Mr Tukia was eight years and emphasised that Mr Tukia had only been 16 years old at the time.[7] He then turned to consider Mr Howard’s position:[8]
The aggravating features of your offending are these: first, the offending involved extreme violence. This offending must have been quite literally millimetres away from being a homicide. Pointing a loaded gun at someone’s face and pulling the trigger is, frankly, as bad as it gets when it comes to violence. I also bear in mind, Mr Howard, that you repeatedly sought out this confrontation and violence so the level of violence as an aggravating feature is present to a high degree, in my view.
Secondly, and arising from that last remark I have just made, is the level of premeditation in your offending. This was well planned, you deliberately armed yourself and you went twice to the scene with weapons. You provided your car, you provided your gun, you handed it, twice, to Mr Tukia and you gave your obvious and active support. You, yourself, had of course, presented the firearm, pointing it at the other group just before handing it to Mr Tukia. The level of premeditation in the offence is present to a high degree.
…
Parity is a principle of sentencing but your involvement as a co-offender, aside from not pulling the trigger, is indistinguishable from Mr Tukia. As I have said, he was a youth at the time. For your offending, I take a starting point of nine and a half years’ imprisonment. …
(Emphasis added.)
[7]R v Howard, above n 1, at [8].
[8]At [9]–[10] and [13].
Mr Carruthers, for the Crown, acknowledged that the Judge’s reference to Mr Tukia’s age was an error but contended that the starting point of nine-and-a-half years was available because the Judge could properly have sentenced on the basis that Mr Tukia was under his father’s influence at the time, which justified the lower starting point. In the circumstances, Mr Howard could be regarded as the more culpable of the two. Mr Carruthers also argued that, in any event, the conventional application of R v Taueki indicated that the starting point of nine-and-a-half years was appropriate.[9] This was street violence that was premeditated, involved the use of a lethal weapon brought to the scene and an attack to the head in an extremely violent manner resulting in serious injury.
[9]R v Taueki [2005] 3 NZLR 372 (CA), at [40]–[41].
We do not accept the first of these submissions. The material before us suggests that the Judge was unaware of the basis on which Mr Tukia was sentenced. To the contrary, his description of Mr Howard’s culpability as “indistinguishable” from that of Mr Tukia suggests that he intended to sentence on the basis that they were equally culpable.[10]
[10]R v Howard, above n 1, at [13].
Although there have been cases in which the person actually firing the shot has been treated as more culpable,[11] it is not invariably the case. In R v Huata, for example, Collins J treated the principal and party as equally culpable and took the same starting point for both the principal offender, who shot the victim, and the party, who drove the getaway car.[12] There is no reason, in principle, that the starting point for a principal offender and a party should not be the same, if the circumstances of the offending warrant that.[13] Conversely, there is no reason, in principle, that the culpability of the party could not be greater than the principal, resulting in a higher starting point, though that situation is likely to be rare. The task of the sentencing judge is to make an assessment of the relative culpabilities and find a starting point that appropriately reflects them.
[11]See for example R v Raroa [2012] NZHC 1280.
[12]R v Huata [2012] NZHC 2735. See also Huata v R [2013] NZCA 470, where one of the grounds of appeal raised by the party to the offending was that the starting point of 11 years’ imprisonment for wounding with intent to cause grievous bodily harm was too high. This Court concluded that the starting point was available to the Judge and appropriate (at [22]).
[13]R v Mako [2000] 2 NZLR 170 (CA) at [64]; and R v Smart CA57/94, 24 May 1994.
Mr Mackey’s argument was, essentially, that Mr Tukia was to be regarded as more culpable than Mr Howard because he pulled the trigger. He relied on R vIsaaka, in which a starting point of three-and-a-half years was taken for an offender found guilty as a party to a violent attack by one prisoner on another.[14] The starting point for the principal offender had been nine years. Mr Isaaka’s starting point of three-and-a-half years recognised his much lower culpability; he had not instigated the attack, apart from punching the victim once had not participated directly in it and had not provided any weapon. His involvement had been to ensure that there was no interference from other prisoners so as to give the principal offender a “clear run” in carrying out the attack.
[14]R v Isaaka [2014] NZHC 2608.
In our view, Mr Howard’s offending is not comparable to that in Isaaka. Mr Howard played a much more critical role. He was more than ten years Mr Tukia’s senior. He knew that Mr Tukia was drunk and angry. He had actually threatened other members of the group with the rifle before passing it to Mr Tukia. In the circumstances, this act was both assistance and encouragement. It must have been obvious to Mr Howard that Mr Tukia might very well pull the trigger. In our view, the Judge was correct to assess Mr Howard’s culpability as equal to that of Mr Tukia.
However, treating Mr Howard and Mr Tukia as equally culpable would have required the same starting point to have been taken for each. The Judge took a starting point that was six months higher than that taken by Judge Taumaunu in sentencing Mr Tukia (before he allowed adjustments for the influence of Mr Tukia’s father). Provided that the starting point taken for Mr Tukia’s offending was appropriate, the same starting point ought to have been taken for Mr Howard.
Looking at comparable cases, an appropriate range for the starting point in this case was nine to nine-and-a-half years. For example, in Huata one defendant remained in the getaway vehicle (which he had stolen, and after the attack destroyed) and the other went to the victim’s car and shot him twice through the window. The victim was hit in his arm and buttock and was considered lucky to have survived.[15] The same starting point of 11 years was taken for both offenders. In R v Waa, R v Hone and R v Nathan Mr Waa told Mr Hone and others to “get” a member of a rival gang that he had spotted riding his motorbike. Mr Hone drove after the victim and when he caught up to him, Mr Nathan (who was in the car) shot the victim in the back. The victim had extensive surgery but was expected to make a full recovery. The same starting point of ten years was taken for all three defendants.[16] Although similar to the present offending these cases were more serious than the present offending because they arose in the context of gang warfare.
[15]R v Huata, above n 12.
[16]R v Waa HC Napier CRI-2007-020-1518, 7 May 2008; R v Hone HC Napier CRI-2007-020-1518, 30 July 2008; and R v Nathan HC Napier CRI-2008-020-4688, 11 June 2010. This Court approved those starting points in Pekepo v R [2011] NZCA 305.
In this case, although the nine-and-a-half year starting point was within range, have regard to the Judge’s assessment of Mr Howard’s culpability as indistinguishable from that of Mr Tukia, considerations of parity meant that nine-and-a-half years for Mr Howard was too high. The appropriate starting point was nine years.
Third ground of appeal: failing to consider totality
The third ground of appeal is that the Judge failed to consider the issue of totality. This issue arose because, between being arrested in June 2015 for the current offending and coming to trial in October 2017, Mr Howard committed and was sentenced on a charge of aggravated robbery. As a result, when he came to be sentenced in March 2018 for the assault on Mr Talatau, Mr Howard was already serving a sentence of four years and two months’ imprisonment for the aggravated robbery committed in November 2016. The cumulative sentence imposed for the grievous bodily harm to Mr Talatau meant that Mr Howard would serve a total of 14 years and five months’ imprisonment.
Section 85(2) of the Sentencing Act required the Judge to stand back and consider whether the effective end sentence resulting from the cumulative imposition of that sentence was proportionate to the gravity of the overall offending or not.[17] The Crown accepted that the Judge did not consider totality. However, Mr Carruthers submitted that no reduction would have been necessary so that the end sentence was not manifestly excessive.
[17]See Opetaia v R [2013] NZCA 434 at [32]; and Ashcroft v R [2014] NZCA 551 at [10]–[12].
Some understanding of the aggravated robbery offending is necessary to decide this issue. Mr Howard had entered a local superette in the middle of the day wearing a balaclava and gloves. He presented a loaded, double-barrelled sawn-off shotgun at the sole female attendant and demanded money and cigarettes. He kept the gun pointed at the shop attendant while she removed cash from the till and cigarettes from the cabinet before taking the items and leaving.
In sentencing, Judge J C Down took a starting point of five years for the aggravated robbery and uplifted it by three months for other unrelated offending (possession of cannabis material and shotgun cartridges without a licence).[18] The Judge then imposed a further uplift of six months to reflect Mr Howard’s previous convictions. After a three-month discount for remorse, the result was an adjusted starting point of five years and six months, from which a 25 per cent discount was allowed for guilty pleas, leading to an end sentence of four years and two months’ imprisonment.
[18]R v Howard [2017] NZDC 1288.
One aspect is immediately clear as a potential concern; both Judge Down and Judge Ronayne imposed uplifts for Mr Howard’s previous offending. The uplift imposed by Judge Down reflected Mr Howard’s history up to February 2017 (excluding the current offending). The nine-month uplift imposed by Judge Ronanye reflected Mr Howard’s entire history, including the aggravated robbery offending. There was, therefore, a total uplift of 15 months and an element of double-counting.
Further, Judge Ronayne imposed the nine-month uplift on the basis that Mr Howard’s history was “very serious” and showed Mr Howard to be “a thoroughly violent individual”.[19] We think this overstated the position. Although Mr Howard’s criminal history includes violent offending, most of his convictions are not for violent offences. His first convictions for violent offending related to a spate of offending in June 2006 that involved one robbery (by assault) and five aggravated robberies (manually) committed on 19 June 2006 (presumably arising from the same incident), one robbery (by assault) on 23 June 2006, one aggravated robbery (other weapon) on 28 June 2006 and one robbery (by assault) on 30 June 2006. They were all dealt with together and concurrent sentences of six years and three months’ imprisonment were imposed.
[19]R v Howard, above n 1, at [7].
Apart from that spate of offending, the next violent offence occurred in 2009, for injuring with intent to cause grievous bodily harm for which he was sentenced to one year and six months’ imprisonment. There was no further violent offending until the 2016 aggravated robbery of the superette. Although this is a bad history, we think that an effective uplift of 15 months is too high. A total uplift of six months would have been adequate.
If a starting point of nine years had been taken and no further uplift imposed (on the basis that the uplift imposed by Judge Down was sufficient) the total length of imprisonment for both the current offending and the aggravated robbery of the superette would have been 13 years and two months’ imprisonment. We consider that is still too high. This was undoubtedly serious offending that warranted a stern sentencing response but we note that there were no fatal injuries, nor really significant injury with long term effects. In our view, an appropriate result would be 12 years’ imprisonment in total for both sets of offending. This would mean adjusting the sentence downwards by a further 14 months for totality.
Result
The appeal is allowed.
Mr Howard’s sentence of 10 years and three months’ imprisonment for intentionally causing grievous bodily harm is quashed and substituted with a sentence of seven years and 10 months’ imprisonment, cumulative on the sentence for CRN 16044005935.
Solicitors:
Crown Law Office, Wellington for Respondent
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