Huata v R
[2013] NZCA 470
•10 October 2013 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA734/2012 [2013] NZCA 470 |
| BETWEEN | JAMES MAXWELL NGARI HUATA |
| AND | THE QUEEN |
| CA745/2012 | |
| AND BETWEEN | THOMAS JOHN HUATA |
| AND | THE QUEEN |
| Hearing: | 19 August 2013 (memorandum received from the Crown on 4 September 2013) |
Court: | French, Rodney Hansen and Mallon JJ |
Counsel: | A J S Snell for Appellant James Huata |
Judgment: | 10 October 2013 at 11.00 am |
JUDGMENT OF THE COURT
AJames Huata’s appeal against sentence is dismissed.
BThomas Huata’s appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
James and Thomas Huata are members of the Black Power gang.[1] They pleaded guilty in the High Court to a number of offences arising out of the shooting of a rival gang member. Both pleaded guilty to a charge of wounding with intent to cause grievous bodily harm and attempting to dissuade a witness. Thomas Huata also pleaded guilty to additional charges of arson and theft. Justice Collins sentenced each of them to a term of imprisonment of 12 years and three months.[2] They now appeal their sentences on the grounds that they were manifestly excessive.
[1]James Huata is not a patched member. Thomas Huata is a patched member.
[2]R v Huata [2012] NZHC 2735.
The key issues raised by the appeals are:
(a)Was the Judge’s starting point on the lead offence of wounding with intent to case grievous bodily harm too high?
(b)Was the Judge justified in imposing a cumulative sentence of two years’ imprisonment for the offence of attempting to dissuade a witness?
(c)Were the discounts given for personal factors (age and guilty pleas) inadequate?
Factual background
The appellants are cousins. On 29 October 2010, they and another Black Power associate drove from Napier to Wairoa with the purpose of exacting revenge for the recent shooting of a fellow Black Power member by the Mongrel Mob. The car was stolen, Thomas Huata having intimidated its 15 year old owner into handing it over to him earlier that day. With them was a loaded sawn off shotgun.
On arrival in Wairoa, they drove around the township looking for a Mongrel Mob member to shoot. At approximately 6.30 pm they noticed Paul Kahukura, a patched Mongrel Mob member who happened to be filling his car at a local petrol station. After filling his car, Mr Kahukura got back into the driver’s seat and waited for his 13 year old son, who was inside the store paying for the petrol. Mr Kahukura’s wife was sitting beside him in the front passenger seat.
Upon seeing Mr Kahukura, Thomas Huata drove down a side street and parked out of sight behind the petrol station. James Huata then covered his face with a dark coloured bandanna and armed himself with the sawn off shotgun.
As Mr Kahukura sat waiting in his vehicle, James Huata ran up to the driver’s window, which was closed. James aimed the shotgun at Mr Kahukura from a distance of approximately 10 centimetres and fired the weapon. The impact of the shot shattered the glass window. Mr Kahukura was struck on the arm and rolled over to shield his wife. James then stuck the gun through the window and from extremely close range fired a second shot. This time the shot struck Mr Kahukura in the buttocks, causing a very large wound and profuse bleeding. James then ran back to where Thomas was waiting in the stolen car and they drove away at speed.
According to Collins J in his sentencing notes, Mr Kahukura was lucky to survive. He suffered multiple lacerations to his right arm and lower chest, as well as a large wound and extensive tissue loss in his right buttock. He underwent surgery to remove metallic fragments from the wound in his buttock and lower back area. Objects consistent with metallic fragments were also noted within his chest wall and in the region of his liver.
After leaving the scene, Thomas stored the car for approximately two days before setting it alight and completely destroying it.
Thomas and James were not arrested until July and August 2011. They were both charged with attempted murder. Thomas was also charged with the theft and arson of the car. They entered pleas of not guilty. Through the pre-trial disclosure process, they discovered that an anonymous witness, Witness A, had given police a statement saying he had heard James Huata admit being responsible for the shooting. In June 2012, Witness A happened to be in custody in the prison where Thomas and James were being held. The two cousins sent Witness A a brown envelope containing a copy of his witness statement and a letter from each of them saying they knew he was Witness A. In James’ letter, he threatened to kill Witness A if he testified, while the letter written by Thomas said that unless Witness A changed his story, Thomas would put a hit out on him and if he could not find Witness A then he would take it out on Witness A’s brother. Thomas’s letter concluded by saying: “[D]o the right thing and no one gets hurt”. On receiving the letters, Witness A became very fearful for his safety and that of his family.
The letters resulted in police laying an additional charge of attempting to dissuade a witness against each of the appellants.
The trial commenced on 3 September 2012. After the jury had been empanelled, plea bargaining discussions took place between counsel. This resulted in the appellants being discharged on the attempted murder count but pleading guilty to an alternative charge of wounding with intent to cause grievous bodily harm and all other offences.
Sentencing in the High Court
Justice Collins began the sentencing by saying that in setting the starting point he intended to treat the appellants as equally culpable. While James was the one who had pulled the trigger, Thomas was fully involved and was solely responsible for the theft and arson.
The Judge took the charge of wounding with intent to cause grievous bodily harm as the lead offence. He identified the aggravating features as being premeditation, the use of a weapon, extreme violence, the serious injuries, the fact the shooting took place in public and the fact that it arose in the context of gang warfare. These factors, the Judge said, placed the case squarely in the top band of R v Taueki and, having regard to comparator cases, warranted a starting point of 11 years’ imprisonment.[3]
[3]R v Taueki [2005] 3 NZLR 372 (CA).
As regards the offence of attempting to dissuade a witness, Collins J said that it clearly required a cumulative sentence, which the Judge fixed at two years’ imprisonment.
The Judge then turned to personal factors. The Judge declined to give any discount on account of the appellants’ ages (20 and 22 years), but said he was prepared to give a discount for the guilty pleas. The Judge said the guilty pleas in his assessment merited a reduction of nine months’ imprisonment, bringing the effective end sentence to 12 years and three months for each appellant.
Finally, Collins J considered whether to impose a minimum period of imprisonment, an issue which he said had caused him the most concern. He said he had decided not to impose any minimum period for the following reasons:
·The appellants were both still young and should be encouraged to do all they could to achieve parole at an early juncture.
·Letters the Judge had received, especially from the appellants’ grandmother, suggested they both had the capacity to respond to prison rehabilitation programmes.
·Neither appellant had any relevant previous convictions.
·The sentence the Judge had imposed was very long and appropriately reflected the need for accountability, denunciation, general deterrence and protection.
Grounds of appeal
The appellants advance three common grounds of appeal, namely:
(a)the two year uplift for the charge of attempting to dissuade a witness was manifestly excessive;
(b)inadequate discount was given for the guilty plea; and
(c)inadequate discount was given for youth.
In addition to the above, Thomas also contends that the starting point of 11 years’ imprisonment on the wounding charge was manifestly excessive.
Discussion
Was the starting point of 11 years’ imprisonment manifestly excessive?
Mr Jefferson accepts on behalf of Thomas Huata that the offending fell within band three of Taueki. However he submits, relying on R v Nathan, that the appropriate starting point was 10 years’ imprisonment, not 11 years.[4]
[4]R v Nathan HC Napier CRI-2008-020-4688, 11 June 2010.
We accept there are some similarities between the two cases and also note that in Nathan (where a 10 year starting point was adopted) the charge was the more serious one of attempted murder. However, the Judge in Nathan identified the range for gang related shootings as being between 10 and 11 years’ imprisonment and indicated that he might have adopted a higher starting point had it not been for parity of treatment considerations as between co-offenders. That would suggest that an 11 year starting point in this case was within range, a view which is reinforced by consideration of the cases of R v Raroa and R v Duncan.[5]
[5]R v Raroa [2012] NZHC 1279; R v Duncan [2012] NZHC 1814.
In Raroa, a single shot was fired from the Mongrel Mob pad towards Black Power members shouting abuse from the street. The person who fired the shot was never identified and Mr Raroa was convicted as a party for having taken the gun to the pad.[6] Justice Lang adopted a starting point of nine and a half years’ imprisonment, stating that a starting point of 11 to 12 years’ imprisonment would have been appropriate for the person who fired the shots. Similarly, in Duncan, Rodney Hansen J said that anything less than a starting point of 11 years’ imprisonment would not adequately reflect the seriousness of the crime where, following an argument with his Mongrel Mob neighbour, a Black Power gang member obtained a gun and fired two shots in quick succession, hitting another Mongrel Mob member. In our assessment, the facts of this case are more serious than either Raroa or Duncan.
[6]The conviction in this case has since been overturned. However, the sentencing approach is nevertheless still relevant for present purposes.
We conclude that the starting point of 11 years’ imprisonment was available to the Judge and appropriate.
Was a two year uplift justified?
Counsel for the appellants acknowledge that an uplift on account of the dissuading a witness charge was justified. However, they submit that while a two year starting point might have been appropriate (albeit at the upper end of the range) on a stand-alone basis, it was excessive when applied to an 11 year starting point. In their submissions, because of totality considerations, which Collins J allegedly failed to address, the proper uplift was no more than one year. Counsel rely on R v Booten, where a three month cumulative penalty for attempting to pervert the course of justice was added to a term of two years three months’ imprisonment in circumstances where, had the perverting the course of justice charge stood alone, it would have warranted a starting point of nine to 12 months.[7]
[7]R v Booten HC Christchurch CRI-2008-009-2362, 28 August 2008.
We do not accept those submissions.
Firstly, it is not correct to state that Collins J failed to address totality when considering the uplift. The Judge expressly stated:[8]
What I must decide is by how much I should increase the 11 year starting point to take account of [the offence of attempting to dissuade a witness], given how serious it was and the requirement that your sentences appropriately reflect the totality of your offending and are not disproportionate.
The Judge later returned to the issue of totality at the conclusion of the sentencing, saying:[9]
Before formally passing sentence I record that I have reflected on the overall appropriateness of the sentence that I have arrived at. I believe that sentence is the least restrictive sentence that I can impose in the circumstances with which I have been presented.
[8]At [14].
[9]At [21].
Secondly, we do not consider an uplift of two years was excessive on the facts. Counsel’s submissions to the contrary are based on an assumption that the benchmark for serious cases is three years and that this was not a serious case. The recent decision of this Court in M (CA469/2013) v R, however, has pointed out that to be consistent with s 8(c) and (d) of the Sentencing Act 2002, the benchmark for serious cases should be higher than three years.[10] Although the threats in this case were not made face to face, they did involve explicit threats to kill. In our assessment, the offending tends towards the more serious end of the spectrum, which would place it at three years at least, probably more. It is a very different case to Booten.
[10]M (CA469/2013) v R [2013] NZCA 385.
Sentencing is not a mathematical exercise and in our assessment an overall starting point of 13 years’ imprisonment for all of the offending in this case was within range.
Was the Judge wrong to refuse to allow any discount for age?
At the time of the offending, James Huata was 20 years of age and Thomas Huata was 22. In declining to allow any discount on account of the appellants’ ages, Collins J had this to say:[11]
Whilst I recognise that James is two years younger than Thomas, and that in some circumstances that might justify an adjustment, in my assessment the ages of you both, and the differences in your age do not warrant any form of discount. You are both young men who have offended in a serious way and you must be treated as adult offenders.
[11]At [17].
On appeal, counsel submit in effect that the Judge allowed himself to be overwhelmed by the seriousness of the offending at the expense of other factors that militated strongly in favour of a discount for youth. They identify those factors as being:
·At 20 and 22 years of age, both appellants are young.
·The appellants have been in employment since leaving school and show potential.
·Neither of the appellants has any relevant previous convictions. Thomas has never been to prison before. James has been to prison before but for only a brief period and for dishonesty offending, not violence.
·The significant number of positive references, including moving letters from extended family, show the offending was out of keeping with the appellants’ general behaviour and good character.
·In the pre-sentence reports, both are recorded as having expressed remorse and a desire to disassociate from the gang.
·The offending reflects the immaturity and impulsivity of youth, in terms of a need to respond to the earlier Mongrel Mob shooting. Because of their age, the appellants were susceptible to the gang culture. James, being the younger of the two, was also susceptible to the antisocial leanings of his older cousin.
·There is a need to avoid imposing a crushing term of imprisonment on young men with prospects of rehabilitation.
·In the case of Thomas Huata, the offending occurred against the backdrop of a series of personal setbacks and tragedies.
In support of these submissions, counsel relied heavily on Duncan which, as mentioned earlier, also involved a gang related shooting. In Duncan, Rodney Hansen J gave a discount of approximately 13.6 per cent of the starting point to one of the offenders, Mr Tahuri, on account of his age and prospects for rehabilitation. Counsel in this case say that unlike Mr Tahuri, the appellants have acknowledged their guilt. Counsel also point out that when Mr Tahuri appealed his sentence, this Court regarded the 13.6 per cent discount as being at the low end of an appropriate range.[12]
[12]Tahuri v R [2013] NZCA 254 at [44].
Counsel submit that a discount for the appellants’ youth of at least 10 per cent should have applied.
As will be readily apparent, the arguments raised by counsel have real force. Clearly, Collins J could not have been criticised had he allowed a youth discount. However, there is no presumption in favour of a discount for youth. It all depends on the circumstances of each case. Having regard to the authorities[13] and the reasons why a discount is given for youth,[14] we have decided that in the circumstances of this case it was a legitimate exercise of the Judge’s discretion to decline to give a discount. We have come to that conclusion after very careful consideration and for the following reasons.
[13]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446; Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868; and R v Rapira [2003] 3 NZLR 794 (CA).
[14]See in particular the discussion in Churchward v R, above n 13, at [77]–[92].
First, the offending in this case was extremely serious and required a strong deterrent sentence. As noted in several cases, the gravity of the offending can outweigh the importance of youth.[15]
[15]Churchward v R, above n 13, at [84]; Pouwhare v R, above n 13, at [83] and [96]; R v Rapira, above n 13, at [153].
Secondly, neither appellant was an impressionable teenager at the time of the offending. We accept that a youth discount is not restricted to those 18 years and under,[16] but the appellants, especially Thomas at 22 years of age, were very much at the upper end of the range. Mr Tahuri appears to have been younger than either of the appellants.
[16]Churchward v R, above n 13, at [98]; Day v R [2010] NZCA 172; R v Fenton [2008] NZCA 379; R v McAllister (2001) 18 CRNZ 606 (CA); and R v Aiolupo CA58/01, 21 June 2001.
Thirdly, and importantly, one of the key rationales for youth discounts is that there are age-related neurological differences between young people and adults. However, these are chiefly relevant where offending is impulsive and spontaneous. Counsel attempted to characterise the offending in this case as impulsive. We disagree. In our assessment, there was a relatively high degree of premeditation. The appellants sourced a gun, drove some distance for the specific purpose of shooting a Mongrel Mob member and drove around Wairoa until they found one. We also note that the earlier shooting, which was the reason for the attack, had taken place a full month earlier. In contrast, in Tahuri the shooting was triggered by an argument that had taken place the same day.
As regards prospects of rehabilitation, while the appellants did not have any relevant previous convictions, they did have criminal histories dating back to 2006.[17] James was sent to prison for possessing instruments for burglary and being in an enclosed yard in May 2011 (after the shooting). Thomas’s convictions were less recent, but included convictions for assault and two breaches of a supervision order the year before the shooting. According to the police summary of facts, when James’ cell was searched in June 2012 following the intimidation of Witness A (only four months before being interviewed by the pre-sentence report writer) documents were discovered containing many references to his commitment to the Black Power organisation. In short, the appellants were far from being immature first time offenders and in the case of James, the younger of the two, his motivation to address his offending based on past responses was assessed as low.
[17]Mr Tahuri also had a criminal record, but the convictions were described as relatively minor.
Finally, we note that it is wrong to say Collins J gave no allowance at all for the appellants’ ages. His decision not to impose a minimum period of imprisonment appears to have been a decision based largely on age. It was a decision which can fairly be described as lenient. It gives the appellants hope of an early release and a real incentive to engage in rehabilitation.
Did the Judge give an insufficient discount for the guilty pleas?
As already mentioned, Collins J reduced the appellants’ sentences by nine months on account of the guilty pleas. In percentage terms, that represents a discount of approximately 5.8 per cent. In giving that discount, the Judge said it would reflect the fact the pleas occurred at the commencement of the trial and that the guilty pleas alleviated the need for the trial to continue.
On appeal, the appellants contend that the discount was inadequate because the Judge failed to take into account and or give proper recognition to the following circumstances:
(a)The fact that it was only on the first day of trial that the Crown was prepared to accept a guilty plea from James to the alternative charge. Up until then it had always stated it would not.
(b)The guilty pleas to the offence of dissuading a witness had been entered within less than three months of the charge being laid. That charge had only been laid in June 2012 and was fast tracked. On its own, the guilty plea to that offence should have attracted a greater discount in the order of 20 to 25 per cent.
(c)It was a big step for the appellants to plead guilty, the first time this had happened in relation to any of the gang shootings, and greater recognition of that was warranted.
(d)The Judge gave inadequate recognition to the savings achieved by the guilty pleas and the benefits gained, especially for witnesses who were spared the ordeal of having to give evidence. Mr Snell said the witnesses would have been terrified of giving evidence and feeling under enormous pressure. An expensive two week trial with special security arrangements was avoided.
In Hessell v R, the Supreme Court said that while there may be cases in which there are significant benefits from a very late plea that warrant a sentence reduction, after a trial has commenced some real justification should be required before any allowance is made.[18]
[18]Hessell v R [2010] NZSC 125, [2011] 1 NZLR 607 at [76].
As to the first of the arguments raised by the appellants, that of course only applies to James, the one who pulled the trigger. The Crown had previously said it would be willing to accept a guilty plea on the alternative charge from Thomas. But in any event, what the Crown said did not preclude either appellant from entering guilty pleas to the alternative charge. That way, they could have acknowledged their actions and proceeded to trial on the issue of intent. Importantly, at no time prior to the trial had either appellant even indicated a willingness to plead guilty to the alternative charge. In those circumstances, we do not consider this argument has merit.
We accept that the Judge has failed to expressly consider whether the guilty pleas to the offence of dissuading the witness were in a different category. Some further discount may possibly have been warranted, but not in the order of 20 to 25 per cent as suggested by counsel. The Crown case in relation to this offence was overwhelming, based as it was on the letters and expert evidence identifying the handwriting as that of the appellants. At no time during the three months did the appellants indicate they were prepared to plead guilty to that offence. Further, as pointed out by Mr La Hood, in the summary jurisdiction there may often be only a short period between first appearance and defended hearing. Yet the principles are the same. A guilty plea on the first day of trial is treated as late and usually deserving only a very modest discount, if any. In this case, pleading guilty to the offence of dissuading a witness would also not, of course, have shortened the trial to any significant extent. Witness A would still have had to give evidence.
Finally, there is the issue of whether a 5.8 per cent discount adequately reflected the extent to which the plea facilitated the administration of the criminal justice system. Counsel emphasised that in gang related offending it is particularly important for the courts to give those who plead guilty a real incentive and argued that Collins J undervalued the benefits of avoiding a gang related trial.
We acknowledge the force of those submissions, although there are also strong countervailing arguments. As Mr La Hood submits, waiting to see if terrified witnesses turn up on the day and then pleading guilty when they do is a strategy that should not be rewarded, at least not in the absence of some prior indication of a willingness to plead guilty. It is also important not to dilute the incentive for pleading at the earliest possible opportunity. For many witnesses, the wait before the trial can be as stressful as the giving of the evidence itself, if not more so. Further, the Crown case was relatively strong.
These are difficult issues which the Judge did not address. However, were we to exercise the discretion afresh, we would have considered only a 10 per cent discount to be appropriate. That would only have resulted in an additional reduction of approximately six months from an end sentence which, while arguably stern, was nevertheless still within range. Appellate intervention in those circumstances would amount to tinkering.
This ground of appeal therefore also fails.
Outcome
The appeals are both dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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