Hubbard v The Queen

[2016] NZHC 1311

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2015-016-000125 [2016] NZHC 1311

BETWEEN

WAIRANGI HAERENGA HUBBARD

Appellant

AND

THE QUEEN Respondent

Hearing:	18 May 2016
Counsel:	M Tarsau for Appellant F Cleary for Respondent
Judgment:	16 June 2016

JUDGMENT OF BROWN J

Introduction

[1]      The  appellant  was  charged  under  s 189(1)  of  the  Crimes Act 1961  with injuring Jade Taylor with intent to cause her grievous bodily harm. After a defended hearing on 9–10 November 2015 before Judge W P Cathcart in the District Court at Gisborne the appellant was convicted of the charge.  On 29 January 2016 she was sentenced to three years’ imprisonment.   The appellant appeals against both the conviction and sentence.

Grounds of appeal

[2]      The notice of appeal dated 29 January 2016 specified the grounds of appeal as follows:

Conviction:   His Honour erred in finding there was sufficient evidence of party liability under section 66(2) of the Crimes Act of the necessary intent of grievous bodily harm.

Sentence:   (a) Sentencing manifestly excessive; (b) Failure to take into account relevant matters.

HUBBARD v THE QUEEN [2016] NZHC 1311 [16 June 2016]

Approach on appeal

[3]      On an appeal against conviction under s 229 of the Criminal Procedure Act

2011 the appeal court must allow the appeal if satisfied that:1

(a)       the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b)      in any case, a miscarriage of justice has occurred for any reason. The appeal court must dismiss the appeal in any other case.

[4]      An appeal against conviction is by way of rehearing.  The approach of the

Court is as explained in Austin, Nichols & Co Inc v Stichting Lodestar:2

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate Court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error of the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[5]      An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011.  Section 250(2) of that Act provides that the High Court must allow the appeal if it is satisfied that:

(a)      for any reason there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should be imposed.

[6]      A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should be

altered but not in a way that amounts to a minor adjustment or ‘tinkering’.   The

1      Criminal Procedure Act 2011, s 232(2).

2      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

Court on appeal must concern itself with whether the end sentence imposed is within range, as opposed to focusing on the process by which the sentence was reached.  In any other case the Court must dismiss the appeal.

The evidence and the Court’s findings

[7]      The thorough oral judgment of Judge Cathcart commenced by explaining the

Crown’s case as follows:3

[2]       The   Crown’s   case   theory   is   that   as   at   7 January 2015,   the complainant,  Ms Jade  Taylor,  owed  the  sum  of  $450  to  the defendant, Ms Hubbard.   The mother of Jade Taylor is the second complainant, Janine Dominey.

[3]       The Crown’s case is that on the day in question, Ms Dominey drove her  daughter  to  an  address  in  Donna  Street  in  Gisborne.    That address  is  occupied  by  Ms Wharekura  Fox,  who  gave  evidence before me on behalf of the defence.

[4]       In giving her evidence, Ms Taylor said that she went to the address to borrow money from Ms Fox.  The Crown’s case is that Ms Taylor, having gone into the address, returned, and remained in the vehicle, sitting in the front passenger seat.  Her mother, Ms Dominey, was the driver and remained in the driver’s seat.

[5]       The Crown alleges then that Ms Fox left the address in her vehicle and returned about five minutes later.   When she returned, the allegation is that Ms Fox was followed by another vehicle, which pulled up at around the same time as Ms Fox returned to her address. This vehicle adopted an unusual parking position by crossing the road and parking bonnet-to-bonnet, facing the vehicle that Ms Taylor and Ms Dominey were inside.

[6]       The  Crown  then  alleges  that  all  three  defendants  and  a  further unknown female got out of the vehicle, practically at the same time. It is then alleged that Ms Hubbard goes to the driver side of the vehicle.   The other three women go to the passenger side of the vehicle.    The  Crown  says  that  Ms Hubbard  makes  demands  of money which, in effect, was a demand from Ms Dominey that she had over $450 to pay for the debt owed by her daughter.  The Crown alleges that that demand to the mother was carried out with words and actions that constituted a demanding with menaces.

[7]       The Crown alleges that the three other women on the passenger side assaulted Ms Taylor.  The Crown alleges that there was a common plan to extract money for the debt by stand-over tactics in relation to the mother, or an alternative plan here, to seriously assault Ms Taylor as a reminder to her that she needs to pay the $450 to Ms Hubbard,

3      R v Hubbard [2015] NZDC 22361.

whether at a personal level, or on behalf of others, including the defendants.

[8]      The Crown’s case was that the other three women took part in the assault on Ms Taylor who, after an initial strike on the head with a spanner, was dragged from the passenger side of the vehicle and severely beaten.  However it was accepted that the appellant remained on the driver’s side of the vehicle.

[9]      The appellant did not give evidence but the prosecution adduced evidence of her interview recorded on a DVD.   With reference to that interview the judgment states:

[96]      In  relation  to  presence  of the  defendants  at  the  scene,  I remind myself that in her interview with the police, Ms Hubbard skirted the issue. But, after the DVD interview was concluded she responded to a question from the police officer.  He asked her if she was there.  She nodded.  There has been no challenge to that admission.

[97]     The defence for Ms Hubbard accept that she was present and at the right side of the vehicle.  They accept that she was the one who could be heard making the various remarks in the 111 call.   The defence for Ms Hubbard, however, is that she was not involved in the assault.

[98]     I  have  considered  the  evidence  of  the  constable  and  the  DVD interview.  It is clear from the interview that Ms Hubbard was underscoring the fact that Ms Taylor owed her money.  She considered that Ms Taylor had “ripped her off”, that everybody had told her about Ms Taylor’s conduct on that  score.    She  was  circumspect  as  to  what  service  Ms Taylor  was  to perform.  However, it was abundantly obvious from her interview that she considered the $450 was due and owing back to her.

[99]      Significantly, when it came to the issue of whether Ms Taylor would be  worthy  of  an  assault  for  not  paying  back  the  money,  the  following question was asked, “It’s a lot of money.  Worth bashing someone over for, you reckon?” Ms Hubbard responded, “Yep”.

[10]     The evidence concerning the 111 call was noted earlier in the judgment in the context of the demanding with menaces charge which was dismissed:

[22]      In the 111 call, Ms Hubbard is heard to say, “We want the fucking money”.  Later, “We want our fucking money or else it’s gonna be fucking worse.”   Further, “She better pay the fucking money anyway or next time it’ll be fucking worser.”  Then a further comment, “I wanna know when the fuck are we gonna get our money.”  It is accepted that Ms Hubbard was the person making those comments.

[11]     The Judge observed at [140] that the 111 call gave insight into the level of aggression exhibited by the appellant and the atmosphere of what was taking place.

[12]     The Judge directed himself on party liability in this way:

[44]      In order to establish party liability basis, the Crown must prove that

– and I deal with a principal offender here:

(a)       A principal  offender  (which  has  to  be  one  of  the  three women  on  the  passenger  side  of  the  vehicle)  injured Ms Taylor.

(b)       That the principal offender injured Ms Taylor with an intent to cause grievous bodily harm.

[45]     Grievous  bodily  harm  means,  in  law,  really  serious  harm,  that seriously  interferes  for  a  time  with  the  health  and  comfort  of  the complainant.

[46]      Given the fact that the Crown cannot establish which one of the three women on the passenger side of the vehicle (according to their case theory) injured Ms Taylor, and that it relies on the fact that all three women were involved, the Crown’s case must rest under ss 66(1) and/or 66(2).

…

[48]     It is accepted that Ms Hubbard remained on the driver’s side of the vehicle.  The Crown alleges that Ms Hubbard encouraged the assault by her words and actions.  She did not physically participate in the assault. Thus, in order to reach a guilty verdict against Ms Hubbard, the Crown would have to prove three things beyond reasonable doubt:

(a)       That  Ms  Hubbard  encouraged,  by  words,  the  principal offender to injure Ms Taylor with intent to cause grievous bodily harm?

(b)       That encouragement in fact assisted or helped the principal offender.

(c)       That  she  intended  to  encourage  the  principal  offender  to commit that offence.

[13]     His conclusion on party liability was as follows:

[142]    I make the following findings in terms of liability:

(a)       There was a common plan to severely assault Ms Taylor over her outstanding debt.  The plan was carried out in the presence of the mother.

(b)       There is a clear inference that there was an unlawful object or criminal plan that was hatched not long before the arrival

of that vehicle which coincided with the departure and return of Ms Fox to her address.  In short, the common purpose or unlawful object was hatched not long before the vehicle arrived at Ms Fox’s address with the defendants.

(c)       I reject the notion that the arrival of the second vehicle was a mere coincidence.   In my view, the arrival of both those vehicles exhibited a concerted action and one that bespeaks that a common plan had been hatched to beat Ms Taylor.

(d)       Also, I am satisfied under s 66(2) that the offence of injuring with intent to cause grievous bodily harm was committed by a principal offender, namely one of the three women on Ms Taylor’s side of the vehicle.

(e)       Also, I am satisfied that there was a shared understanding or agreement between the defendants (which includes Ms Hubbard (and an unknown female) to carry out the criminal plan to severely assault Ms Taylor over the debt.

Appeal against conviction

[14]     The appellant contended that there was insufficient evidence to support the finding of an intention to cause grievous bodily harm having regard to:

·    the nature of the assault;

·    the number of persons involved in the assault;

·    the duration of the assault;

·    the injuries suffered by Ms Taylor; and

·    the use of, or knowledge of, the spanner.

[15]     The submission was made that on a stand-alone basis the repeated blows to the head described in the evidence of Ms Taylor and Ms Dominey, which it was said lacked  specificity,  did  not  show  an  intention  to  cause  grievous  bodily  harm. Secondly, it was said that at its very best the evidence disclosed that only two people assaulted Ms Taylor, but even if the three-on-one severe assault conclusion was

sound, the number of participants did not disclose an intention to cause “really serious harm”.4

[16]     Thirdly, the duration of the assault was only for the period of the 111 call, namely one minute and 35 seconds.  Fourthly, there was no medical evidence offered to determine how Ms Taylor’s injuries were sustained, that is whether the head injuries were consistent with being hit by an object or falling on the concrete or being struck with an open or closed fist.  It was said the bruises and bleeding were not significant injuries, particularly if the victim found it unnecessary to remain in

hospital.5

[17]     Two contentions were advanced with reference to the spanner.   First, the conclusion that a spanner was used was challenged on the basis that only Ms Taylor deposed to its use and, even if the conclusion was safe, there was no evidence as to the size of the spanner or the force applied in its use.  Secondly, it was submitted that there was no evidence that the appellant had knowledge of the spanner.   In those circumstances it was reasonable to conclude that injuring Ms Taylor with a spanner was not a probable consequence of prosecuting the common plan to severely injure Ms Taylor over a debt owed to the appellant.

[18]     Reliance was placed on the observations of the Supreme Court in Edmonds v

R:6

[50]     Where  the  alleged  party  can  be  shown  to  have  known  of  the presence of weapons when the fracas started, it will usually be easy to infer that he or she was party to a common purpose which extended to the use of those weapons.  Whether the common purpose should be treated as confined to such use will depend on the circumstances.

(a)       In some cases, evidence that the alleged party was either carrying a weapon or knew that other members of the group were armed may be the only evidence that the alleged party either: (a) shared the common purpose alleged; or (b) appreciated that the ultimate offence was a probable consequence of its implementation.

(b)       In other cases, the common purpose may be best assessed by reference  to  the  results  the  defendants  intended  to  bring

4      The paraphrase in Vincent v R [2016] NZSC 15 at [14].

5      Ms Taylor discharged herself from hospital against advice.

6      Edmonds v R [2011] NZSC 159, [2012] 2 NZLR 445.

about. Thus the evidence may show that the defendant was a party to a common purpose to inflict serious and potentially life threatening violence in whatever way was convenient, including, say, kicks to the head.  In such a case, the alleged party could still be found guilty of murder even if the fatal injury was inflicted not by kicking but rather with a tyre lever which, unbeknown to that party, one of the other members of the group had brought to the fracas.

[19]     The Judge found that a spanner had been used by one of the three women who actually attacked Ms Taylor:

[129]    … On the evidence, I accept that three of the women, including Charlene Taingahue and Destiny Taingahue, went to Ms Taylor’s side of the vehicle and that Ms Hubbard to the driver’s side.

[130]    Also, I accept as both truthful and reliable, Ms Taylor’s evidence that the spanner was used initially and that she was struck over the head, by one of the three women that I have referred to, on her side of the vehicle.

[131]    Most  importantly,  I  accept  the  evidence  of  both  Ms Taylor  and Ms Dominey,  that  all  three  women  on  Ms  Taylor’s  side  of  the  vehicle, attacked Ms Taylor.  One of them, having dragged her from the vehicle.  It appears quite clear now that that was the defendant Charlene Taingahue.

[20]     So far as concerns the appellant’s submission about the absence of evidence about the size of the spanner or its causing any specific injury, the Crown argued that that involved a misunderstanding of the issue.   It submitted, and I accept, that the fact that one of the assailants took the weapon to the scene and used it to strike the victim to the head was obviously evidence from which it was open to the Judge to infer an intent to cause grievous bodily harm on the part of that assailant.  Attention was drawn to the recognition by the Court of Appeal in R v Taueki that the use of a

weapon is an aggravating factor.7   I agree with the submission that in the same way

the use of a weapon can also be used to elevate the intent held at the time.

[21]     On the issue of the significance of the appellant’s lack of knowledge of the

spanner, the Crown submitted:

25.The injury which formed the basis of the charge was not attributed materially to the spanner.   Ms Hubbard, and the debt owed to her, was the reason for the attack.   The 111 call … shows the level of aggression and vitriol exhibited by that appellant at the time of the attack.  It was clear that she was a party under section 66(2) of this

offending as set out in His Honour’s decision at paragraph [142]– [147].  Knowledge of the spanner on the part of Ms Hubbard is not material to such a finding.  In the passage from Edmonds v R cited by her counsel, Ms Hubbard would be guilty under sub-paragraph (b).8

I agree with that submission.

[22]     I also agree with the Crown’s submission that, in light of Taueki, the fact that an assault is undertaken by a group of attackers elevates the seriousness of any intent.9   When that factor is added to the circumstances of the case, including the fact that blows were directed to the victim’s head while she was prone on the ground, the evidence is more than capable of providing the basis for a finding of an intent to cause grievous bodily harm.  Taueki is also authority for the proposition that even where weapons are not used, attacks on the head of a victim can have particularly serious consequences.10

[23]     With reference to the appellant’s third and fourth points, the requisite intent can be present in a severe assault of short duration but in any event the duration of the assault has to be weighed with the other factors including the nature of the assault and the number of assailants.   Further, my impression is that the Judge’s reliance on the injuries suffered was simply to highlight the fact that Ms Taylor’s injuries were consistent with her evidence as to the circumstances of the assault. The fact that the injuries indicated a relatively significant attack to the head area was a matter on which the Judge was able to base a finding that there was a repeated attack to the head with corresponding intent.

[24]     In my view the cumulative effect of the several factors present in this case provided ample evidence to justify an inference that at least one of the three women who were directly involved in the assault on Ms Taylor intended to cause her really serious harm.  There was no error in the Judge’s approach and I have come to the

same conclusion.

8      Edmonds v R, above n 6, at [50](b).

9      R v Taueki, above n 7, at [31](h).

10     At [31](e).

[25]     Finally,  I  note  the  submission  for  the  appellant  that  after  hearing  and dismissing a s 147 application advanced on behalf of the appellant, the Judge queried his ability to substitute the charge.  The proposition was advanced that the fact and timing of that enquiry demonstrated that the Judge may have entertained the notion of a lesser charge, which it was thought served to support the submission that the Crown evidence was insufficient to prove the necessary intent.  On this point I agree with the Crown’s response that the fact that the Judge invited submissions on intent demonstrated the careful manner in which he approached the matter and did not equate to some concession or acknowledgement that there was insufficient evidence to find the requisite intent.

Appeal against sentence

[26]     The Judge selected a starting point of three years’ imprisonment in relation to one of the three assailants, Ms Charlene Taingahue.  With reference to the appellant he said:11

[21]     …You were found guilty on the basis that you were a party to that common plan to severely assault Ms Taylor.  For you, Ms Hubbard, it is said that you were not involved in the actual physical assault and that therefore there should be some recognition of a different starting point for you.

[22]      Ms  Hubbard,  the  money  was  owed  to  you.    I  listened  to  your interview.  You were emphatic that that money needed to be paid.  You were angry about it.  In my view, the plan was hatched because you were the one who had the motivation to ensure payment was received.  For that reason, I do not consider that there is any logical or principled basis to make any distinction between the two of you as to the appropriate starting point.

[27]     On the issue of potential mitigating factors, the Judge commented:

[26]      You are 20 years of age, Ms Hubbard.  It is said that there should be recognition of the fact that you are therefore still youthful.  It is accepted that the principles about youth can apply to those older than 18.  However, there is little in the material before me to suggest that you, who stand now as an adult  in  society,  should  be  given  a  further  discount  for  your  youthful position.  I therefore decline a deduction for that factor.

[28]     While it was acknowledged that party liability applied, the point was made that  Ms Charlene Taingahue,  who  also  received  a  starting  point  of  three  years’

imprisonment,12   had  been  directly  involved  in  Ms Taylor’s  assault,  whereas  the appellant had not.   Hence it was submitted that there was a principled basis for recognising a lower starting point with reference to the appellant.

[29]     However, I accept the Crown’s submission that, while the appellant did not actively participate in the assault, she was in effect the instigator of the incident, being a creditor who was strongly motivated to recover a debt, as clearly demonstrated by her threatening behaviour captured in the course of the 111 call.

[30]     I agree with the Judge that in the circumstances there was no logical or principled  basis  to  distinguish  between  the  starting  point  for  the  appellant  and Ms Taingahue.

[31]     Mr Tarsau  submitted  that  three  personal  mitigating  factors  in  particular should have been taken into account, namely the appellant’s youth, her previous good character and prospects of rehabilitation, and the fact that she has two children aged one and three years.

[32]     On  the  issue  of  youth,  the  Crown  made  the  point  that  at  the  time  of sentencing, Ms Hubbard was in fact aged 21 years and 10 months.  She had three previous convictions, outstanding fines of $7,652.48, two children and had appeared before the Court on numerous breaches of bail while awaiting trial on the charge for which she was convicted.  The Crown submits, and I accept, that the appellant was well past the point at which she could invoke youth in support of a discount.

[33]     The Crown expressed surprise that the appellant should contend that there should be a discount for previous good character, noting her poor compliance with bail in respect of the present offending, the fact that the first pre-sentence report noted the appellant was said to have expressed no remorse, while the second report stated that the appellant still held the victim to account and showed little remorse. Although I recognise that the Judge did not expressly address the issue of rehabilitation in the context of the appellant, I do not consider that there was any error in failing to allow a discount on that account.

[34]     I recognise that the Judge did not refer in his sentencing notes to the fact that the  appellant  has  two  children,  although  Ms Tarsau’s  submissions  very  fairly acknowledged that that point was not advanced as a relevant factor in sentencing.  A sentence of imprisonment will invariably cause hardship to an offender’s family and dependants, but such hardship is not generally a factor making a sentence disproportionately severe.   It was the understanding of counsel for the Crown that the appellant’s children are currently in the care of the appellant’s parents.   The submission was made that were a discount to apply in this case on account of the fact that the appellant has two children, then it would almost universally apply to any parent sentenced to imprisonment, which would be an error of principle.   I acknowledge the strength of that submission and I do not consider that there was error on the part of the Judge in failing to allow a discount on that account.

Disposition

[35]     The  appellant’s  appeal  against  conviction  is  dismissed.    The  appellant’s

appeal against the sentence of three years’ imprisonment is also dismissed.

Brown J