Lacey v The King

[2025] NZHC 224

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-47

[2025] NZHC 224

BETWEEN

PETER LACEY

Appellant

AND

THE KING

Respondent

Hearing:	11 February 2025
Counsel:	T Epati & J L Butcher for Applicant M J R Blashcke for Respondent
Judgment:	19 February 2025

JUDGMENT OF CHURCHMAN J

[Appeal against conviction and sentence]

Introduction

[1]    Peter Lacey (the appellant), was found guilty on some seven charges, following a Judge alone trial in the District Court.1 He was sentenced on 13 May 2024 to concurrent terms of eight years and three months’ imprisonment, calculated as follows:2

(a)kidnapping (eight years three months’ imprisonment);3

(b)unlawful possession of a firearm (six months’ imprisonment);4

1      Police v Waitaiki [2023] NZDC 20675.

2      R v Lacey [2024] NZDC 10759.

3      Crimes Act 1961, ss 209 and 66(2) — maximum penalty of 14 years’ imprisonment.

4      Arms Act 1983, s 45(1); and Crimes Act 1961, s 66(2) — maximum penalty of 4 years’ imprisonment or a $5,000 fine.

LACEY v R [2025] NZHC 224 [19 February 2025]

(c)unlawful possession of explosives (six months’ imprisonment);5

(d)wounding with intent to cause grievous bodily harm (eight  years three months’ imprisonment);6

(e)strangulation (two years’ imprisonment);7

(f)threatening to kill (two years’ imprisonment);8 and

(g)aggravated robbery causing  grievous  bodily  harm  (eight  years three months’ imprisonment).9

[2]    The appellant now appeals his conviction in respect of only one of the charges, the aggravated robbery charge, on the grounds that the Judge erred in finding there was sufficient evidential basis for his secondary party liability.

[3]The appellant also appeals against his sentence on the grounds that:

(a)the starting point was  too  high  on  the  incorrect  assessment  that Mr Lacey was the lead offender;

(b)the discrete uplift was wrongly applied to the starting point for the firearms charges;

(c)there was insufficient credit for his personal mitigating factors; and

(d)if the appeal against conviction is allowed, further reduction on sentence should be made to reflect the fact that Mr Lacey did not participate in the offence of aggravated robbery.

5      Arms Act 1983, s 45(1); and Crimes Act 1961, s 66(2) — maximum penalty of 4 years’ imprisonment or a $5,000 fine.

6      Crimes Act 1961, ss 188 and 66(2) — maximum penalty of 14 years’ imprisonment.

7      Sections 189A(b) and 66(2) — maximum penalty of 7 years’ imprisonment.

8      Sections 306 and 66(2) — maximum penalty of 7 years’ imprisonment.

9      Section 235 and 66(2) — maximum penalty of 14 years’ imprisonment.

The offending

[4]    The appellant was charged with two co-defendants, Mr Waitaiki and Mr Houia. The events leading to the offending arose out of a dispute between the mother of    Mr Waitaiki and the brother of the complainant about money allegedly owing by the complainant’s brother to Mr Waitaiki’s mother. Mr Waitaiki is the appellant’s son. Mr Waitaiki’s mother is the appellant’s former partner. The appellant, Mr Waitaiki and Mr Houia are all patched Mongrel Mob members.

[5]    At approximately 10:30 pm on 29 December 2021, Mr Waitaiki messaged the victim and asked for a ride to an address in Lower Hutt, where Mr Houia was present. The victim is a taxi driver and has previously helped Mr Waitaiki when asked for a ride. Mr Waitaiki left the Lower Hutt address with Mr Houia. The victim asked to go home after Mr Waitaiki showed the victim a sawn-off shot gun. The victim then drove Mr Waitaiki and Mr Houia to the appellant’s address in Porirua. The appellant was present at this address when they arrived.

Kidnapping

[6]    When the group arrived in Porirua, Mr Waitaiki and Mr Houia told the victim to go inside the house. When the victim refused, Mr Waitaiki said that the victim had to go with him, otherwise he would not let the victim go. The appellant was inside the house at this point and after the victim and defendants went inside, the appellant locked the sliding door.

Unlawful possession of a firearm and ammunition

[7]    Mr Waitaiki took the sawn-off shot gun out of a duffel bag and showed it to the appellant. The appellant took the shotgun and began loading it with ammunition taken from the duffel bag. Neither Mr Waitaiki nor the appellant possessed a firearms licence. The cutting down of the shot gun barrel makes the possession of the firearm unlawful.

Wounding with intent to cause grievous bodily harm.

[8]    The victim wanted to leave and tried to walk out of the house, but Mr Waitaiki and the appellant pushed him back and said he could not leave. In the appellant’s presence, Mr Waitaiki called his mother, telling her they had the victim.  She told  Mr Waitaiki not to let him go and to f… him up. The appellant then went and fetched a number of weapons. The three defendants then inflicted a number of assaults on the victim over a 25 to 30-minute time period. The victim was punched, kicked, struck numerous times with a baseball bat and hammer, cut with a knife, stabbed with a screw driver and stabbed with a pair of scissors.

Strangulation

[9]    Mr Waitaiki put his arm around the victim’s neck and applied significant force to the neck and throat area. He squeezed the victim’s neck for several minutes, until the victim’s vision was affected, and he could no longer breath.

[10]   The appellant used a pair of scissors to forcibly poke the victim in the left knee and his elbows, causing small cuts.

[11]   The appellant punched the victim on the left side of the victim’s face several times, with a closed fist. The victim began to bleed heavily and the appellant then ordered the victim to clean up the house. He punched the victim several more times after the victim said he could not clean up the house, as he had blood in his eyes.

[12]   The appellant told the victim he needed his car keys. The defendants began cutting the victim’s trousers with a knife to locate his car keys. The defendants also took the victim’s mobile phone. The appellant then realised that the other defendants and the victim had travelled to his address in the victim’s taxi and that the taxi would have a camera in it. The appellant told Mr Houia and Mr Waitaiki to deal with the CCTV camera in the taxi.

Aggravated robbery with intent to cause grievous bodily harm and threatening to kill

[13]   Mr Waitaiki and Mr Houia went out to the victim’s vehicle while the appellant remained inside continuing to assault and threaten the victim but they were unable to

remove the CCTV camera or disable it. They went through the taxi and stole anything of value including some $500 cash, a bottle of wine and some cigarettes.

[14]   The appellant’s assault of the victim included punching the victim, stabbing the victim’s head with a knife and kicking the victim in the ribs. He also held the knife against the victim’s throat and threatened to kill the victim and his family if the victim went to the police.

District Court Decision

Kidnapping, wounding with intent to cause grievous bodily harm and strangulation

[15]   In regard to the kidnapping charge, Judge Johnston accepted the complainant’s evidence that the appellant closed the sliding door and the curtains to detain the complainant. He found that the appellant escalated the situation when he brought, from another room, the weapons the defendants used to assault the victim. The defendants satisfied the elements for kidnapping as they each intended to detain the complainant, they knew the victim did not consent to being detained, the defendants detained him to take away his ability to control where he went, and stopped the victim from escaping so that they could seriously assault him.

[16]   In addressing the grievous bodily harm charges, the Judge held that the elements for the charge was satisfied. The complainant was wounded on the head. The severe nature of the wounds and the other injuries across the victim’s body provide a strong inference that the offenders must have intended to cause grievous bodily harm. Although the Judge could not ascertain the principal offender, the defendants were liable as parties because they were executing a common purpose to seriously assault the victim with weapons.

[17]   For the strangulation charges, the Judge accepted the victim’s evidence that Mr Waitaiki was the principal offender while the appellant held the victim’s hands behind his back during the event. The strangulation was a continuation of the earlier assault and was committed in the course of pursuing a common purpose of seriously assaulting the complainant. The defendants committed the strangulation with the knowledge that it would be a probable consequence of pursuing the common purpose.

[18]   The Judge was satisfied that the defendants helped each other to achieve the common and unlawful purpose of seriously assaulting the complainant. The defendants intended that the kidnapping, strangulation and wounding with grievous bodily harm would be a probable consequence of carrying out the common purpose.

Aggravated robbery

[19]   The Judge treated Mr Waitaiki as the principal offender and the appellant as a party to the aggravated robbery.

[20]   The Judge accepted there was a shared understanding between the defendants to seriously assault the complainant, deal with the CCTV camera and gain retribution by robbing the complainant’s vehicle. The grievous bodily harm to the victim was proximate to the time of the robbery.

[21]   The retribution was intended to compensate Mr Waitaiki’s mother who claimed she was not paid the last few weeks of wages before she was dismissed from her job by the victim’s brother. The Judge rejected the appellant’s claims he was not aware of the financial dispute. The Judge noted that the appellant would have appreciated that robbing the vehicle was a probable consequence of instructing the other defendants to deal with the CCTV camera, while the appellant assaulted the complainant.

Unlawful possession of a firearm and explosives

[22]   The Judge accepted the complainant’s evidence that Mr Waitaiki showed off the gun to the appellant who proceeded to load cartridges into the firearm. The Judge held that the appellant unlawfully possessed a firearm and explosives and had pointed a loaded firearm at the complainant.

Threatening to kill

[23]   The Judge accepted the complainant’s account that the appellant threatened to kill him and his family to dissuade him from going to authorities. The appellant had made the threats while holding a knife to the complainant’s throat.

Sentencing decision

[24]   For the wounding with intent to cause grievous bodily harm charges, the Judge placed the case within band three of R v Taueki.10 The Judge identified extreme violence, the use of weapons, the attack to the head and multiple attackers as relevant aggravating factors.

[25]   For the aggravated robbery charges,  the Judge considered the guidance in    R v Mako.11 The relevant aggravating factors were the use of violence, the associated offending and impact on the victim. The Judge identified factors which made the victim vulnerable, including the victim being a sole driver and being attacked at night after responding to a request for ride services by Mr Waitaiki.

[26]   For the kidnapping charges, the Judge noted that while there was no guideline judgment, R v Liev discusses various circumstances the Court may examine for sentencing, including the length of detention, extent of pre-mediation, the number of offenders, gang involvement and the level of violence involved.12 In Liev, Palmer J considered cases involving aggravated violence as having justified starting points of 10 years’ imprisonment or more while cases involving moderate or less violence tend to have starting points from around three years to seven years.

[27]   For the strangulation charges, the Judge relied on the aggravating factors identified in Shramka v R.13 The factors relevant to the current offending included the vulnerability of the victim who was on his own and outnumbered and the aggravated violence occurring beforehand.

[28]   For the current offending, the Judge identified the following aggravating factors as relevant: extreme violence, serious injury and attack to the head, detention, use of weapons and premeditation. The Judge accepted that premeditation was less relevant for the appellant than the other two defendants. There were no mitigating factors relevant to the offending.

10     R v Taueki [2025] NZCA 174, [2005] 3 NZLR 372.

11     R v Mako [2000] 2 NZLR 170 (CA).

12     R v Liev [2017] NZHC 2253.

13     Shramka v R [2022] NZCA 299; [2022] 3 NZLR 348.

[29]   For the starting point, the Judge focused on the extreme violence which featured in the offending rather than the robbery component of it. The Judge relied on Police v Zafiri as a proposition for this approach.14 Although the appellant did not participate in the initial assault against the victim nor participate with the same degree of premeditation as the other defendants, the Judge considered that the appellant had an important role in intimidating the victim across the course of the offending. The appellant also escalated violence towards the victim through the introduction of weapons, threatening to kill him, and loading a firearm and pointing it towards the victim. The Judge applied a starting point of 10 and a half years’ imprisonment, with an uplift of six months’ imprisonment for the firearms offending.

Approach to appeal

[30]   In a first appeal against conviction, the Court must allow an appeal if it is satisfied that the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred or where a miscarriage of justice has occurred for any reason.15 The Court must dismiss the appeal in any other case.16 If the appeal is allowed, the conviction must be set aside.17 The Court may direct a judgment of acquittal be entered, direct a new trial be held, or substitute a conviction for a different offence or make any other order it considers justice requires.18

[31]   A miscarriage of justice is any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in a unfair trial or a trial that was a nullity.19 A real risk that the outcome was affected exists where there is a reasonable possibility that a not guilty or more favourable verdict must have been delivered if nothing had gone wrong.20 An unfair trial exists when errors are prejudicial or unacceptably give rise to the appearance of unfairness,21 although not every departure from good practice renders a

14     Police v Zafiri HC Auckland CRI-2010-404-316, 16 November 2010.

15     Criminal Procedure Act 2011, s 232(2)(b)–(c).

16     Section 232(3).

17     Section 233(2).

18     Section 233(3).

19     Section 232(4).

20     R v Sunsuwan [2006] 1 NZLR 730 (SC) at [110].

21     R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78] citing with approval Randall v R [2002]. UKPC 19, [2002] 1 WLR 2237 at [28].

trial unfair.22 For a miscarriage to be found, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate Court must condemn the trial as unfair and quash the decision.23

[32]   An appeal against sentence is an appeal against discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.24 The Court must dismiss the appeal in any other case.25

Submissions

Appellant’s submissions

(a)Appeal against conviction

[33]   The appellant submits that the evidence does not support the finding that aggravated robbery was a ‘probable consequence’ or a ‘logical inference’ of the appellant instructing Mr Waitaiki to deal with the CCTV camera.

[34]   Counsel submits that the  appellant  was  not  aware  of,  nor  involved  in,  Mr Waitaiki’s  general  plan  to  question  the  victim  about   the   issue  between  Mr Waitaiki’s mother and the victim’s brother. Unlike Mr Waitaiki, the appellant had no prior or subsequent contact with the victim or his family.

[35]   The appellant claims his involvement was limited to the violence perpetrated against the victim. There was no suggestion by the victim, or the other witnesses in the trial, that the appellant was motivated financially to assist with the assault. The appellant submits that the evidence does not support the Judge’s findings and therefore, the conviction of aggravated robbery should be quashed.

(b)       Appeal against sentence

22     Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].

23     R v Condon, above n 21, at [78], citing with approval Randall v R, above n 21, at [28].

24     Section 250; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

25     Criminal Procedure Act, s 250(3).

[36]The appellant appeals his sentence based on the grounds that:

(a)the Judge erred in finding the appellant was the lead offender. As a result, the starting point of 10.5 years’ for sentencing was too high;

(b)no discrete uplift should have been given for the firearm offending; and

(c)there was insufficient weight given to personal mitigating factors.

[37]   The appellant submits that these grounds, both cumulatively and separately, resulted in the sentence of eight years and three months being manifestly excessive.

[38]   For the first ground, the appellant submits that the Judge placed too much emphasis on the fact that the appellant introduced weapons to the assault. The appellant contends that the introduction of the weapons is one aggravating factor that must be considered in light of other factors, such as his lesser involvement in the duration of the offending and the lack of premeditation. The appellant also points to the fact that it was accepted at trial that it was difficult to ascertain who used what weapon and who was responsible for particular injuries.

[39]   The appellant submits that a starting point of eight years is more appropriate than 10.5 years, relying on R v Tie and Cook v R.26 In Tie, four defendants were sentenced for kidnapping, blackmail and the beating of two men. One of the defendants, Mr Romana, was not involved in the initial plan but played a ‘prime role’ in the violence during the offending. A starting point of five and a half years with a totality adjustment of 15 months to reflect other offending and previous convictions bought the overall starting point to seven years’ imprisonment. Counsel likened the appellant’s overall violent offending to Mr Romana’s offending but acknowledged the appellant used weapons and threatened to kill the victim.

[40]   In Cook, the primary co-defendant pleaded guilty to wounding with intent to cause grievous bodily harm, aggravated robbery and using a document. The starting point was seven years and six months’ imprisonment. The complainant in Cook

26     R v Tie [2012] NZHC 2517; and Cook v R [2010] NZCA 87.

arrived at an address and was repeatedly assaulted by a number of people. The complainant had lacerations to the mouth and facial area, a broken shin and ankle and stab wounds to the back and hands. The co-defendants stole the complainant’s wallet and forced him to tell them his pin number for his ATM cards. One of the co-defendants, Mr Steedman, received a starting point of seven years and six months’ imprisonment for premeditation (he waited inside the house for the complainant to arrive) and inflicting most of the violence. In the present offending, Ms Butcher submitted that the level of injuries and violence in Cook was far more severe. Counsel submits that the appellant’s offending does not warrant a starting point of three years higher than what was adopted for Mr Steedman.

[41]   On the second ground, the appellant submits that there was insufficient evidence for the Judge to apply a discrete uplift on the basis that the gun was used to threaten the victim in a manner that was intimidatory and dangerous. The appellant further submits that the uplift was an element of double counting because the Judge had already considered in determining the starting point that there was the use of weapons, threats to kill and intimidatory behaviour.

[42]   On the third ground, the appellant submits that a 10 per cent discount does not adequately reflect the appellant’s personal mitigating factors. The appellant has had a history of sexual and physical abuse, addiction, limited education, methamphetamine addiction and socioeconomic deprivation. At the time of sentencing the Court had available a comprehensive s 27 report as well as two Alcohol and Drug Assessment and Counselling reports (ADAC) which noted that the appellant may have post- traumatic stress disorder (PTSD). Since the trial, the appellant has recently been diagnosed with PTSD.

[43]   The appellant seeks leave to adduce on appeal a report from a clinical psychologist, Dr Shelly Lomas, to support the diagnosis. With reference to Lundy v R, the appellant argues that the evidence is fresh, relevant and directly engages with the arguments raised on appeal because the psychiatric report would confirm the findings in the s 27 report.27

27     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

[44]   The appellant also contends that if the Court finds that the appellant was not a party to the aggravated robbery, his sentence should be adjusted to reflect his lack of participation and the Court ought to reduce one year from the starting point.

Respondent’s submissions

(a)Appeal against conviction

[45]   The Crown submits that it is unrealistic for the appellant not to expect the other defendants, who are patched Mongrel Mob members, to restrain themselves to only deal with the CCTV camera and leave the victim’s other property untouched.

[46]   The Crown argues that the appellant cannot point to any other accepted evidence that undermines the Judge’s conclusions, regardless of whether the trip to the car was to deal with the CCTV camera. The Judge was able to find the appellant guilty of aggravated robbery, even if the appellant did not specifically instruct the other defendants to take property from the victim’s car.

[47]   The Crown argues that it could be inferred that the appellant intended for the other defendants to take any property they could to achieve compensation or retribution, which was part of the overall common purpose.

(b)       Appeal against sentence

[48]   The respondent submits that the sentence was not manifestly excessive. The Crown submits that the starting point was appropriately placed within band three of Taueki (9-14 years) and the addition of another year was justified to reflect the additional offending that occurred. The Crown notes that the defendant’s possession of a loaded firearm aggravated the detention aspect because the victim would have known that he could be shot if he tried to run. The respondent highlights that the Judge could have also made a separate uplift for the threat to kill the victim when the appellant held a knife to the victim’s throat, but did not do so.

[49]   The respondent submits that the Judge was justified in concluding that the appellant was the lead offender. The respondent submits that the Judge was correct in

finding that the appellant’s decision to introduce multiple weapons into the assault was an aggravating factor. The difference in starting points adopted for the appellants was justified in light of their role in the offending.

[50]   The Crown relied in particular on two authorities to support the proposition that the starting point of 10 years and five months’ imprisonment was within the appropriate range. In Couper v R, the defendant had a starting point of nine years for “a less serious case” of kidnapping and wounding with intent to cause grievous bodily harm.28 In Kreegher v R, the two primary offenders received a starting point of nine years for kidnapping, wounding with intent to cause grievous bodily harm and aggravated robbery.29

[51]   Counsel relies R v Liev as guidance on sentencing for kidnapping generally. In R v Dixon, the Court adopted a starting point of 16 years for kidnapping and assault on two occasions.30 R v Ohlson —relating to Dixon’s co-defendant — the starting point was 10 years and six months.31 Lang J considered a reduced starting point in light of the defendant participating in the incident for a shorter amount of time but also weighed this against Ohlson inflicting a serious injury and threatening to kill the victim if the victim went to the police.

[52]   The defendants received a 15- and 16-year starting point in R v Hourigan for a more serious case of kidnapping and torturing of the victim.32 Katz J adopted a 15-year starting point for Kea, who was “not the lead offender, but a willing henchman and participant in the offending … involved in many of the assaults against the victim and … also aided and abetted Mr Hourigan’s extreme violence against the victim.”

[53]   Mr Blashcke also refers to R v Tregidga whereby a starting point of 10 years was adopted for luring a victim to a house and attacking the victim while the victim was tied up.33 The defendant joined in on an assault by burning the victim with a cigarette. Counsel distinguishes the appellant’s case from Tregidga on the basis that

28     Couper v R [2017] NZCA 588.

29     R v Kreeger [2021] NZCA 22, (2021) 29 CRNZ 622.

30     R v Dixon [2021] NZHC 3490.

31     R v Ohlson [2021] NZHC 3499.

32     R v Hourigan [2020] NZHC 2753.

33     R v Tregidga [2021] NZHC 3498.

the appellant used more serious weapons against the victim, threatened to kill the victim and committed aggravated robbery.

[54]   The Crown submits that the circumstances of the offending, the specific and ‘chilling’ threat to kill, the appellant’s use of the firearm and the aggravated robbery justified a higher starting point than the one reached in Taueki. The Crown concludes that the appellant’s starting point was appropriately higher than the starting point in Ohlson, Tregidga, Kreegher, and Couper. The Crown asserts that these authorities provide support for the conclusion that the appellant’s starting point was not outside the available range, nor did it lead to a manifestly excessive sentence.

[55]   In relation to the adjustments for personal aggravating and mitigating factors, the Crown submits that it was open to the Judge to impose a six-month uplift, given that the appellant was on EM bail at the time of offending and because of his previous convictions.  The Crown adds that the Judge generously awarded the appellant a   five per cent discount for remorse, despite him not pleading guilty at the trial or even accepting that he had done what the Court had found to have been the case and that a mere assertion of remorse was insufficient for a remorse discount. The Crown submits that the Judge’s refusal to grant an uplift and the remorse discount would offset any personal mitigating factors that were not adequately accounted for.

[56]   Although the Crown did not explicitly challenge the admissibility of the psychological report from Dr Lomas, the Crown submits that the Judge applied a    20 per cent allowance and five per cent allowance for remorse to address factors covered in the additional report. Mr Blashcke notes that the Judge could infer from the existing material at the time of trial that the appellant’s background and upbringing had real ongoing impacts on offending. If the report was available to the Judge, the Crown submits that the same level of discount would have been available but described differently.

[57]   Overall, the Crown submits that the sentence is not manifestly excessive because there was no guilty plea nor “real acceptance of responsibility” for the offending. The decision of the Judge to not grant an uplift for the appellant’s prior

convictions and offending whilst on bail offsets any hypothetical error in the starting point.

Appeal against conviction of aggravated robbery

[58]The applicant was charged with an offence under s 235(a) which states:

Everyone is liable to imprisonment for a term not exceeding 14 years who—

(a)robs any person and, at the time of, or immediately before or immediately after, the robbery, causes grievous bodily harm to any person; or

[59]   The appellant was also charged as a party under s 66(2) of the Crimes Act 1961. The majority of the Supreme Court in Ahsin v R outlined the requirements of s 66(2) which must be proved beyond reasonable doubt, as being:34

(a)the offence to which the defendant is alleged to be a party was committed by a principal offender; and

(b)there was a shared understanding or agreement to carry out something that was unlawful; and

(c)the person(s) accused of being parties to that agreement had all agreed to help each other and participate to achieve their common unlawful goal; and

(d)the offence was committed by the principal in the course of pursuing the common purpose; and

(e)the defendant intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the essential facts of the offence [emphasis added].

[60]   I accept the Judge’s findings that Mr Waitaiki was the principal offender in relation to the aggravated robbery. The defendants shared an understanding and

34     Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [102].

agreement of a common unlawful purpose to seriously assault the victim and exact retribution from him for his brother’s action in relation to Mr Waitaiki’s mother and they agreed to help each other in pursuit of this unlawful purpose. The aggravated robbery was committed in the course of pursuing the common purpose.

[61]   The primary issue is whether the aggravated robbery was a probable consequence of carrying out the common purpose. The test to determine knowledge of a “probable consequence” is dependent on whether the defendant knew that the commission of the offence was a “substantial or real risk” or an event that “could well happen in the prosecution of the common unlawful purpose”.35

[62]   For the purposes of s 66(2), the knowledge element may be satisfied if the defendant is wilfully blind to the risk of the commission of an offence.36 The Court of Appeal in R v Martin noted that wilful blindness occurs when a secondary party had their suspicious aroused as to the relevant facts but deliberately shuts her or his eyes to the obvious or abstains from making further inquiry because she or he wanted to remain in ignorance.37

[63]   Therefore, the appellant’s knowledge is relevant to the extent of whether there was a “probable consequence” that Mr Waitaiki and Mr Houia would do something unlawful to the victim’s car following the instruction by the appellant to deal with the CCTV camera.

[64]   I do not accept the submission of Ms Epati that the appellant was not a party to the aggravated robbery because his “…sole focus was on ensuring that the camera was ‘sorted out’, nor do I accept that the appellant was not aware of Mr Waitaiki’s general plan to extract retribution from the victim about the financial dispute between the victim’s mother and Mr Waitaiki.

[65]   I accept that the appellant knew that there was a financial dispute between  Mr Waitaiki’s mother and the victim’s brother. As noted by the Judge, the appellant was present in the lounge while Mr Waitaiki called Mr Waitaiki’s mother on speaker

35     R v Gush [1980] 2 NZLR 92 (CA) at 94.

36     R v Hubbard (1990) 6 CRNZ 80 (HC) at 85.

37     R v Martin [2007] NZCA 386, at [10]–[11].

phone. The appellant clearly knew that there was a  substantial  and  real  risk that Mr Waitaiki and Mr Houia would either remove or damage the CCTV camera. That action was directly connected to their overall purpose of exacting retribution from the victim for the actions of his brother. They were attempting to conceal or destroy evidence of their activities.

[66]   The appellant would also have known that there was a real possibility that  Mr Waitaiki and Mr Houia would remove anything of value found in the vehicle given the nature of the dispute between Mr Waitaiki’s mother and the victim’s brother. In relation to the submissions of Ms Epati, it is irrelevant whether the appellant was ‘financially motivated to assist with the assault’. The joint purpose went well beyond simply assaulting the victim.

[67]   In light of the evidence presented at trial, the appellant’s knowledge as to whether he knew an aggravated robbery could well happen can be characterised as at least wilful blindness. Regardless of the appellant’s motivation, he would have shut his eyes to the obvious that Mr Waitaiki wanted financial retribution for his mother. The applicant had an important role in the aggravated robbery: The appellant’s actions in detaining and assaulting the victim directly assisted Mr Waitaiki and Mr Houia in attempting to remove or damage the CCTV camera and remove the other items from the car.

[68]   Overall, the appellant possessed the requisite knowledge that an aggravated robbery was a probable consequence of pursuing the common purpose of seriously assaulting the victim during an attempt to seek retribution from the victim for his brother’s alleged actions.

[69]   It is also clear that the appellant would have been aware that Mr Waitaiki and Mr Houia would attempt to remove the camera from the victim’s taxi. When the victim was cross-examined about why Mr Waitaiki and Mr Houia went out to the car the victim’s response was to say ‘they’re going to try to remove that camera or break [it].’

[70]   The removal of the camera would have amounted to theft. The accompanying violence makes it aggravated robbery. The fact that the co-defendants were unsuccessful in removing the camera is irrelevant.

Appeal against sentence

Ground one: Starting point

[71]   The Judge correctly identified that the appellant’s offending as falling within band three identified in Taueki. The Judge was correct in identifying the relevant factors, such as the use of extreme violence, the use of weapons, an attack to the head, multiple attackers, and vulnerability of the victim.

[72]   I acknowledge that the starting point for kidnapping in Liev was lower but the lead offence for the purposes of this sentence is wounding with intent to cause grievous bodily harm, not kidnapping. The kidnapping occurred against the overall background of the wounding charge. Therefore, I accept that the Judge was correct to assess the starting point primarily with reference to Taueki.

[73]   I reject Ms Butcher’s submission that the appellant’s offending falls within band two of Taueki. Although I acknowledge that the appellant was less involved across some aspects of the overall offending and could not be said to have had premeditation in respect of the assault, these factors are outweighed by the appellant’s introduction of weapons to the offending and threatening to kill the victim on multiple occasions. The appellant was responsible for the increased severity of the injuries suffered by the victim and continued  to  assault  the  victim  after  Mr  Houia  and Mr Waitaiki went outside to deal to the camera in the taxi. Although the appellant did not own or bring the firearm to the scene of the offending, he was the one who used the gun with the intent of intimidating the victim.

[74]   In addition to the Judge’s explanation for the relevant aggravating factors, I also note that the appellant attempted to pervert the course of justice by using violence and threats to stop the victim from going to the police. He also inflicted an injury that has resulted in an ongoing impact on the victim’s enjoyment for life, namely the large

scar on the victim’s forehead which serves as a ‘permanent reminder every time he looks in the mirror.’

[75]   Overall, these factors justify a starting point in the lower range of band three of Taueki.

[76]   I further note that the case of Tie relied on Ms Butcher, which had a starting point of five and a half years for kidnapping, blackmail and assault, lacked the use of weapons, the infliction of grievous bodily harm, strangulation and the threats to kill. For these reasons, I do not accept that the ‘overall level of violence’ in Tie is comparable to the current case.

[77]   I accept that the victim’s injuries in Cook, although different to those sustained by the victim here, are of a similar magnitude. However, the role of the defendant in Cook was significantly different to that of the appellant here. The Court of Appeal notes the sentencing Judge in Cook as describing Ms Cook’s role as being decidedly less than the co-offender ‘in that she was involved but absent for significant periods’.38

[78]   The decision in Tie and Cook do not establish that the starting point was too high in the present case. A starting point of 10 years and six months, uplifted by a further six months for the firearms offending was available.

Ground two: personal mitigating factors

[79]   Applying the admissibility test outlined in Lundy, I accept that the psychological report is credible evidence.39 However, the evidence is not ‘fresh’ because counsel could have, with reasonable diligence, obtained a formal psychiatric report for sentencing. Nonetheless, I am prepared to allow its admission and note that the respondent does not object to that course. The real issue is whether it adds any material information that was not available to the sentencing Judge and which requires an adjustment to the sentence.

38     Cook v R, above n 26, at [16].

39     Lundy v R, above n 27, at [120].

[80]   The significance of the report was said to be that Dr Lomas concluded that the appellant met the criteria for a diagnosis of PTSD. Ms Butcher specifically referred to the observations of Dr Lomas at p 16 of the report that the appellant struggled with a need to be liked and appreciated which sometimes lead to him becoming a person that others could ask to undertake illegal activities, supply drugs or offer a house for illicit activities to occur in.

[81]   However, the report does not make a particular connection between this observed character trait and a diagnosis of PTSD. Neither was there any evidence at trial of the appellant having been asked by anyone to do anything illegal. In respect of the most serious aspects of the violence, the appellant was the initiator and principal perpetrator, not someone who was taken advantage of by others.

[82]   Dr Lomas’ report sets out the factual background of the appellant’s difficult upbringing and life experiences in a level of detail very similar to that set out in the comprehensive 21-page s 27 report.

[83]   The sentencing Judge also had available to him (and specifically addresses at [45]–[48] of his sentencing notes) two detailed reports from the Clinical Manager of Alcohol Drug Assessment and Counselling. Those reports cover the same issues of psychological trauma that Dr Lomas’ report does. The report writer specifically notes in the 31 October 2023 report, “Childhood sexual abuse as well as fractured attachment to parents or caregivers often precedes the development of post-traumatic stress disorder,” and “Mr Lacey appears to have post-traumatic stress disorder.”

[84]   Dr Lomas’ report therefore adds nothing of significance to the information that was before the Court and factored into the combined 20 per cent discount given for personal factors and rehabilitative prospects. There is no basis for an increase in this discount.

Ground three: uplift for firearms offending

[85]   It is indisputable that the appellant’s use of the firearm was intimidatory and dangerous. The appellant was the person who loaded the firearm in front of the victim and pointed it at the victim.

[86]   No question of double counting arises. In finding that the use of weapons was an aggravating factor, the Judge was clearly not referring to the firearm, but the range of other weapons produced by the appellant. The Judge’s sentencing notes specifically refer to the weapons that the uplift was applied for as being:40

…a baseball bat or metal bar, scissors, a screw driver, a knife and a hammer. All these weapons have the capacity to cause serious harm, as they in fact did.

Ground four: reduction for appeal against conviction

[87]   The appeal against conviction has been dismissed and therefore, the arguments pertaining to a reduction in sentence will not be addressed.

Conclusion

[88]The appeal against conviction is dismissed.

[89]The sentence appeal is dismissed.

Churchman J

Solicitors:
Crown Law Office, Wellington for Respondent

40     R v Lacey, above n 2, at [59].

Churchman J

Solicitors:

Crown Law Office, Wellington for Respondent