Pahau v R
[2011] NZCA 147
•11 April 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA540/2010 CA569/2010 CA588/2010 CA590/2010 [2011] NZCA 147 |
| BETWEEN MATIU JOSEPH PAORA PAHAU |
| AND THE QUEEN |
| Hearing: 7 March 2011 |
| Court: Ellen France, Courtney and Clifford JJ |
| Counsel: S W Hughes QC for Appellant Pahau |
| Judgment: 11 April 2011 at 2.30 pm |
JUDGMENT OF THE COURT
The appeals by all appellants against conviction and sentence are dismissed.
REASONS OF THE COURT
(Given by Ellen France J)
Table of Contents
Para No.
Introduction [1]
Factual background [8]
The decision not to give a reliability warning [18]
Mr Murray’s evidence [20]
Discussion [22]
Conviction appeals – Messrs Edmonds, Brown and Fenton [46]
Mr Pahau’s sentence appeal [62]
The approach taken by the Judge [63]
Discussion [67]
Mr Edmonds’ sentence appeal [78]
Mr Fenton’s sentence appeal [81]
Mr Brown’s sentence appeal [91]
Postcript on the manslaughter sentences [96]
Disposition [99]
Introduction
Peri Niwa died on 15 November 2008 in New Plymouth as a result of a stab wound inflicted by Matiu Pahau. His death occurred after he and his associates were pursued by Mr Pahau and the other appellants, all of whom were patched members of the Taranaki Black Power gang.
All of the appellants were charged with the murder of Mr Niwa. Their liability depended on the application of s 66(2) of the Crimes Act 1961. They were also all charged with participation in an organised criminal group and with the commission of a crime with a firearm. After trial, Mr Pahau was convicted of murder and the other appellants of manslaughter. Messrs Pahau, Edmonds and Brown pleaded guilty in relation to participation in an organised criminal group with the specific purpose of inflicting serious violence and Mr Fenton was convicted of that offence at trial. All were convicted in relation to the commission of a crime with a firearm.
Mr Pahau was sentenced by the trial Judge, Asher J, to life imprisonment with a minimum period of imprisonment (MPI) of 17 years. Mr Edmonds was sentenced to 14 and a half years imprisonment with an MPI of nine years. Both Messrs Brown and Fenton were sentenced to 11 years imprisonment with MPIs of five and a half years.
Mr Pahau appeals against his conviction for murder and against sentence. The other appellants appeal against their manslaughter convictions and against sentence.
Mr Pahau’s conviction appeal raises an issue about Asher J’s decision[1] not to give a warning about the need for care in assessing the reliability of the evidence of Ricky Murray.[2] Mr Murray was a fellow Black Power member. He was initially charged along with the appellants but the charges against him were dropped just prior to depositions when he agreed to testify against the others.
[1] Under s 122 of the Evidence Act 2006.
[2] A ground relating to the directions as to self-defence was not pursued.
Mr Pahau’s sentence appeal turns on the application of s 104 of the Sentencing Act 2002, which provides for the imposition of an MPI of 17 years in specified situations.
The conviction appeals for the other appellants relate primarily to whether it was sufficient for the trial judge to direct the jury that they had to be satisfied that they knew Mr Pahau had a weapon with him, or whether knowledge of the actual weapon (a knife) was necessary. On sentence, these appellants say their sentences are manifestly excessive.
Factual background
We largely adopt the description of the factual background set out in the sentencing remarks of Asher J.[3]
[3] R v Pahau HC New Plymouth CRI-2008-043-4555, 16 August 2010 at [2] – [13].
In November 2008, Mr Niwa had been working for a group of scaffolders based in Kawerau. The group had Mongrel Mob connections in that the owner of the business was connected to the Mongrel Mob. Mr Niwa himself was not a Mongrel Mob member or associate although through friends and workmates he had associations with the Mongrel Mob. As we have noted, the appellants are all patched members of the Taranaki Black Power gang.
The Black Power had been aware of the presence of the scaffolders in the New Plymouth area and this had been “a source of tension”.[4] There had been earlier incidents in the area involving some attacks on Mongrel Mob members by members of Black Power.
[4] At [3].
On the night of 15 November 2008 a group of the scaffolders, which included Mr Niwa and his girlfriend, went from 1A Squire Place, where they had been visiting, to a party at a house nearby. One of the group was wearing a red Mongrel Mob t-shirt and it seems that some people at the party became aware of that. The appellant, Mr Edmonds, certainly became aware of the presence of the group. He called various Black Power members together to respond to the presence of the Mongrel Mob at the party. The appellants met together at Mr Edmonds’ place with a fifth Black Power member. Mr Pahau had driven to Mr Edmonds’ place in a Ford Falcon which he looked after but which was treated as belonging to the Taranaki Black Power gang.
All five got into the Falcon car and drove off. There was a police scanner in the car along with a blunt instrument like a baseball bat, a knife in the glove-box, and a gun in the boot. Mr Pahau had a knife on his person.
The group drove by the place where the party was taking place but did not stop on the first occasion as there was a police car present. They went and got some batteries for the scanner and some chocolate before returning to the place of the party.
By the time the Black Power group came back, the scaffolders were making their way home to 1A Squire Place. The Falcon car did a U-turn and drove up beside the group of scaffolders and the appellants got out of the car. At this stage they were at the top of the driveway at 1A Squire Place.
Mr Edmonds, who was the senior gang member, told the others to “go, go, go” and then, holding a gun he had taken from the boot, remained by the car. On seeing the arrival of the appellants, Mr Niwa’s group fled back up the driveway to the house at 1A Squire Place. They were pursued by some of the appellants. The Judge at sentencing accepted that, at some point up the 80 metre driveway to the house, Messrs Brown and Fenton and the fifth member of the group gave up the chase.[5] The Crown case was that the men being pursued entered the house via a rear window but Mr Niwa, who was last in line, was caught and stabbed by Mr Pahau before or as he climbed through the window. It appears that he died on the bedroom floor in the house soon after he was stabbed.
[5] This person is overseas and has not been charged.
Following the murder, Mr Pahau ran back to the vehicle, put the knife into his scarf and threw that onto the floor of the car. The Judge in sentencing noted that subsequently Mr Brown assisted Mr Pahau in getting rid of the knife.
At trial, Mr Pahau accepted he had stabbed Mr Niwa but said that Mr Niwa’s death occurred in circumstances amounting to self-defence or an accident, or was manslaughter. Mr Edmonds maintained that what was contemplated was a fist fight and he did not know Mr Pahau was carrying a weapon. Mr Brown emphasised his limited involvement on the night in question. Mr Fenton said that he was not present at the scene at all. He gave and called evidence to that effect.
The decision not to give a reliability warning
Section 122(1) of the Evidence Act provides that a judge may give a warning to the jury about the need for caution in relation to evidence which, although admissible, the judge considers may nevertheless be unreliable. The judge must consider whether to give such a warning whenever the following evidence is given:[6]
(c)evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d)evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison ... .
[6] Evidence Act, s 122(2).
In this case, the Judge decided no warning was required for the following reasons:
(a)Mr Murray’s credibility and motives had been “firmly and thoroughly” challenged by defence counsel;[7]
(b)It was questionable whether he did in fact have a motive to lie; and
(c)It was also questionable whether his evidence was unreliable given aspects of it had been corroborated.
For these reasons, Asher J concluded that a specific caution would unfairly create a perception in the jury that Mr Murray’s evidence should be put to one side, which would be wrong.[8]
Mr Murray’s evidence
[7] Minute (No 14), 5 May 2010, at [3].
[8]Section 122(3) of the Evidence Act states that judge need not comply with a request to give a warning if the judge considers that to do so “(a) ... might unnecessarily emphasise evidence” or “(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.”
Mr Murray told the jury that at the time of Mr Niwa’s death, he was a patched member of Black Power and indeed the gang’s organiser or “sergeant at arms”. His evidence covered three main aspects.
First, he gave evidence about the ongoing tension within Black Power over the scaffolders and the nature of the Black Power response. The response was to keep the other club out by hurting or killing its members (Mr Murray described this as causing “havoc”). Secondly, he said that while they were both in prison on remand, Mr Pahau talked to him about the stabbing. In particular, Mr Murray’s evidence was that Mr Pahau told him Mr Niwa was climbing in the window when Mr Pahau stabbed him in the side. Finally, Mr Murray gave evidence about the group’s access to firearms. He said the guns were “stashed” at Mr Fenton’s house and he had seen Mr Edmonds with a hand gun. He also said that Mr Pahau had a knife in the glove-box of the Falcon car which he “pretty much saw ... all the time”.
Discussion
Ms Hughes says a warning was required for a number of reasons. First, because both s 122(2)(c) and (d) applied, that is, Mr Murray had a motive to lie and he gave evidence of a prison confession. A warning was also necessary because Mr Murray’s evidence was critical to the Crown case. Finally, Ms Hughes argues that Mr Murray’s evidence was not reliable and that the Judge was wrong to say that Mr Murray’s evidence was corroborated by other evidence.
We deal with each of these submissions in turn, beginning with the application of s 122(2)(c), motive to lie.
Mr Murray was arrested in November 2008 and remained in custody until depositions in June 2009. He had been charged after Witness G identified him as one of the men in the Falcon car. Shortly before depositions he attempted suicide. It was around this time that he agreed to give evidence for the Crown. After further investigation by the police, the charges against him were dropped.
Ms Hughes’ argument was that at the time Mr Murray agreed to give evidence he was facing charges, and that was the relevant time to assess his motive to lie. Further, she says he was thereby committed to a course of conduct and so his reasons for testifying just prior to depositions were still an operative cause at the time he gave evidence.
We disagree. The assessment to be undertaken by the Judge under s 122 relates to the evidence given in the proceeding. What has preceded the trial may of course be relevant in determining the nature or extent of any motive to lie. But here, by the time Mr Murray came to give evidence, he was not facing charges and nor is there any suggestion that he might do so again in relation to this incident. He gave his evidence (and indeed, made the decision to do so) without the benefit of any immunity. In these circumstances, it is questionable that Mr Murray had any motive to lie. He was not in jeopardy, nor was he in a position where he might gain favourable treatment from giving evidence for the Crown. As to the latter point, Ms Hughes said motivation to lie was sourced in the wish to remain in protective custody. However, there is no evidence to support that submission. We simply do not know whether Mr Murray was to remain in protective custody or that, if he had not “come up to brief”, there was a chance of his removal from protective custody.
We turn then to Ms Hughes’ second submission, which is based on the fact that Mr Murray gave evidence of a prison confession. Ms Hughes says that the relevant authorities support the submission that a warning was required here. Ms Hughes relies in particular on Benedetto v R and R v Ngarino.[9]
[9] Benedetto v R [2003] UKPC 27, [2003] 1 WLR 1545; R v Ngarino [2009] NZCA 200.
In Benedetto, their Lordships said that:[10]
... In the case of a cell confession ... the evidence of a prison informer is inherently unreliable, in view of the personal advantage which such witnesses think they may obtain by providing information to the authorities. Witnesses who fall into this category tend to have no interest whatsoever in the proper course of justice. They are men who, as Simon Brown LJ put in R v Bailey [1993] 3 All ER 513, 523J, tend not to have shrunk from trickery and a good deal worse. And they will almost always have strong reasons of self-interest for seeking to ingratiate themselves with those who may be in a position to reward them for volunteering confession evidence. The prisoner against whom that evidence is given is always at a disadvantage. He is afforded none of the usual protections against the inaccurate recording or invention of words used by him when interviewed by the police. And it may be difficult for him to obtain all the information that is needed to expose fully the informer’s bad character.
[10] At [32].
The approach in Benedetto was followed in this Court in Ngarino. Rodney Hansen J delivering the majority judgment in that case said:[11]
Evidence of a confession by one prisoner to another when both are incarcerated is generally to be received with suspicion because of the risk that the evidence may be concocted for the purpose of obtaining favourable treatment. The bad character of the witness and the difficulty of repudiating the evidence are other factors to be carefully weighed. ...
[11] At [43].
However, we agree with the submission of Mr Pike for the Crown that this case is different on its facts from those cases, so that the concerns underlying the approach in those two cases are absent here. In both Benedetto and Ngarino there was at least the prospect of favourable treatment resulting from the giving of evidence. The witness in Benedetto initially faced charges arising from the same incident (murder) as the other defendants. Those charges against the witness were dropped but he was then charged with other offending. The witness in Ngarino in fact received a reduction in sentence as a result of his assistance. Further, in both cases, the prison confession evidence was critical. In Ngarino, for example, the police conceded that without the informant’s evidence Mr Ngarino would not have been charged. We develop the point about the impact of Mr Murray’s evidence shortly. In Benedetto, the Privy Council also placed weight on the witness’s thoroughly unsatisfactory character, noting that even the limited background facts he had admitted to were “more than enough to show that he was not to be trusted.”[12] It was also relevant that he had “already experienced the benefits of giving evidence against a fellow prisoner”.[13]
[12] Benedetto at [28].
[13] At [28].
The third aspect relied on by Ms Hughes is the importance of Mr Murray’s evidence. As the Crown accepts, the evidence was important. We do not, however, agree with Ms Hughes’ proposition that without this evidence there would have been insufficient evidence to support a murder conviction.
It is necessary here to say a little more about two aspects of the evidence at trial. First, we need to set out the gist of Mr Pahau’s evidence of self-defence. Mr Pahau said that after pursuing Mr Niwa to the area behind the house he was confronted by Mr Niwa. There was an altercation in which Mr Pahau tried to punch Mr Niwa but that was blocked and Mr Pahau was knocked to the ground. Then, as Ms Hughes put it in her submissions:
Whilst on the ground and fearing for his life Mr Pahau produced a knife which he says he swung in a defensive arc to warn off Mr Niwa. He says that in doing that the knife collided with Mr Niwa’s left chest, Mr Pahau withdrew the knife and ran back up the driveway.
In his evidence, Mr Pahau said he took the knife with him that night but forgot about it until, having been knocked down by Mr Niwa, he heard it fall out of his pocket. He said Mr Niwa cried out “Sieg heil” and started barking like a dog (cries used by the Mongrel Mob) and then came towards him. Mr Pahau found the knife, flicked it open and tried to frighten off Mr Niwa by swinging the knife at him.
The highest point of this part of the argument for Mr Pahau is that, without Mr Murray’s evidence providing an alternative narrative, the jury may have accepted Mr Pahau’s account. However, we consider that highly unlikely. The evidence was that Mr Niwa was intoxicated and, as we have noted, was not a member of the Mongrel Mob so the jury may have questioned the claim that in that state he would confront Mr Pahau chanting Mongrel Mob cries. By the time Mr Pahau caught up with Mr Niwa, he was on his own, his companions having escaped into the house via a window. Further, Mr Pahau said he found his knife which he had explained was dropped about a metre away from him, in the pitch black, by sound and feel. As Mr Pike submits, the argument for Mr Pahau focuses on Mr Murray’s evidence on the basis that without it the Crown evidence did not exclude self-defence. But the defence must have an “air of reality” and, clearly, it did not.
The second aspect of the evidence that is relevant to the examination of the importance of Mr Murray’s evidence is the medical evidence. The defence at trial made much of the fact that drops of Mr Niwa’s blood were found in two discrete areas, on a tarpaulin and paving outside the house. Essentially, the defence case was that the expert evidence about this cast doubt on the Crown case, reflected in Mr Murray’s evidence, that Mr Niwa had been stabbed as he tried to get in the window.
The thrust of the scientific evidence was that it was likely that there would have been little blood on the knife. That was because this was a single stab wound and the knife would have been wiped by removal through three layers of clothing. Further, for an object to have been the source of the blood spots (ie blood dripping from the knife) the object would have had to be held over the places where the spots appeared. Finally, the shape of the blood spots on the tarpaulin and on the paving was consistent with blood dripping, not splatter or flicked blood.
Mr Neal from the Institute of Environmental Science and Research (ESR), who gave evidence for the Crown, said that in his opinion the blood stains were due to blood dripping from a bleeding wound or an object (possibly the knife, possibly Mr Niwa’s clothing) with blood on it. He accepted he could not exclude the possibility events had transpired as Mr Pahau described them and blood had dripped from Mr Niwa before he then moved to the window. (The pathological evidence was that Mr Niwa could have moved after he was stabbed.) Mr Neal summarised the position in terms of the scientific evidence when he said:
I’m afraid that in this case the science cannot tell us which scenario is more likely. Because of the nature of the blood spots being dripped and, as you say, bloodstain pattern analysis can tell us a lot but it can’t tell us the difference from blood dripped from an item or blood dripped from a person or from their bloodied clothes. So in this case the science cannot tell us where the blood has come from and whether the scenario of dripping from an item or dripping from Mr Niwa are more likely. There’s no other evidence to suggest one or the other to me.
In a similar vein, Dr Martin Sage, a pathologist who gave evidence for the defence said:
Overall, I think standing outside is more likely. Ah, I can’t exclude the possibility that he’s been stabbed as he’s going in through the window, and then retreats out onto the path again, bleeds on the path, goes back in through the window. I mean, that’s a hypothetical possibility, but I think that’s, ah, a bit stretched and less likely than the possibility that the two have a confrontation out on the path and then Mr Niwa retreats through the window.
The focus of Ms Hughes’ argument is on the proposition that Mr Niwa was stabbed as he went through the window. That certainly was the scenario advanced by the Crown. However, even if Mr Murray’s evidence is put to one side, once self-defence was excluded it was possible for the jury to be satisfied of murderous intent given the circumstances without accepting the scenario that Mr Niwa was stabbed whilst climbing in the window. Mr Pahau set out with a group of other Black Power members, with the purpose of causing serious violence.[14] The group was armed. Mr Pahau accepted they were going for a fight. He determinedly chased Mr Niwa up the 80 metre driveway before striking him in his side with the knife, which had a blade about 14cm long. It was open to the jury to conclude that Mr Pahau acted with murderous intent.
[14]The particulars of the charge of participation in a criminal group referred to the purpose of pursuing the group of scaffolders, and to cause serious violence to somebody in the group of scaffolders.
Finally, we deal with the submission that Asher J was wrong to treat Mr Murray’s evidence as corroborated in any way. It is relevant in this respect that Mr Pahau accepted that he stabbed Mr Niwa. The difference between the two related to where the stabbing occurred. On that, Ms Hughes emphasises the importance of this difference. She submits that Mr Murray had disclosure from the police and so would have known the police attached importance to location. Mr Murray disputed the suggestion that he had received disclosure prior to hearing Mr Pahau’s confession. He also said he had not read the disclosure. Regardless of the position on disclosure, it is not clear to us that Mr Murray would necessarily have discerned the significance of where Mr Niwa was stabbed even if he had seen the disclosed material.
Other aspects of Mr Murray’s evidence are consistent with, and so corroborated by, other evidence as to the general narrative and sequence of events that night. For example, both Mr Pahau and Mr Murray agree Mr Pahau was affected by stabbing Mr Niwa – “freaking out” and “shattered” (Mr Pahau), “freaking out” (Mr Murray). Mr Pahau accepted he told Mr Murray he had run back down the drive after the stabbing. Other witnesses confirmed Mr Murray’s evidence that Mr Edmonds had given the order to “go”.
Although Mr Pahau and Mr Murray disagreed about the level of violence involved, Mr Pahau accepted that Black Power would fight the scaffolders if they saw them “patched up” in town. Further, Mr Murray’s evidence about the antipathy between Black Power and the scaffolders was confirmed by the evidence of Senior Constable Sandle, whose role with the police includes collating and disseminating gang information. Again, the Judge was correct to conclude that there was other evidence which was corroborative of Mr Murray’s evidence. That is of course relevant to the reliability of the evidence.
Apart from challenging his potential motive to lie, the principal challenges to Mr Murray’s evidence were based on the differences between his evidence in chief and his earlier statement to the police about the meaning of “havoc” and on the extent to which earlier incidents involving Black Power and the scaffolders had resulted in violence. In Mr Murray’s earlier statement he had described “havoc” as involving fistfights only. Mr Murray accepted in cross-examination that in two earlier incidents involving clashes with the Mob, he had gone in and had a fist fight, and nothing more. However, this leads to the further point on the s 122 issue made by Asher J, namely, that the issues about Mr Murray’s evidence, his credibility and reliability were squarely before the jury. He was extensively cross-examined about his decision to give evidence, its timing, motivation and the impact on the charges against him. These issues formed a consistent theme in all of the closing addresses and were reiterated in the description of the defence cases in the summing up.[15]
[15]The Supreme Court in declining leave to appeal in HP v R [2011] NZSC 24 saw it as relevant that the issues about the witness’s credibility, in that case the complainant, were obvious.
Finally, we note that the Judge in summing up directed the jury on credibility and reliability and on the need to consider all of the evidence. In addition, while we accept he did not give a specific s 122 warning, the Judge directed the jury to take into account the circumstances in which statements were made to the police “or a statement made to Mr Murray”. Asher J went on to instruct the jury to consider how soon after the events the statements were made and what “pressures” were on the person who made the statement. The jury would have been alert to these issues.
When these matters are taken into account, we consider it was unnecessary for a specific reliability warning to have been given.
Conviction appeals – Messrs Edmonds, Brown and Fenton
The appeals against the manslaughter convictions relate to the Judge’s directions as to the appellants’ knowledge that Mr Pahau was carrying the knife used to kill Mr Niwa. The issue arises because, in describing the degree of foresight required before these appellants could be convicted of manslaughter, the question sheets given to the jury recorded as follows:
You will only find that Mr [...] had the requisite knowledge if you are satisfied that he knew that Mr Pahau was carrying a weapon at the time that he and Mr Pahau began to carry out the common unlawful purpose.
[Emphasis added.]
Three submissions are made on behalf of these appellants. First, they say that the Judge should have directed the jury that they had to be satisfied these appellants had knowledge that Mr Pahau was carrying a knife before they could be convicted of manslaughter. They say it was not sufficient to have knowledge he was carrying a weapon. Secondly, in any event, they submit there was insufficient evidence on which the jury could be satisfied they did have knowledge that Mr Pahau had a weapon. Finally, when summing up on inferences, the Judge should have made reference to the appellants’ knowledge of Mr Pahau’s weapon.
We deal with each submission in turn.
As to the first, we do not consider it was necessary for the appellants to have knowledge of the actual weapon used. This Court did not finally resolve this question in R v Hartley.[16]That was a s 66(1) case but the Court made the point that s 66(2) may be utilised, for example, in the situation of a group attack where the members of the group use weapons but of different types.[17] In this case, the group set out not just to assault but to inflict serious violence. In those circumstances, to require knowledge of the actual weapon would undermine the purpose of s 66(2). Accordingly, we agree with Asher J that there was no requirement to direct the jury that they had to be satisfied the appellants knew Mr Pahau was carrying the actual weapon used.
[16] R v Hartley [2007] NZCA 31, [2007] 3 NZLR 299.
[17] At [54].
Before dealing with the sufficiency of evidence point, we need to say something about the need for knowledge that Mr Pahau was carrying any weapon. We consider that it was sufficient for the Judge to direct the jury that the party must know that there was a likelihood of serious harm, and on the facts of the case there was sufficient evidence for the jury to infer that likelihood without also having to infer that the party had actual knowledge of a weapon subsequently used.
On this aspect, Asher J noted that the majority in R v Vaihu[18] concluded that a party to a common assault did not have to have knowledge of the existence of weapons for the purposes of s 66(2). The reasons Asher J gave for taking what His Honour described as the “more conservative” view than Vaihu were as follows:
(a)the accused were more distant and less able to exert control or withdraw;
(b)the manslaughter charge was more serious than that of assault; and
(c)otherwise the jury might find them guilty of offending of a fundamentally different type.
[18] R v Vaihu [2009] NZCA 111.
In deciding that knowledge of a weapon was needed, the Judge said this was a question of judgment based on the facts of the present case. We agree. As the Crown accepts, there may well be s 66(2) cases where one or more of the criminal group cannot be taken to have foreseen criminal acts of a sort that could found a manslaughter conviction because one member of the group produces and uses a deadly weapon. The same point was made by William Young P in Vaihu, who said:[19]
Sometimes, however, it will not be possible for a rational jury to infer the required knowledge in relation to a particular defendant unless sure that that defendant was aware that members of his party were armed ... .
[19] At [88].
However, as William Young P also said in Vaihu, where the Crown invokes s 66(2) there has to be “judgment call” (in the first instance by the prosecution) as to the level at which the common intention is pitched.[20] Here, three of the four appellants pleaded guilty to participation in an organised criminal group with the specific purpose of inflicting serious violence. Mr Fenton was convicted of that charge. Against that background, absent a narrative to support the claim that Mr Pahau departed from the common intention or that others withdrew, we do not see the concepts of absence of control or distance as relevant. That responds also to the suggestion that otherwise the appellants may be guilty of offending of a fundamentally different nature.
[20] At [89].
We accept that the manslaughter charge is more serious but that does not alter the appellants’ position given the factual matrix in this case.[21] Here, the high point for Mr Edmonds was that because he stayed back at the car he had no control over what occurred subsequently. That has to be married with the fact that he gave the “go, go, go” order to the other participants. Mr Brown said he never went further than about three quarters of the way up the drive but there was nothing to suggest he had somehow withdrawn from the enterprise. Mr Fenton said he was not there at all so once the jury was satisfied he was present, there was no suggestion he had withdrawn at all.
[21]This Court in a recent judgment in R v Rameka [2011] NZCA 75, a s 66(2) case, distinguished Vaihu on the basis of the specific intent required for murder and concluded that in a murder case, knowledge of a weapon will usually be needed before the jury can infer the parties’ knowledge that death was a probable consequence of the assault.
As to the sufficiency of the evidence of knowledge of a weapon, this was of course a matter squarely before the jury, and the arguments before us simply go over matters raised with the jury. Nothing new is raised on appeal.
In any event, the jury were entitled to infer from the circumstances that the appellants had knowledge Mr Pahau was carrying a knife. The starting point is that they were all patched members of a gang which carried weapons. They were embarking on an attack on a group they associated with the Mongrel Mob, who were also known to carry weapons. They set out with a view to carrying out serious violence which the jury had heard could involve the use of a range of weapons, such as knives or guns. Further, three of the four in fact had weapons themselves. Mr Edmonds took out the gun that was in the boot of the car, there was also a blunt instrument or baseball bat in the car and of course Mr Pahau had a knife. Mr Murray’s evidence about the weapons he had seen associated with three of the four appellants was also relevant.
Finally, we deal with the argument based on the directions relating to inferences. In dealing with inferences Asher J said this:
I want to talk to you about inferences because, as is usual in criminal cases, much of the evidence put forward and the conclusions that the Crown ask you to draw turn on inferences.
The Judge then went on to give orthodox directions about the process of drawing an inference and the need to avoid speculation or guess work. The Judge continued:
... Now, here in this trial in relation to some elements of the charge, there is direct evidence, although much of it is contentious direct evidence. For instance, in relation to the stabbing, there is the direct evidence of Mr Pahau of what happened, but there is contention about large aspects of his account of what happened. But there is certainly direct evidence, for instance, that a stabbing occurred.
In relation to other aspects of conduct, the Crown inevitably has to point to the surrounding context and rely on the circumstances, and to ask you to draw an inference. To give an example, in relation to proof of the element of intention with regard to murder, the Crown asks you to draw an inference from the events leading up to the final incident and the chase and the stabbing, and asks you to infer the necessary murderous intent from those facts. Obviously before you can rationally draw an inference you need to have decided on the facts that you do accept, which can then form the basis from which the inference is drawn or not drawn. Always bear in mind, though, in your going through this process, that you must take into account the evidence that supports the defence position as well and what the defence has to say about the primary facts and whether you can draw that inference.
The Judge then dealt with circumstantial evidence. In summarising the cases for the defence and the Crown, the Judge referred in considerable detail to the issue of knowledge of the weapons. The question sheets made this quite clear as well.
There is no challenge to any of these directions per se. Rather, the appellants’ challenge is to the point in time in the summing up at which the Judge addressed these matters. This really is an argument about the order of the summing up which is a matter for the Judge. Given that the issue has been appropriately covered, when the summing up as a whole is considered, it is clear this point has no merit. The issues were plainly properly put before the jury.
For these reasons, we dismiss the appellants’ conviction appeals. We turn then to the sentence appeals.
Mr Pahau’s sentence appeal
As we have noted, Mr Pahau was sentenced to life imprisonment with an MPI of 17 years. There is no issue as to whether life imprisonment was appropriate.[22] The focus of the sentence appeal is on the application of s 104 of the Sentencing Act. Section 104(1) provides that the judge must impose an MPI of at least 17 years in the circumstances listed in the section unless satisfied that it would be “manifestly unjust” to do so. The specified circumstances include:
(c)if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or
...
(i) in any other exceptional circumstances.
The approach taken by the Judge
[22]Section 102 of the Sentencing Act refers to the presumption in favour of life imprisonment for murder.
Asher J found that both subs 104(c) and (i) applied. After considering the aggravating and mitigating features, the Judge concluded that it was not manifestly unjust to impose a 17 year MPI.
The Judge took the view that s 104(c) was engaged when Mr Pahau followed Mr Niwa up onto the deck. By this point, Asher J said, Mr Niwa might have thought he was safe and Mr Pahau had thereby invaded the sanctuary of the home. The Judge accepted that a dwelling place did not include the empty part of a section, but nor was it restricted to the interior of the walls and roof. In this case, the deck was elevated and on the same level as the living areas and the living areas opened out onto the deck. The Judge noted that, to get on to the deck, Mr Pahau ran up steps and through a gap in the deck walls and then alongside the house. The deck itself was enclosed with a wooden wall that was over a metre and a half high. In this situation, the Judge considered the deck was part of the living environment of the house. Asher J continued:[23]
Although decks are not as enclosed as rooms they are as much a part of the living environment as the inside of the house. They can be part of the sanctuary that a home offers. This deck had a table and chairs on it and it had been earlier occupied that evening by the residents including Mr Niwa. There were bottles there and an ashtray. If they had been sitting there socialising when the attack occurred I have no doubt that a charge on to the physical environment of the deck by an attacker would have been seen as an invasion of their living area.
[23] At [29].
Even if s 104(c) was inapplicable, the Judge took the view that s 104(i) applied because:[24]
... I take it to be a purpose of [s] 104 that the increased minimum term should apply where there is an affront to what all of us would regard as sanctity of the home, particularly where the chase ends in a home where the victim is killed as he crosses through and into the sanctuary of it.
[24] At [33].
In determining whether the minimum 17 year term would be manifestly unjust, Asher J looked at the various aggravating and mitigating features. He regarded the gang involvement and gang targeting as well as the chase down the drive to the sanctuary of the home as aggravating features. The Judge considered that Mr Pahau was sufficiently mature (he was 21 at the time of Mr Niwa’s death) so there should be no discount for his age. While the Judge accepted that Mr Pahau was sad for what he had done, he considered there was no genuine full-blown remorse. While this was a single blow, it was so savage (14 cm in depth) that there was little doubt that it would have killed. When these factors were borne in mind, the Judge concluded that the 17 year minimum was not manifestly unjust.
Discussion
We need to address two submissions made in relation to sentence for Mr Pahau. The first submission is that neither s 104(c) nor s 104(i) applies. The second submission is that the 17 year MPI is manifestly unjust. We deal first with the application of s 104(c).
The Sentencing Act does not define “dwelling place”. The contextual background to s 104(c) is the repeal, by the Sentencing Act, of what was termed the “home invasion” legislation.[25] Sections 17A – 17E of the Crimes (Home Invasion) Amendment Act 1999 increased the maximum penalty for a number of crimes if the offence involved the unlawful entrance or presence in a “dwellinghouse”. In the Bill as introduced, “dwellinghouse” was defined to include an enclosed yard. That definition was the subject of considerable debate and the definition ultimately adopted was as follows:
(a)A building or other structure, or part of a building or other structure, that is used by the occupant principally as a residence; or
(b)A mobile home, caravan or houseboat, that is used by the occupant principally as a residence:
[25] Crimes (Home Invasion) Amendment Act 1999.
Ms Hughes emphasises the requirement in s 104(c) that the entry or presence be “into” the dwelling place. On her approach, s 104(c) would apply to those cases where the offender killed the victim inside the walls of the house. Any other approach, she says, leads to uncertainty. It was further submitted that the term “dwelling place”, as opposed to “house”, was used to ensure that residences such as caravans would be included, rather than to expand the application of s 104.
The submission for the Crown is that Asher J’s analysis is consistent with the legislative purpose, that is, to delineate an area where a citizen is entitled to feel less vulnerable to acts of violence and have that expectation reinforced by law. Mr Pike relies on the inclusion of “other structure[s]” in the definition in the home invasion legislation. Mr Pike also says that a similar approach has been taken by this Court in the context of s 9(1)(b) of the Sentencing Act which provides that it is an aggravating feature of offending that the offence “involved unlawful entry into, or unlawful presence in, a dwelling place”.[26]
[26] Simeon v R [2010] NZCA 559 and Katene v R [2010] NZCA 394.
There are potentially difficult issues about where the line is to be drawn in these cases. The consequences of any such analysis for the offender are grave. The legislation itself does not provide a ready answer but that is not surprising given the difficulties in predicting the range of circumstances that might arise. To take one example, in R v Clayton, the High Court considered the situation where the appellants had set fire to the victim’s house by throwing Molotov cocktails through the windows. MacKenzie J concluded s 104(1)(c) applied, stating:[27]
As to the issue of unlawful entry into a dwelling place, there was here no physical entry by any of the offenders, but the Molotov cocktails thrown through the window did infringe the security of the dwelling-house and led directly to death. The victim was, as counsel for the Crown points out, murdered in her own home. The list of circumstances in s 104 is to be approached purposively, and not in an over-literal or mechanistic way. When that approach is adopted, I consider that this circumstance is present in this case.
[27] R v Clayton HC Wellington CRI-2006-054-557 22 June 2007, at [7].
The cases of Simeon v R and Katene v R broadly support the Crown’s approach because in both cases the sentencing judge had treated intrusion on to the victim’s property (the driveway in Simeon and around the back of the house in Katene) as an aggravating factor under s 9(1)(b), and that approach was not disturbed on appeal. However, in Simeon the various aggravating features identified by the Judge were not challenged, so that on appeal nothing turned on whether it was correct for the Judge to apply s 9(1)(b). This Court stated that the attack was “made worse by virtue of the group going onto the victim’s property, not to mention the many other aggravating features identified by the Judge”, but did not discuss s 9(1)(b) any further.[28] In Katene, the issues raised on appeal related to the Judge’s starting point, totality, and personal mitigating factors. There was no discussion of s 9(1)(b), other than the Court noting that the attack involved “an element of home invasion in that the offenders went to the Tuhoro’s property ... with the intention of finding them at home.”[29] Accordingly, we do not see either of these two cases as finally resolving the point.
[28] At [43].
[29] At [20].
In considering whether a case involved entry into a dwellinghouse in the context of the earlier home invasion legislation, this Court said that the question is a factual one to be resolved having regard to the particular circumstances.[30] Ultimately, we have decided this aspect of the appeal can be determined on its narrow factual compass, namely, that Mr Pahau was sentenced on the basis that Mr Niwa was stabbed whilst climbing in the window. In particular, the Judge found that Mr Niwa was half-way into the window with his body partly in and partly out of the house when Mr Pahau caught up with him. Asher J continued:[31]
... he was therefore in an acutely vulnerable position, his head and shoulders and part of his torso on one side of the window and the rest of his torso and his legs still outside the house. This meant that the left side of his chest was exposed to you as you ran up, and with his arms and head being inside the window with the rest of his body outside there was little he could do to defend himself against the blow.
[30] R v Clarke [2000] 3 NZLR 354 at [12].
[31] At [11].
There was evidence to support the Judge’s finding from Mr Murray and the finding is consistent with the jury’s verdict. Once that factual basis is adopted we consider that, whatever the ultimate scope of s 104(c), it would be unduly artificial and technical to conclude that this case did not fall within s 104(c). It is true that Mr Pahau himself was not “in” the house but he has obviously reached towards someone who is trying to avail himself of the sanctuary of the home. Accordingly, we consider Asher J was correct to conclude that s 104(c) applied.
The only issue then is whether the imposition of the 17 year MPI was unjust. On this aspect, Ms Hughes emphasises the following factors:
(a) The killing involved a single blow;
(b) The entry into the house was of peripheral significance;
(c)Mr Pahau was remorseful; and
(d)Mr Pahau is a young man with limited convictions and had led an otherwise relatively worthwhile life.
As this Court has said, once s 104 applies, a robust approach is required in determining whether there is manifest injustice. In R v Williams,[32] the Court said:
... a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.
[32] R v Williams [2005] 2 NZLR 506 at [67].
This is a stiff sentence for a young man. That said, we do not see any basis for interfering with the Judge’s assessment. While this was a single stab wound, it was, as the Judge said, a savage blow. We do not underestimate what was involved for Mr Pahau in standing before Mr Niwa’s whanau and apologising in open court. But the Judge was after all well placed to weigh up the genuineness and extent of remorse.
Mr Edmonds’ sentence appeal
In sentencing Mr Edmonds, Asher J adopted a starting point of 13 years and then uplifted that to 14 and a half years imprisonment reflecting Mr Edmonds’ leadership role and his use of the gun.
On behalf of Mr Edmonds, Mr Laurenson submits that the starting point is too high, especially in comparison with that adopted for Messrs Brown and Fenton. He submits the appropriate starting point would be 11 years, that is, ten years as for Messrs Brown and Fenton with an uplift to take account of Mr Edmonds’ leadership role and his use of the gun. On behalf of Mr Edmonds, Mr Laurenson accepts then that there should be an uplift of two years for Mr Edmonds’ previous convictions which include manslaughter. This would lead to an end sentence of 13 years imprisonment. If a two-thirds MPI is adopted from that lower starting point, that would leave an MPI of eight years and three months imprisonment.
We accept the Crown submission that, given the circumstances of the offending, a starting point of 13 years imprisonment for the totality of Mr Edmonds’ offending is within the available range. Mr Edmonds was the senior member of Black Power involved. It was he who got the group together, gave the order to pursue Mr Niwa’s group and then stood by ready with his gun if needed. Indeed, there is merit in Mr Pike’s submission that, given his leadership role, Mr Edmonds’ culpability is quite close to that of Mr Pahau.
Mr Fenton’s sentence appeal
Asher J adopted a starting point of ten years imprisonment for Mr Fenton. From that point there was an uplift of six months for the aggravating factor of being “the keeper of the guns” and on bail at the time of the offending and a further uplift of six months for previous convictions.
The first argument for Mr Fenton is that the ten year starting point was too high especially when considered against previous sentences imposed for comparable offending. Secondly, the submission is that the 50 per cent MPI is excessive. Mr Hannam on behalf of Mr Fenton says an appropriate level would be five years which would be half of the ten year sentence that Mr Hannam submits is appropriate.
We deal with each submission in turn.
In terms of the comparable offending, Mr Hannam relies in particular on R v Wallace.[33] In that case, Gendall J sentenced a number of the participants in the drive-by shooting which resulted in the death of two-year old Jhia Te Tua. Three men (Karl Check, Hayden Wallace and Ranji Forbes) were convicted of murder after trial and four other men (James Challis, Tyrone Box, Godfrey Muraahi and Erueti Nahona) pleaded guilty to manslaughter.
[33] R v Wallace HC Wellington CRI-2007-083-1608, 20 February 2009.
Mr Hannam submits that the two defendants bearing most similarity to Mr Fenton are Messrs Muraahi and Nahona. In sentencing them, Gendall J adopted starting points of ten years, uplifted in Mr Muraahi’s case by 15 months for previous convictions and in Mr Nahona’s case by 12 months to reflect a separate assault charge. Both then received discounts for their late guilty pleas.
Mr Hannam says three factors make the offending of Messrs Muraahi and Nahona more serious, namely:
(a) the discharge of the firearm;
(b)the number of offenders (others were charged with various lesser offending in relation to the drive-by shooting); and
(c)the vulnerability of the victim.
In the present case, a lower starting point was available to the Judge. Equally, however, we consider the ten-year starting point was within range. In terms of the comparison with Wallace, both cases share a gang context. But, as Asher J observed, in Wallace, the drive-by by Messrs Muraahi and Nahona and others in the Mongrel Mob group followed earlier confrontations that day between the Mongrel Mob and the rival Black Power members or those associated with them. By contrast, to use Asher J’s words, the attack on Mr Niwa’s group was:[34]
... a decision by [Mr Fenton’s group] to impose [its] authority by serious violence on a group who had been doing nothing wrong.
[34] At [66].
Turning then to the appeal against the level of the MPI. On this aspect of the appeal, the appellant must show either:[35]
(a)that the sentencing judge misapplied the law, took into account irrelevant considerations, or failed to take into account relevant considerations; or
(b)the imposition of an MPI or the level of the MPI was inconsistent with what had occurred in similar cases.
[35] R v Laungaue CA32/06, 1 September 2006 at [36].
Mr Fenton’s submissions do not raise any issue under either head. We agree with the Crown submissions that there is no basis to impugn Asher J’s conclusion that if Mr Fenton served one third of his sentence, that would not be sufficient to hold him accountable, denounce his conduct and protect the community. Asher J also saw the gang involvement, the targeting of another group, the pursuit onto private property and provision of the gun as relevant.
There is nothing to suggest the 50 per cent MPI is out of line with other cases of manslaughter resulting from intentional harm in which MPIs of 50 to 60 per cent have been regularly imposed.[36]
Mr Brown’s sentence appeal
[36] See the cases cited in R v Laungaue at [41] and R v Challis [2008] NZCA 470.
Mr Brown was 40 years old at the time of sentencing. The Judge sentenced him on the basis that he had run down the driveway with the intention of carrying out serious violence but had not proceeded to the house. The Judge found that he knew about the presence of the firearms and the weapons.
Mr Henderson on behalf of Mr Brown adopts the submissions for Mr Fenton on sentence. In addition, he submits that Mr Brown’s previous convictions are of limited relevance. Finally, Mr Henderson refers to the recognition in the pre-sentence report of the fact that Mr Brown expressed a degree of remorse for the family of the victims.
In terms of the ten-year starting point and the MPI, the approach we have taken in relation to Mr Fenton applies to Mr Brown. As to the first of the two matters personal to Mr Brown, we consider that the one-year uplift for Mr Brown’s previous convictions was at the upper end of the range. However, there is no basis for interfering with the Judge’s assessment that this was warranted. Asher J accurately described Mr Brown’s previous history in these terms:[37]
... Your five pages of convictions includes over the last ten years a number of violence offences of ascending seriousness. You have been convicted of male assaults female, wilful damage, common assault, and in 2007 assault with intent to rob where you were sentenced to one year and three months’ imprisonment. It is a bad record showing a propensity towards violence ... .
[37] At [81].
As to the need for an adjustment for remorse, Asher J said this:[38]
... You have expressed regret at the death and I have no doubt you do feel that regret. However, I do not discern any genuine remorse. It is a feature indeed of the probation reports in relation to all four of you that none of you show any willingness to abandon gangs or gang values. So I conclude there are no mitigating factors.
[38] At [82].
Again, that conclusion was plainly open to the Judge. The pre-sentence report writer recorded that a “degree” of remorse for Mr Niwa’s family was expressed by Mr Brown but the report writer was sceptical of this given similar expressions in previous pre-sentence reports relating to Mr Brown. The report writer assessed Mr Brown’s risk of re-offending as “high” given his ongoing association with Black Power.
Postscript on the manslaughter sentences
Although there is no guideline judgment for manslaughter, this Court in R v Jamieson[39] said that in cases of manslaughter involving serious violence and where serious injury was a foreseeable outcome, the guideline judgment in R v Taueki[40] will be of considerable assistance. An application of the Taueki analysis to the manslaughter sentences confirms us in our conclusion that the sentences imposed were within the available range.
[39] R v Jamieson [2009] NZCA 555 at [34].
[40] R v Taueki [2005] 3 NZLR 372 (CA).
On a Taueki analysis, the manslaughter offending would all fall within Band 3 for which starting points in the range of 9 – 14 years are appropriate. Band 3 is appropriate for offending featuring three or more of the listed aggravating factors and a combination of those factors that is particularly grave. In the present case, the most serious possible injury was caused, a knife was used, and this occurred in the context of gang related offending which had an element at least of home invasion. In addition, the offending was certainly not spontaneous. Rather, as the Judge found, there was some premeditation in that Mr Edmonds assembled the group and they went off in pursuit of the scaffolders. There was certainly no provocation from Mr Niwa. The appellants could argue that the wearing of the t-shirt in public by the other member of Mr Niwa’s group was provocative but Mr Niwa was not wearing it at the party.
We acknowledge this is a different case from those “serious concerted street attacks” referred to in Taueki, which involve physical attacks on a victim or victims by all of the members of the group. But the other features of that type of case identified by the Court in Taueki are all present here. On this analysis, starting points at the higher end of Band 3 were plainly available.
Disposition
For these reasons, the appeals by all appellants against conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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