R v Challis

[2008] NZCA 470

IN THE COURT OF APPEAL OF NEW ZEALAND

CA500/2008
CA518/2008
[2008] NZCA 470

THE QUEEN

v

JAMES WILLIAM CHALLIS
TYRONE TEMAPPI BOX

Hearing:16 October 2008

Court:O'Regan, Potter and Fogarty JJ

Counsel:M J Bullock for Appellants

D R La Hood for Crown

Judgment:6 November 2008 at 11.30 am

JUDGMENT OF THE COURT

The appellants’ appeals against sentence are dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       The appellants pleaded guilty to the charges of manslaughter (of a baby girl) and participating in an organised criminal group.  They were sentenced by Gendall J to imprisonment for seven years, with a minimum period of imprisonment of four years.  They appeal against sentence.

[2]       There are four grounds of appeal, namely:

(a)       The starting point adopted by the Judge was too high;

(b)Insufficient credit was given for the guilty pleas of the appellants;

(c)Insufficient credit was given for the youth of the appellants;

(d)The minimum period of imprisonment of four years was too high in all of the circumstances.

[3]       We will deal with each of these grounds in turn.  Before doing so, we set out the Judge’s summary of the factual background.

Facts

[4]       The background to the offending was that gang warfare and tension was heightened in Wanganui in late 2006 and 2007.  The tension was between the Mongrel Mob and Black Power.  The Judge described the appellants as sympathisers with the Mongrel Mob, although they were not patched members.  He mentioned the possibility that they were hoping to become prospects, but their counsel in this Court, Mr Bullock, said that neither of the appellants were prospects or members of the Mongrel Mob. 

[5]       The events which led to the charges to which the appellants pleaded guilty occurred on 5 May 2007.  The starting point was an altercation which occurred at a rugby league game between members and associates of the Mongrel Mob and members and associates of Black Power.  One of the Black Power participants was the father of the baby girl who was killed later in the day.

[6]       After the game, a number of Mongrel Mob members drove to an area where Black Power members (including the father of the victim) lived.  They made aggressive comments to residents of the street before driving away.  The victim’s father contacted associates and arranged for them to come to the house, anticipating that Mongrel Mob members and sympathisers were likely to return for a further confrontation.  The Mongrel Mob people then attacked a suspected Black Power member at a residential address.  They then drove to a hotel where they met more Mongrel Mob associates and sympathisers, and decided to return to the gang pad.  It was at this stage that the appellants joined the Mongrel Mob members (they had not been involved in the earlier incidents, apart from the initial incident at the rugby league game).

[7]       The cars in which the Mongrel Mob sympathisers were travelling went past the address of the victim’s father, and the Black Power members at that address threw missiles at the car which caused some damage.  The Mongrel Mob group then planned retaliation.  A member of the Mongrel Mob group obtained a .303 rifle and gave it to another member of the group, and the total group (14 people) then proceeded in three cars to the house of the victim’s father, where the earlier confrontation had taken place. 

[8]       The appellants were in the back seat of the lead car, in which the principal offender who was carrying the .303 rifle was located.  There is no dispute that the appellants knew that one of their fellow passengers was carrying the firearm.  When the car reached the house of the victim’s father, the driver turned off the headlights and the engine of the car, so that it could approach the address without detection.  The man with the firearm leaned out the window of the car and fired a shot in the direction of the house.  The car then came to a stop outside the address and two further shots were fired.  One of the shots passed through the window of the lounge and killed the baby girl, Jhia Te Tua, as she slept on the sofa.

[9]       A number of the others involved in the 5 May incident are due to go on trial in early November 2008.  Some are charged with murder, others with manslaughter.  The appellants pleaded guilty on the basis that they were parties to the killing of the victim by an unlawful act.  The guilty pleas were entered on the basis that the appellants were aware that there was a gang confrontation which involved a planned retaliation, were aware of the offender carrying the gun in the same car as them, and therefore knew that they were assisting in an offence of the type that actually occurred.

[10]     The Crown did not pursue charges of murder against the appellants, apparently on the basis that there was doubt as to whether the appellants knew that the firearm was to be used with murderous intent: either transferred malice (s 167(c) of the Crimes Act) or an unlawful object likely to cause death (s 167(d)).

The Judge’s approach

[11]     The Judge noted the seriousness with which the Courts view crimes resulting from gang confrontations.  He referred to the real encouragement and support which had been given by the appellants to the lead offenders, but noted that their culpability was not as high as the lead offenders.  He considered other cases involving gang confrontations such as R v Moala HC AK CRI-2006-092-00046 12 December 2007, R v Rapira [2003] 3 NZLR 794 (CA), R v Sullivan HC GIS CRI 205-016-00210 25 August 2006 and R v Biddle CA 279/93 25 November 1993.  Having considered those cases he set a starting point of ten years imprisonment (the Crown had contended for a starting point of between nine and 12 years, and counsel for the appellants had suggested a starting point of eight years).  He said that this recognised that the appellants were not lead players in the activity, but were an integral part of the group.

[12]     He saw the aggravating features as:

(a)Involvement of gang members in a group attack where force of numbers could be seen as aggravating;

(b)Gang warfare sought to be pursued in retaliation for some slight;

(c)Use of a weapon that was loaded, to the knowledge of the appellants;

(d)The appellants anticipated serious violence was likely to occur, being present in the lead vehicle with an armed attacker. 

[13]     These were brought to account in the starting point.

[14]     The mitigating features were the young ages of the appellants, their admissions and their guilty pleas.

[15]     Mr Box was 19 years old at the time of the offending.  He had previous convictions including two for breach of community work and one for robbery.

[16]     Mr Challis was 20 years old at the time of the offending.  The Judge noted that he had a harmful pattern of drug abuse and prior convictions for aggravated robbery, assault, burglary, theft, speaking threatenly and two drug-related offences.

[17]     Both appellants claimed remorse, but the Judge saw this as remorse as to the outcome i.e. that the person who was killed was the baby girl, rather than an adult Black Power member.  He referred to the severe impact that the death of the baby girl had had on her family, and, of course, the tragic loss of life which resulted from the offending.

[18]     The credit which the Judge gave for the mitigating features, including guilty pleas, was 30 per cent, which reduced the starting point of ten years to an end sentence of seven years imprisonment.

[19]     The Judge determined that given the seriousness of the offending it was appropriate to fix a minimum period of imprisonment higher than the statutory one-third of the sentence.  He fixed this at four years. 

Was the starting point too high?

[20]     Mr Bullock argued that the starting point was too high when compared to the starting points adopted in the cases referred to by the Judge (see [11] above).  He relied in particular on Moala, where the offender Taiala, who had discharged a firearm and was a party to the unlawful act which resulted in manslaughter, was sentenced on the basis of a starting point of 12 years imprisonment.  He argued that the appellants’ conduct was considerably less serious than this.  He also relied on Sullivan, where a seven year starting point was adopted in relation to a manslaughter involving a knife attack.

[21]     As this Court has often said, references to the sentencing levels in other cases where the factual situation is different and the distinctions which are sought to be drawn are very fine is not of great assistance.

[22]     We are satisfied that the very serious offending in this case, involving a gang confrontation having elements of serious lawlessness required the Judge to take a stern approach.  Given the fact that the appellants knew of the intended use of a gun, the starting point which the Judge adopted was appropriate and we do not think there is any cause for concern at any disparity with the starting points in the cases mentioned.

Was the credit for the guilty plea and the youth of the appellants sufficient?

[23]     We will deal with issues two and three together because the Judge assessed the discount available for these factors together.  He gave a discount of 30 per cent.  Mr Bullock said it should have been 33 per cent.  He accepted that this was a fine distinction but said that it had some importance for the appellants because it would make a difference of four months to their overall sentence.

[24]     The task of this Court in sentence appeals is to determine whether a sentence is manifestly excessive.  Sentencing is not a matter of scientific precision and our concern is to ensure that sentences are within the available range.  While it may have been open to the Judge to give a discount of 33 per cent, it cannot be said that a discount of 30 per cent was too low, or that it caused the overall sentence to be excessive, let alone manifestly excessive.  As this Court made clear in R v Fonotia [2007] 3 NZLR 338 at [50], this Court has regularly approved discounts of between 10 per cent and 33 per cent for guilty pleas.

[25]     In this case, the pleas were not entered at the earliest possible moment, but some allowance for the youth of the appellants appears also to have been made.  That can only have been a small allowance, however, because their criminal histories did not suggest that considerations of the kind mentioned by this Court in R v Mako [2000] 2 NZLR 170 at [65] – [66] were in play. Overall, we are satisfied that a discount of 30 per cent was appropriate.

Was the minimum period of imprisonment manifestly excessive?

[26]     The Judge imposed a minimum period of imprisonment of four years, which amounts to about 57 per cent of the nominal sentence of seven years imprisonment.  Mr Bullock again relied on both Moala and Sullivan as cases where the minimum period of imprisonment was 50 per cent, pointing out that both of those offenders were more heavily involved in the offending than the appellants in this case.  He contended that a minimum period of imprisonment of 50 per cent (three years six months) should have been imposed.  Again, we do not see comparison with other cases with different facts to be of great assistance.  The Judge was entitled to give weight to the need for denunciation and deterrence of the sort of lawlessness displayed in this case, and a minimum period of imprisonment at the level imposed was within the available range.

Result

[27]     We are satisfied that the sentence and the minimum period of imprisonment were both within the range available to the Judge.  The appeal is therefore dismissed.

Solicitors:
Mark Bullock, Wanganui for appellant Challis
Roger Crowley, Wanganui for appellant Box
Crown Law Office, Wellington