R v Eliu

[2008] NZCA 239

IN THE COURT OF APPEAL OF NEW ZEALAND

CA115/2008
[2008] NZCA 239

THE QUEEN

v

DANIEL ELIU

Hearing:3 July 2008

Court:Chambers, Panckhurst and Fogarty JJ

Counsel:H B Leabourn for Appellant

K Raftery for Crown

Judgment:15 July 2008 at 2.15 pm

JUDGMENT OF THE COURT

AThe appeal against the sentence for wounding with intent to cause grievous bodily harm is dismissed.

BThe cumulative sentence of four months imprisonment for non-payment of fines is quashed.  The fines, in the sum of $8,303.47 are restored, having been remitted without jurisdiction.

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REASONS OF THE COURT

(Given by Panckhurst J)

Introduction

[1]       The appellant was sentenced to 11 years imprisonment upon a charge of wounding with intent to cause grievous bodily harm.  Judge Wilson QC also remitted fines in the sum of $8,303.47 and, in consequence, imposed a cumulative sentence of four months imprisonment for their non-payment.  The appeal against sentence raises two issues.  First, it is said that the cumulative sentence of four months imprisonment is excessive, and second, that the 11 year term was also clearly excessive in light of the circumstances of the offending and the appellant’s role in it.

[2]       We shall consider the four month cumulative term first and then the question of the 11 year sentence.

Imprisonment for non-payment of fines

[3]       No doubt because of the seriousness of the offence upon which the appellant had been convicted at trial and the inevitability of a substantial sentence of imprisonment, the pre-sentence report referred to unpaid fines, reparation and associated enforcement fees.  The figures contained in the report, and in a fines summary annexed to it, indicated a total sum of over $10,000 being about $5,000 in fines, $2,400 in reparation and $3,000 in fees.  However, Judge Wilson remitted a sum of $8,303.47 and said:

and in lieu thereof you are sentenced to four months’ imprisonment cumulative.

[4]       There was no jurisdiction to do this.  A District Court Judge can imprison for non-payment of fines only in the circumstances specified in ss 83 and 88 of the Summary Proceedings Act 1957.  The s 83 criteria were not fulfilled.  Nor were the s 88 criteria.  Section 88(3)(b), permitting a warrant of commitment to issue (if certain criteria are met), is subject to s 106E headed “Restrictions on alternative sentences”.  Subsection (2) prescribes several restrictions in relation to the imposition of a sentence of imprisonment, including that the defendant has completed a statement of means and the Judge is satisfied he/she has the means to pay the fine.  In effect, imprisonment is a sentence of last resort.  In this case there is nothing to indicate that the statutory pre-conditions were met.  Accordingly, jurisdiction to impose the sentence did not exist.

[5]       Further, Judge Wilson had no jurisdiction to remit the fines.  Fines may be remitted under s 88(3)(h), but, again, only if the s 88 procedure has been complied with.  It had not been here.  See R v King CA23/01 21 June 2001.  Accordingly the fines must be restored, having been remitted without jurisdiction. 

Wounding with intent to cause grievous bodily harm

Some background

[6]       This crime was committed on 31 August 2006.  Mossy Hines and the appellant were jointly charged and found guilty by a jury in September 2007.

[7]       In sentencing the appellant and his co-offender on 19 February 2008, Judge Wilson said this:

[3]     My findings of fact are indicated as follows;  On 31 August 2006 Mr Eliu noticed [the victim] on Great South Road, Otahuhu and you recognised an opportunity.  You knew that Mr Hines believed that [the victim] had narked on him.

[4]     Mr Hines had been charged with unlawful possession of a loaded revolver found inside a bag beside a table which he and other people were sitting [at].  As a result of the charge Mr Hines had spent two months in custody.  The charge was later withdrawn.  [The victim] did not give a police statement and was never a witness in that case, but Mr Hines, you believed that he had narked on you.

[5]     Mr Eliu, you knew that Mr Hines would want to punish [the victim] for narking and you lured him into the car with a promise of cannabis.  You secured him in the car and there were three telephone calls exchanged between you and Mr Hines.  These you took care to ensure were out of earshot of the victim.  It was during this time that the arrangements were made under which it was agreed that you would deliver [the victim] to the garage of Hines’ place and he would then carry out his revenge.

[6]     You knew that [the victim’s] health and wellbeing were in serious jeopardy when you took him even if at that stage you did not know exactly what form Mr Hines’ revenge on him would take.

[7]     Once you got [the victim] there you, Mr Eliu, grabbed him by the back of his sweatshirt, frog-marched him across the driveway into the garage itself.  Inside the garage you forced him down onto a couch and began punching him, then you got him down on his knees on the floor.

[8]     Very shortly after, you, Mr Hines, turned up at the garage and immediately announced your intentions in unmistakable ways which showed that real violence was to be meted out to [the victim] in revenge for his narking on you.

[9]     You, Mr Hines, took up one of a number of Stanley knives that were in the garage and proceeded to sharpen it against the concrete floor of the garage.  Then you approached the victim who was still held on his knees on the floor by Mr Eliu.  You attacked his face with the blade in an upward sweeping motion.  The slash across his face went from the jawline to the hairline narrowly missing his mouth, nose and eyes.  He was terrified and badly hurt, as you had intended;  and he was bleeding profusely from his injuries.

[10]   [The victim] attempted to escape by scrambling towards the crowded rear of the garage.  Both of you pursued him.  He tried to get through the side door.  You, Mr Eliu, detained him and punched him at least twice to stop him getting away and to subdue him further.  Once he was appropriately subdued, you, Mr Hines, approached him with the Stanley knife again and slashed him aiming at the neck.  [The victim] instinctively defended himself raising his forearm across his neck and the blade entered the upper arm just below the elbow.  The blade almost completely severed the triceps muscle.  The victim was also slashed across the chest with the same knife movement.  This attack resulted in further heavy bleeding.

[11]   At this point both of you realised that the victim might die from excessive bleeding.  The attack ceased.  You attempted to stem the bleeding and arrange for [the victim] to be taken to a medical centre in Mt Wellington by an associate.

[8]       With reference to the impact on the complainant, the Judge referred to the victim impact statement.  This indicated that the chest wound took many months to heal, during which time the victim was significantly restricted in relation to his everyday activities.  The defensive wound to his left elbow required surgery and placement in plaster for several weeks, during which time he could not use that arm.  However, the victim described his facial injury as “by far the worst” as it will be a continual reminder of the attack for the rest of his life.

[9]       Aside from the physical impacts the victim also described disconcerting psychological effects.  His ability to trust others had diminished and, on account of ongoing fear for his life and safety, he had left his hometown and endeavoured to re-establish himself in a new environment.  We regard the cumulative impacts as profound.

[10]     In reliance upon R v Taueki [2005] 3 NZLR 372 (CA) Judge Wilson arrived at a starting-point of 12 years imprisonment. He found no mitigating factors in relation to the crime itself. However, the Judge viewed the fact that the appellant and Mr Hines endeavoured to stem the victim’s bleeding and made arrangements for his transportation to a medical centre as comprising some mitigation, sufficient to warrant a one year deduction from the starting-point. Accordingly, both prisoners were sentenced to effective terms of 11 years imprisonment upon the wounding charge, with concurrent five year terms upon the associated kidnapping charge.

The appellant’s arguments

[11]     Mr Leabourn submitted that the trial Judge erred in assessing the culpability of the two offenders as equal.  He submitted that the appellant’s role was secondary to that of Mr Hines and that it warranted a lesser sentencing response.  Although no criticism could be made of the Judge’s placement of this offence in the third band recognised in Taueki, Mr Leabourn questioned whether a starting-point of 12 years imprisonment (when the range for the band is nine to 14 years) was appropriate, particularly when the appellant was a participant, but not “the person who inflicted the injuries”.  Hence, counsel said, it was wrong not to temper the sentence of the appellant by comparison to that imposed on Mr Hines.

Was this a case of equal culpability?

[12]     Judge Wilson found that it was.  He immediately confronted this issue after detailing his findings of fact.  Judge Wilson said this:

[13]   You, Mr Eliu, clearly intended to kidnap the victim for revenge to be exacted upon him and you softened him up for that revenge to take place.  Even if you did not know at the start that Mr Hines would slash the victim with the Stanley knife you knew that would happen again when you detained him in the garage at the back.

[14]   You, of course, Mr Hines, you were the man with the Stanley knife inflicting the slashing on the victim.

[15]   In my view you are equally culpable.

[13]     We agree.  The relevant circumstances are to be viewed as a whole.  The appellant was instrumental in kidnapping the victim off the street.  Having done so he made cellphone contact with Mr Hines.  The appellant frog-marched the victim from the car into the garage where the knife wounds were inflicted.  Once there the appellant assaulted the victim, who was reduced to a position on his knees on the floor.  Mr Hines arrived and armed himself with the Stanley knife which was brandished in the victim’s presence.  Mr Hines’ intentions were unmistakable, yet the appellant did not desist, but rather gave his wholesome support to the assailant.  This extended to further physical force after the victim endeavoured to escape and before the final wound was inflicted with the knife.

[14]     In these circumstances there was a compelling basis for the Judge to reach the conclusion that the co-offenders were equally culpable.  There is no basis for us to differ from the assessment of the trial Judge.  Nor is it appropriate to draw fine distinctions as to the culpability of co-offenders involved in a joint enterprise.  To do so here would, we think, be quite wrong.

Can the common starting-point of 12 years imprisonment be impeached?

[15]     Although Mr Leabourn’s argument was essentially predicated on the contention that the roles of the two offenders were different, we think it as well to separately confront this aspect.  We are not of the view that the starting-point was excessive.  Certainly the sentencing response was stern, but this was a particularly bad crime of its kind.

[16]     Several of the aggravating features identified in Taueki were present.  This is self-evident from the Judge’s factual findings.

[17]     But two aspects warrant separate mention.  The first is the element of premeditation.  Although it was opportunistic that the appellant saw the victim on the street before he was lured into the car, thereafter the crime was determinedly premeditated.  Secondly, the motivation for the attack was a serious aggravating feature.  The victim was wrongly branded a nark.  Retribution was deemed appropriate.  Offending of this kind is inimical to the administration of criminal justice, and must be deterred.

[18]     For completeness we also refer to two further aggravating factors.  We have already mentioned the impact of the offending upon the victim.  Nothing more need be said on that score.  The appellant, at age 32 years, has a formidable list of previous convictions.  These include several for offences of violence.  Neither his criminal record, nor the contents of the pre-sentence report, assisted him.  Accordingly there was no basis upon which to ameliorate the sentence in relation to personal factors.

Result

[19]     The appeal against the sentence for wounding with intent to cause grievous bodily harm is dismissed.  The cumulative sentence of four months imprisonment for non-payment of fines is quashed and the fines of $8,303.47 are restored, having been remitted without jurisdiction.

Solicitors:
Crown Law Office, Wellington