R v Hapi

[2004] NZCA 64

IN THE COURT OF APPEAL OF NEW ZEALAND

CA304/03

THE QUEEN

v

JOSHUA PHILLIP HAPI

Coram:Anderson P
McGrath J
Glazebrook J

Counsel:S Tait for Appellant

M F Laracy for Crown

Judgment (On the papers):     18 May 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offence

[2]       The appellant pleaded guilty in the High Court to wounding with reckless disregard for the safety of others contrary to s188(2) of the Crimes Act 1961.  The plea was entered on 31 March 2003, one week before the trial was due to begin on 7 April 2003.  He was sentenced by Heath J to three years imprisonment.  He now appeals against that sentence.

The facts

[3]       Late on the evening of 11 May 2002, the appellant was a passenger in a car driven by MrVaki (who was sentenced together with the appellant).  The car stopped at the Gull Service Station at Te Irirangi Drive, East Tamaki.  The appellant was approached by two people who asked about an incident that had occurred on the North Western Motorway the week before.  The incident ended with one of two people smashing the rear window of the car and a side window with a bottle.

[4]       The Judge found that the appellant and Mr Vaki decided to return to the home of an associate (Mr Murray) in Otara, rather than confront the two assailants immediately, because they thought they lacked sufficient numbers to challenge them.

[5]       Mr Murray arranged for a .22 semi-automatic rifle, which was fitted with a telescopic sight and silencer, to be delivered to the house in Otara.  The Judge found that while at the house, Messrs Hapi and Vaki formed a common intention to return to the service station with that weapon.  The Judge was satisfied that that common intention extended to using the rifle to damage the car or cars of the assailants and to scare them.  However, the Judge did not find any common intention to deliberately shoot a particular person at the scene. 

[6]       Mr Vaki drove the car to the scene with the appellant and Mr Murray as passengers.  The Judge found that Mr Murray was an intimidating person whose force of personality was likely to have influenced both the appellant’s and Mr Vaki’s decision to return with him to the petrol station with the gun.  When they arrived at the station, the car was parked and Mr Murray fired shots at the assailants’ car.  The offenders’ car then moved along at Mr Murray’s instigation, and further shots were fired. According to the Judge, these were “warning shots.” 

[7]       A complainant then threw a bottle towards Mr Murray at which stage Mr Murray deliberately aimed the gun and shot him, hitting him in the abdomen.  This offender pleaded guilty to wounding with intent to cause grievous bodily harm, and was sentenced to seven and a half years imprisonment with a minimum non-parole period of four years. 

[8]       The Judge sentenced both the appellant and his co-accused on the basis that on leaving the Otara address they realised the probable consequences of the intention that they had formed were:

a)The indiscriminate use of a firearm taken by Mr Murray; and

b)The likelihood that such indiscriminate firing could endanger the safety of others present.

The appellant’s submissions

[9]       In his appropriately succinct submissions, counsel for the appellant submitted that insufficient weight had been given to the appellant’s guilty plea, the sentence was out of line with sentences for similar offending, and that the Judge failed to correctly apply the principles relating to sentencing parity.  In support of these submissions, counsel referred the court to R v Wikiriwhi [1985] 2 NZLR 501 and R v Walker, CA420/01 and appended R v Finn (2000) 18 CRNZ 332.

The Crown’s submissions

[10]     The Crown emphasised the planning, premeditation and motive of revenge together with the deadly character of a silenced, semi-automatic weapon as justifying the overall sentence.  In terms of the parity issue, counsel submitted that the salient sentencing factors were the same in the case of both the appellant and Mr Vaki.

Discussion

[11]     The sentencing Judge took a starting point of four years and accorded the appellant a 25 per cent discount to reflect his guilty plea and remorse.  We are satisfied that this discount is adequate.

[12]     We find the comparisons counsel has sought to draw between the sentence in this case and that in other cases unpersuasive.  The injuries inflicted in Wikiriwhi were serious, but unlike the present case no weapon was used, let alone a silenced semi-automatic rifle.  A further distinguishing factor in the present case is the Judge’s conclusion that there was a high risk of danger to other persons.

[13]     In comparison with Walker, we note again that the firearm is inherently a much more dangerous weapon than the broken beer glass used by the appellant in Walker.

[14]     In terms of parity, the Judge noted that there was an argument that Mr Vaki was more culpable, but properly dismissed this because he had no evidence before him to substantiate it. 

[15]     Only a clear and manifestly unjustifiable disparity will ground a successful appeal.  Although the appellant pleaded to a slightly different version of the charge, we agree with the Crown that the main aggravating features apply to both the appellant and Mr Vaki.  Both were part of offending that was planned in advance; both were part of the deliberate decision-making process to obtain a firearm; both were involved in an offence motivated by a desire for retribution, the firearm used was particularly dangerous; and the injuries to the victim were serious.

[16]     For completeness we record that there is no significant difference in the prior offending of the appellant and Mr Vaki.

[17]     It is also of note that the Judge set the appellant’s sentence first, on its own merits, then decided against giving Mr Vaki a higher sentence.  This was not a case where Mr Vaki’s conduct and sentence formed the comparative basis for setting the appellant’s sentence.

[18]     Finally, we bear in mind this Court’s caution in R v Ryder 23 June 1998, CA116/98, cited with approval in R v Finn:

In determining whether the disparity which has been created is gross and unjustifiable, the Court must be careful to ensure that any reduction in the appellant's sentence in order to achieve parity, will not create disparity with others who offend in like manner or itself cause a miscarriage of justice.  The Court must therefore consider whether reducing the proper sentence imposed on the appellant in order to bring it into line with the sentence imposed on his partner would itself cause public concern at the administration of justice.

[19]     Accordingly, we are of the view that any leniency accorded by the Judge to Mr Vaki in giving him the same sentence as the appellant falls clearly short of an unjustifiable “marked difference” to which this court referred in R v Lawson [1982] 2 NZLR 219, 223.

[20]     It follows we are satisfied that the sentence of three years imprisonment was wholly appropriate and well within the range open to the Judge

[21]     For these reasons the appeal is dismissed.

Solicitors
Crown Law Office, Wellington