R v Tohu

[2008] NZCA 89

IN THE COURT OF APPEAL OF NEW ZEALAND

CA32/2008
[2008] NZCA 89

THE QUEEN

v

TE WAIRONGOA TOHU

Hearing:16 April 2008

Court:Hammond, Williams and MacKenzie JJ

Counsel:M B Dodds for Appellant

M D Downs for Crown

Judgment:16 April 2008 at 11.20 am

ORAL JUDGMENT OF THE COURT

An extension of time for appealing against the sentence is refused.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]        Just after midnight on 22 April 2005 a victim in this case, V, was in the carpark at a saloon in Kaikohe.  He had just left the bar.  The appellant and his brother were also in the carpark. 

[2]        While V was talking to a friend something of an altercation developed between him and another male.  V was knocked to the ground.

[3]        As V was getting back to his feet from this assault, which is unrelated to the charge before us, the appellant approached him and assaulted him.  The appellant also kicked V in the head.  The appellant’s brother also began to assault V. 

[4]        These assaults continued until V’s girlfriend intervened.  She swung a spade about in order to protect V from being hit again.

[5]        Shortly thereafter a second victim, W, came over to see how V was getting along.  At this point, V was lying “knocked out” on the ground.  Both the appellant and his alleged co-offender then attacked W before other bystanders intervened and brought this further imbroglio to an end.

[6]        The appellant and his co-offender were charged under both s 188(1) and s 189(1) of the Crimes Act 1961 with respect to each of V and W.

[7]        The jury returned only one verdict of guilty on the total of four counts which were so laid.  This was against the appellant, for the attack on V – the kicking to the head incident.  The conviction was under s 189(1): that with intent to cause grievous bodily harm, he caused injury to V.

[8]        This conviction was entered on 10 May 2007.  On 27 July 2007 the appellant was sentenced to two years and nine months imprisonment.  He did not appeal against his sentence until 17 December 2007.  That appeal is well out of time, and an extension of time for appealing is sought.

The sentencing

[9]        The Judge had some difficulty in assessing the facts in this particular matter.  This was because Mr Tohu’s brother was acquitted on the count which concerned V, but not the appellant.  Judge de Ridder said that the jury may have formed the view that it was only when the appellant kicked V in the head that all the necessary elements of the offence were constituted; moreover at that point V was no threat to the appellant.  That is, this is a case in which the jury took the view that the appellant, as the Judge put it, “had gone too far” in that respect.  The Judge was entitled to reach that view, and it seems logical.

[10]     V received extensive bruising to his face and head.  There is no lasting injury.  He does not suffer any emotional harm.  He considers himself lucky not to have been seriously injured.

[11]     The probation report which was before the Judge showed that the appellant was no stranger to the law.  Dating back to 1997 he had a number of quite serious driving offences – several of which were alcohol related – with fines, disqualifications and community service.  This is the appellant’s first conviction for violent offending.  The probation officer recommended imprisonment in this instance.

[12]     At sentencing, counsel agreed that this incident fell within band 1 of R v Taueki [2005] 3 NZLR 372. The argument was whether he fell at the lower end or the upper end of the band. This sort of argument arises frequently because that particular band provides for three to six years imprisonment.

[13]     The Judge was clearly, and rightly, concerned about the kicking in the head, as it seems, was the jury.  He took the view that on the evidence at trial that it was “a very forceful kick … some described it as a rugby type kick …”.  The victim was vulnerable and there were multiple attackers.

[14]     The Judge flatly rejected any notion of self-defence (which does not seem to have been run at trial) or provocation.

[15]     The Judge fixed a starting point of two years and nine months imprisonment.  He took the view that there were no factors that should increase the sentence.  Neither did he think there were any mitigating factors.

An extension of time for appealing?

[16]     Ms Rhodes, a legal secretary who is employed by counsel for the appellant has made an affidavit.  She notes the date of sentence.  She deposes that on 28 August 2007 Mr Tohu signified he wished to appeal, and appeal documents were drafted and forwarded to Ngawha Prison for him to sign.  The appeal documents had not been received back at Mr Dodds’ office by “mid­ to late" November 2007 and Mr Tohu “through his mother advised that he no longer wished to appeal”.  But then on 5 December 2007, again through his mother, he “advised his failure to return the appeal documentation was as a result of advice from other jail inmates”.  Finally, on 13 December 2007 Mr Tohu advised that he wished to proceed with the appeal.  Mr Dodds’ office acted promptly.  The appeal notice was dated 17 December 2007, and it was filed on 18 January 2008.

[17]     Mr Dodds said in his written submissions: “Unfortunately it appears that the appellant after being sentenced to a relatively lengthy term of imprisonment then started taking advice from his fellow prisoners around appeal issues.  That issue has led to significant delays.”

[18]     Mr Dodds argued that notwithstanding that delay, there is no prejudice and if leave is not given to bring the appeal outside of time, Mr Tohu will not have “the ability to have the Court determine whether some lesser sentence should be imposed in the circumstances of this case”.

[19]     The time limit for appealing to this Court against conviction or sentence in criminal proceedings is governed by s 388 of the Crimes Act 1961:

388     Time for appealing

(1)Where a person convicted desires to appeal to the Court of Appeal against his conviction or sentence, or to obtain the leave of that Court so to appeal, or where the Solicitor-General desires to obtain the leave of the Court of Appeal to appeal against the sentence passed on the conviction of any person on indictment, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within 28 days after the date of conviction or (if the convicted person is not sentenced on the date of conviction) at any time after the conviction, but not later than 28 days after the date of sentence.

(2)The time within which notice of appeal or notice of an application for leave to appeal may be given may be extended at any time by the Court of Appeal.

[20]     The discretion to grant an extension of time under s 388(2) was considered by this Court in R v Knight [1998] 1 NZLR 583. Richardson P considered that the lynchpin of the inquiry is the “interests of justice” (at 587):

… the discretion is not unfettered. The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed. Also relevant is “the respect which is traditionally shown for the liberty of the subject” (R v Hawkins [1997] 1 Cr App R 234 at 239).

[21]     After traversing the approaches taken in the United Kingdom, Australia and Canada, Richardson P said (at 588-589):

Reflecting the policy underlying s 388, the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand. Leave to appeal out of time on the ground that there has been a restatement of the applicable law should be granted only where special circumstances can be shown to justify a departure from the principle of finality. The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown [emphasis added].

[22]     The Knight test was recently affirmed as “manifestly … correct” in R v Lee [2006] 3 NZLR 42 (at [102]). There Glazebrook J noted that while the “rigidity of the standard required before an extension will be granted fluctuates between jurisdictions, the test in other comparable jurisdictions is similar to the Knight test” (at [101]). This Court rejected the Crown submissions that:

… artificial limits should be put on the balancing exercise so that, where a delay is long and there is prejudice to the Crown, a potential appellant must show substantial merits of a kind that throw real doubt on the propriety of the verdict. There is no doubt that, if there was real concern that a verdict was wrong, the interests of justice will favour the granting of an extension. This does not mean that this threshold must always be met before an extension is granted. It is, as this Court said in Knight, a matter of balancing the relevant factors (at [107]).

[23]     However, the Court agreed with the Crown’s submission that:

… it cannot have been intended that those seeking to appeal out of time should be in exactly the same position as those appealing within time, no matter how long out of time, no matter what the reasons for the delay, and no matter what the effect may be on any victims or on the due administration of justice (at [102]).

[24]     As to the reasons for delay, it is for the appellant to provide sufficient information for the Court to determine whether it is in the interests of justice for leave to be granted: R v Davis [2007] NZCA 577 at [13]. Where the appellant fails to provide a satisfactory explanation for the delay, “the only ground … on which the delay could be overlooked is if the proposed appeal is overwhelming on the merits”: R v Latifi [2007] NZCA 372 at [4].

[25]     While the Court is not required as a matter of law to hear argument on the merits before determining whether to grant an extension of time (R v Wotten [1961] NZLR 621 (CA)), it is common for it to do so: R v W CA136/04 30 September 2004.

[26]     In balancing the Knight factors, whilst remaining cognisant that this must be a highly context-specific inquiry, the Court in Lee considered that “the strongest factor favouring an extension of time to appeal being granted … must be the strength of the appeal” on the merits (at [108]).

[27]     With regard to the relevance of the merits on a leave application, a comparison can also usefully be made with the new procedure under s 379A of the Crimes Act 1961 for leave to appeal criminal pre-trial applications, established in R v Leonard [2007] NZCA 452 (at [47]):

Where the substantive appeal and the leave application are dealt with together, if leave is granted, the leave question will generally be dealt with in the judgment separately from the substantive issues. Brief reasons for the grant of leave will be given. If leave is refused, the Court will give its reasons briefly in the same way as if the leave application had been heard separately. There will be no consideration of the substantive appeal in such a judgment, except to the extent that the substantive merits are relevant to the application for leave to appeal.

[28]     We are not prepared to grant an extension of time for this appeal.  The delay in this case has not been satisfactorily explained.  There is a public interest in the finality of litigation.  Particularly in assault type cases and sexual offences the effect on victims of having proceedings hanging over their heads is not to be underestimated.  An appellant simply cannot “dither around” for some months, as happened in this case, before electing whether to appeal, let alone where the “advice” taken seems to have been that of other prisoners.

[29]     Of distinct significance to this case, and in line with the existing authorities, there is here no merit whatsoever in this appeal.  The jury seems to have shown a lively appreciation of what was going on in the carpark at Kaikohe that evening.  It drew the line at kicking a man who had been downed, in the head.  This was an incident of serious violence.  Behaviour of that kind has long troubled our courts.  There was no error of principle on the part of the sentencing Judge, who chose – and we think rightly – to locate the offending at the lower end of band 1 of Taueki.  He chose not to add any aggravating factors nor to subtract any mitigating factors.  That is understandable, because the Judge could not reasonably interfere with the verdict of the jury.  There was no provocation or self-defence.  We cannot say the Judge was wrong.

Conclusion

[30]     An extension of time for appealing against the sentence is refused.

Solicitors:
Crown Law Office, Wellington