Reid-Manuel v The Queen
[2017] NZHC 2768
•10 November 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-412-000020 [2017] NZHC 2768
BETWEEN NIKO WILLIAM VERNON REID-
MANUEL Appellant
AND
THE QUEEN Respondent
Hearing: 17 August 2017
Additional Affidavit Evidence Filed: Rebecca Slade 23 August 2017
Kate McHugh 29 August 2017 and 18 September 2017
Wendy Muir 29 August 2017Further Submissions Filed:
11 September 2017Second Memorandum of Agreed Facts Filed:
11 September 2017Appearances:
K J Beaton for Appellant
S K Barr for CrownJudgment:
10 November 2017
JUDGMENT OF GENDALL J
REID-MANUEL v THE QUEEN [2017] NZHC 2768 [10 November 2017]
Introduction
[1] The appellant, Mr Reid-Manuel, appeals against his conviction and sentence in the District Court at Alexandra on one charge of causing grievous bodily harm with intent to cause grievous bodily harm under s 188(1) of the Crimes Act 1961. He pleaded guilty prior to trial. He was convicted and sentenced on 29 August 2016 to three years nine months’ imprisonment and given a three-strikes warning.
[2] The charges arose from events which occurred shortly after midnight on
27 February 2016 in the business district of Cromwell. This involved a fist fight which culminated in the appellant attacking the victim including when he was said by the sentencing Judge to be “lying on the ground insensible”.
[3] The conviction appeal is brought on the grounds that a miscarriage of justice has occurred in that:
(a) The appellant did not intend to plead guilty to the charge; and
(b)The guilty plea was entered on the basis of incorrect or inadequate advice from trial counsel as to the non-availability of a defence and as to the consequences and outcomes.
[4] The grounds for his appeal against sentence are that:
(a) the sentence process miscarried as the appellant’s lawyer failed to advise the sentencing court of a material disputed fact (that he had kicked the victim to the head once), resulting in an error in the sentence imposed;
(b)in any event, even if the disputed kick to the head was established, the Judge erred in taking a starting point of seven years and six months’ imprisonment for the sentencing; and
(c) even with the significant discounts for personal mitigating factors, the end sentence imposed was manifestly excessive.
Leave to appeal out of time
[5] Section 231(2) of the Criminal Procedure Act 2011 requires the appellant to file an appeal within 20 working days after the date of sentence for the conviction appealed against. However, under subs (3), the Court may at any time extend the time allowed for filing a notice of appeal. Here, the appellant’s appeal is brought out of time, this appeal not being filed in this Court until 6 April 2017. However, the Crown consents to extending the time for filing this appeal. I am satisfied that in all the circumstances here, leave should be granted. Leave to appeal out of time is accordingly granted.
Appeal against conviction
[6] Section 229 of the Criminal Procedure Act provides the right to appeal against conviction. Sections 232(4) and (5) specifically provide for the possibility of an appeal against conviction on miscarriage of justice grounds where an appellant is convicted after pleading guilty.
[7] The legal principles applying to such appeals are well established. It is only in exceptional circumstances that an appeal against conviction will succeed after a plea of guilty. An appellant must show a miscarriage of justice will occur if the conviction is not to be overturned. The Court of Appeal in R v Le Page identified three broad situations where a miscarriage of justice will be indicated:1
(a) Where the appellant did not appreciate the nature of or did not intend to plead guilty to a particular charge;
(b)Where on the admitted facts the appellant could not in law have been convicted of the offence charged;
(c) Where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.
1 R v Le Page [2005] 2 NZLR 845 (CA) at [17] to [19].
[8] The courts have also recognised other circumstances which may provide grounds for a successful appeal against conviction after a guilty plea. One is where a defendant has pleaded guilty on the basis of incorrect advice as to the non-availability of certain defences or outcomes. In R v Merrilees, the Court of Appeal stated:2
[34] There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.
[35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
[9] Entry of a guilty plea after incorrect legal advice as to the consequences or outcomes, including sentencing outcomes, can be sufficient to amount to a miscarriage of justice.3
[10] In relation to advice on the availability of a defence, the Court of Appeal in
Penniket v R held:4
[8] It will often be the case that a defendant will make a decision to plead guilty despite the existence of possible defences. There is no miscarriage if the appellant, knowing the existence of possible defences, makes an informed decision to plead guilty. The existence of a possible defence at the time of the guilty plea, even a possibly viable defence, is not enough to allow a change of plea. There may be defences that could be run, but which are put to one side because they are unlikely to succeed, or carry other disadvantages. In the absence of material counsel error, such decisions cannot be revisited on appeal save in rare circumstances. The sole fact that a possible defence was known to exist at the time the appellant pleaded guilty does not on its own show a miscarriage of justice.
2 R v Merrilees [2009] NZCA 59.
3 Hancock v R [2012] NZCA 292; Witerhira v R [2013] NZCA 58 at [31]; T v R [2013] NZCA 550 at [36].
4 Penniket v R [2016] NZCA 154 at [8].
[11] Mere assertion of a possible defence, however, is not enough. On appeal, a real case for the defence, demonstrated on the law or the facts, must be established.5
The Court of Appeal has declined, however, to set any particular threshold for an appellant to satisfy, noting in Cooper v R:6
[20] In a case like the present, the Court will need to make some assessment of the proposed defence in order to determine whether what has occurred has given rise to a miscarriage. In the context of considering the adequacy of advice about possible defences, various terms have been used to describe the nature of the defence required, including an “arguable defence”, a “tenable defence” a “credible defence”, or a “discernible defence”…
[21] These adequacy of advice cases all have, as common denominator, the raising of a defence which has some substance. We consider that on the basis of the appellant’s affidavits, he has shown that a miscarriage of justice arises because he was deprived of the opportunity to make his defence. He advanced the underlying factual basis for the defence from the outset but was deflected from following through on it because of the error in advice…
(citation omitted).
Alleged Offending
[12] From the summary of facts, much of which emanates from CCTV footage of the events, at about 12.30 am on Saturday 27 February 2016 the victim left a Cromwell hotel and walked back through the business district to where his bicycle was secured. As he walked past the public toilets in Lode Lane the appellant and his friend without provocation challenged the victim to a fight.
[13] The victim walked off but was followed by the appellant’s friend who confronted him. At this point the appellant also engaged with the victim. The challenge to a fight was repeated and the appellant and his associate then stripped to their bare chests and the victim took off his top and backpack.
[14] The appellant and victim fronted up ready to fight. The appellant kicked the victim in the lower leg. The victim attempted to kick the appellant but missed, and instead spun around. The appellant quickly moved in and punched the victim to the
jaw. The victim fell to the ground unconscious and stopped responding.
5 Nixon v R [2016] NZCA 589 at [11].
6 Cooper v R [2013] NZCA 551.
[15] The appellant then moved in and delivered 11 forceful punches to the victim’s upper body over a period of about ten seconds. The victim throughout was lying on the ground, not moving.
[16] The appellant walked away. Less than 10 seconds later however, he came back and kicked the victim, either in the head or the upper back. The appellant then took the victim’s sunglasses which were lying on the ground next to his body.
[17] A member of the public then came to the assistance of the victim who remained unconscious for at least 10 minutes. Later, he was taken by ambulance and admitted to Dunstan Hospital. The victim’s injuries were serious. They included a fractured jaw, fractured eye socket and fractured ribs. His lung was punctured and he had numerous cuts and abrasions to his body.
Events leading up to the guilty plea
[18] The appellant met with his lawyer, Russell Douglas Checketts (Mr Checketts), regarding the incident, for the first time on 18 March 2016. Mr Checketts is an experienced litigation lawyer from Alexandra. At the initial interview, Mr Checketts and the appellant viewed the detailed CCTV footage of the incident which had been supplied by the prosecution. After watching the footage, Mr Checketts confirmed to the appellant that he was facing serious charges and that the maximum penalty on the grievous bodily harm charge was 14 years’ imprisonment. According to the appellant, he told Mr Checketts that he wanted to plead guilty but not to the grievous bodily harm charge as he insisted that he did not mean to hurt the victim. Upon what he said was a realistic assessment of the appellant’s position based on the strength of the CCTV evidence, Mr Checketts advised him that he had no defence to the charge and would find it difficult to prove that he lacked the mens rea (the required intent) for the offence.
[19] On 28 April 2016, the appellant was scheduled for a second appearance before the Alexandra District Court. Mr Checketts met the appellant prior to this appearance and advised him that he planned to plead not guilty on the appellant’s behalf in order to seek more time to negotiate with the Crown about reducing the charge. At the time, Mr Checketts said he was hopeful that he could convince the Crown to reduce the
charge, although he also believed that, due to the strength of the evidence against the appellant, it was not in the interests of the appellant to proceed to trial.
[20] Later, Mr Checketts wrote to the Crown Solicitor seeking to reduce the charge from one of wounding with intent to injure (which carries a maximum penalty of 14 years’ imprisonment) to one of injuring with intent to injure (which carries a maximum penalty of 10 years’ imprisonment). However, the Crown refused. The Crown was of the view that the only appropriate charge was one of wounding with intent to injure.
[21] The Crown’s position was communicated to the appellant. The appellant had earlier it seems told Mr Checketts at a meeting on 15 June 2016, that he did not want to plead guilty to that charge. Mr Checketts it seems did not respond well to the appellant’s decision. Mr Checketts continued with his advice that it was in the best interests of the appellant to plead guilty. This he said was so that the appellant could receive the full guilty plea discount. Mr Checketts it seems also raised what was described as the faint possibility of a home detention sentence. However, the appellant says he was still adamant that, notwithstanding the evidence and appearances to the contrary from the CCTV coverage, he did not intend to cause the victim grievous bodily harm. After the meeting, the appellant says he was stressed and upset. He complains that Mr Checketts “had nothing good to say and was very negative” towards him. At the same time, Mr Checketts says he personally was feeling frustrated because, as a lawyer, he was trying to do the best that he could for the appellant with extremely limited options.
[22] Shortly thereafter, the appellant received a letter from Mr Checketts, sent on
17 June 2016. It is useful for present purposes to set out that letter in full, which I now do:
Checketts McKay Law
17 June 2016
Dear Niko
Court
We refer to the above and our conversation on Wednesday 15 June 2016.
You had some questions about why we recommend you plead guilty to the charge of Causing Grievous Bodily Harm.
We enclose the summary of facts prepared by the Crown which is directly based on the video from the CCTV camera and shows you and your friends meeting the victim and a fight between you and the victim; you knocking out the victim and then over a 10 second period hitting the victim about 11 times. You then go away, come back a few seconds later and kick the victim once.
Grievous Bodily Harm is very serious harm. In this case the victim received a fractured jaw, fractured eye socket, fractured cheekbones and fractured ribs. He also suffered a punctured lung. This is Grievous Bodily Harm.
The Law
As I told you, serious assault charges were considered by the Court of Appeal in 2005. A case, called a guideline judgment, was given by the Court of Appeal. The Court set out 3 bands of offending:
Grievous Bodily Harm (GBH) has a 14 year maximum sentence so the Court split sentences for GBH into 3 bands:
• Band 1 – 3 to 6 years
• Band 2 – 5 to 10 years
• Band 3 – 9 to 14 years
There is some overlap.
The Court also said there are 14 factors which are called aggravating factors which make things worse. In your case:
(1) Extreme Violence- there are lots of broken bones and a punctured lung. 1 or 2 lucky punches didn’t cause this amount of damage. You also kicked the victim once.
(2) Serious injury – these injuries are serious
(3) Attacking the head – the injuries show you attacked the head
(4) Vulnerability of Victim – It seems clear that most of the injuries happened when the victim was unconscious; in other words he was not able to defend himself.
…
In our view you are at the bottom of Band 2 (5 to 10 years) for a start point say 6 years (the Crown will start at 7 ½ years). However, there are a number of factors which then work in your favour to reduce this sentence.
(a) Most importantly early guilty plea – up to 30% reduction
(b) Youth – possibly 5% (or more)
(c) Previous clean record – 5%
So we would hope to discount off to 40% off 6 years.
6 years = 72 months, less 40% is 28.8 months = 43 months or 3.6 years. You would probably be eligible for parole at between 1/3 to ½ of that time (say 18 to 24 months).
The only good thing for you to do is plead guilty as soon as possible because there can be no argument about the facts (they are all on video) and there can be no argument about the way the sentence is calculated because the guideline case has been in effect for 11 years.
If we defend the charge and you lose you will spend at least 4 years in jail. We will see you at Alexandra District Court on Wednesday 22 June 2016 at
2:15 p.m.
Yours faithfully
Checketts McKay Law Limited
Russell Checketts
[23] The appellant appears to allege here that the contents of this letter were inconsistent with the advice given to him in the 15 June 2016 meeting. The appellant says that at the meeting, Mr Checketts assured the appellant that he would get home detention if he pleaded guilty. However, given all the evidence on this aspect which is before the Court, I do not accept that this was likely to be the advice given to the appellant. Mr Checketts has given sworn evidence to the contrary and, as demonstrated by his detailed and accurate letter, he advised that the most likely outcome was one of imprisonment.
[24] Also on 17 June 2016, Mr Checketts had written to the solicitors for the Crown, advising that there were some difficulties in “convincing [the appellant] to confirm his guilty plea”. Clearly, issues over Mr Checketts’ advice to the appellant for a guilty plea continued to be alive then, as his letter to the appellant that day confirmed. Mr Checketts also raised one particular issue in his letter to the Crown Solicitors. This related to a fact described in the summary of facts that the appellant said he disputed. It was the suggestion that the appellant had kicked the victim “to the head”. Mr Checketts said the appellant denied that the kick to the victim was to his head. He argued too that the CCTV image did not clearly show where the victim was kicked. For all these reasons, the appellant was requesting the words “to the head” be removed
from the summary of facts. However, as I have noted above, Mr Power, solicitor for the Crown, refused to amend the summary of facts. This was also in light of a third party witness’s statement in evidence that the appellant had run up to the victim and kicked him in the head.
[25] Pivotal to this appeal is what happened before the appellant’s third court appearance on 22 June 2016. Mr Checketts met with the appellant early that day at the Alexandra District Court prior to the hearing and discussed entering a guilty plea. Mr Checketts says he told the appellant that the Crown would have little difficulty in proving intent as the victim was knocked out, struck viciously at least ten more times while he was unconscious, and was then kicked. There was no defence available and the evidence was strong. Credibility issues also loomed large here, given that at his police interview the appellant claimed he had not kicked the victim at all, only to recant somewhat when he saw the CCTV footage and heard the third party’s evidence to the contrary. After going through the facts, Mr Checketts deposes that the appellant agreed to plead guilty.
[26] The appellant says now, however, that he did not want to plead guilty. He maintains also that he does not remember Mr Checketts asking him to sign instructions confirming how he wanted to plead. Later, at the hearing, when Mr Checketts pleaded guilty on the appellant’s behalf, the appellant says he was “shocked”.
Grounds of appeal against conviction
[27] Ms Beaton, for the appellant, submits that, if the appellant’s evidence is accepted, a miscarriage of justice has occurred in three respects:
(a) The appellant did not intend to plead guilty to the charge and his lawyer acted against his instructions in entering the plea on his behalf; and
(b)The appellant relied upon the advice of his lawyer which was misleading as to the outcome and consequences; and
(c) A tenable defence of substance was available, that is a lack of intent to cause grievous bodily harm at the time of the assault.
[28] The appellant deposes now that he did not want to plead guilty to the charge under s 188(1) of the Crimes Act 1961 as he says he did not intend to cause the victim grievous bodily harm. He states that he did not instruct Mr Checketts to enter a guilty plea to that charge, and that Mr Checketts’ action in doing so on his behalf on 22 June
2016 was a shock to him, and against his instructions. That is disputed by Mr Checketts. He deposes that he had oral instructions to enter a guilty plea on that date, but he accepts now that it does seem he failed to obtain written instructions.
Discussion
Allegation that Mr Checketts entered the guilty plea contrary to instructions
[29] The Supreme Court in R v Sungsuwan emphasised that the ultimate question where trial counsel conduct is in issue is whether justice has miscarried.7 The Court of Appeal in Hall v R identified three fundamental decisions on which trial counsel’s failure to follow specific instructions will generally give rise to a miscarriage of justice.8 Those are decisions relating to plea, electing whether to give evidence and electing to advance a defence based on the accused person’s version of events.
[30] It is clear, however, that there may be cases where a failure to follow instructions on a fundamental decision does not give rise to a miscarriage of justice. But it is also clear that those cases will be rare. In R v Chin, the Court of Appeal held that even if there had been a “firm instruction” to trial counsel that the appellant was to give evidence, failure to call him would not, “in the particular circumstances” of the case, have resulted in a miscarriage of justice.9 That was because there the Court heard from the appellant as to what he would have told the jury if he had given evidence. The Court found that his evidence “would have invited incredulity from the jury.”
[31] In the present case, the Crown acknowledges that, in an appeal based on a failure to follow instructions on a fundamental decision, the focus will be on whether,
as a matter of fact, there was a failure to do so.
7 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 30 (SC) at [70] per Gault, Keith and Blanchard
JJ.
8 Hall v R [2015] NZCA 403
9 R v Chin CA43/04, 10 June 2004.
[32] During the hearing of this appeal, there was some speculation that the appellant may have signed a written instruction on the day directing Mr Checketts to plead guilty on his behalf. The hearing before me was adjourned to allow counsel an opportunity to endeavour to locate any signed instruction that existed, which could have been pivotal here. However, no written instruction or even the operative part of Mr Checketts’ original lawyers’ file itself was located. Instead, an affidavit deposed by Ms Rebecca Slade, Mr Checketts’ legal executive, was filed in which she affirmed that she did recall in the past seeing a signed note on the relevant file flap acknowledging instructions from the appellant in this instance to plead guilty.
[33] Ms McHugh, the lawyer initially engaged to act for the appellant in relation to this appeal, however, herself deposed that she never located any such instruction after fully reviewing all portions of Mr Checketts’ original file which she had. Ms McHugh deposes that, had there been any evidence of a written instruction, she would definitely have taken notice of it, because she specifically looked for written instructions by the appellant.
[34] At trial, the appellant was adamant that he did not sign an instruction for Mr Checketts to plead guilty on his behalf. Mr Checketts’ recollection of whether there was a written instruction obtained is equivocal at best. On the basis of the evidence available before me, I am not satisfied that Mr Checketts did obtain written instructions from the appellant to plead guilty.
[35] An issue arises therefore as to whether Mr Checketts received oral instructions from the appellant to plead guilty.
[36] From his evidence Mr Checketts is adamant that when he entered the guilty plea he was acting on prior instructions he had received from the appellant to do so and, balancing all the material that is before the Court here, I accept this. At this point I need also to say that during his cross examination at the hearing of this appeal before me, I found Mr Checketts to be a clear, open and honest witness with a reasonably good recollection of the events. Mr Checketts is a litigation lawyer with considerable court and general legal experience. I am satisfied from all the evidence before the Court that throughout Mr Checketts was well aware of the limited realistic options
open to the appellant on the serious charge he faced, and as his lawyer Mr Checketts acted with appropriate care and skill. His lengthy letter of advice to the appellant on
17 June 2016 is clear, comprehensive and accurate. I find too that Mr Checketts followed through on the appellant’s other instructions to him, whether these were to seek a reduced charge, or to dispute the allegation that the appellant’s final kick administered to the victim was to his head. And, given the undoubted strength of the evidence against the appellant and the Crown’s refusal to compromise, I accept that the only realistic option in the best interests of the appellant here was for a guilty plea to be entered at the earliest opportunity. This would take advantage of a guilty plea discount and possibly demonstrate remorse for a further sentencing discount. The appellant’s evidence on these events, in my view, was wavering and at times inconsistent. The appellant was no doubt under some emotional pressure in Court on
22 June 2016. Despite his comments after the event however, perhaps surprisingly, he did not ask Mr Checketts why he had entered the guilty plea when the appellant claimed his instructions were otherwise. I prefer the evidence of Mr Checketts on these aspects. This supports Mr Checketts’ assertion that he would only have acted on instructions when he entered the guilty plea.
[37] Furthermore, in the particular circumstances of this case even if, despite my conclusions to the contrary, the appellant had not intended to plead guilty and had advised accordingly, I would not have found that a miscarriage of justice had occurred. Reviewing the CCTV footage which captured the incident with a degree of clarity, I accept Mr Checketts’ analysis that the largely unprovoked, prolonged and vicious assault on the victim would have led to a conviction on the charge the appellant faced, given essentially that it comprised three parts. First, it involved a knockout punch from the appellant rendering the victim unconscious; secondly, at least eleven successive punches in ten seconds were delivered whilst the victim lay comatose on the ground, punches that landed mostly on the appellant’s head and upper body; and thirdly, after leaving the victim unconscious for a few seconds, the appellant returned and kicked the victim in his head or upper back area. All of these assaults led to serious injuries which hospitalised the victim. The appellant explained too that his continued assault was to make sure that the victim “couldn’t get up again”. I find that the callous and intentional violence demonstrated by the appellant here was palpable, it satisfied all the elements of the s 188(1) charge, and all this was without question captured on the
CCTV footage. Any suggestion otherwise in my judgment would inevitably invite incredulity from a decision-maker, be it a jury or a Judge.
Allegations that Mr Checketts gave misleading advice as to the consequences of the guilty plea
[38] The appellant submits too that Mr Checketts here did not give careful and proper advice to him regarding the likely outcome and consequences of either a guilty plea, or of defending the charge. The appellant contends that Mr Checketts:
(a) failed to advise him of his right to request a sentence indication to assist and inform any decision about a change of plea to one of guilty;
(b) gave flawed advice to the appellant, after the entry of the plea on
22 June 2016, that pleading guilty was necessary to maintain home detention as a possible sentencing outcome; and also that Mr Checketts failed to explain and ensure that the appellant was aware that home detention was never a real option for the Court on a guilty plea here based on the Crown’s summary of facts;
(c) advised the Crown and the Court that the appellant accepted the Crown summary of facts knowing the appellant did not, in particular in relation to a material and aggravating fact (the alleged kick to the head);
(d)failed to advise the appellant of the disputed fact procedure under s 24 of the Sentencing Act 2002;
(e) failed to provide to the appellant a copy of the Crown’s submissions and the defence submissions on sentencing.
[39] Mr Checketts’ evidence was that his assessment of the sentencing outcome throughout was a prison term of more than three and a half years. He accepted he said that home detention was an “outside chance” but not likely. He reached these conclusions, it seems, in part on the following basis:
(a) Mr Checketts accepts he would have discussed home detention at the
15 June 2016 meeting with the appellant. But he says he advised the appellant during that meeting that his assessment was that he would be sentenced to imprisonment for something in excess of three years, precluding home detention, and he followed this up with his 17 June
2016 advice letter. Mr Checketts considered that the question for sentencing was whether he could persuade the Judge to keep the sentencing band within Band 1 of Taueki.10 He said he thought this would be extremely difficult given the aggravating features I have outlined above. Mr Checketts seems to have expressed a similar view when he discussed the matter with the Crown prosecutor on 10 June
2016.
(b)On 22 June 2016 when the plea was entered, Mr Checketts’ view was that it was only an “outside chance” that home detention would be available and very unlikely and I accept he had no reason earlier not to have repeated this to the appellant. The reality was that the appellant was likely to go to prison for approximately three and a half years. Mr Checketts had written to the appellant earlier with this advice. Mr Checketts did note the appellant had the benefit of youth and no previous convictions, as well as “hopefully remorse and some other issues, but none of which eventually came into the calculation”. Mr Checketts’ assessment was an accurate one that a home detention outcome was “unlikely to happen unless we got the right sentencing Judge on the day”.
[40] By way of contrast, the appellant says now that he believed home detention was the more probable outcome and that, indeed, he says he was “shocked” he was sentenced to imprisonment, which he claims he did not expect. The varying reasons given by the appellant in his evidence as to why he says he thought he would receive
a sentence of home detention, in my view, were sketchy at best. They reflect the
10 R v Taueki [2005] 3 NZLR 372 (CA).
reality, as I see it, that home detention was never any more than a hope rather than a belief, let alone one based on advice from Mr Checketts.
[41] Some possible criticism might be levelled at Mr Checketts, however, if it proved that he had failed to advise the appellant to request a sentence indication and if he failed to provide a copy of the Crown and defendant’s sentencing submissions to the appellant. However, these mistakes, if indeed they occurred, in all the circumstances here are insufficient, in my view, to substantiate a miscarriage of justice. The appellant was fully and properly advised by Mr Checketts’ in his letter of 17 June
2016 on all relevant matters, including the likelihood of his possible sentence. That letter predicted the likely sentence to be three years and seven months’ imprisonment. This was remarkably similar to the appellant’s ultimate sentence of three years and nine months’ imprisonment. I therefore do not find that any errors of this kind, even if they had occurred, resulted in a miscarriage of justice.
[42] I discuss the issue of requesting a disputed facts hearing at [50] below. Ultimately, I conclude that Mr Checketts was acting appropriately and on instructions when he did not request a disputed facts hearing before sentencing.
[43] Lastly, I do not accept that Mr Checketts gave inadequate or misleading advice here on the possibility of home detention. The correspondence between Mr Checketts and the appellant demonstrated that Mr Checketts properly advised the appellant on the likely sentence. As spelled out in the comprehensive letter written to the appellant on 17 June 2016 (as set above at [22]), Mr Checketts advised the appellant that the inevitable consequence to the appellant’s offending was one of imprisonment. The faint possibility of home detention was raised, but nothing more, supported later when the District Court Judge ordered a home detention suitability report.
Allegation that Mr Checketts gave inadequate advice as to a tenable defence
[44] The appellant submits that Mr Checketts failed to advise him of a tenable defence, being a lack of intent to cause grievous bodily harm at the time of the assault. I accept that had the charge proceeded to trial, the onus of proving a specific intent to cause grievous bodily harm would have been on the prosecution. The Judge or jury also would have been required to determine first, the type of injuries the offender
intended to inflict, and secondly whether injuries of that character were really serious harm. The Court of Appeal in Vincent v R held:11
[48] It is not in dispute that grievous bodily harm means really serious harm, but several points need to be made in relation to s 188. First, there must be a connection between the harm caused and the intention required to be proved. Second, as earlier noted, there may be an intention to cause grievous bodily harm but it is not necessary for the Crown to prove that harm to that level of seriousness actually resulted. On the indictment in the present case, it was only necessary for the Crown to show that the victim was wounded. Third, in determining what the defendant’s intention was at the time of an assault, the jury must decide two questions: what type of harm did the defendant actually intend and did that amount to really serious harm?
[49] The focus of the first question is subjective in the sense that it is the defendant’s actual intention that must be determined. But the jury must consider all the evidence including the nature of the assault and the acts and statements made by the accused before, at, or after the events. In doing so, the jury may draw appropriate inferences from the proven facts in deciding what the appellant actually intended and whether that amounted to an intention to cause grievous bodily harm. As Mr Lithgow ultimately accepted, it is for the jury to determine the second question on an objective basis.
[45] However, I find that the appellant’s purported defence in all the circumstances here is neither tenable nor credible. Mr Checketts’ advice was entirely appropriate. It highlighted at least one major problem with any suggested defence. This was that the violent assault continued after the one knockout punch which rendered the victim unconscious on the ground. As I have noted above, the appellant then proceeded to land about 11 successive punches to the victim causing significant injuries and he returned a few moments later to kick the victim in his upper body or head. The appellant admitted that the continued violent assault was intended to make sure that the victim did not get up again. That alone in my view indicates a clear intent to cause grievous bodily harm.
[46] For all the reasons outlined above, I conclude that there has been no miscarriage of justice here. The appellant’s appeal against conviction is dismissed.
11 Vincent v R [2016] NZCA 201.
Appeal against sentence
Jurisdiction
[47] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.12
[48] If the sentence under appeal may be properly justified having regard to relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R13) in Larkin v Ministry of Development:14
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[49] The focus on most appeals is thus on the end sentence, rather than the process by which the sentence is reached.15
Analysis
[50] The appellant appeals his sentence primarily on the grounds first, that Mr Checketts erred in failing to seek a disputed facts hearing pursuant to s 24 of the Sentencing Act, and secondly, that the starting point adopted by the sentencing Judge was manifestly excessive.
[51] On the issue of failing to seek a disputed facts hearing, Mr Checketts’ evidence was that he had raised with the prosecutor the disputed fact noted at [24] above initially
on 17 June 2016 before the plea was entered. And, at the 22 June 2016 hearing, the
12 Criminal Procedure Act 2011, s 250(2).
13 Ripia v R [2011] NZCA 101 at [15].
14 Larkin v Ministry of Development [2015] NZHC 680.
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 (CA) at [36].
District Court Judge recorded that counsel was to advise whether a disputed facts hearing was required. Mr Checketts then advised the Crown prosecutor on 27 June
2016 that there was to be no disputed facts hearing. Mr Checketts’ evidence is that he could not precisely recall when he received those instructions, but they were given and he deduced that it probably would have been after 22 June 2016 because he did not see the appellant again before 27 June 2016. Mr Checketts’ clear assessment too was that the evidence was entirely against the appellant on this point.
[52] Initially the appellant suggested that he did not recall any discussion with Mr Checketts as to the possibility of a disputed facts hearing. However, he then went on to accept that Mr Checketts on several occasions had talked him through the evidence – both eye-witness and the CCTV footage – and that he thought that Mr Checketts did say something “along the lines that you had enough bad things against you without arguing about a point that wouldn’t really change the result”. The appellant accepts that it is possible he could have decided that he would accept what Mr Checketts was advising him, because he thought Mr Checketts “knew best”.
[53] Given these matters, and in light of all the evidence, I find that Mr Checketts was acting appropriately and on instructions when he told the prosecutor that a disputed facts hearing was not required. Furthermore, it is doubtful, in my view, whether the disputed fact would have made any material difference to the end sentence imposed. As a matter of fact, undoubtedly the kick was delivered by the appellant when the victim was most vulnerable, lying unconscious on the ground. And it followed an attack that was unprovoked and gratuitous. The succession of punches given by the appellant, aimed particularly at the victim’s upper body and his head, led to serious injuries to the victim and hospitalisation.
[54] I conclude that no appreciable error occurred here in the decision taken not to seek a disputed facts hearing.
Whether the sentence is nevertheless manifestly excessive?
[55] As to this aspect, the appellant contends that a significant error occurred here because neither the Crown nor Mr Checketts referred the sentencing Judge to examples of Band 2 Taueki sentencing decisions in their submissions filed prior to
sentencing.16 Furthermore, the appellant notes that the sentencing Judge, Judge Phillips, does not refer to either example in his judgment. Before me, counsel for the appellant referred this Court to numerous authorities addressing sentencing for Band 2 offences of wounding with intent to cause grievous bodily harm.17
[56] Recently, however, in R v Setu, Mander J in this Court held that sentencing Judges are entitled to return to first principles and to apply tariff judgments provided by the Court of Appeal without undertaking a comprehensive review of relevant authorities. His Honour held:18
[46] …A sentencing Judge is entitled to return to first principles and, in particular, to apply the guidance provided by the Court of Appeal when setting a starting point This is particularly so when over the years since the 2005
Taueki decision, a body of decisions have accumulated in sentencing levels and perhaps to some extent “sentence drift” from the original guidance
provided by the Court of Appeal.
[47] The development of itself may simply reflect what the Court of Appeal acknowledged in its Taueki decision, namely that sentencing ultimately involves the exercise of discretion and must allow for flexibility. The fact that some sentencing Courts have chosen, as they are entitled, to apply Taueki in a particular was does not, in my view, render another sentencing Court’s application of the Taueki guidance in another case inappropriate, so long as the starting point arrived at can be reconciled with the range the Court of Appeal has held to be available because of the nature and combination of aggravating features.
[48] To suggest otherwise would effectively relegate Taueki to a secondary source of guidance in favour of a requirement that a sentencing Court undertake a comprehensive review of cases, the circumstances of which will almost inevitably vary, before it may confidently impose a sentence for GNH offending. While assistance from other sentencing decisions provides a useful check, such an approach would largely defeat the purpose and utility of the guideline authority.
[57] I agree with this approach. Ultimately, I find here that the end sentence of three years nine months’ imprisonment is within the range of available sentences at Judge Phillips’ discretion for two reasons. First, there can be no doubt here that the
appellant’s offending was serious and fell within Band 2 of Taueki. It involved
16 R v Taueki, above n 10.
17 Hape v R [2015] NZCA 187 ; Fukofuka v R [2013] NZCA 510; Ryan-Thomas v R [2013] NZCA
518; Mareikura v R [2012] NZCA 108; Cook v R HC Hamilton CRI-2011-418-32, 3 November
2011; Lamb v R HC Christchurch CRI-2008-409-223, 19 February 2009; Gatoloai v R [2007] NZCA 319; R v Uili CA148/06, 26 October 2006.
18 R v Setu [2017] NZHC 1839.
extreme violence resulting in quite serious injuries. As I have already noted, the victim was extremely vulnerable after being knocked to the ground unconscious. He had no way of defending himself from the successive punches and the final kick he suffered, whether that kick may have been either to his upper back or to his head. His injuries, as I have noted, included a fractured jaw, fractured eye socket, fractured nose, fractured cheekbone, fractured ribs, a punctured lung and he had numerous cuts and abrasions on his body. The pre-sentence report too is described as being “not, in reality, a good report”. A starting point of seven and a half years was appropriate.
[58] Secondly, the total discounts afforded to the appellant for his guilty plea, youth, and previous good character amounting to 50 per cent, in my view, must be seen as generous. Given the strength of the evidence and the appellant’s lack of remorse and insight into his offending, he was perhaps fortunate to receive the full 25 per cent discount for his guilty plea, a plea which came at a relatively late stage. I also leave on one side the fact that the appellant may well have benefitted here by Judge Phillips adopting a global discount approach, rather than simply applying the orthodox approach of applying the 25 per cent guilty plea discount last.
[59] The end sentence of three years nine months’ imprisonment was within the available range. The sentencing process here did not miscarry. Judge Phillips in the District Court did not err in imposing this sentence.
Result
[60] For all the reasons outlined above, the appeal against both conviction and sentence is dismissed.
...................................................
Gendall J
Solicitors:
Crown Law, Wellington
Copy to Kerryn Beaton, Barrister, Christchurch
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