Rome v The Queen
[2012] NZCA 476
•16 October 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA251/2012 [2012] NZCA 476 |
| BETWEEN FALEAPA ROME |
| AND THE QUEEN |
| Hearing: 10 October 2012 |
| Court: Stevens, Venning and Dobson JJ |
| Counsel: J R F Anderson for Appellant |
| Judgment: 16 October 2012 at 10.15 am |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
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REASONS OF THE COURT
(Given by Dobson J)
Introduction
On 16 February 2012, at the conclusion of a jury trial in the District Court at Auckland, Mr Rome was found guilty on two counts of aggravated robbery and one count of assault with intent to rob. On 1 May 2012, Mr Rome was sentenced by the trial judge, Judge Gittos, to concurrent terms of three years and nine months’ imprisonment on the two counts of aggravated robbery and a concurrent sentence of two years’ imprisonment on the conviction for assault with intent to rob.[1] He appeals against both the convictions and the sentence.
Facts
[1] R v Rome DC Auckland CRI-2010-004-8670, 1 May 2012.
The Crown’s case was that the three young men who were the complainants in the case had been set upon by a group of men in the Royal Oak area of suburban Auckland, at 2 am one morning. The complainants had been socialising for the evening with others, and were walking to a parked car where their friends were waiting for them. When the complainants were in the immediate vicinity of the car, a number of men from a larger group comprised of men of Polynesian ethnicity, who were walking on the other side of the road, detached themselves from that group. Five or so of this group crossed the road and, with threats such as “the big bad wolf is coming”, assaulted the three complainants, made demands for cell phones and wallets, and proceeded to rob two of them.
One of the complainants, Mr Barco, managed to make it into the car after he had been assaulted but without having to give up any possessions. A second complainant, Mr Kattan, was felled by blows from one of the attackers, and then hit about the face with a bottle. He suffered injuries that required hospital dressing but not stitches. His wallet and cell phone were taken.
The third complainant, Mr Filion, was strangled around the neck and placed in a so-called choker hold whilst pressed against the bonnet of his friend’s vehicle, to the point where he appears to have passed out. His friends in the car observed his eyes rolling back so that his pupils were no longer visible, and at least one friend in the car thought that he had been killed. He slumped to the ground but regained consciousness and shortly thereafter rejoined his friends. He, too, was robbed of a wallet and cell phone.
The events all occurred very quickly. At least one of the attacking group also kicked panels and windows of the car, demanding that the doors be opened, and repeated demands for the occupants to hand over wallets and cell phones. The two groups were complete strangers to each other, and there had been no prior contact of any sort between them.
By the time the Judge came to sum up the case to the jury, he was able to include, in directions to the jury, a list of the following items as being not in dispute:
1.In respect to counts 1 and 2 that the complainants Michael Filion and Aness Kattan were both assaulted and robbed by a group of assailants, ie that each was the victim of an aggravated robbery.
2.In respect to count 3 that Diego Barco was assaulted, and that the persons who were parties to assaulting him did so with the intent to rob him of his wallet and telephone.
3.That both of the accused Rome and Tagica were present at the time the events took place.
Mr Anderson, who was trial counsel for Mr Rome, accepted that these matters were accurately described as not in dispute.
The indictment alleged that Mr Rome had committed the offences, together with a Mr Pita and a Mr Tagica, and with “persons unknown”. Mr Pita had pleaded guilty to his involvement in the charges and gave evidence for the Crown. The trial proceeded against Messrs Rome and Tagica.
Legal elements of aggravated robbery – s 235(b) Crimes Act 1961
The elements required to be proven in a charge of aggravated robbery under s 235(b) of the Crimes Act 1961 (the Act) are that there be a theft of property taken from the complainant, and that the theft was accompanied by actual or threatened violence. The Crown must also prove that an accused acted together with at least one other person in jointly assisting one another to carry out the theft accompanied by actual or threatened violence.
The provision for this form of aggravated robbery, involving joint action together by two or more people, does not exclude the application of the general provisions in s 66 of the Act in relation to secondary liability of participants as parties. Accordingly, so long as the Crown establishes the actions of two or more robbers acting together to constitute the offence under s 235(b), then additional participants, whom the Crown does not establish were acting together with the principals in carrying out the remaining elements of an offence under s 235(b), might nonetheless be liable as parties. This may arise where the party aids, abets, incites, counsels or engages in any of the other forms of participation provided for in s 66(1) of the Act.[2]
Ground of appeal against conviction
[2] R vNewson [2012] NZCA 408; R v Feterika [2007] NZCA 526.
The ground for Mr Rome’s appeal against conviction was that the verdicts of the jury should be set aside under s 385(1)(a) of the Act in that they are unreasonable or cannot be supported, having regard to the evidence.
The thrust of Mr Anderson’s argument was that:
· the Crown evidence did not establish when, in the relevant course of events, Mr Rome crossed the road from the larger group he was walking with, to the location of the robbery; and
· none of the witnesses at the scene (with the exception of Mr Pita, whose evidence is discussed below) identified Mr Rome as playing any relevant part in the events comprising the elements of the offences, so that there was no basis on which the jury could safely have convicted Mr Rome.
Analysis
In his evidence, Mr Pita acknowledged being a long-term friend of Mr Rome, but not having any similar bond with Mr Tagica. Mr Pita described in his evidence observing Mr Rome standing over Mr Kattan, when that complainant was on the ground. Mr Pita said Mr Rome was holding an empty bottle, in a manner that caused Mr Pita to call out for him not to take further steps, given his position as a family man, and for Mr Pita to kick the bottle out of Mr Rome’s hand. If it accepted this evidence, an inference was clearly available to the jury that the manner in which Mr Rome was standing with a bottle in hand caused Mr Pita to be concerned that he was going to strike the complainant with it. Mr Pita’s own actions, as he described them, could similarly lead to the inference that he was motivated to prevent Mr Rome becoming involved or further involved in offending.
In terms of interaction with Mr Filion, Mr Pita described Mr Rome as intervening only to stop another of the attackers choking Mr Filion, and that Mr Rome both urged the strangler to desist, and physically intervened to save Mr Filion.
Mr Pita’s evidence tended to incriminate Mr Tagica as the lead participant in the assaults.
There were certain inconsistencies in the evidence of the other witnesses who observed the robbery, as to a strangling or choking assault on Mr Filion. He considered he had been attacked by two men, and some witnesses who observed from inside the car also recalled two attackers. Some of them, however, had observed only one.
Mr Filion’s recollection was that the second of his attackers had a tattoo with a Maori or tribal pattern on the arm principally used to choke his neck. Mr Filion recalled that as being the attacker’s left arm. Mr Anderson treated that as inconsistent with Mr Rome’s physical appearance, which he described as including a tattoo of Jesus Christ on his right arm, but none on his left. It was not suggested that that observation could have been made directly by the jury during the trial, but that it could have been gleaned from his appearance during the course of a DVD recorded interview of Mr Rome conducted by the Police.
As to the attack on Mr Kattan, one of those in the car observed him being hit in the face by an attacker wielding a bottle, and Mr Kattan’s own evidence was to that same effect. Other than Mr Pita’s evidence, there were no observations of Mr Kattan’s attacker that might lead to him being identified as Mr Rome.
When Mr Rome was originally questioned about the robbery, he denied being present and initially his defence included serving an alibi notice. Once confronted with evidence of his palm print having been retrieved from the bonnet of the vehicle on which Mr Filion was strangled, Mr Rome abandoned that denial.
Central to Mr Anderson’s arguments on the alleged unreasonableness of the jury’s verdicts was the proposition that the jury ought to have treated Mr Pita’s evidence as so unreliable that it all should have been rejected. He argued that the jury should not reasonably have relied on Mr Pita’s evidence that Mr Rome had been holding a bottle whilst standing over one of the victims in circumstances that appear to have caused Mr Pita alarm.
Ms Jelaś submitted that the part of Mr Pita’s evidence describing Mr Rome standing over a complainant with a bottle was not challenged on cross-examination on behalf of Mr Rome. Mr Anderson’s questions went no further than attempting to neutralise the impression Mr Pita had of what Mr Rome was doing with the bottle.
On the other hand, the only evidence available to Mr Rome that his involvement had been that of a good Samaritan attempting to prevent an even more serious assault on Mr Filion depended on statements to that effect by Mr Pita. There is a lack of logic about the expectation that the jury would reject the parts of Mr Pita’s evidence that were inculpatory in respect of Mr Rome, and accept those that were exculpatory when, given the acknowledged friendship between the two, it was entirely predictable that the jury would do the opposite. It was reasonable for the jury to do so, so long as they were properly directed in relation to reliance on Mr Pita’s evidence, as indeed they were.
The Judge had himself asked Mr Pita to clarify the steps he observed Mr Rome taking to prevent Mr Filion being strangled. Mr Pita’s explanations may well have left the jury with doubts about their reliability.
Once a reasonable basis existed for the jury to find that Mr Rome was taking active steps in pursuance of a joint enterprise to assault at least one of the complainants, in circumstances where there was evidence of a general melee of violence accompanied by demands to hand over property, it is not possible to find their resulting verdicts to be unreasonable or unable to be supported having regard to the evidence.
Mr Anderson also questioned the entitlement of the jury to treat Mr Rome as part of “the group” from the outset of the attack when there was no evidence as to the point at which he crossed the road. However, a consistent theme of the Crown witnesses at the scene was that the attackers crossed the road as a group, and that they were in a little group.
The attacks took place in a less than well-lit location at 2 am with the complainants and their friends at the scene all being shocked or highly stressed at the sudden, violent and unprovoked nature of the attack. In the circumstances that pertained, a jury might reasonably accept inconsistencies in details recalled by various witnesses as to the sequence, location and any identifying details of the attackers involved. In particular, Mr Filion’s recollection as to which arm of an attacker was around his neck and the form of the tattoo might not be sufficient to cause the jury to reject the essential thrust of that complainant’s evidence.
In the end, the challenge to the reasonableness of the jury’s findings depended on counsel’s expectation of proof at a level of specificity that is not required to make out the elements under s 235(b) of the Act.
The Crown closed, and the Judge summed up, on the basis that liability could also be established against one of the accused as a party under s 66(1). That course was open, so long as the jury found involvement by at least two principals in the elements of aggravated robbery conducted “together”.[3] However, on the view we take of the inferences reasonably available to the jury, we do not see it as a case in which liability as parties under s 66 needed to arise. There was more than a sufficient basis to find liability against Mr Rome under s 235(b).
Sentence appeal
[3]That was the case here, given the acknowledgement in paragraph 1 of the list of items not in dispute, quoted at [6] above.
Mr Rome also appealed against the sentence of three years and nine months’ imprisonment. On sentencing, Judge Gittos took into account the starting point set in the earlier sentencing of Mr Pita, which had been three and a half years prior to discounts available to Mr Pita reflecting guilty pleas and what were perceived as mitigating circumstances personal to him. The Judge in the present case, mindful of the need for parity between sentencings, adopted a starting point of not less than three and a half years. The Judge then applied an uplift of three months’ imprisonment for a list of previous convictions described by the Judge as “an appalling history of violence for a relatively young person”.
Mr Anderson could not cite any authority to suggest that the starting point was manifestly excessive. Nor could he advance grounds for criticising a three month uplift as anything other than conventional, given the justified concern at the criminal history for violent offending.
The sentence appeal rested primarily on a concern that the Judge should not have taken so adverse a view of Mr Rome’s contribution to the offending. It was argued that a distinction should be drawn in his favour compared with the other offenders who, Mr Anderson submitted, were responsible for more serious contributions to what, overall, was inarguably very serious offending.
That criticism is not justified. The trial Judge was well-placed to form views, having heard all the evidence, about the relative contributions to the overall offending. No criticism can be made of his decision to treat the starting point for all the offenders as the same. If anything, the approach was favourable to Messrs Rome and Tagica.
The Judge was clearly concerned that Mr Pita had, when he was sentenced, obtained the advantage of a summary of facts that materially down-played his own involvement. It is tolerably clear that, had this Judge been sentencing Mr Pita on the state of facts as he found them after the defended hearing of the co-offenders, he would almost certainly have characterised Mr Pita’s offending as relatively more serious than was the position when Mr Pita was, in fact, sentenced. Notwithstanding that unease, Judge Gittos considered himself constrained to the same starting point for Messrs Rome and Tagica that the Judge had adopted for Mr Pita.
With respect to the Judge, we do not consider that he was so constrained. Mr Pita was sentenced on the basis of a summary of facts agreed for the purpose of his sentencing exercise. Judge Gittos was not bound by that summary. He heard all the evidence relating to the incident and was entitled to sentence Mr Rome and Mr Tagica on the facts as he found them to be.
That point does not avail Mr Rome in the present circumstances. There is no basis for finding the sentence imposed on him to be manifestly excessive, and the sentence appeal must be dismissed.
Result
Mr Rome’s appeals against conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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