Saili v The Queen
[2012] NZCA 149
•17 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA633/2011 [2012] NZCA 149 |
| BETWEEN TOETU FALEMANU TUI SAILI |
| AND THE QUEEN |
| Hearing: 19 March 2012 |
| Court: Wild, Chisholm and MacKenzie JJ |
| Counsel: R M Gould for the Appellant |
| Judgment: 17 April 2012 at 10.30 am |
JUDGMENT OF THE COURT
The appeal, which is against both conviction and sentence, is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
Mr Tui Saili appeals against both his conviction and his sentence.
Following a four day trial presided over by Judge Harrop in the Wellington District Court in August last year, the jury found Mr Tui Saili guilty on the single count in the indictment:
that … on or about 13 May 2010, at Porirua, with intent to cause grievous bodily harm to Daniel Cummings, [he] did cause grievous bodily harm to Daniel Cummings.
(Section 188(1) Crimes Act 1961)
On 22 September 2011 Judge Harrop sentenced Mr Tui Saili to eight and a half years imprisonment, with a minimum period of imprisonment (MPI) of half that sentence.
Mr Tui Saili appeals against his conviction on the ground that the trial Judge erred in the exercise of his discretion, by refusing to include in the indictment the lesser charge contained in s 188(2) of the Crimes Act 1961.[1] On his behalf Ms Gould contends that there is a real and substantive risk that justice may have miscarried as a result, and that the conviction is unsafe.
[1] Section 188(2) is set out in [10] following.
The ground for the appeal against sentence is that the sentence of eight and a half years imprisonment is manifestly excessive in all the circumstances of this case.
The offending
On the night of 13 May 2010 a Mr Cummings was making his way home from the Porirua RSA where he had been drinking. He was moderately intoxicated. He called in at the house where Mr Tui Saili was living and knocked on the front door. The ensuing altercation ended when Mr Tui Saili and others told Mr Cummings to leave, pushed him out the front door and closed it.
Instead of going home, Mr Cummings threw a beer bottle, smashing one of the glass panels of the front door. The following part of the Judge’s sentencing remarks describes what then happened and its consequences for Mr Cummings:[2]
[6] You [Mr Tui Saili] opened the door and immediately began punching him about the head and body. You were assisted initially by one of the other occupants but when he fell to the ground you began to kick his head and body several times and most significantly you picked up a wooden bench seat, which was produced in evidence, and you repeatedly hit him in the body and the head most significantly with that item and that carried on, obviously, when he was in no position to defend himself so he was a particularly vulnerable victim in the latter part of the incident. You also used your foot to stomp on his head repeatedly and after he had lost consciousness you were dragged off him by others. So there is an implication that this frenzied attack would have continued had it not been stopped by those others.
[7] The summary of facts summarises the injuries. You told the police that you had struck him at least 50 to 70 times, perhaps up to 120 times, which I note indicates some recollection of what happened. You denied that you had struck him with the wooden bench seat but you did admit that you tackled and punched and kicked him about the head and body and that you struck him with a wooden broom stick. You called it the mop stick when you were giving evidence.
[8] The other associate of yours was a young person. He was involved in the punching and kicking at the earlier stage of the incident and he was dealt with as a youth in the Youth Court.
[9] But the injuries that were suffered were horrific and indeed the evidence is that if it had not been for the quality of the prompt medical attention that Mr Cummings received he almost certainly would have died. He sustained massive blood loss, multiple fractures to the head, a punctured lung, broken ribs and a spinal fracture which could potentially lead to paralysis, according to the summary of facts. He went into cardiac arrest when he arrived at the hospital and had to be resuscitated. He is suffering from a severe brain injury as a result of this and he is currently in a minimal conscious state.
[10] There was expert evidence about the state that he is in currently; in simple terms he is in a vegetative state and will be for the rest of his life. He has no quality of life. He is unable to feed himself and so his life has changed about as seriously as it could have, short of him actually dying. He has had a tracheotomy and a catheter inserted and has to be fed through a tube to his stomach. So in terms of grievous bodily harm this is about as bad as it gets.
Requests to lay or include a lesser charge
[2] R v Tui Saili DC Wellington CRI-2010-091-1709, 22 September 2011 [Sentencing remarks].
Mr La Hood informed us that Ms Gould, from a very early stage, had attempted to get the police and then the Crown to accept a guilty plea on various lesser charges. Those offers were not accepted. Although the Crown was provided by Ms Gould with psychiatric reports outlining Mr Tui Saili’s mental health difficulties, the Crown position remained that the s 188(1) intent (to cause grievous bodily harm) was established through the ferocity and duration of Mr Tui Saili’s attack on Mr Cummings.
During the trial Ms Gould made three successive requests to the Judge to add an alternative, lesser charge in the indictment, pursuant to s 339(1) of the Crimes Act. That provides:
Every count shall be deemed divisible; and if the commission of the crime charged, as described in the enactment creating the crime or as charged in the count, includes the commission of any other crime, the person accused may be convicted of any crime so included which is proved, although the whole crime charged is not proved; or he may be convicted of an attempt to commit any crime so included.
Ms Gould’s first request was at the conclusion of the evidence. She applied to the Judge to include in the indictment a count charging Mr Tui Saili with causing grievous bodily harm with reckless disregard for the safety of others. That is the second, alternative, limb of s 188(2) of the Crimes Act which provides:
Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.
Judge Harrop declined that request in his Ruling (No 3).[3]
[3] R v Tui Saili DC Wellington CRI-2010-091-1709, 3 August 2011 [Ruling No 3].
Ms Gould immediately made a second application, this time that the Judge include in the indictment a count of causing grievous bodily harm with intent to injure. That is the first of the alternative crimes contained in s 188(2) of the Crimes Act. The Judge dismissed that second application also, this time in his Ruling (No 4).[4]
[4] R v Tui Saili DC Wellington CRI-2010-091-1709, 3 August 2011 [Ruling No 4].
Counsel then made their closing addresses, and the Judge summed up to the jury which then retired to consider its verdict. After the jury had been deliberating for several hours, Ms Gould made a third application, essentially a repeat of her second application. The Judge dismissed that in his Ruling (No 6).[5] He doubted that he had the power to exercise the s 339 jurisdiction at that stage. He observed that the consequence of doing so would be “a logistical nightmare”. He declined to entertain the third application, and made it clear that he would not entertain a similar application at any later stage during the jury’s deliberations either.
The appeal against conviction
[5] R v Tui Saili DC Wellington CRI-2010-091-1709, 4 August 2011 [Ruling No 6].
Ms Gould advanced the single ground that the trial Judge’s decision to decline to exercise his discretion under s 339(1) of the Crimes Act to amend the indictment to include a lesser charge had caused a miscarriage of justice because of the real risk that the jury had reached its verdict by an unreasonable or irrational process.
Ms Gould submitted that there existed a real risk that the jury were not prepared to acquit Mr Tui Saili, even if not wholly satisfied that the elements of the (s 188(1) of the Crimes Act) charge had been established. That was because the attack was so ferocious, and its consequences for Mr Cummings so appalling, that the jury would not want Mr Tui Saili simply to “walk free”.
Ms Gould accepted that Judge Harrop was alive to this risk and had addressed it with appropriate warnings when he summed up to the jury. She submitted those warnings did not overcome the risk that justice had miscarried.
Ms Gould acknowledged that the conviction appeal rested on principles set out by this Court in R v Mokoraka.[6] Those principles have since been succinctly summarised by this Court in R v McDonald:[7]
(a)The mere fact that an included charge is possible does not mean it must be put to the jury. It is a matter of discretion for the trial judge;
(b)There must be a live issue as to whether no more than the elements of the lesser charge will be proved. This is a threshold question. The jury must be squarely confronted with the possibility that all of the elements of the lesser charge are proved on the evidence without any of the elements of the principal charge;
(c)Once this inquiry is cleared, the following circumstances tell against putting the included charge: the lesser charge is trifling whereas the principal charge is very serious such that the lesser charge could distract the jury; the question of included charges is raised too late in proceedings such that prejudice results to one party in the way the trial is conducted; the inclusion of the lesser charge provides a pretext for the jury softening its verdict where, if it discharged its duty, it could only find the accused guilty on the principal charge or not guilty;
(d)The Judge’s discretion to put the included charge is broad. An appellate court will not intervene unless it is satisfied that the jury may have convicted the accused out of reluctance to see him or her “get away” with disgraceful conduct.
[6] R v Mokoraka [2002] 1 NZLR 793 (CA) at [12]–[20].
[7] R v McDonald [2007] NZCA 142 at [11].
It is the concern referred to in the last sentence of (d) that Ms Gould fastens upon in advancing this appeal.
For three reasons we do not consider that concern arises here, and see no real risk that justice miscarried. First, as Judge Harrop recognised in his Ruling (No 4), this was one continuous, concerted attack. It was artificial to attempt to break it up, and Mr Tui Saili himself had not attempted to do so either in his videotaped interview with the police or in his evidence at trial. We agree with this conclusion of the Judge in his Ruling (No 4):
[11] So, I think this is a case where either [Mr Tui Saili] caused the grievous bodily harm with intent to cause that harm, or he did not have any intention to cause harm, which is what he says is the position effectively, as a result of a combination of his mental health overlay and the consumption of alcohol and perhaps the fact he was not taking his medication.
We accept Mr La Hood’s submission that inclusion of a lesser charge in that ‘all or nothing’ situation would have been illogical and therefore wrong.
Secondly, this case is quite different from Mokaraka. In Mokoraka, the appeal against conviction of the second appellant, Mr Te Hira, succeeded because:
(a)The Judge had declined to leave a lesser charge to the jury, notwithstanding that the jury, before the Judge summed up, had inquired “is it possible for us to consider a lesser charge?”[8]
(b)The Judge did not caution the jury against convicting Mr Te Hira out of a reluctance to see him get away with what, on any view, was disgraceful conduct.[9]
[8] R v Mokaraka at [10].
[9] R v Mokaraka at [18] and [33]–[34].
Here, there was no similar request from the jury. And, as Ms Gould accepts, the Judge appropriately warned the jury against the risk referred to at [16](d) above:[10]
[5] … There is no doubt that Mr Cummings has suffered very serious injuries and long-term, probably permanent and major disabilities requiring 24 hour care. So it would be entirely understandable as a human reaction, an emotional reaction, to say well, we’ve just got to hold accountable the person that the Crown has charged as a result of this incident, and to find him guilty of the charge that the Crown has chosen to lay, regardless of actually what the details are of the evidence. We can’t let him get away with this and so on. Now I have got to warn you in the strongest terms; you must not think in that way. That is completely wrong. You can only find Mr Tuisaili guilty if you are sure that he intended to cause really serious harm to Mr Cummings, and you must focus unemotionally on that issue.
[10] R v Tui Saili DC Welllington CRI-2010-091-1709, 4 August 2011 [Summing up].
Thirdly, inclusion of a lesser charge risked a compromise verdict, or diverting the jury from its task. Those are two of the circumstances referred to in (c) in the statement of principles we have set out in [16] above. Again, Judge Harrop referred to both these concerns in his Ruling (No 4).[11] And the risk of the jury being distracted from its task by the possibility of other charges was the basis for this direction in the Judge’s summing up:
[38] Now another aspect of the evidence that you heard and indeed as part of Ms Gould’s address, she mentioned as did the accused, that he does not claim he did nothing wrong. He accepts he is probably guilty of some lesser crime than the one you are dealing with. I need to direct you, you just should not worry about any alternatives or possibilities. You just focus on the charge you are dealing with and whether the key issue in dispute, that an intent is proved beyond reasonable doubt. Do not be distracted by possible other charges and also do not think that because he effectively acknowledges a form of guilt at a certain level, or responsibility in that way, that he admits this charge and that you should find him guilty of this charge. On the contrary, if that was his position we would not be having the trial at all. He is adamant that he is not guilty of this charge because he did not have the necessary intention and the Crown has not proved that he did. So your sole task is to decide this charge, whether he did or not have that intent and not to be distracted by any other possibilities.
[11] At [12]–[15].
We add two observations. Judge Harrop’s first reason for rejecting Ms Gould’s first application (to include in the indictment a charge of causing grievous bodily harm with reckless disregard for the safety of others) was that that charge was not “necessarily included”[12] within the single charge in the indictment. We agree with the Judge that it was not. Reckless disregard is a concept distinctly different from an intent to cause grievous bodily harm. We make this point because Ms Gould persisted with her submission that the reckless disregard charge was an appropriate one in the indictment, should Mr Tui Saili’s conviction appeal succeed and a fresh trial be ordered.
[12]The interpretation given by Tipping J in R v Norris (1988) 3 CRNZ 527, of the word “includes” in s 339(1) of the Crimes Act.
Our second observation is that a feature of this appeal is the challenge to the prosecution’s right to lay the charge(s) it considers appropriate to the offending disclosed by the depositions. We endorse Judge Harrop’s view on that:[13]
[5] … I would say that is really a matter ultimately for the Crown to decide. While of course the Court has some oversight of what is in the indictment, it is a matter for the Crown to assess that risk and if it chooses to lay a charge at a certain level and not to lay an alternative charge, as has been done here, the Crown has on behalf of the community taken a risk of the kind that Ms Gould identifies and in my view, that is a matter for the Crown and not a matter in which I should intervene.
[13] Ruling (No 3).
We dismiss Mr Tui Saili’s appeal against his conviction.
The appeal against sentence
When sentencing Mr Tui Saili, Judge Harrop took a starting point of 11 years imprisonment. After noting that he must impose the least restrictive sentence that was appropriate, and must therefore be as generous as he could, the Judge allowed a one year discount for the provocation by Mr Cummings, and a further one year discount for Mr Tui Saili’s mental health problems. The Judge then gave a further discount of six to seven months to reflect Mr Tui Saili’s remorse. That gave the end sentence of eight years and six months imprisonment which is appealed against.
Ms Gould submitted that the sentence of eight and a half years imprisonment is manifestly excessive in all the circumstances of the case. She did not challenge the Judge’s sentencing starting point of 11 years imprisonment, acknowledging that it was “probably correct”.
Rather, Ms Gould’s submission was that the Judge should have allowed a two years discount for Mr Tui Saili’s mental health problems, and a further two years discount for the provocation.
Judge Harrop gave careful consideration to Mr Tui Saili’s mental health difficulties. He referred to the expert opinions that he had received, in particular that of Dr Barry-Walsh[14] and also to the approaches taken by this Court in R v Wright[15] and R v Abraham[16]. The Judge then said this:[17]
[33] So when I look at this case I accept that you must be given some credit in mitigation for the role that your mental health played in this but it has to be rather less than it might otherwise have been because clearly the alcohol, in combination with that, which I have to put to one side, played a very significant role. This simply would not have happened if you had not been drinking.
[34] It is difficult to strike the appropriate balance and I am mindful of the need, again, to impose the least restrictive sentence and therefore to be as generous as I reasonably can to you in assessing that factor. What I have decided to do there is to grant you, I think fairly generously, a 12-month discount on account of your mental health issues. …
[14]By the time he sentenced Mr Tui Saili, Judge Harrop had the benefit of six substantive psychiatric reports on Mr Tui Saili. Two of those were by Dr Justin Barry-Walsh, three of them by Dr Caroline Holmes and one by Dr Frank Rawlinson. The reports by Drs Holmes and Rawlinson were made pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The Judge also had the benefit of evidence from Dr Barry-Walsh; he was called for the defence at the trial.
[15] R v Wright [2001] 3 NZLR 22 (CA).
[16] R v Abraham (1993) 1 NZCrimC 157 (CA).
[17] Sentencing remarks.
We consider the discount range available to the Judge to reflect Mr Tui Saili’s mental health problems was one to two years. The discount the Judge allowed was within that range, though of course at the bottom end of it.
We consider the 12 month discount allowed by the Judge for provocation was entirely appropriate, indeed generous. The Judge also considered that he was giving a generous discount. This is the way he dealt with provocation:
[25] What I then need to do is factor in the degree of provocation that there clearly was from Mr Cummings. If he had not come back to the house after being asked to leave and pushed out the door, none of this would have happened, and if he had not come to the house at all, you would have stayed in bed. So I accept Ms Gould’s point that this was an unasked for encounter. It was not a case of your getting drunk, knowing you had mental health issues and going downtown looking for trouble, nothing like that at all. Clearly there was an aspect of provocation here. It is a difficult thing to put a figure on but in my view the starting point has to be reduced to reflect that and the Crown accepts this.
[26] At both the sentencing indication hearings I put a figure of about nine months on that but it seems to me that I, consistent with the approach that I need to impose the least restrictive sentence, and to give as much mitigating credit both in relation to the offence and to you as I properly can, it seems to me that a 12 month discount for provocation is appropriate. …
In that last paragraph the Judge refers to his sentencing indications. The significance of these was emphasised by Mr La Hood. At the first sentence indication on 11 October 2010, at the pre-committal stage, Judge Harrop indicated a starting point of 11 years imprisonment, a 33 per cent discount should Mr Tui Saili plead guilty, plus a nine month discount for provocation and a tentative six to nine month discount for Mr Tui Saili’s mental health issues and limited criminal history. That would have given an end sentence of around six and a half to seven years imprisonment.
The second sentence indication, post-committal on 14 July 2011, followed the determination that Mr Tui Saili was fit to stand trial. It also followed the Supreme Court’s decision in Hessell v R,[18] delivered since the Judge’s first sentence indication. At the second sentence indication, the starting point and nine month discount for provocation remained unchanged, but the further discount for a guilty plea reduced to 25 per cent, plus a tentative increased 12 month discount for Mr Tui Saili’s mental health issues. The end sentence would have remained around six and a half to seven years imprisonment, with an MPI of at least half that sentence.
[18] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Mr La Hood submits that the sentence under appeal should be compared with those pre-trial sentence indications.
We indicated in [29] above that the sentencing discount the Judge allowed for Mr Tui Saili’s mental health issues was at the bottom of the available range. We should add that we agree with Mr La Hood’s submission that the discrete allowance of six to seven months the Judge allowed Mr Tui Saili for remorse was generous indeed, given that there was no guilty plea and that it is difficult to interpret Mr Tui Saili’s evidence as containing any real expression of remorse. Our point is that any “under discounting” by the Judge (and we have held there was none) for mental health issues would need to be balanced against his very generous — arguably unfounded — allowance for remorse.
Overall, the sentence under appeal is not manifestly excessive. The appeal against that sentence is also dismissed.
Result
The appeal, both against conviction and against sentence, is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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