Taiapa v R
[2011] NZCA 48
•7 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA237/2010 [2011] NZCA 48 |
| BETWEEN RUAUMOKO TAIAPA |
| AND THE QUEEN |
| Hearing: 16 February 2011 |
| Court: Stevens, Potter and Miller JJ |
| Counsel: R Barnsdale for Applicant |
| Judgment: 7 March 2011 at 3.00 pm |
JUDGMENT OF THE COURT
A The application for extension of time to appeal is granted.
BThe application for an adjournment to argue a fresh evidence point is dismissed.
C The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS FOR JUDGMENT
(Given by Stevens J)
Introduction
Mr Taiapa appeals against conviction and sentence following a series of violent episodes in Auckland in early 2008. On the second day of his trial before a judge and jury in the District Court, he pleaded guilty to three counts of aggravated robbery, one count of assault with intent to rob, five counts of wounding with intent to cause grievous bodily harm and one count of assaulting a prison officer. Despite the guilty pleas, he seeks to challenge all bar one of these convictions on the ground that he did not understand what he was pleading guilty to. He also appeals his sentence of 14 years’ imprisonment with a non-parole period of eight years as being manifestly excessive and disparate to those of his co-offenders.
Factual background – violent episodes in Auckland
The appellant had been released from prison and was subject to release conditions at the time of the offending. He was not permitted to travel to Auckland (where the offending occurred) without the permission of his probation officer, which he did not seek.
On the night of 10 January 2008, the appellant had been drinking with friends at an address in Mt Roskill. He approached a woman at the address, pulling a baseball bat from his trousers, and struck her on the head causing a 5 cm laceration. He then fled the scene. The victim required hospital treatment for her injury and was bedridden for five days with a severe headache. This first episode gave rise to a charge of wounding with intent to cause grievous bodily harm.
The second episode occurred five days later. The appellant and three associates had been drinking and decided to carry out street robberies to get money to buy more alcohol. At 1am, the group pulled over their car in front of a cyclist who was travelling along a street in Takapuna. The associate, Mr Jono Wilson, got out, at which point the cyclist tried to avoid him, but the associate chased and managed to punch the cyclist once in the head before the cyclist abandoned his bike to escape the attack. The associate then rejoined the others in the vehicle. None of the charges faced by the appellant related to this incident.
The third episode took place soon afterward. The group pulled into a carpark at Milford Beach near another car. An associate approached the car and asked the male occupant for a beer, which the man handed to him. Two of the group then attacked him with metal bars, hitting him about the head. Another member of the group dragged the female occupant from the car and she was beaten about the head with metal bars and fists. The male victim offered the attackers his car keys and wallet, while the female victim escaped by running across a beach reserve, jumping into and swimming across a river and seeking help at a nearby house. The male victim was disoriented and attempted to raise the alarm at three houses before being found by police. The group of attackers searched the car for valuables, taking the car keys and a box of beer with them when they left.
During the attack the female victim received multiple skull fractures, major lacerations to the head, a broken finger and bruising to the head. She needed reconstructive surgery and remained in hospital for several days. The male victim suffered bleeding on the brain, major lacerations to the head, swelling to the head and face, and numerous abrasions. His front teeth were smashed out. He too spent a period in hospital. For his part in the third episode of offending, the appellant was charged with two counts of wounding with intent to cause grievous bodily harm and two counts of aggravated robbery.
In the fourth episode that occurred not long after, the group, while driving towards Devonport, located a couple walking along the road. Three members of the group got out of the car and attacked both the male and female victims about the head with metal bars, knocking them unconscious. The female victim regained consciousness to find one of the attackers attempting to steal her handbag, which she grabbed. The attacker pulled the bag from her by putting his foot on her upper body to hold her down. The attackers then drove off, leaving the male victim lying on the road and the female victim on the grass verge. As a result of the attack, the male victim had bleeding on the brain, major lacerations to his head and major bruising on his head and face. The female victim received a compressed skull fracture which required neurosurgery to relieve pressure on her brain. She also had a fractured jaw and lacerations and bruising to her head and face. The appellant was charged with assault with intent to rob, a further count of aggravated robbery and a further two counts of wounding with intent to cause grievous bodily harm.
In July 2009, the appellant attacked a prison officer and was charged with assaulting a prison officer.
Sentencing
The appellant pleaded guilty to all charges during trial. His co-accused did likewise, following an indication that the accused, Mr Wilson, was changing his pleas and would be giving evidence for the Crown. Prior to entering his pleas of guilty, the appellant had an extended consultation with his counsel, Mr Boylan and his junior Ms Price. We refer below to the details of this consultation and the instructions given by the appellant to his counsel.
In sentencing the appellant, Judge Field recorded that this was very serious offending with significant aggravating factors, including acting in premeditated manner involving multiple attackers, with attacks to head causing ongoing harm to the vulnerable victims.[1] The Judge regarded the appellant as a “prime mover” in the offending and took a starting point of 14 years’ imprisonment on the aggravated robbery and wounding with intent counts.[2] He noted that there were mitigating factors such as the guilty plea, for which the appellant was entitled to a 10 per cent deduction, and an expression of remorse. However, any credit was outweighed by the appellant’s “significant record of violence” and the fact that he had offended while on release conditions. The end sentence was 14 years on the aggravated robbery and wounding with intent counts with a minimum period of eight years’ imprisonment.[3] The appellant received concurrent sentences of five years for assault with intent to rob, and three months assaulting a prison officer.
Grounds of appeal and issues for determination
[1] R v Kirton DC Auckland CRI-2008-044-384, 1 October 2009.
[2] At [22]–[23].
[3] At [26]–[27].
The appellant filed a notice of appeal against sentence some six months out of time. More recently, the appellant indicated that he wished to appeal against conviction on all counts. [4] In an accompanying memorandum, his counsel advised that the appellant seeks to challenge all convictions apart from those involving the male victim in the fourth episode (as well as the assault on the prison officer), on the ground that he did not understand what he was pleading guilty to as he could not read at the time and did not understand party liability.
[4] By notice received 21 December 2010.
A timetable was established in an attempt to identify clearly the grounds of appeal and the factual basis relied on by the appellant. This produced an affidavit from the appellant dated 1 February 2011, in which the appellant described from his perspective the circumstances in which he entered the pleas of guilty on 18 August 2009, and his appreciation of one aspect of the advice given by Mr Boylan, namely, on parties. We return to this topic below.
On the Friday before the hearing of the appeal, the appellant instructed his new counsel, Mr Barnsdale, that he wished to seek an adjournment of the appeal. This was so that the appellant could collect some affidavits from his former co‑accused to the effect that he was not involved in the attacks, other than the one relating to the fourth episode.
Arising from the above, the following four issues fall to be determined on the appeal:
(a)whether this is an appropriate case to grant an extension of time to appeal;
(b)whether the hearing of the appeal should be adjourned to allow the appellant to endeavour to secure further evidence from the co-accused;
(c)whether the appellant can bring himself within the category of exceptional circumstances justifying an appeal against conviction following entry of the pleas of guilty; and
(d)the fate of the appeal against sentence.
Application for extension of time to appeal
The application to extend time to appeal is made pursuant to s 388(2) of the Crimes Act 1961. As this Court explained in R v Knight,[5] the statutory yardstick is the overall interests of justice in the particular case. The Court stated:[6]
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.
[5] R v Knight [1998] 1 NZLR 583 (CA).
[6] At 587.
The approach in Knight was applied by this Court in R v Lee,[7] where reference was made to the factors relevant to the balancing test. These were said to include:[8]
[T]he wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
[7] R v Lee [2006] 3 NZLR 42 (CA).
[8]At [99].
Mr Tantrum for the respondent submits that the delay of approximately six months was excessive. He noted that there was no adequate explanation for the delay in the appellant’s affidavit of 1 February 2011. Thus he submits that on the balancing test approach there was nothing to outweigh society’s interest in the finality of court decisions or to require leave to be granted in the interests of justice.
We agree that the delay is lengthy. But we consider that in all the circumstances of this case it could not be said to be excessive. The Crown did not point to any particular prejudice that might flow from a successful appeal. On balance, we consider it appropriate to grant the appellant an extension of time to appeal so that his key ground, namely, the challenge to the circumstances in which his guilty pleas were entered, can be properly considered on appeal. An extension of time to appeal is therefore granted.
Application for adjournment
The application for an adjournment in order to allow time to collect affidavits from the appellant’s co-accused came at the very last moment. We note that this possibility was not mentioned during the whole period of the case management of the appeal. Importantly, when a timetable was set on 27 January 2011, no mention was made of the possibility of any fresh evidence.
It must be said that Mr Barnsdale did not press this application with any great vigour. He was hardly in a position to do so. The appellant had not complied with the time limits set out in r 12B of the Court of Appeal (Criminal) Rules 2001. Neither had the appellant, by the time of the hearing, obtained even an outline of what the co-offenders might have to say. Moreover, there was nothing before us to explain why the further evidence was not available at the trial and why it could not, with reasonable diligence, have been called at the trial.
In this context, we note from the evidence given by Mr Boylan that the key issue at the trial was really whether the Crown could establish that the appellant was involved by proof of identity. On the eve of the trial, the prosecution provided evidence of a palm print of the appellant, together with a brief of evidence from a finger and palm print expert. This evidence was important and remains unexplained by the appellant.
We are not satisfied that the appellant has made out a case for an adjournment. Both he and his new counsel have had ample time to put the necessary material together. We see this proposed further ground of appeal as being too little too late. Even if the appellant had come up with draft affidavits, we have little doubt that he would have been unable to explain why the evidence was not available at the trial and why it could not with reasonable diligence have been called at that time. In any event, as we explain, the position at trial changed dramatically on the second day once the appellant’s co-accused signalled an intention to plead guilty to all charges.
Appeal following guilty pleas
The law
Counsel for the parties were agreed that the pleas of guilty do not create a juridical bar to a conviction appeal under s 385(1) of the Crimes Act. There is also no dispute that the applicable test is as set out in the judgment of this Court in R v Le Page, namely:[9]
[I]t is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 255 and R v Ripia [1985] 1 NZLR 122 are examples.
[9] R v Le Page [2005] 2 NZLR 845 (CA) at [16].
The cases in this area fall into three categories.[10] Normally, there must be either a material mistake or misapprehension on the part of the defendant affecting plea entry; the absence of a valid charge in law; or the entry of a plea through a wrong decision on a question of law.[11]
[10]The existence of a fourth category was discussed by this Court in T (CA246/2010) v R [2010] NZCA 486 and Watts v R [2011] NZCA 41.
[11] R v Le Page, at [17]–[19].
The appellant seeks to bring himself within the first category. As was the situation in the case of Ripia:[12]
The real issue … is whether [the appellant] understood the nature of the charge against him and, in the face of that understanding, made his own decision, albeit with [counsel’s] advice, to plead guilty.
Is the appellant within the first category?
[12] R v Ripia [1985] 1 NZLR 122 (CA), at 127.
In his affidavit the appellant said that he was not in a right state of mind at the time when he entered his guilty pleas. He claimed not to have taken his medication and said he was concerned for his mother, who was also on trial for being an accessory after the fact. The appellant also suggested that at the time of signing a document exhibiting his instruction to Mr Boylan to enter pleas of guilty he was “not able to read or write”. Further, he claimed that he was confused at this time. However, importantly, he accepted that the law of parties had been explained to him by Mr Boylan such that he understood presence at the scene of the crime or encouragement or assistance to the person who did the actual offending could result in his being guilty.
In his affidavit in reply Mr Boylan carefully described the preparation and the discussions with the appellant leading up to the trial. Mr Boylan considered that, as a result of such discussions on a number of occasions, the appellant was provided with a clear understanding of his defence. In his oral evidence before us, Mr Boylan confirmed that identity of the appellant was a key issue of the trial. Just prior to the trial, the appellant signed a memorandum of written instructions indicating that he wished to defend the nine charges, that he did not wish to give evidence and outlining aspects of the defence that he proposed to advance through is counsel.
The trial commenced on 13 August 2009 before Judge Field and the jury. On that day, the appellant signed a further memorandum of trial instructions prepared by his counsel confirming his wish to plead not guilty and to put the Crown to proof on the allegations against him. In terms of possible witnesses the memorandum noted “no witnesses”. On the same day there was some discussion between the appellant and his counsel as to whether the Crown might not proceed against his mother. We note that nothing came of this inquiry.
On the second day of the trial, counsel for Mr Jono Wilson advised that his client intended to enter pleas of guilty to the charges in the indictment and that he had prepared a statement from Mr Wilson. It was expected that he would give evidence for the Crown. After the luncheon adjournment the appellant asked to see Mr Boylan to instruct him that he wished to plead guilty to all counts in the indictment. Mr Boylan and his junior then discussed each count and the possible outcomes with the appellant, discussing the evidence so far and the way in which the intended evidence was likely to impact on the appellant. The now disclosed palm print on the vehicle of one of the complainants and identification from a large distinctive tattoo on his leg were important considerations.
Following advice of counsel the appellant signed a memorandum instructing his counsel to enter pleas of guilty to all charges. Further, on a copy of the indictment, it seems that the appellant wrote in his own handwriting “I am guilty in relation to the nine counts” and signed his signature next to each.
In addition to the description of what took place in the affidavit, Mr Boylan gave evidence and was cross-examined by Mr Barnsdale. He confirmed the extensive oral discussions which he had undertaken with the appellant and the extensive explanations and clarifications provided to the appellant orally prior to his signing the documentation described above.
In light of all of the evidence, we are satisfied that the appellant has failed by a considerable margin to bring himself within the first category of Le Page. In particular we are satisfied that the appellant understood the nature of the charges against him and had all of the relevant features of his potential criminal liability and the extent of it fully described to him by his counsel prior to proceeding with his wish to enter pleas of guilty to all of the charges.
By the time the appellant entered the guilty pleas the case against him was significantly strengthened. Matters were only likely to get worse when Mr Wilson gave evidence, having himself pleaded guilty.
We are satisfied that Mr Boylan, both in his preparation prior to trial and in his conduct during the trial (and in particular prior to the point when the appellant pleaded guilty to the charges), acted in an exemplary manner. For the appellant, the position could hardly have been plainer. Despite any alleged impediment in reading and writing, his legal rights were thoroughly and clearly explained to him in relatively simple language that he would have been well able to understand prior to entering pleas of guilty. The significant discussions were oral so that any literacy difficulty was of no effect.
Accordingly, this ground of appeal must fail and the appeal against conviction cannot succeed.
Sentence appeal
When sentencing the appellant Judge Field stated as follows:
[22] … You have pleaded guilty to counts 1 to 7 in the indictment, and counts 8 and 9. In addition to that you have a charge of assaulting a prison officer while you were in custody in July of this year, that amount[ed] to punching him in the chest. I have to say that I regard you as one of the prime-movers in all of this.
[23] I have listened carefully to your counsel’s submissions concerning your background and I can understand some of what may have led you to this particular attitude towards life and towards others. You do now acknowledge the offending and express some remorse for it. However, you have a bad record for offending for violence and I regret that I can place little faith in the sincerity of your expression of remorse. You, as I say, merit a starting point of 14 years’ imprisonment on the charges to which that applies.
[24] From that one could take into account your plea of guilty, amounting perhaps to a 10 percent deduction, an expression of remorse for what that may be worth and one might expect a reduction in the end sentence because of that. On the other hand, you have a significant record of violence and that must, in my view, at least match if not outweigh the deduction for your personal circumstances that I have referred to.
[25] It is not to be forgotten that at the time of committing these offences you were subject to release conditions from prison and indeed you were in breach of those conditions by travelling to Auckland when you committed the offences.
[26] The end result for you, therefore, must be a total effective sentence of one of 14 years’ imprisonment, because I consider that such matters as can be raised in mitigation are cancelled by the personally aggravating features that I have referred to.
[27] I turn now to the issue of a non-parole period. I accept the Crown’s submission that in your case that is appropriate. The Court may impose a non-parole period of greater than the usual one-third if it [is] satisfied that that would be insufficient to hold you accountable for the harm done, to denounce the conduct, to deter you, and to protect the community. I take the view that one-third of that sentence would not be sufficient for these purposes. I therefore impose, in relation to the 14 year sentence, (and they are counts 1 to 7, and count 9), of a non-parole period of eight years. In relation to count 8 you are sentenced to imprisonment for a period of five years. In relation to the assaulting [of] a prison officer, a concurrent sentence of three months. The total effective sentence then will be one of 14 years’ imprisonment with a non-parole period of eight years.
Before us, Mr Barnsdale frankly acknowledged that, if the appeal against conviction were unsuccessful, then the appellant would have great difficulty in succeeding with the appeal against sentence. Mr Barnsdale acknowledged that the approach of Judge Field on sentence could not be faulted in terms of the starting point, the uplift for aggravating features and the allowance made for the guilty pleas.
We agree that counsel’s realistic assessment was correct. By any measure, this was very serious offending indeed. Some of the injuries suffered by the various victims as described in the sentencing notes were appalling and the appellant and his co-offenders may well have been fortunate that no greater harm occurred. The mindless violence involved warranted a condign sentence, particularly in the case of the appellant, who undoubtedly played a leading role. We are satisfied that the appellant has not shown that the final sentence was manifestly excessive.
We note that no issue was taken at the hearing as to the nature of the minimum period of imprisonment imposed by the Judge.
Accordingly the appeal against sentence fails.
Result
The application to extend the time for the appeal is granted. The application for the adjournment is declined. The appeal against conviction as well as the appeal against sentence are both dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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