Taingahue v The Queen

[2016] NZHC 1310

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2016-416-00009 [2016] NZHC 1310

BETWEEN

CHARLENE TAINGAHUE

Appellant

AND

THE QUEEN Respondent

Hearing:	18 May 2016
Counsel:	V Thorpe for Appellant F Cleary for Respondent
Judgment:	16 June 2016

JUDGMENT OF BROWN J

Introduction

[1]      On  7 January 2015  the  appellant  and  two  other  women,  one  of  whom, Destiny  Taingahue,  was  identified  and  also  charged,  attacked  Jade  Taylor  by dragging her from a motor vehicle and assaulting her on the kerb of a Gisborne street.1    Ms Taylor suffered facial injuries and abrasions to her hands and arms and was hospitalised for a short time.

[2]      The  appellant  was  charged  under  s 189(1)  of  the  Crimes Act 1961  with injuring Jade Taylor with intent to cause her grievous bodily harm. After a defended hearing on 9–10 November 2015 before Judge W P Cathcart in the District Court at Gisborne the appellant was convicted of the charge.  On 29 January 2016 she was sentenced to three years’ imprisonment.   The appellant appeals against both the

conviction and sentence.

1      A fourth woman was also charged although she did not participate directly in the assault.  See

Hubbard v The Queen [2016] NZHC 1311.

Grounds of appeal

[3]      The notice of appeal dated 29 January 2016 specified the grounds of appeal as follows:

The learned Judge erred in determining that there was sufficient evidence from which  he  could  infer  that  the  appellant  had  formed  the  necessary intention as a party to cause grievous bodily harm to the victim.

The sentence opposed (sic) was manifestly excessive, and the learned Judge failed to give adequate discount for mitigating factors.

Approach on appeal

[4]      On an appeal against conviction under s 229 of the Criminal Procedure Act

2011 the appeal court must allow the appeal if satisfied that:2

(a)       the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b)      in any case, a miscarriage of justice has occurred for any reason. The appeal court must dismiss the appeal in any other case.

[5]      An appeal against conviction is by way of rehearing.  The approach of the

Court is as explained in Austin, Nichols & Co Inc v Stichting Lodestar:3

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate Court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error of the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[6]      An appeal against sentence is brought under s 244 of the Criminal Procedure

Act 2011.  Section 250(2) of that Act provides that the High Court must allow the appeal if it is satisfied that:

2      Criminal Procedure Act 2011, s 232(2).

3      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

(a)       for any reason there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should be imposed.

[7]      A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should be altered but not in a way that amounts to a minor adjustment or ‘tinkering’.   The Court on appeal must concern itself with whether the end sentence imposed is within range, as opposed to focusing on the process by which the sentence was reached.  In any other case the Court must dismiss the appeal.

The evidence and the Court’s findings

[8]      The thorough oral judgment of Judge Cathcart commenced by explaining the

Crown’s case as follows:4

[2]       The   Crown’s   case   theory   is   that   as   at   7 January 2015,   the complainant,  Ms Jade  Taylor,  owed  the  sum  of  $450  to  the defendant, Ms Hubbard.   The mother of Jade Taylor is the second complainant, Janine Dominey.

[3]       The Crown’s case is that on the day in question, Ms Dominey drove her  daughter  to  an  address  in  Donna  Street  in  Gisborne.    That address  is  occupied  by  Ms Wharekura  Fox,  who  gave  evidence before me on behalf of the defence.

[4]       In giving her evidence, Ms Taylor said that she went to the address to borrow money from Ms Fox.  The Crown’s case is that Ms Taylor, having gone into the address, returned, and remained in the vehicle, sitting in the front passenger seat.  Her mother, Ms Dominey, was the driver and remained in the driver’s seat.

[5]       The Crown alleges then that Ms Fox left the address in her vehicle and returned about five minutes later.   When she returned, the allegation is that Ms Fox was followed by another vehicle, which pulled up at around the same time as Ms Fox returned to her address. This vehicle adopted an unusual parking position by crossing the road and parking bonnet-to-bonnet, facing the vehicle that Ms Taylor and Ms Dominey were inside.

[6]       The  Crown  then  alleges  that  all  three  defendants  and  a  further unknown female got out of the vehicle, practically at the same time. It is then alleged that Ms Hubbard goes to the driver side of the

4      R v Hubbard [2015] NZDC 22361.

vehicle.   The other three women go to the passenger side of the vehicle.    The  Crown  says  that  Ms Hubbard  makes  demands  of money which, in effect, was a demand from Ms Dominey that she had over $450 to pay for the debt owed by her daughter.  The Crown alleges that that demand to the mother was carried out with words and actions that constituted a demanding with menaces.

[7]       The Crown alleges that the three other women on the passenger side assaulted Ms Taylor.  The Crown alleges that there was a common plan to extract money for the debt by stand-over tactics in relation to the mother, or an alternative plan here, to seriously assault Ms Taylor as a reminder to her that she needs to pay the $450 to Ms Hubbard, whether at a personal level, or on behalf of others, including the defendants.

[9]      Evidence for the prosecution was given by Ms Taylor and Ms Dominey.  The appellant  elected  to  give  evidence.     Ms Fox  and  Ms  Ratapu,  a  resident  in Donna Street, also gave evidence for the defence.  The Judge rejected the appellant’s description of the assault as being a fabrication.  He concluded that Ms Fox had a clear incentive to mislead the Court and he found that there were significant limitations with Ms Ratapu’s evidence.

[10]     The  Judge  said  that  when  combined  he  considered  that  the  version  of Ms Taylor and Ms Dominey was the correct version of what took place that day as to essential facts:

[129]    I accept their evidence that they were waiting at the address for Ms Fox to return and that she arrived above five minutes later.   I accept their evidence that the return of Ms Fox was followed by the other vehicle shortly thereafter.  I accept the Crown’s position on the evidence  that  the  three  defendants  were  accompanied  by  an unknown woman, that they got out of the vehicle at the same time. On  the  evidence,  I  accept  that  three  of  the  women,  including Charlene Taingahue  and Destiny Taingahue, went to Ms Taylor’s side of the vehicle and that Ms Hubbard to the driver’s side.

[130]    Also, I accept as both truthful and reliable, Ms Taylor’s evidence that the spanner was used initially and that she was struck over the head, by one of the three women that I have referred to, on her side of the vehicle.

[131]    Most  importantly,  I  accept  the  evidence  of  both  Ms Taylor  and Ms Dominey,  that  all  three  women  on  Ms Taylor’s  side  of  the vehicle, attacked Ms Taylor.  One of them, having dragged her from the vehicle.  It appears quite clear now that that was the defendant Charlene Taingahue.

[132]    I am conscious of the warning that I need to bear in mind in terms of identification.   I accept that Ms Taylor was covering her face.   I accept  that  Ms Dominey  was  looking  at  this  incident  on  an occasional basis, glancing right and then left, because she did not want to look at the incident.   But for her, it is clear that all three women were involved in the assault.  As I have indicated earlier, I accept her evidence that what took place (while she was sitting in the driver’s seat) when her daughter was on the ground, was up close and personal and clear to her sight.

[133]  I regard the evidence of both those witnesses as candid and unembellished.   Ms Taylor did not seek to hide her past conduct. Ms Dominey did not hide her disappointment about her daughter’s past conduct with debts and even drugs.

[11]     After discussing the evidence of the appellant, Ms Fox and Ms Ratapu the

Judge continued:

[137]    I find that there was a three-on-one severe beating of Ms Taylor.  At the time she suffered that beating, she was defenceless on the ground and cowering.   When she was dragged from the vehicle, she may well have tried to resist the dragging with the use of her legs.

[138]    The injuries that she suffered around her head area in particular, and the scrapes that she received on her body, particularly the joints area on the arms, elbows and wrists, and consistent with Ms Taylor’s account.

[139]    Also, I make a finding that one of the three women, who was on the right-hand side of that vehicle, inflicted an injury to Ms Taylor with intent to cause her really serious harm.   I take the view that that intention is made out in relation to at least one of those three women. It is further borne out by the fact that this was an assault by three women on one.  Ms Taylor was on the ground, defenceless and near the kerb.  She received repeated head shots.  She suffered significant injuries to her head, as depicted in the photographs.  I have already found that a spanner was used by one of the three women.  In my view, the inference that that principal offender had the intent to cause grievous bodily harm, when the injuries were inflicted, is overwhelming.

[12]     The Judge had earlier directed himself on party liability in this way:

[44]     In order to establish party liability basis, the Crown must prove that

– and I deal with the principal offender here:

(a)       A principal  offender  (which  has  to  be  one  of  the  three women  on  the  passenger  side  of  the  vehicle)  injured Ms Taylor.

(b)       That the principal offender injured Ms Taylor with an intent to cause grievous bodily harm.

[45]     Grievous  bodily  harm  means,  in  law,  really  serious  harm,  that seriously interferes for a time with the health and comfort of the complainant.

[46]     Given the fact that the Crown cannot establish which one of the three women on the passenger side of the vehicle (according to their case theory) injured Ms Taylor, and that it relies on the fact that all three  women  were  involved,  the  Crown’s  case  must  rest  under ss 66(1) and/or 66(2).

[47]     Under s 66(1) liability, the Crown would have to prove the following in   relation   to   the   cases   against   Charlene   Taingahue   and Destiny Taingahue.     The  Crown  would  have  to  prove  beyond reasonable doubt:

(a)       That the defendant in question did an act that constituted participation in an assault on Ms Taylor.  By participation, I mean by words or actions or both.

(b)      That the act actually helped the principal offender to injure

Ms Taylor with intent to cause grievous bodily harm.

(c)       That the defendant intended to help or assist the principal offender to injure Ms Taylor with intent to cause grievous bodily harm.

[13]     His conclusion on the appellant’s party liability was as follows:

[143]    So let me underscore that what I have said in relation to the common plan and the interference to be drawn about the unlawful object, the findings apply to all three defendants.

[144]    I am satisfied that each defendant, and in fact the unknown fourth woman, who were parties to that agreement that they had all agreed to help each other and participate in the course of pursuing that common purpose (to severely assault Ms Taylor).  In my view, it is self-evident that there was a concerted effort by all four and that the facts speak for themselves.

[145]    Also,  I  am  satisfied  that  at  least  one  of  the  three  women,  on Ms Taylor’s side of the vehicle, committed the offence of injuring with intent to cause grievous bodily harm in the course of pursuing that criminal plan.

[146]    I am also satisfied that each defendant intended that the plan be carried out and that the offence of injuring with intent to cause grievous bodily harm could well happen by one of their group.  Each defendant had the foresight of both the fact of injury of Ms Taylor and the mental elements (intent to cause grievous bodily harm) of the essential facts.

[147]    The three defendants are liable for  this offence of injuring with intent to cause grievous bodily harm under s 66(2) party liability.

[148]    With    respect    to    the    defendants    Charlene Taingahue    and Destiny Taingahue,  I  also  make  a  finding  that  they  are,  in  the alternative, also liable under the alternative route of s 66(1) party liability.   This is because, at the time the attack started, all three women (including those two defendants) took part in the assault of Ms Taylor.  Having made that material finding, it means the actions of each one of those defendants, including the unknown fourth woman, were clearly designed to help and aid each one.

[149]    I am satisfied that Charlene Taingahue and Destiny Taingahue, at the time  the  assault  actually  started,  took  part  in  the  beating  of Ms Taylor.  I am satisfied that those acts in fact helped the principal offender and each other.   Also, I am satisfied that in the case of Charlene Taingahue and Destiny Taingahue, that they each intended that their act help the principal offender and one another.

[150]    So in relation to those two defendants, even if I was wrong in terms of s 66(2) liability, they would each be liable also under s 66(1) party liability.

Appeal against conviction

[14]     The appellant’s submissions expanded somewhat on the ground in the notice

of appeal, contending that the Judge erred in three respects:

(a)       in inferring there was an intention to cause grievous bodily harm;

(b)in determining that the appellant was a party under s 66(2) to injury caused with the intent to cause grievous bodily harm; and

(c)       in determining (in the alternative) that the appellant was a party under s 66(1) to injury caused with intent to cause grievous bodily harm.

Inference of intention to cause grievous bodily harm

[15] The appellant recognised that the law is settled that grievous bodily harm is “really serious harm”5 and hence no issue was taken with the Judge’s approach at [45].6 However criticism was made that the relative descriptor “really” when applied to “serious harm” is broad and has the potential to result in a lack of consistency.

Further  it  was  submitted  that  there  is  a  lack  of  clarity  around  the  particular

5      Vincent v R [2016] NZSC 15 at [14].

6      At [12] above.

circumstances and indicia that would elevate an intention  to cause injury to  an intention to cause grievous bodily harm.

[16]     Counsel for the appellant accepted that a jury or Judge may infer an accused’s intent from the surrounding circumstances, including any statement made, actions done or admitted by the accused, and all other facts and circumstances in evidence that indicate the state of mind of the principal offender.

[17]     Counsel acknowledged that in the present case no criticism could be directed at an inference to support a finding of intent to injure.  However the finding of an intent to cause really serious harm was said to involve errors by the Judge in:

(a)       the weight placed on the use of a spanner in the early part of the incident;

(b)      the Judge’s characterisation of the evidence of injury; and

(c)       the Judge’s characterisation of the severity of the assault.

[18]     The appellant submitted that there was no evidence about the spanner’s size or the force with which it was used or that it caused any specific injury, or any injury at all.  Hence it was submitted that without evidence of any relatively forceful use or the possible damage such a spanner could  cause, the use of the spanner to hit Ms Taylor once through the open car door could not support an inference of intention to cause grievous bodily harm.

[19]  The respondent argued that the appellant’s submission reflected a misunderstanding of the issue.  The fact that one of the assailants took the weapon to the scene and used it to strike the victim to the head was evidence from which the Judge was able to infer an intent to cause grievous bodily harm on the part of that assailant.  It showed both a degree of pre-meditation and a level of aggression with which at least one of the women intended to act.

[20]     I accept the respondent’s submission that striking someone to the head with a

spanner escalates the seriousness of any intent significantly.  The use of a weapon is

a factor  recognised  by the Court  of Appeal  in  R  v Taueki  as  something which aggravates an offence.7   Similarly it can also be used to elevate the intent held at the time.  I agree with the respondent that it was not the use of the spanner in and of itself that led to the requisite finding of intent but it was a contributing factor to which the Judge was justified in having regard.

[21]     While Judge Cathcart found that there were three assailants, the appellant submitted that the presence of as many as three assaulting a single victim does not in and of itself support an inference that one or more of the assailants intended really serious harm. An inference was equally available that near injury or even something less serious than that was intended.

[22]     Referring  again  to  Taueki  the  respondent  submitted  that  the  fact  that  an assault occurs as part of a group of attackers must elevate the seriousness of any intent.8     If a person knows that they are inflicting blows as part of a group and continues to do so, in the respondent’s submission that supports a finding that there was an intent to cause the victim serious harm.  I agree that when this factor is added to the factual circumstances of the present case, including the fact that blows were being made to the victim’s head while she was prone on the ground after having been struck with a spanner and dragged from a car, it is more than capable of forming part

of the basis for an intent to cause grievous bodily harm.

[23]     The appellant reviewed the photographs of the injuries to Ms Taylor, drawing attention to her statement that she suffered no concussion, described her injuries as “a couple of bruises and a bit of bleeding” and self discharged herself from hospital against advice.  While it was accepted that the injuries to her face may have been caused at least in part by the blows to her head, the point was made that there was clear evidence that she was also in contact with the roadside curb and gutter and that there was no evidence that she suffered any particular injury when hit with the spanner.

[24]     My impression is that the Judge’s reliance on the injuries suffered was simply to highlight that Ms Taylor’s injuries were consistent with the evidence that she gave about being dragged from the car and assaulted to the head while lying on the concrete ground.  The fact that the injuries indicated a relatively significant attack to the head area was something on which the Judge was able to base a finding that there was a repeated attack to the head and a corresponding intent to cause grievous bodily harm.

[25]     Taueki is authority for the proposition that even where weapons are not used, attacks  on  the  head  of  a  victim  can  have  particularly  serious  consequences.9

Consequently I accept the respondent’s submission that the fact that the attack involved repeated blows to the head could sensibly be used to infer an intention to cause really serious harm.

[26]     The appellant criticised the judgment for failing to address the impact of the brevity of the assault  on the inference  drawn,  noting the fact  that  the 111  call provided clear evidence that the incident lasted no longer than just over a minute and a half.

[27]     I do not accept that the Judge was not mindful of the duration of the attack. Indeed the judgment refers to the 111 call three times.10   However I do not accept the submission that the requisite intent could not be inferred on the part of the appellant from the time it took to perpetrate the assault.  An intent to cause grievous bodily harm can be present in a beating that lasts mere minutes.  The duration of the assault has to be weighed against the other factors including the nature of the assault and the

number of assailants.

[28]     In my view the cumulative effect of the several factors present in this case provided ample evidence to justify an inference that at least one of the three women who were directly involved in the assault on Ms Taylor intended to cause her really serious harm.  There was no error in the Judge’s approach and I have come to the same conclusion.

[29]     Finally, I note the submission for the appellant that the Judge erred in fact in his assessment of the evidence of Ms Ratapu.   He determined that she had come upon the incident at a late stage and her view was far from perfect.11   The appellant submits that Ms Ratapu was present during the incident and her account of the events was directly relevant to the available inferences.

[30]     However, Ms Ratapu stated in evidence that the “car was already there” and stationery when she came outside.12    Ms Ratapu also clearly positioned herself up Donna Street when the incident was occurring.13     Judge Cathcart was entitled to draw the inference that he did and to conclude Ms Ratapu “[had] seen a snapshot of what occurred; little more”.14

Finding that an appellant was a party under ss 66(2) or 66(1)

[31]     The appellant accepted that the Judge had correctly applied the guidance of the Supreme Court in Ahsin v R as to the essential legal elements for proof under both ss 66(1) and (2).15

[32]     The appellant’s contention was that the Judge had erred in his finding that the appellant was guilty under either subsection and that the two findings were inconsistent.

[33]     The  appellant  submitted  that  the  distinction  between  the  party  liabilities under the two subsections is to address two discrete possibilities:

54.      ...

Under s 66(1) the party will know of the actual intended offence, and act in a way that helps the principal offender commit that offence.  In this case that would mean that the appellant knew that the principal offender intended really serious harm before or at the time of giving assistance.

11     At [102]–[104].

12     Notes of Evidence, at 71 lines 1–2.

13     Notes of Evidence, at 66, lines 1–35.

14     R v Hubbard, above n 4, at [106].

Under  s 66(2)  the  party  will  be  part  of  a  common  intention  to prosecute an unlawful purpose, and be liable for any offence which was  known  to  be  a  probable  consequence  of  prosecuting  that unlawful purpose.

[34]     The appellant noted that the Judge specifically articulated the bases for the inference he drew that there was a plan to severely assault Ms Taylor but submitted there was no additional evidence that the Judge then used to support an inference that this had been elevated to an intention to cause grievous bodily harm.   The appellant submitted:

59.If  the  evidence  to  support  the  inference  of  a  common  plan  to severely assault is the same evidence used to support the inference that there was intent to cause grievous bodily harm, there would be no need to rely on the limb of foreseeability to support a finding of guilt.

If the Judge considered there to be a distinction between the two, then there was no additional evidence to support the inference of an intention to cause really serious harm rather than an intention to injure.

60.Further, if the inferences regarding grievous bodily harm were equal or less then the appellant was entitled to the benefit of that uncertainty.

[35]     In response the Crown submitted that the Judge had clearly and correctly set out his findings on party liability in paras [142]–[150].16    I agree with Ms Cleary’s submission that there is  nothing inconsistent with the appellant  being part of a common plan to severely assault Ms Taylor in the knowledge that the offence of injuring with intent to cause grievous bodily harm could result and, in the alternative, being guilty under s 66(1) by virtue of the fact that she took part in the assault

herself, and in doing so, lent assistance to the principal offender.

[36]     Consequently the additional arguments made in support of the appeal also fail.

16     At [13] above.

Appeal against sentence

Sentencing notes

[37]     At sentencing on 29 January 2016 the Judge summarised his conclusions in his  judgment  of  10 November 2015  and  referred  to  the  relevant  principles  and purposes of the Sentencing Act 2002.

[38]     Having recited the Crown’s submissions in support of a starting point of four to five years and the defence submission urging a starting point of around two years’ imprisonment, the Judge accepted that the starting point should take into account the aggravating features referred to by the Crown.  However he noted that the starting point also needed to reflect that the appellant was found guilty of the charge on the basis of party liability and recorded that the appellant was not to be sentenced on the basis  that  the  spanner  was  used  by  her  individually.    A period  of  three  years’ imprisonment was adopted as the appropriate starting point.

[39]     With reference to the issue of remorse the Judge said:

[27]      It is said on behalf of Ms Taingahue, that there is an element of remorse by you about what took place.   It is said that the remorse can be seen, Ms Taingahue, in the pre-sentence report.  Crown counsel makes the point that the suggestion of remorse here is consistent with the fact that there was  no  guilty  plea  entered.    You  decided  to  go  to  trial  on  the  matter. Ms Thorpe says the remorse is perhaps about you not getting involved in the incident itself which she says went too far.   In all the circumstances, the remorse  here  is  not  such  that  it  requires  discrete  recognition  as  an independent mitigating circumstance.

[40]     In the event no uplifts or discounts were applied and the end sentence of three

years’ imprisonment was imposed.

Discussion

[41]     For the appellant it was submitted that the Judge failed to properly balance the principles and purposes of sentencing, in particular in failing to allow credit for remorse and willingness to participate in restorative justice, and failed to adequately consider the purposes of rehabilitation and reintegration.

[42]     In particular the point was made that the Judge referred to remorse only in the context of the pre-sentence report and did not specifically refer to the appellant’s letter to the Court which it was submitted showed genuine remorse and a desire to rehabilitate.  Nor did the Judge mention the appellant’s willingness to participate in restorative justice.

[43]     The respondent submitted that the suggestion of the appellant’s remorse in the form of the letter handed up at sentencing and her state of willingness to attend a restorative justice conference need to be viewed in the context of:

(a)       a vicious group beating of the victim; (b)        pleas of not guilty;

(c)      a  Judge-alone  trial  being  held  in  which  the  victim  had  to  give evidence and be subject to cross-examination to the effect that she was lying about what happened;

(d)      evidence being given at trial by the appellant that was rejected by the

Judge; and

(e)      statements in the pre-sentence report that the appellant continued to minimise and justify her conduct.

[44]     I agree with the respondent that there was no obligation on the Judge to recognise what can only be described as limited and qualified remorse.  I also accept that  there  was  nothing  in  the  appellant’s  history,  her  conduct  at  trial  or  in  the materials before the Judge that would provide compelling evidence that there was a realistic prospect of rehabilitation.

[45]     In my view there was no error demonstrated in the sentencing analysis and the end sentence of three years’ imprisonment was well within range.  The appeal against sentence is dismissed.

Disposition

[46]     The  appellant’s  appeal  against  conviction  is  dismissed.     The  appellant’s appeal against the sentence of three years’ imprisonment is also dismissed.

Brown J