Te Hira v The Queen
[2011] NZCA 599
•30 November 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA254/2011 CA649/2011 [2011] NZCA 599 |
| BETWEEN ISAIAH JOHN TE HIRA |
| AND THE QUEEN |
| Hearing: 7 November 2011 |
| Court: Wild, Chisholm and Potter JJ |
| Counsel: L O Smith for Appellant |
| Judgment: 30 November 2011 at 10.00 am |
JUDGMENT OF THE COURT
AThe application to reinstate the appeal against conviction on the aggravated robbery charge is dismissed.
B The appeal against sentence is also dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
Mr Te Hira appeals against sentences totalling eight years imprisonment imposed on him by Judge Blackie in the Manukau District Court on 25 March 2011.[1]
[1] R v Te Hira DC Manukau CRI-2011-092-1610, 25 March 2011.
Mr Te Hira also seeks to reinstate an appeal against conviction which he previously abandoned. That attempt is directed only to Mr Te Hira’s conviction on the most serious crime, aggravated robbery. A difficulty he faces is that he pleaded guilty to that charge, along with all the other charges on which he was sentenced.
Mr Te Hira’s appeal against sentence was filed about a week out of time. An extension of time was granted by Stevens J on 14 July 2011.
The crimes
When sentencing Mr Te Hira, Judge Blackie assembled the crimes for which Mr Te Hira had been convicted into two groups, imposing separate, cumulative sentences in respect of each group. However, the crimes are best summarised chronologically, and this is conveniently done in tabular form. The two crimes in the shaded panels form one group, which includes the aggravated robbery for which the Judge imposed the highest sentence:
| Date of Crime | Crime | Brief Description |
| 5.3.10 | Burglary | Went into a food market in Te Atatu, Auckland. Stole a bag containing $1,000 cash – three days’ takings – from under the desk in the owner’s office. Mr Te Hira committed this burglary with two other people who distracted the shop assistant while Mr Te Hira stole the cash bag. None of the stolen money was recovered. |
| 15.3.10 | Burglary | Mr Te Hira and a Mr Nagaseu went into a dairy in Henderson, Auckland. While Mr Nagaseu distracted the shop assistant, Mr Te Hira stole a handbag from the office in the dairy and also $1,200 Lotto takings that were in a bag behind the counter area. The shop assistant became aware that Mr Te Hira was taking the Lotto money and confronted him. He acted aggressively toward her and verbally abused her before making off. Again, none of the stolen money was recovered. |
| 17.5.10 | Unlawfully taking a motor vehicle | At about 5 pm Mr Te Hira unlawfully took a locked Mazda Familia car from a public carpark in Parnell, Auckland. The estimated value of the car was $9,500. |
| 18.5.10 | Aggravated robbery | At about 7.50 am, with another man, Mr Te Hira robbed a security company employee of two bags in which there were four pre-filled cash canisters, containing $120,000 in $20 notes. The security company employee was about to reload an ATM machine in a laundromat in Clendon, Auckland. The robbers were heavily disguised. One of them pointed a sawn off double barrelled shotgun at the security company employee and demanded “give me the bag”. The robber with the gun continued to point it at the security company employee while the second robber moved in and picked up the bags. Both men then made off, driving off in the Mazda vehicle stolen the previous evening. A witness described seeing three men next to the stolen car, stomping on the cash canisters to break them open. The witness then saw the men heading off through a pedestrian alleyway. Police inquiries subsequently identified Mr Te Hira as one of the robbers. A car dealer also identified Mr Te Hira as the man who purchased a Holden car on the afternoon following the robbery, paying the $7,000 purchase price in cash in $20 notes. None of the $120,000 has been recovered. Mr Te Hira admitted to the police (Detective Beal) that he had stolen the Mazda car, that he was the robber who pointed the shotgun at the security officer, that he had shared the robbery proceeds with others, and that he had used part of his share of the stolen money to buy the Holden car. |
| 19.8.10 | Unlawfully taking a motor vehicle | In the late afternoon Mr Te Hira unlawfully took a Nissan vehicle from a street in Remuera. The vehicle was parked, securely locked. It had a value of about $5,000. |
| 20.8.10 | Burglary | Late in the morning the bedridden victim heard a noise outside her home in Sunnyvale, Auckland, and saw the stolen Nissan vehicle being reversed down her driveway. She saw two men get out. She heard them break into her home and saw them carry her television set to the Nissan before driving away with it. The Nissan was subsequently recovered, the television was not. |
| 16.9.10 | Burglary | In the afternoon Mr Te Hira went into a Chinese restaurant in St Asaph Street, Christchurch. After going up to the counter he reached over and took a black handbag from a shelf opposite and made off with it. The handbag belonged to the female owner of the restaurant. It contained personal belongings and $2,700 in cash. After being pursued by the victim’s husband and one of the restaurant staff Mr Te Hira was caught inside emergency fencing erected after the earthquake. The police were called and arrested Mr Te Hira who gave a false name. All the contents of the handbag were recovered. |
Application to reinstate abandoned appeal against conviction
A good starting point is to get clear the chronology of what has happened. Again, we use a tabular format:
| Date | What happened |
| 28.4.11 | Mr Te Hira filed an appeal only against the eight years sentence imposed on the aggravated robbery. The ground given was that the sentence was manifestly excessive and/or inappropriate, in particular because the Judge erred in not giving Mr Te Hira any credit for remorse. The notice of appeal was signed by Mr Te Hira. In an affidavit he swore on 22 October 2011 Mr Te Hira deposed that he told his counsel, Mr Juran, following sentencing that he wished to appeal “my conviction”, but was advised by Mr Juran only to appeal his sentence because he had not received credit for remorse. Mr Te Hira deposes that he subsequently signed a blank notice of appeal sent to him by Mr Juran, circling that he wanted to appeal “my conviction”. He filled out the details on the first page of the notice, signed it, and sent it back to Mr Juran. (We accept this is correct: in the part of the notice stating what is appealed against, “my conviction” has been circled but then crossed out. The handwriting on the first page is different from that on the last two pages of the form, and different also from the signature.) |
| September 2011 | Mr Te Hira changes counsel from Mr Juran to Mrs Smith. |
| 27.9.11 | Mr Te Hira files a notice of appeal against conviction on the ground that his admission to Detective Beal on 29 October 2010 that he had committed the aggravated robbery was obtained by an inducement and a threat. In his affidavit sworn on 22 October 2011 Mr Te Hira deposes that the Detective told him, in a break in the videotaped interview, that if he pleaded guilty to the aggravated robbery the police would drop the charges against his girlfriend, but if he did not plead guilty she would go to jail and the couple’s son who was five months old at the time would go into CYPFS care. He deposes the he “felt helpless and angry ...” and “so I told him that I was involved in the aggravated robbery”. Mr Te Hira deposes that he gathered the information he then gave Detective Beal about the aggravated robbery from reading the disclosure that had been given to his co-accused, Junior Maile, by Mr Maile’s counsel. |
| 29.9.11 | Memorandum by Mrs Smith to this Court. Includes the following: 3.3 Mr Te HIRA has instructed the writer that he made an exculpatory statement after the Police induced him to make a second statement admitting guilt by offering him an inducement to not to carry on with the prosecution of his girlfriend. A threat was also made to Mr Te HIRA in that if his girlfriend, who is the Mother of his child, was convicted, the child would go into CYPFS care. As a result of that inducement and threat, Mr Te Hira made a second statement admitting guilt. He would not have made the second statement if the inducement and threat had not been offered. 3.4 Counsel respectfully requests that Mr Te HIRA be granted leave to appeal both his sentencing and conviction on the grounds set out above. |
| 11.10.11 | Notice of abandonment of appeal against conviction filed. Signed by Mrs Smith as counsel for Mr Te Hira. Attached to the notice is a letter dated 11 October 2011 addressed to Mrs Smith and signed by Mr Te Hira: Dear Mrs Smith I have spoken to you about the likelihood of success in respect of my Appeal against Conviction. I accept that I did not tell my Counsel about the agreement I had with the Police nor did I say anything about it to the Probation Officer. I accept your advice that my appeal against conviction is unlikely to succeed. However, I instruct you to continue with my appeal against sentence on the basis that the Sentencing Judge did not give me credit for my remorse. Could you please abandon my appeal against conviction on my behalf. “Isaiah Te HIRA” |
| 19.10.11 | Memorandum of Mrs Smith to the Court stating: 4. Today Mr Te HIRA has spoken to his Counsel and instructed that he wants to re-instate his Appeal against Conviction in respect of the Aggravated Robbery charge only. Mr Te Hira deposes of his changed instruction to Mrs Smith: 20. I later thought about what I had done and I was angry with myself for abandoning the Appeal against Conviction. I did not do the aggravated robbery and the description of the two robbers does not fit my description. |
Only where there is evidence of a miscarriage of justice will this Court entertain an appeal against a conviction entered following a plea of guilty. We add that the evidence must be cogent – it must indicate in a compelling way that justice has miscarried. The principles were summarised in this Court’s decision in R v Stretch.[2]Delivering the Court’s judgment Cooke J said:[3]
As to the law, in very exceptional cases, and only in such cases, an appeal against conviction can succeed after a plea of guilty. The authorities were collected in an article by Alec Samuels in [1962] Crim LR 806 (which includes the statement “a defendant who was represented is virtually precluded from advancing such a contention”) and by T A Gresson J in Udy v Police [1964] NZLR 235. More recent English authorities will be found in 11 Halsbury’s Laws of England (4th ed) para 611, note 5 and the supplement.
[2] R v Stretch [1982] 1 NZLR 225.
[3] At 229.
Those principles were reaffirmed by this Court in R v Ripia.[4] As well as citing the passage from Stretch just set out, McMullin J cited this dictum of Avery J, delivering the judgment of the English Court of Criminal Appeal in R v Forde:[5]
A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.
[4] R v Ripia [1985] 1 NZLR 122, (1984) 1 CRNZ 145.
[5] R v Forde [1923] 2 KB 400 at 403.
This Court in Ripia confirmed that the grounds on which an applicant may advance an appeal against conviction following a guilty plea “are very limited”. A change of plea on an appeal will be allowed “only in very exceptional cases”.[6] Ripia, however, was concerned with an earlier stage of the proceeding – the power of the High Court to allow a change of plea before sentence.
[6] At 126.
We consider seven obstacles stand firmly in the way of Mr Te Hira now pursuing an appeal against his conviction on the aggravated robbery charge. The first is the summary of facts which Mr Te Hira and his then counsel, Mr Juran, had when Mr Te Hira pleaded guilty to the charge (and all the other charges) on 2 February 2011. The summary stated that police inquiries had identified Mr Te Hira as one of the robbers. Mr Te Hira’s affidavit does not address or even mention those inquiries. Instead, he simply deposes:
22.There is no evidence linking me to the aggravated robbery except my admissions. ...
Mr Raftery told us that a blue polo shirt was found in the Mazda car stolen by Mr Te Hira on 17 May 2010, and used to commit the aggravated robbery the following morning. Mr Te Hira admitted the shirt was his. Upon analysis DNA on this shirt was found to emanate from Ms Josie Taniora, Mr Te Hira’s partner. So, in addition to Mr Te Hira admitting that the shirt was his, it was forensically linked to him.
What Mr Te Hira did state in his affidavit was this:[7]
The evidence of the eye witnesses from what my new Counsel has told me, says that the two people involved in the aggravated robbery were between 5’8” to 5’11”. I am 6’3”. The eye witnesses say that the two men were big and over 100 kgs. At the time of the aggravated robbery I was 80 kgs and I am still that weight. Another witness said that the two men weighed between 90–100 kgs.
[7] At para 21.
The Crown accepts Mr Te Hira is six foot three inches (190.5 centimetres), and of medium build. There were four eye witnesses to the aggravated robbery. The owner of the laundromat described one of the robbers as “about 170 centimetres tall and between medium and small build”, and the other as taller and skinny. The security guard described the robber holding the shotgun as “a bit shorter than me. I am 180 centimetres tall. With all the clothing on he looked pretty big in build”. He described the other robber as a bit taller than him and also, with all the clothing on, pretty big in build. The third eye witness, who was accompanying the security guard, described the robber in the yellow hoodie as about her height – 171 centimetres. She could not really comment on this robber’s build because he was wearing quite a bit of clothing, but said he was probably medium build. The robber wearing a black hoodie she described as about three centimetres taller than the other robber and about the same build. That witness did not see the shotgun – she distinguished the robbers by the colour of the hoodies they were wearing. The fourth witness lived in the street about one and a half kilometres away where the robbers abandoned the stolen Mazda car shortly after the robbery. He described three men all “wearing black from head to toe … the same height, 5’8”–5’10” and weighing 90–100 kgs. They were big boys”.
We agree with Mr Raftery’s submission that these slight discrepancies in eye witnesses’ descriptions of the heights and/or builds of the robbers are not such as to raise the spectre of injustice. Three of the witnesses were the immediate victims of an armed robbery by two heavily disguised robbers. Although one of those witnesses did not see the shotgun, all of them faced a traumatic situation. Although the fourth witness did not face the same traumatic situation, he was further away from the robbers.
The second, and similar, obstacle is that the summary of facts states that Mr Te Hira was identified as the buyer of the Holden car on the afternoon following the robbery, paying for it with $7,000 cash in $20 notes. The $120,000 stolen in the aggravated robbery was, as we have pointed out, all in $20 notes. Again, Mr Te Hira’s affidavit does not address this.
The third obstacle relates to Mr Te Hira’s assertion that he only pleaded guilty to the aggravated robbery because of Detective Beal’s inducement and threat. We have set out what Mr Te Hira deposed in the table in [5] above, against the date 27 September 2011. The Crown met this assertion in two ways. The first was to file an affidavit sworn on 4 November 2011 by Detective Beal. The Detective deposes:[8]
I am advised that it is alleged that during a break in the interview I said to Mr Te Hira that if he pleaded guilty I would drop charges against his girlfriend, but that if he did not his girlfriend would go to jail and their son would go into care.
I categorically deny I said any such thing. It is true there was a break in the interview (about 3.30 in the afternoon) when the recording device developed problems. We had to move to a new video room and the interview was resumed. During the break while the new equipment was being set up I did tell him that I didn’t believe that he had told us the truth (I say “us” because another officer was monitoring the interview, Detective Cleary).
The first part of the interview dealt with several offences as well as the robbery in question. When we resumed the second part of the interview he admitted to one of those offences, a burglary of a dairy in Henderson but disputed the amount stolen. He continued to deny the robbery but gradually when reminded of the fact of his blue polo shirt found in the vehicle used to commit the robbery (he accepted it was his shirt) and also reminded of some text traffic between his girlfriend and the girlfriend of the person the police believed was his co-offender he gradually began to admit his involvement, but consistent with his stance throughout the interview in respect of other offending refused to admit to the fact of any co-offenders. He admitted he was the one who held up the security guard with a sawn off shotgun.
[8] At paras 4–6.
The Crown’s other point is essentially the one that emerges from the last of those paragraphs. Mr Te Hira’s admission to the Detective that he had committed the aggravated robbery was not of the abrupt variety that might be expected had the alleged inducement and threat been made. Rather, it was a ‘bit-by-bit’ admission obtained gradually by Detective Beal through the second half of his interview with Mr Te Hira.
Fourth, as the shaded sections of the chronology we have set out in [4] above demonstrate, the getaway car used for the aggravated robbery was stolen the previous afternoon. Mr Te Hira admitted and pleaded guilty to stealing that getaway car. He is not seeking to appeal his conviction for taking the car. There is no explanation from Mr Te Hira as to how he reconciles that with his attempt now to appeal his conviction for the aggravated robbery committed using the car he had stolen.
Fifth, there are the contents of the pre-sentence report dated 18 March 2011 which Judge Blackie had for sentencing. Two aspects of this are relevant:
(a)The report states:[9]
Offending
... A Caption Summary for these matters was produced at interview and the only dispute he had with facts outlined was that none of the offenders were actually identified. In explanation for his offending Mr Te Hira stated that he stated that he had been under the influence of methamphetamine during all of the current matters. He offered no further comments in relation to his offending.
(b)The report also states:[10]
Mr Te Hira expressed remorse for his offending behaviour stating “I regret all my actions on the day of the offences ... if I could go back I would change it.” He also extended an apology to the victims in the current matters adding “I’d just like to say I’m sorry .. I don’t know what it’s like to have a weapon pointed at me ... I’d just like them (victims) to know that I’m sorry” ...
[9] Case on Appeal at 46–47.
[10] Case on Appeal at 47.
Mr Raftery explained the reference in (a) above to Mr Te Hira having only one dispute with the facts outlined in the caption summary. In his videotaped interview with the police Mr Te Hira was adamant that he alone had committed the aggravated robbery: there were no other offenders to identify. Subject to that, in those two parts of the pre-sentence report, Mr Te Hira is recorded as accepting the facts of the crimes he committed, as they are outlined in the police summaries. And, in relation to the aggravated robbery, he is unequivocally admitting to the probation officer that he was the robber who pointed the sawn off shotgun at the security officer. There is really no other way of interpreting his apology “I don’t know what it’s like to have a weapon pointed at me ... I’d just like them (victims) to know that I’m sorry”.
Sixth, there is Mr Te Hira’s undated, handwritten letter addressed to the presiding Judge for sentence. In this he accepts responsibility for all the crimes on which he is about to be sentenced, and regrets committing them. As examples:[11]
I understand and have recognised that what I have done is unacceptable and wrong.
…
… I honestly and truley regret what I have done. …
[11] Case on Appeal at 53.
Seventh, and perhaps most compellingly, is the fact that Mr Te Hira was legally represented at each critical stage. The first critical stage was when he pleaded guilty on 2 February 2011, when Mr Juran was representing him. The second critical stage was on 11 October, when he abandoned the appeal he had brought the previous month against his conviction for the aggravated robbery. Mrs Smith was by then representing him, and the contemporary documentation demonstrates that the abandonment followed discussion with and advice from Mrs Smith.
This Court has taken the position that it will not set aside a notice of abandonment of an appeal unless there are exceptional circumstances and the interests of justice so require. The applicant seeking to set aside the abandonment carries the onus of satisfying the Court that the reasons for the application are of an exceptional nature. The Court bears strongly in mind the importance of finality in criminal cases.[12]
[12] R v Cramp [2009] NZCA 90 at [26], [2009] BCL 357; R v Bridgeman CA87/04 at [9].
This is not one of those very exceptional cases in which the appellant should be permitted to pursue a previously abandoned appeal against conviction on a charge to which he pleaded guilty. We are satisfied that there has been no miscarriage of justice in respect of Mr Te Hira’s conviction for the aggravated robbery. It follows that Mr Te Hira’s application to reinstate his abandoned appeal against conviction is dismissed.
Appeal against sentence
As we mentioned, Judge Blackie imposed separate sentences for the aggravated robbery and related unlawful taking of a motor vehicle, and for the other charges (the four burglaries and the other unlawful taking of a motor vehicle related to one of those burglaries).
The Judge took a starting point of eight years imprisonment for the aggravated robbery charges. He allowed a discount of two years (25 per cent) for Mr Te Hira’s guilty pleas, producing an effective end sentence of six years imprisonment.
On the other charges the Judge’s starting point was three years imprisonment. He allowed a discount of one year (33 per cent) for the guilty pleas to those charges, to reflect Mr Te Hira’s remorse, and also “because of the necessity to look at the totality of the sentence”.[13] The total effective end sentence was therefore eight years imprisonment.
[13] At [34].
Mrs Smith responsibly accepts that that eight year sentence was fair. As Mr Raftery points out, that concession is fatal to any appeal against the sentence.
Nevertheless, we will deal with the narrow complaint made against the sentence. It is that the Judge did not adequately recognise Mr Te Hira’s remorse. We do not accept that.
Judge Blackie dealt with remorse at three different points in his sentencing remarks. First, he dealt with Mr Juran’s submission that Mr Te Hira showed remorse, in particular for the aggravated robbery. The Judge said this:[14]
Then of course there is the amount that you got away with, $120,000. I enquired this morning as to what you might have done to help get that money returned, nothing. Your lawyer says that you are showing remorse. Well it might have been a demonstration of remorse for your wrong doing if you had done something about getting the money back, but you did not. You gave it away to somebody else. It would not appear that you opened up a trail where anyone can track it down, so it is a net loss.
[14] At [23].
Next, the Judge referred to the three letters that had been placed before him. Two of them were letters of support from friends of the Te Hira family. The authors of one of those letters, Mr and Mrs Johnston, stated:[15]
… I know now that he [Mr Te Hira] regrets what he has done as he now knows that his actions are going to affect the people he wronged …
[15] Case on Appeal at 54.
The third letter was the one from Mr Te Hira himself to which we have already referred. This is what the Judge said about those three letters:[16]
Mr Juran has produced some other materials, one is a letter from you in which you expressed regret for your actions, and the other is a letter signed by some people called Johnson who speak about you actually having good parts, that you can be a worthwhile person that others like to associate with, but a major factor in your offending and will have to be concentrated on in your rehabilitation, is the fact that you are a methamphetamine addict.
[16] At [29].
Lastly, when considering the appropriate sentencing discount in relation to the burglary charges, the Judge said this:[17]
In relation to the burglary charges I am prepared to reduce the sentence from three [years] imprisonment to two [years] imprisonment. You get a third discount, in part because of your plea, in part because of the very belated expression of remorse, and I do not really put a great deal of weight on your expression of remorse, and finally because of the necessity to look at the totality of the sentence that I impose.
[17] At [34].
Anything beyond a 25 per cent discount could only be explained by allowance for remorse, and by the necessity to take a totality approach in sentencing. So there was some allowance for remorse, albeit small. But the Judge explained why the allowance was small. In short, he really did not accept that Mr Te Hira was genuinely remorseful. In particular, there was no tangible demonstration of remorse.
For those reasons we do not accept error on the Judge’s part in reflecting, in sentences he imposed, the remorse expressed by Mr Te Hira.
There is a further point about remorse. As Mr Raftery pointed out, Mr Te Hira’s assertion of remorse, and his claim that the Judge failed sufficiently to recognise it, sit uncomfortably with his attempt to appeal against his conviction for an aggravated robbery he admitted he had committed, and pleaded guilty to.
The appeal against sentence is also dismissed.
Result
The application to reinstate the abandoned appeal against conviction on the aggravated robbery charge is dismissed.
The appeal against sentence is also dismissed.
Solicitors:
L O Smith, Auckland for Appellant
Crown Law Office, Wellington for Respondent