Te Ruki v R
[2018] NZCA 319
•23 August 2018 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA705/2017 [2018] NZCA 319 |
| BETWEEN | LAURENCE TYSON TE RUKI |
| AND | THE QUEEN |
| CA4/2018 | ||
| BETWEEN | ZINZAN WAIMATE BROOK TAMOU | |
| AND | THE QUEEN | |
| Hearing: | 22 May 2018 |
Court: | French, Ellis and Woolford JJ |
Counsel: | P M Keegan for Appellant in CA705/2017 |
Judgment: | 23 August 2018 at 2 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction by Mr Tamou is dismissed.
BThe appeals against sentence by Mr Tamou and Mr Te Ruki are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Woolford J)
On 10 November 2017, Zinzan Tamou and Laurence Te Ruki, together with a third man, William Pouha, were found guilty by a jury of wounding with intent to cause grievous bodily harm and participation in an organised criminal group.
On 7 December 2017, Judge Sygrove sentenced each of the three men to five years’ imprisonment.[1] Earlier three other men involved in the same offence had pleaded guilty to the same charges. They had been sentenced to three years and nine months’ imprisonment after receiving a discount for their guilty pleas.[2]
[1]R v Te Ruki [2017] NZDC 28071 [sentencing notes].
[2]R v Ngataierua [2017] NZDC 13173.
Mr Tamou now appeals against both conviction and sentence. Mr Te Ruki appeals against sentence. Mr Pouha has not appealed.
Factual background
The victim of the assault wanted to sell some dive gear. Mr Tamou said he was interested, so the victim drove to Mr Tamou’s house with an acquaintance and the gear. On arrival he spoke with Mr Tamou. Four men then arrived by car. They were the three men who had earlier pleaded guilty, and Mr Te Ruki. Mr Te Ruki was wearing a Black Power patch. One of the other men had a Black Power fist tattooed on his cheek.
The three men immediately began assaulting the victim. When he fell to the ground the assailants kicked and stomped on his face, head and body. While the assault continued, Mr Te Ruki told the victim’s acquaintance that if he said anything they would hunt him down and “fuck [him] up” too. One of the men then rang Mr Pouha, the president of the South Island chapter of Black Power, on his mobile phone. The phone was put on loud speaker. Mr Pouha told the victim the assault was because he had gone to a house occupied by Mr Pouha’s niece and threatened her. While this was occurring, Mr Tamou stood by and watched the assault, but did not take part in the violence. Mr Te Ruki also did not take part in the violence.
The assault lasted about 10 minutes. Mr Te Ruki and the three others left in the car in which they had arrived, having taken the dive gear and other property from the victim.
It was the Crown case that this was an organised Black Power gang hit on the victim and that although Mr Tamou, Mr Te Ruki and Mr Pouha did not take part in the violence, each played their part in the assault, such that they were just as guilty as the three men who actually assaulted the victim and pleaded guilty to the same charges.
Appeal against conviction
Unreasonableness of verdict
Mr Tamou submits that the jury verdict was unreasonable because the factors relied upon by the Crown to show his participation in the assault were so significantly undermined during the trial that no reasonable jury could find him guilty beyond reasonable doubt.
The five factors highlighted in the Crown’s closing address were:
(a)Mr Tamou’s association with Black Power;
(b)the arrangements made by Mr Tamou for the victim to come to his house, ostensibly for the purpose of buying dive gear from the victim;
(c)the stalling of the victim by Mr Tamou to ensure the former’s presence outside the house when members of Black Power arrived;
(d)the theft of the dive gear, which indicated that the Black Power members knew the victim was there to sell dive gear; and
(e)Mr Tamou’s actions in subsequently wiping the blood off the car in which the victim arrived.
In her submissions, Ms Boyd, counsel for Mr Tamou, acknowledges there was some evidence available of the first and fifth factors relied upon by the Crown. She submits, however, that there needed to be some evidence of the factors between Mr Tamou’s prior association with Black Power, and subsequent actions in wiping the blood off the car, in order for the verdicts against him to be reasonable.
We are of the view that there was evidence of Mr Tamou’s participation in the assault by making arrangements for the victim to come to his house and ensuring that he remained there until after the assault. An inference was clearly open that he knew of the planned assault and that he made the arrangements in that knowledge.
The victim gave evidence that he contacted Mr Tamou before he left Waitara to tell him he was on his way. Although a specific time was not arranged, Mr Tamou knew that he was then coming to his house. The victim also said he messaged Mr Tamou while on his way from Waitara to Inglewood, where he picked up the dive gear, and then on to Mr Tamou’s house. The police did not, however, find a mobile phone belonging to Mr Tamou. The victim’s acquaintance who was driving the car agreed that the victim had a mobile phone with him, though did not recall him using it during the journey.
The victim also gave evidence that when he arrived at Mr Tamou’s address he got out of the car and went to talk to Mr Tamou. Mr Tamou came outside and told him he was “making a feed” and went back inside, so the victim went back to the car alone. He says the other car containing the Black Power members pulled up “pretty instantly”.
Again, the evidence of the victim’s acquaintance was slightly different. He says the victim went onto Mr Tamou’s property, but was not sure whether the victim went inside the house. He says the victim was gone for maybe a minute and then came back to the car accompanied by Mr Tamou. The victim and Mr Tamou went to the back of the car and then the other car pulled up. Ms Boyd emphasised another inconsistency: whether or not Mr Tamou was by the car, and therefore standing next to Mr Te Ruki, during the assault.
Whether or not Mr Tamou accompanied the victim back to the car before the other car pulled up is not significant. Nor is the fourth factor relied upon by the Crown. The theft of the dive gear may well have been opportunistic. What is clear, and significant, is that all the evidence demonstrated Mr Tamou remained in the vicinity during the assault, whether or not he stood beside Mr Te Ruki.
In those circumstances, it was open to the jury to infer that Mr Tamou had made arrangements for the victim to come to his house and ensured he remained there until after the assault.
Counsel for Mr Tamou submits it was more likely the arrival of the car containing the Black Power members was a coincidence. Again, with respect, it was open to the jury to infer this was no coincidence. We ourselves think it was a strong inference.
It is well-established that a verdict will only be unreasonable if, having regard to all the evidence, the jury could not reasonably be satisfied to the required standard that the defendant was guilty.[3] The threshold for interference with a guilty verdict on the basis of unreasonableness is high.[4] The weight to be given to discrete pieces of evidence is essentially a jury function. A jury also has advantages over an appeal court. It is usually better placed to assess the honesty and reliability of witnesses. We are of the view that, in the present case, there are no grounds to impugn the jury’s verdict on the basis of unreasonableness.
Miscarriage of justice
[3]Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
[4]Kuka v R [2009] NZCA 572 at [75].
Mr Tamou also submits that there has been a miscarriage of justice occasioned by three issues:
(a)erroneous pre-trial rulings regarding Witness B and Witness C;
(b)the Judge’s failure to manage the victim properly when he gave evidence; and
(c)two key errors in the Judge’s summing up to the jury.
Witness B and Witness C were neighbours who witnessed parts of the assault. Three weeks before trial the Crown advised the defence that it did not intend to call them. Three days before trial counsel for Mr Tamou applied for an order requiring the Crown to call them. The Judge declined the application on the basis the evidence of Witness B and Witness C was only peripheral to the Crown case.[5] Counsel then applied for disclosure of the identities of the witnesses so that they could be summonsed for the defence. That application was also declined on the basis that they were not crucial to the defence case either.[6]
[5]R v Te Ruki [2017] NZDC 24937 at [22].
[6]R v Te Ruki [2017] NZDC 25002 at [1].
In a statement given to police, Witness B says he did not see the assault start, but saw dogs being pulled back and then “kicks just started raining down on someone”. He describes about five people standing around and at any one time there were probably three of them kicking. He did not know the name of the young man who lived at the address, but he was there, and had been in and out of his property while the assault was happening. He did not recall him doing anything.
Witness C describes the two cars and a man standing next to one of them who appeared to be kicking something on the edge of the grass. He says he saw seven men altogether, including one who was standing in the driveway outside the house.
Counsel submits that the evidence of Witness B and Witness C would have been relevant in assisting the jury to reject the victim’s evidence that Mr Tamou stood beside Mr Te Ruki during much of the assault. The victim explicitly denied the suggestion Mr Tamou was going in and out of his property while the assault was happening.
Apart from the victim giving evidence of the movements of Mr Tamou, the victim’s acquaintance, who had driven him to the scene of the assault, also gave evidence of what he saw. He thought Mr Tamou was inside the fence and had stood back during the assault, although he was not 100 per cent sure. He was not asked whether he saw Mr Tamou going in and out of his property.
In the way the case was presented by the prosecution, we are of the view that the decision not to require the prosecution to call Witness B and Witness C was not an error. The court will not lightly interfere with a prosecutor’s decision about which witnesses are to be called, except where it can be shown that a prosecutor has acted unfairly to a defendant.
The prosecution must put its case fully and fairly and call any credible witnesses who can give evidence as to matters in issue, including all evidence essential to the unfolding of the prosecution’s narrative.[7] Here there was never any suggestion Mr Tamou took part in the violence. The prosecution’s case was Mr Tamou made arrangements for the victim to come to his house and ensured he remained there until after the assault. Mr Tamou’s actual location during the assault was therefore irrelevant. Nothing Witness B or Witness C could say would have assisted the jury in assessing the prosecution’s case.
[7]Rapana v R [2015] NZHC 2286 at [14]; citing R v Wilson [1997] 2 NZLR 500 (HC) at 502–505; and Seneviratne v R [1936] 3 All ER 36 (PC).
As to the Judge’s alleged failure to properly manage the victim when he gave evidence, there is no doubt the victim was difficult to cross-examine. He expressed frustration at being asked repetitive questions. He objected to propositions being put to him. He asked questions of counsel. He was sometimes rude.
The Judge did, however, intervene on a number of occasions. He advised the victim that the different lawyers were entitled to ask the same questions. He directed the victim to answer questions with a simple “yes” or “no” while advising counsel to ask shorter questions. He directed the victim not to ask questions of counsel. At one stage he cautioned the victim when he sarcastically replied to counsel “You can read, good on you yeah”.
The role of a trial judge is to control the trial,[8] with an overriding obligation to ensure that the defendant receives a fair trial.[9] Although the victim was less than cooperative with cross-examining counsel, counsel for Mr Tamou was unable to point to any particular aspect of his case which was undermined by the victim’s conduct. We agree with the Crown that nothing he said was improper, inadmissible or prejudicial. The victim was the key prosecution witness and defence counsel sought to undermine his credibility and reliability by asking him many questions about unrelated criminal offending. This frustrated the victim who clearly thought such a line of questioning was irrelevant.
[8]Hastings v R [2015] NZCA 180 at [24].
[9]Kaka v R [2015] NZCA 532 at [29]–[30].
We are of the view that the Judge responded appropriately to the various issues that arose. The victim’s conduct did not come close to contempt of court. When directed to answer questions by the Judge, the victim did so. The Judge had no duty to intervene merely because the defence cross-examination strategy was not particularly successful.
The two key errors said to have been made by the Judge in summing up were:
(a)a reference to the prosecution case that “Mr Tamou is also alleged to have been present at the assault” and “that he stood by during the beating”; and
(b)a summary of the prosecution case that:
when they arrived at the address, Mr Tamou came out of the house and after a brief discussion, went back into the house and after that messaged [the victim] that he was going to get himself a munch. Shortly after that a car arrived and out of the car got Mr Te Ruki and three other males.
As to the first alleged key error, counsel submits the expression “stood by” can only mean “stood by Mr Te Ruki”. She submits that, although the victim said that Mr Tamou was standing by Mr Te Ruki for most of the assault, the Crown was careful not to close on the issue of where Mr Tamou was during the assault. We are, however, of the view that the expression “stood by” does not mean “stood by Mr Te Ruki”. It merely means he was present and did not participate in the violence. That was the Crown case. Both the victim and the victim’s acquaintance placed Mr Tamou at the scene of the assault as did Witness B and possibly Witness C. There was no error.
As to the second alleged key error, it appears that the Judge was mistaken when he referred to Mr Tamou messaging the victim after going back into the house that “he was going to get himself a munch”. The victim gave evidence of messaging Mr Tamou while on the way to his house, but did not say Mr Tamou messaged him that he was going to get himself a munch. The victim said Mr Tamou told him that when he first spoke to him after arrival at the house.
At the conclusion of the summing up, counsel in fact drew the Judge’s attention to the mistake, as a result of which the Judge called the jury back into court to correct the mistake. There was, accordingly, no prejudice to the defence case.
We are of the view that the two alleged key errors, either singularly or together, do not amount to a miscarriage of justice. The first was an accurate description of the Crown case and the second was inconsequential and was in any event corrected by subsequent advice to the jury.
Appeal against sentence
Both Mr Tamou and Mr Te Ruki appeal against sentence. Counsel for Mr Tamou submits that the Judge erred in considering Mr Tamou equally culpable to Mr Te Ruki and Mr Pouha. She submits that the evidence demonstrated Mr Tamou’s lesser involvement. He was not directly involved in inflicting the violence. He did not watch over the assault or threaten anyone. He was not wearing a patch. There was no evidence he knew the assault was to be severe. She submits the Judge erred by applying a “but for” test in assessing culpability, noting that the assault would not have occurred without the involvement of each of the defendants,[10] instead of considering the particular actions of each person and how that contributed to the offending as a whole.
[10]Referring to sentencing notes, above n 1, at [6].
Counsel for Mr Te Ruki submits that where there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender needed to be properly assessed. A party’s culpability or degree of involvement in the offence may differ greatly from that of the principal. He submits the Judge was wrong to conclude Mr Te Ruki was, in effect, the leader of the three defendants who actually committed the assault under his command or direction. The evidence established it was Mr Pouha who ordered the assault. The only evidence of Mr Te Ruki’s involvement was his presence during the assault wearing a Black Power patch and threatening the victim’s acquaintance.
Counsel for Mr Te Ruki also submits the Judge fell into error in failing to take into account the time he spent on electronically-monitored bail. He submits s 9(2)(h) of the Sentencing Act 2002 provides time spent on electronically‑monitored bail is a mitigating feature that must be taken into account. Mr Te Ruki’s electronically‑monitored conditions were very restrictive and akin to home detention.
Starting point
Section 8(e) of the Sentencing Act requires a court to take into account the general desirability of consistency in respect of similar offenders committing similar offences in similar circumstances. As this Court has observed previously, fixing the starting point is the mechanism for seeking consistency in sentencing.[11] Accordingly, starting points for co-offenders may differ based on their level of involvement in the offending to ensure starting points reflect culpability and are consistent;[12] if different levels of involvement are established, lesser offenders should receive lighter sentences.[13]
[11]R v Mako [2000] 2 NZLR 170 (CA) at [53].
[12]Police v Egden [1977] 1 NZLR 123 (CA) at 126.
[13]Taueki v R [2005] 3 NZLR 372 (CA) at [42]; and R v Gledhill [2009] NZCA 415 at [17].
There are, however, no rigid criteria for assessing who is a lesser offender. Much of the time it will be obvious. But different roles do not necessarily reflect lesser culpability; even in aggravated robberies, the driver of a getaway car does not necessarily receive a lighter sentence.[14]
[14]R v Moanunui [1983] NZLR 537 (CA) at 543.
Here, the Judge summarised the defendants’ involvement as follows:[15]
[6] I have asked myself this question on a number of occasions in regard to each of you. Would this attack on [the victim] have occurred without your involvement? The answer is no. Each of you are equally culpable and I will now tell you why.
[7] The attack on [the victim] had all the hallmarks of a well-planned military operation in that the chain of command started with Mr Pouha who as the president of the South Island Black Power gang ordered the strike. Accordingly, Mr Pouha, without you having ordered the strike this operation would never have taken place and as well during the assault you spoke to [the victim] and told him the reason for the assault which was that he had gone around to a house occupied by your niece some time ago with a firearm and threatened her in regard to some Chinese drug dealers in Christchurch.
[8] Mr Teruki, although you had not taken part in the physical assault you stood guard in full Black Power regalia, effectively as the commander of the three foot soldiers who were carrying out the assault under your command and direction. You were there to make sure there was no interference by any members of the public, remembering this assault was carried out in broad daylight in a suburban street and when you spoke to [the victim’s acquaintance] who was waiting in the car for [the victim] and who was the only one who could possibly be a witness to the attack you went up to him, apparently with a smile on your face, and said, “You didn’t see any of this or we will hunt you down and fuck you up.” The smile I venture to say was more in the style of a smiling assassin rather than a pleasant “gidday mate” type.
[9] You, Mr Tamou, lured [the victim] to your house on the pretence of buying dive gear when in fact you knew all along that he was going to receive a beating from other fellow Black Power members. You were effectively the intelligence officer, orchestrating everyone to be at the right place at the right time. You stood by without offering [the victim] any assistance whatsoever. I do note that as [the victim’s acquaintance’s] car was about to leave you wiped [the victim’s] blood off it.
[10] Accordingly I regard all three of you as equally responsible for this cowardly, intimidatory attack carried out in broad daylight in a suburban New Plymouth street. Without each of your individual input this attack would not have taken place and the jury accepted this in finding you all guilty.
[15]Sentencing notes, above n 1.
The Judge likened the assault to a military operation with each man playing an equally important role. Mr Pouha ordered the assault. Mr Tamou lured the victim to his house knowing that an assault was to occur. Mr Te Ruki was there to intimidate and keep order. This was a gang activity in which each defendant joined. Mr Tamou and Mr Te Ruki were in fact also convicted of participation in an organised criminal group. In those circumstances, we are of the view that there was no error in the Judge’s conclusion that Mr Tamou, Mr Te Ruki and Mr Pouha were equally culpable, and as culpable as the men who actually carried out the assault. The Judge was in a unique position, having given sentence indications and sentenced the three co-offenders as well as presiding over the trial in which Mr Tamou, Mr Te Ruki and Mr Pouha were found guilty. He had a comprehensive knowledge of the case and each of the defendants’ involvement in it, and was best placed to assess relative culpability.
Time spent on bail
The sole remaining issue is whether the Judge erred in not taking into account the 13 months spent by Mr Te Ruki on electronically-monitored bail. Counsel for Mr Te Ruki submits he should have done so, not only because of the provision in s 9(2)(h) of the Sentencing Act that time spent on electronically-monitored bail is a mitigating feature that must be taken into account, but also because the co-offenders who had been sentenced earlier received a sentencing credit of four months for the eight months they had spent on electronically-monitored bail. The Crown submits that, in the event, no discount for time spent on electronically-monitored bail was actually given to the three co-offenders who pleaded guilty. We do not consider either submission accurately reflects the approach taken by the Judge.
Mr Te Ruki and the three co-offenders were originally charged with wounding with intent to cause grievous bodily harm, which carries a maximum sentence of 14 years’ imprisonment.[16] The prosecution offered to accept guilty pleas to a lesser charge of injuring with intent to cause grievous bodily harm, which carries a maximum sentence of 10 years’ imprisonment,[17] if all four defendants pleaded guilty. It was on that basis that the four defendants sought a sentence indication from the Judge.
[16]Crimes Act 1961, s 188.
[17]Section 189.
In a sentencing indication dated 16 March 2017, the Judge took a starting point of five years’ or 60 months’ imprisonment. He reduced the starting point by four months for all four offenders to reflect they had been on restrictive terms of bail. From the revised starting point of 56 months’ imprisonment he then gave a discount of 25 per cent for guilty pleas, which resulted in an end sentence of three years and six months’ imprisonment. [18]
[18]R v Ngataierua DC New Plymouth CRI-2016-043-1405, 16 March 2017 [first sentencing indication] at [8].
Mr Te Ruki did not accept the sentencing indication. The prosecution therefore proceeded with the original charge of wounding with intent to cause grievous bodily harm against all four offenders. Mr Te Ruki’s three co-offenders then sought a sentencing indication on that original charge.
In a further sentencing indication dated 9 June 2017, the Judge did not give extensive reasons, but merely stated:[19]
The defendants have all been in custody to a certain extent since I last gave my sentencing indication and what I regard as a fair and reasonable sentence in all the circumstances is one of three years and nine months imprisonment.
[19]R v Ngataierua DC New Plymouth CRI-2016-043-1405, 9 June 2017 [second sentencing indication] at [6].
This was accepted by the three co-offenders who were each sentenced to three years and nine months’ imprisonment on 16 June 2017.[20] The Judge did not elaborate on the minimal reasons given in the sentencing indication dated 9 June 2017.
[20]R v Ngataierua, above n 2.
The Crown submits that a starting point of five years’ imprisonment appears to have been maintained, along with the 25 per cent discount for the guilty pleas. If this were true, the Judge must have allowed no discount for other mitigating factors including electronically-monitored bail. We are of the view, however, that the Judge’s remarks should not be interpreted in the manner submitted by the Crown. The Judge was giving a sentence indication in respect of an offence with a significantly higher maximum sentence. He said the Crown submission that a higher starting point should be adopted was an “entirely appropriate submission”,[21] and said further:[22]
… we are effectively in a different ball game now in that we now have the charge of wounding with intent with causing grievous bodily harm which carries a 14 year sentence of imprisonment as compared to injuring with intent to cause grievous bodily harm which carries a 10 year sentence of imprisonment.
[21]R v Ngataierua, above n 19, at [4].
[22]R v Ngataierua, above n 19, at [5].
In those circumstances, it is unlikely that he maintained a starting point of five years’ imprisonment. Some uplift to the starting point was necessary to reflect the more serious offence the four defendants then faced.
We are of the view that it was appropriate for the Judge to adopt a starting point of five and a half years’ imprisonment for the more serious charge of wounding with intent to cause grievous bodily harm. The Judge had earlier indicated that four months should be deducted in respect of all four defendants, including Mr Te Ruki, for restrictive terms of bail which would bring the starting point back to five years and two months’ or 62 months’ imprisonment.
In his second sentence indication, the Judge made specific reference to the fact that the defendants had all been in custody to a certain extent since he gave his earlier sentencing indication in reaching his decision on what the end sentence should be.[23] We are therefore of the view that another deduction of two months would have been appropriate, which would have brought the adjusted starting point back to five years’ or 60 months’ imprisonment. A full 25 per cent discount for guilty pleas would then have been applied to make the sentence imposed on the three co-offenders one of three years and nine months’ imprisonment.
[23]Second sentencing indication, above n 19, at [6].
Mr Te Ruki was not eligible for the 25 per cent discount for a guilty plea as he went to trial. We are of the view that on a proper analysis of the sentencing process, Mr Te Ruki did receive a six-month deduction from the otherwise appropriate sentence for the time he spent on electronically-monitored bail. A discount for the time Mr Te Ruki spent on electronically-monitored bail was appropriate, but there is no particular formula the Judge was required to apply to determine the discount.[24] We are satisfied the Judge’s discount was appropriate. He did not err.
Result
[24]Rangi v R [2014] NZCA 524 at [10].
The appeal against conviction by Mr Tamou is dismissed.
The appeals against sentence by Mr Tamou and Mr Te Ruki are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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