The Queen v Ahomiro

[2006] NZCA 298

IN THE COURT OF APPEAL OF NEW ZEALAND

CA150/06

THE QUEEN

v

TAKATU AHOMIRO

Hearing:16 October 2006

Court:Roberston, Randerson and Ronald Young JJ

Counsel:C R Horsley for Appellant

E M Thomas for Respondent

Judgment:20 October 2006 at 3pm

JUDGMENT OF THE COURT

APPEAL AGAINST CONVICTION AND SENTENCE DISMISSED.

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       The appellant appeals against his conviction and sentence following trial by jury on one count of robbery and two of assault.  Judge Ingram sentenced the appellant to three years imprisonment on the robbery count and to concurrent sentences of six months imprisonment on the assaults.  He also ordered $965 in reparation be paid. 

[2]       The appellant says that the Judge was wrong when, in answering a question from the jury, he said that there was no dispute between the Crown and defence that one person was responsible for the assaults and robbery.  As a result, the accused says, there was a miscarriage of justice because the jury were told if the appellant committed one of the offences he committed them all.  As to sentence the appellant says the final sentence of three years imprisonment was, in the circumstances, manifestly excessive.

Background

[3]       On Saturday 14 November 2004 the four complainants, Messrs Bahm, Broadstock, Hunt and Parker travelled from Auckland to Tauranga for a bowling tournament.  After their arrival in Tauranga and the consumption of some alcohol they travelled to Te Puke.  In Te Puke they stopped in a carpark.  Others present said the complainants made derogatory remarks about Te Puke and its residents.  Mr Bahm, who had been the driver of the car, was standing by the driver’s door when the appellant punched him on the head knocking him to the ground.  The appellant took this complainant’s cellphone and wallet. 

[4]       At about that time Mr Wihapi, a bystander, took the keys from the ignition of the complainant’s car.  Other complainants said the same man who knocked down Mr Bahm then punched Mr Hunt through the open driver’s door window of the car.  Then the Crown says the appellant opened the left rear passenger door and pushed what the witness Mr Broadstock described as a “sharpened object which he told me was a knife” into his side and demanded money.  The complainant told him his wallet was in the glovebox.  The appellant then searched the glovebox.  Finally, the appellant demanded the chain and watch from the complainant Mr Parker who was seated in the rear passenger’s seat behind the driver. 

[5]       On 16 November 2004 each of the complainants was shown two sets of photo montages to see if they could pick out the offender.  Although some complainants said some photos were similar to the offender, no firm identification was made.

[6]       At trial, each of the three complainants who had a memory of the events was asked if the assailant was in the courtroom.  Mr Broadstock said yes and pointed to the appellant.  Mr Hunt identified the appellant and said he had no doubt about his identification.  Mr Parker also identified the appellant in Court and said he had no doubt about his identification.

[7]       Mr Wihapi, who took the keys from the complainant’s vehicle that night, also gave evidence for the prosecution.  He knew the appellant personally.  He confirmed the appellant was present that night.  Mr Wihapi described the appellant hitting a complainant (Mr Bahm) outside the car.  He saw the appellant go to the other side of the car and heard those in the car call out, “Give him the money or something”.  Mr Wihapi then left the immediate scene and went to the white van in which the appellant later left the scene.

[8]       The second non-complainant eye witness was Mr Rosacker.  He owned the white van.  He knew the appellant previously, although knew him only by his nickname “Snax”.  He saw the appellant hit the first complainant but saw little else after that incident.  He drove the appellant away from the scene in his white van.

[9]       After retirement the jury asked the following question:

From Luke and Brody’s statement we need to hear the transcript about their identification of suspect inside the vehicle.  Can we please know if the suspect that assaulted Anthony was the same person that went into the glovebox and reached over the back and robbed him was Brodie Hunt’s test. – did he say the same person that hit him through the window was the same person who hit him on the left cheek.

[10]     At the beginning of the reply the Judge said:

[3]The first thing to say about that is that it is absolutely common ground between the Crown and the defence that there was only one man involved in all of those three things.  There is no suggestion, by either the Crown or the defence, that anybody else did these things other than one particular person.

And later

[9]. . . but as best I can tell you there is no hint, whisper or suggestion anywhere in any of the evidence that anybody else was involved in hitting or punching people, robbing, stealing out the car, except one man.  Who that man is is of course the question for you to determine.

The Judge detailed the evidence of Mr Hunt and Mr Parker who said that the same person had attacked all four complainants.

The conviction appeal

Counsel’s submissions

[11]     The essence of the appellant’s appeal against conviction is that the Judge was wrong to tell the jury it was common ground between the Crown and defence that the same person assaulted and robbed the complainants.  The appellant says his case was that he had not committed any of the offences, and that one or more other persons had done so.  He submitted that because of the way the Judge phrased his answer to the jury’s question that, if the jury thought he had committed one of the offences, he must have been guilty of all of them. 

[12]     Mr Horsley identified two points in the summing up which he said confirmed that the defence case put to the jury was that there could be a person or persons who committed these offences.  At [19] of the summing up the Judge said:

In this case counsel for the defence he suggested in his closing address that it is possible that the person or persons other than the accused committed the assaults and robbery that we have heard about of the various complainants named in all three Counts.

[13]     And at [81] he said:

. . . It is important that you consider each Count separately and come to a separate decision about each.  You will be asked for separate verdicts on each Count.  It is by no means certain that your verdicts will be the same for all Counts.  It is quite possible you will reach different conclusions in relation to them.

[14]     Mr Horsley stressed the evidence established there were a number of people around the car at the relevant time and therefore it was open to the jury to conclude that more than one person committed the three offences.  Counsel submitted that the jury question itself “clearly indicated that they, the jury, had doubt as to whether one person was responsible for all incidents”.

[15]     The appellant said, therefore, that the Judge effectively removed an available defence by his answer to the question asked and thus the appellant had lost the opportunity for an acquittal on at least some of the counts.  It followed that a miscarriage of justice had occurred.

[16]     The Crown submitted that the trial was conducted on the basis that a single person was responsible for the three offences, and the only issue was whether the Crown could prove it was the appellant.  On that basis, therefore, it submitted, there was no error by the Judge in explaining that position to the jury. 

Discussion

[17]     We are satisfied the Judge reflected the common ground of the Crown and the defence, that one person was the perpetrator of all three crimes and this position was consistent with the unchallenged evidence given at trial.  Three of the witnesses in the Subaru car (Messrs Parker, Hunt and Broadstock) could recall the events of the evening.  Each witness gave evidence that only one person had assaulted and robbed the occupants of the car.  There was no challenge to this evidence by counsel for the appellant. 

[18]     Mr Wihapi, who knew the appellant and took the keys to the Subaru car, described the appellant punching one of the complainant’s at the car.  He described the appellant going to the other side of the car and at some stage the complainants saying to the appellant, “give him the money or something”.  He was not cross-examined in a way which suggested that others had carried out the assaults and robbery. 

[19]     Similarly, with Mr Rosacker who saw the appellant punch the first complainant and then go to the side of the car, there was no suggestion to him that more than one person was involved in the assaults or the robbery. 

[20]     The evidence, therefore, clearly established that one person had committed all three offences.  There was no evidence of a second person involved in the offending, nor was this possibility ever suggested by defence counsel to any of the witnesses who saw what happened that night.

[21] Mr Horsley suggested that the Judge in his summing up had accepted the possibility of another offender. He referred to two passages in the summing up: see [12] and [13] above.

[22]     As to the first passage, the sentence in the summing up referred to by counsel is followed by the following sentence:

[19]. . . In assessing whether there is any merit in that submission you will need to determine whether that submission has any basis in the evidence given that you have not heard from the accused.

[23]     If the jury did as they were asked by the Judge and considered whether there was evidence to justify the claim of “persons” being involved they would inevitably have concluded there was no “merit” in the submission because there was no evidence to support the submission.  The Judge was generous in his reference to counsel’s submission that “persons” could have been involved.  There was no evidential basis for counsel’s submission.

[24]     The second passage in the summing up occurred when the Judge was dealing with the form of the verdicts.  This is a general direction and clearly not focused on the particular facts of the case.

[25]     Contrary to the appellant’s submission, we do not see the jury question as indicating a view that there was more than one offender.  We agree with the Crown’s submission that the jury question does no more than ask for the evidence which establishes the particular proposition.  That was the basis on which the Judge answered the question without objection from counsel.

[26]     If, as the appellant claims, it was the defence case at trial that more than one person could have committed the offences, then it is difficult to understand why the appellant’s counsel did not raise with the Judge at the time the alleged error in his response to the jury’s question.  The Judge on two occasions (see [10]) in his reply to the jury made it clear that all parties were agreed that one person only had committed the three offences.  He used such words as “absolutely common ground” and there was no “hint, whisper or suggestion” that anyone else other than a single man was involved.  These were clear, unambiguous comments.  There could have been no misunderstanding of what the Judge was telling the jury.  The fact no objection was taken by counsel for the accused reinforces the point that there had been no cross‑examination designed to put forward the possibility of another person’s involvement and tends to confirm that the case had been run throughout on the basis there was only one offender. 

[27]     We are satisfied, therefore, that the Judge’s answer to the jury and direction to them was appropriate and consistent with the evidence.  No objection can be taken to the way in which the Judge answered the jury’s question.

Appeal against sentence

[28]     The appellant argues the sentence of three years imprisonment was manifestly excessive because the Judge failed to allow an adequate reduction to account for the fact that this was a robbery rather than an aggravated robbery when he assessed the case against this Court’s judgment in R v Mako [2000] 2 NZLR 170.

[29]     The appellant says the Judge, while relying upon this Court’s decision in Mako, failed properly to discount the starting point to reflect the more serious offending in Mako.  As a result, the appellant says the starting point of 2½ years was too high and the final sentence of three years was manifestly excessive. 

[30]     The Crown says the Judge identified the appropriate category of offending in Mako, the aggravating features requiring an increase in the starting point and, given the appellant’s serious criminal past, and the absence of any mitigation, a sentence of three years was appropriate.

[31]     We agree with the appellant that while the Judge identified the need to discount the Mako categories to accommodate the maximum penalty for robbery of ten years’ imprisonment, compared with the 14 years for aggravated robbery, he did not expressly do so. 

[32]     However, we do not consider the overall sentence was manifestly excessive.  This was a nasty incident of street violence and threats of violence to four men accompanied by a robbery.  There was the threat of the use of a knife.  The appellant was on bail at the time of this offending and he has a bad history of violent offending including a previous aggravated robbery conviction, at least ten previous convictions for serious violent offending and numerous property offences including burglaries. 

[33]     Taking account of the aggravating features relating to the facts of the case, a starting point of two and a half years was justified.  An uplift of six months (see R v Ward [1976] 1 NZLR 588 (CA)) given the appellant’s past record and the fact that this offending was committed on bail was also justified. We are satisfied the sentence of three years imprisonment was not manifestly excessive. We accept the sentence was high but are satisfied it was within the available sentencing range.

Result

[34]     The appeal against conviction and sentence is dismissed.

Solicitors:

Crown Law Office, Wellington