The Queen v Eugene Netana Greaves

IN THE COURT OF APPEAL OF NEW ZEALAND

CA139/02

THE QUEEN

EUGENE NETANA GREAVES

Hearing:	16 October 2002
Coram:	McGrath J Baragwanath J Salmon J
Appearances:	M Tuilotolava for Appellant A E Kiernan for Crown
Judgment:	23 October 2002

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

The appellant, now 33 years of age, appeals against a sentence of 6 years imprisonment imposed by the District Court at Manukau on 25 January 2002 on a charge of injuring with intent to cause grievous bodily harm committed on 12 August 2001. He does not challenge the term of further sentences of 18 months on charges of entering with intent and of burglary and of three months on charges of possession of cannabis and of theft committed on 9 December 2001. But he contends that the resulting 7.5 year term is excessive because the 6 year term was too long.
In accordance with customary practice a summary of facts was provided by the Crown to the defence which had the election of accepting it or alternatively rejecting it and requiring a Newton hearing (R v Newton (1982) 4 Cr App R(S) 388) to resolve the differences between the parties. Unfortunately that course was not adopted. Defence counsel, instead of seeking an adjournment to a defended hearing, put her client’s challenge to the Crown’s summary before the Court in written submissions. The Judge, faced with the conflict between the Crown and defence versions, did not resolve the dispute by adjourning the case to a defended hearing but made factual findings which were a compromise between the respective versions. He erred in adopting that course which has presented for this Court the difficulty that it is impossible to know precisely on what factual basis the appeal should be approached.
The Crown’s version contained in the summary of facts was that the complainant was aged 79 years at the time of the offence. On the evening of Sunday 12 August 2001 his grandson and a girl were living with him at his home. At about 10 pm while he was in bed watching television the appellant came to the house with two other men and knocked at the door which was answered by the complainant. The complainant did not recognise the appellant, who is the uncle of the girl. Becoming frightened, the complainant tried to close the door. The appellant pushed the door open and attacked the complainant, punching him in the face and kneeing him twice in the testicles. The complainant fell to the floor and screamed for help and then was kicked once by the appellant in the face sufficiently violently to fracture his jaw and cheekbone and cause him to bleed profusely from the face. The appellant believed he had killed the complainant and called in one of the men who had arrived with him to help in administering first aid. The appellant then moved items about the house to make it appear as though the complainant had disturbed a burglar. Neighbours of the complainant responded to his cries of help and beat the appellant who was then allowed to leave. Two days later the appellant delivered himself to the police and was interviewed about the attack. He admitted beating the complainant, kneeing him in the testicles and kicking him in the head.
The defence version, in its written submission to the sentencing Judge, stated:
…the Crown had made a submission on aggravating features and with respect to these features I comment upon each as follows:
(a) That the incident was unprovoked. This submission is not entirely accepted. Mr Greaves had initially intimated pleading Not Guilty to the charge based upon his initial belief that at the relevant time he harboured a reasonable belief that his own safety was in jeopardy. However, when the overall offending was properly examined, he came to accept that his response to any provocation offered by the complainant can only be described as “over the top” and beyond the bounds of reasonable force.
Mr Greaves had gone to the complainant’s house out of concern for his niece Syrene who was living with the complainant’s grandson at the time. Mr Greaves and his family together with Syrene had earlier buried Syrene’s deceased father just a day before this incident. On the evening in question, whilst Mr Greaves was at a birthday gathering for another niece, received a telephone message from Syrene asking if they could go around for some company and a chat as she was feeling great sorrow at the loss of her father. All this prisoner wanted to do was to comfort his niece and to reassure her that he and his family were there for her.
Admittedly, the hour was late when he knocked on the door. The door was opened by the complainant with a barrage of swear words as to why they have come calling at that late hour of the night. Mr Greaves tried to get a word in to inform the complainant that Syrene had telephoned him when the complainant tried to shut the door. Mr Greaves then blocked the shutting of the door with his foot and stepped in calling out to his niece. In the meantime, the complainant is telling him to “f….k out” of his house. Mr Greaves states that he turned to head back out when he was struck from behind impacting on the back of his head. This assault, says Mr Greaves made him “see red” and he retaliated by punching and kicking the complainant and continuing to kick the complainant when he was on the floor.
The assault came to an abrupt stop and then he called to his brother’s girlfriend outside to come in and help the complainant as she was a nurse. He carried the complainant to the bed and was in the process of putting him down on the bed when the neighbours arrived.
The neighbours immediately assumed that Mr Greaves was about to deliver further assaults upon the complainant and they made sure that no further assaults occurred. The neighbour David Siulua stated in his depositions statement that he had punched the prisoner several times “straight in the face” which caused his nose to bleed. He, together with his father-in-law Thomas Rangiuia pinned the prisoner to the wall and “some of his blood got onto the wall”. Mr Greaves stated that the blood on the wall came from the wound at the back of his head, where he had been whacked by the complainant with the complainant’s tokotoko (walking stick). Significantly, a walking stick was found inside the house. Following his video confession, the prisoner was taken to the hospital for his head wounds and underwent a CT head scan. He was released after 3 hours with medication for the pain.
(emphasis added)
When the case was first called before this Court on 29 August 2002 the appellant was given the opportunity to place his account on affidavit. That affidavit was not filed until the day before the present hearing and the Crown had no opportunity to respond by affidavit. In it the appellant asserted:
…I was on my way out of the complainant’s house when he had hit me to the back of my head with a hard object which I believe to be his tokotoko. As a result of this impact, I was left with a laceration and swelling to the back of my head.
The point has a double significance. First, it goes to whether the appellant’s conduct was unprovoked, or rather a response to a heavy blow to the head with a stick resulting in laceration and triggering what the appellant acknowledges was an excessive and intemperate response. Secondly, it goes to whether or not the case falls within the home invasion provisions of the Crimes Act added by s4 of the Crimes (Home Invasion) Act. Section 189(1) has at all material times provided:
189 Injuring with intent-(1) Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to cause grievous bodily harm to any one, injures any person.

Section 189(3) provided:

(3) This section is subject to section 17B (1) and (3) (which provisions set out higher maximum penalties for offences against this section involving home invasion).

Section 17B provided:
17B. Maximum terms of imprisonment for offences involving home invasion: offences otherwise carrying maximum term of… 10 years imprisonment-(1)…
(a) Section 189 (2) (injuring with intent to injure):
…
(3) If a person is convicted of an offence against any of the following provisions of this Act and the sentencing court is satisfied that the offence involved home invasion, the person is liable to imprisonment for a term not exceeding 13 years:
…
(e)Section 189 (1) (injuring with intent to cause grievous bodily harm):
…
Sections 189(3) and 17B were repealed by s164 of the Sentencing Act 2002 which received the Royal assent on 5 May 2002 and by Order in Council came into force on 30 June 2002. But s19 of the Interpretation Act 1999 provides:
19       Effect of repeal on prior offences and breaches of enactments
(1)       The repeal of an enactment does not affect a liability to a penalty for an offence… committed before the repeal.
(2)       A repealed enactment continues to have effect as if it had not been repealed for the purpose of-
…
(b)Commencing or completing proceedings for the offence…:
(c)       Imposing a penalty for the offence…

Accordingly the exercise of this Court’s jurisdiction on appeal under s383 of the Crimes Act 1961 falls within the expression “completing proceedings for the offence” and the Home Invasion Act, including ss17B(3) and 189(3) remains in force for the purposes of determining the appeal.

It has long been the law that, when a householder lives in a dwelling house to which there is access from the street, in the absence of any no admittance sign there is presumed an implied licence to any member of the public with lawful reason for doing so to walk from the street to the front door and enquire whether he may be admitted: Robson v Hallett [1967] 2 QB 939. The Crown did not dispute that the appellant had an implied licence to walk up to the front door of the property where his niece was living and to knock and seek permission to enter. On the Crown’s version of the facts however such implied licence had been withdrawn by the complainant’s attempt to close the door on him. Accordingly, when he then injured the complainant with intent to cause grievous bodily harm, he was subject to a 13 year maximum term of imprisonment as a home invader. On his version by contrast he was not an invader but was walking out the door when struck from behind and his excessive retaliation is not to be classified as amounting to home invasion, so the maximum penalty is limited to 10 years. Accordingly the District Court erred in imposing an increased penalty on the basis that it was a home invasion case.
In such circumstances it would normally be appropriate for us to direct a rehearing by the District Court to resolve the factual dispute. Purely fortuitously we have found it unnecessary to adopt that course.
To avoid it is not altogether satisfactory as it means that the parties do not have the benefit of knowing with precision on what factual basis sentence is pronounced. But we regard that result as less burdensome for the complainant, requiring him at this late stage when he thought the matter was complete to be required to give evidence and be cross-examined, when the result of that process could result in no different sentence from that which we are satisfied is appropriate.
On the conventional basis, that the Crown’s statement of facts stands unless duly challenged by the defence, the 6 year sentence was wholly appropriate, viewed by itself.
Aside altogether from the home invasion legislation, and accordingly on the premise that the maximum term was 10 and not 13 years, the appellant was subject to a substantial penalty. The leading case R v Hereora [1986] 2 NZLR 164 states the following principles:
Commonly an impulsive act of violence including the use of a weapon or attempt to inflict serious injury will attract a sentence within the bracket of 3 to 5 years; and from 5 to 8 years is reserved for cases exhibiting a combination of aggravating features. Up to 12 years is imposed… when unusually grave aggravating features are present.
The victim impact statement records the victim’s injuries, his being knocked unconscious, being in hospital for a week coughing up blood and subsequently suffering bad headaches. Having for 40 years regarded his home as a place of security, he is now apprehensive about further intrusion.
On the basis of the summary of facts the attack was unprovoked. It was particularly vicious, the complainant being kicked on the head after being knocked to the ground. The disparity in age between the appellant and the victim was approximately 50 years. The injuries sustained by the complainant as a result of the attack were significant and continuing and resulted in disturbing emotional impact. The offence was committed at night. The appellant has a long list of previous convictions including burglary, aggravated robbery and common assault.
A psychiatric report describes him as having suffered a traumatic childhood and sexual abuse that have left him with continuing symptoms including flashbacks, numbing affective disregulation and avoidance. He was also a chronic substance abuser with alcohol and marijuana dependency.
The offending falls at the high end of the lower category specified in R v Hereora and would ordinarily warrant a sentence in the 4 to 5 year range. The sentencing Judge approached his task on the basis that he was bound to give effect to the home invasion legislation. He found that while the appellant had entered the dwelling house under the implied licence presumed by the law for the purposes of visiting his niece, that licence had been revoked by the complainant. Accordingly in terms of this Court’s decision in R v Palmer [2000] 1 NZLR 546 it was the District Court’s duty to increase the sentence by reason of the home invasion. From the Judge’s assessment of a 6 year term of imprisonment following mitigation it may be inferred that the Judge adopted a starting point in the vicinity of 8 years.
On the point of difference between the respective versions the Judge adopted a compromise, finding that the appellant had beaten up the complainant but stating:
It may well be that he gave you a push, but the fact of the matter is that your response was completely out of any context of violence offered.
It was not appropriate for the Judge to compromise in this fashion: there was no evidence of a push; there was conflict between the complainant’s version of unprovoked attack and the appellant’s of a blow on his head by a walking stick wielded by the complainant.
The Judge took into account the mitigating factors of an immediate attempt to render assistance and of a prompt plea of guilty. It was appropriate to recognise the 7 year period for which the appellant had been free of offending until the present episode.
On that basis the 6 year term was appropriate.
We also accept that the Judge was right in principle in deciding that the other offences leading to the 18 months additional term, which were committed while on remand pending sentence, were properly to be treated as discrete offending, which is ordinarily the subject of a cumulative sentence.
But it does not appear that he stood back and considered the totality principle. As to that, relevant considerations are the appellant’s period without offending; the fact that the circumstances of the subsequent offences included his appreciation that he had fallen from grace and was depressed; that the further offences although committed on bail were, as Mrs Tuilotolava submitted, essentially stupid – entering a garage and removing tools; smashing a window of the adjoining property to remove curtains, to wrap the tools; pulling out 44 cannabis plants from the adjoining driveway and putting them into his car. He then stood waiting in a drunken state for the arrival of the police.
We accept the appellant’s submission that on the present premise a total term of 7.5 years may fairly be described as crushing and disproportionate. On that basis a total term of 6 years is appropriate.
On the alternative basis for which the appellant contends the element of home invasion is stripped out and there would arise an element of provocation justifying a reduced head sentence of 4.5 years. But in those circumstances the addition of the 18 months for the other offending would not be oppressive and the same 6 year term would result.
We record that we have the deepest sympathy for the complainant and that our disposal of the case in the way we have described is not at all to be treated as a rejection of his account that he was subjected to an unprovoked assault. It is simply a consequence of the unhappy way in which the matter has been handled in the District Court and the need to bring the matter to finality.
The sentence of 7.5 years is quashed and substituted by a 6 year term. The lead sentence of 6 years for the charge of injuring with intent is to be served concurrently with the further sentence.

Solicitors

Ferguson, Tuilotolava, Fonua, Auckland for Appellant
Crown Solicitor, Auckland

[2002] NZCA 223

23 October 2002