The Queen v Heke
[2006] NZCA 154
•6 July 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA96/06
THE QUEEN
v
TANGOHAU JACOB HEKE
Hearing:29 June 2006
Court:Chambers, John Hansen and Potter JJ
Counsel:A J S Snell for Appellant
S B Edwards for Crown
Judgment:6 July 2006
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of two years’ imprisonment is quashed. In substitution therefor, we pass a sentence of 17 months’ imprisonment. The special conditions on release imposed in the District Court are affirmed.
REASONS OF THE COURT
(Given by Chambers J)
Introduction
[1] A jury found Tangohau Heke guilty of assaulting a man with a weapon, namely an empty wooden beer crate. Judge Adeane, the trial judge, sentenced Mr Heke to two years’ imprisonment. He also imposed special conditions on release, namely that Mr Heke was to:
(a)undertake alcohol and drug counselling and/or treatment as directed by his probation officer;
(b)be assessed for, and to complete if deemed suitable, a cognitive programme as directed by his probation officer; and
(c)undertake psychological assessment and treatment as directed by his probation officer.
[2] Mr Heke appeals against the sentence of two years’ imprisonment. He does not dispute that imprisonment was the appropriate punishment; he simply argues that the term was too long. He does not challenge the special conditions imposed.
Issues on the appeal
[3] Mr Snell, for Mr Heke, raises two issues on this appeal.
[4] First, he submits that the judge’s starting point of two years’ imprisonment was too high.
[5] Secondly, Mr Snell submits that the judge erred in not making a discount for mitigating factors.
[6] We shall consider those two issues in turn.
Starting point
[7] Mr Snell submitted that the judge had adopted too high a starting point as a result of three errors. We shall consider the alleged errors in turn.
The facts on which sentencing proceeded
[8] Mr Snell submitted that part of the reason the judge adopted an inappropriate starting point was that he sentenced Mr Heke on an incorrect factual basis.
[9] The judge stated the facts on which the sentencing proceeded shortly:
[1] Mr Heke appears for sentence having been convicted by a jury on a count of assault with a weapon. The weapon in question was a beer crate. At the same time the jury acquitted Mr Heke of a further charge of assault using a bottle as a weapon. The two verdicts in my view showed commendable discernment on the part of the jury in evaluating the evidence. At the end of the day, however, self-evidently they were satisfied beyond reasonable doubt that the evidence justified a conviction of Mr Heke for joining in with others in the beating of a sports club manager who had gone to investigate an apparent burglary of his premises in Hastings.
[2] In the course of this, a group of youths from a nearby suburban party gathered around. The man was attacked. Bottles were used and he was struck with a beer crate and it is for that last part in matters that Mr Heke now appears for sentence.
[3] As I say, the jury were obviously at pains to exercise in Mr Heke’s favour such reasonable doubts as they perceived in the evidence about whether Mr Heke also took part in the assault with the weapon. What cannot be disputed on a commonsensical basis is that Mr Heke was implicated in an earlier breaking into the building. An item of his clothing, identified beyond doubt by DNA analysis, was found on the premises.
[4] The conclusion which I reach out of all this is that the scenario was as follows: Mr Heke in a group, most of them younger than him, had broken into premises and when someone in authority intervened, Mr Heke’s reaction was to attack in a savage fashion, using a beer crate to which I have referred. All of this, of course, casts a very ugly appearance over the events.
[5] Mr Heke to this moment has shown neither repentance or remorse for his offending or any sign of an acknowledgement of guilt. He acknowledges that there was much swapping of clothing amongst this group immediately after the offending. From my experience this is becoming a hallmark of efforts to frustrate proper identification of accused. It is alarming to see it as a practice amongst a group composed of such young people but it speaks something about Mr Heke too, who was found in different clothes shortly after this attack, which he denies any part in except as a passive bystander.
[10] Mr Snell, who had also acted for Mr Heke at trial, disputed the judge’s summary of the facts. Before we detail his points of concern, we set out what Mr Snell said was a more accurate account of the facts, consistent with the jury’s verdicts. This factual summary was accepted by Ms Edwards, for the Crown, as accurate. We reproduce it as Mr Snell submitted it, save for the deletion of two “it is alleged …” phrases:
On 16 July 2005, a burglary occurred at the Flaxmere Rugby Club. In response to the alarm activation, the victim (a key holder for the clubrooms) went to the clubrooms in order to assess the extent of damage to the building. The victim returned home to obtain some tools to complete some repair work which was required and then returned to the clubrooms to complete the repairs.
At the same time, the appellant and five of his associates were in the vicinity of the clubrooms. One of the appellant’s associates attempted to coax the victim into allowing them to take some alcohol from the premises. The victim refused the request.
The same male then verbally abused the victim, uplifted an empty beer crate and began walking towards the entrance of the clubrooms. Upon seeing this, the victim walked in front of the group in an effort to stop them.
… the group set upon the victim, punching and kicking him until he succumbed to the ground. The group then began hitting the victim about the head and body with the bottles that were nearby.
The victim managed to call out for help to a neighbour. As a result, the group stopped attacking the victim and the victim was able to get to his feet and leave the scene. However, as he was leaving the scene, … the appellant picked up an empty wooden beer crate and swung it at the victim, striking him heavily in the back.
As a result of the [overall] assault, the victim received a black eye and bruising and scratching to his back. The victim considered his injuries to be minor. There were no lasting effects.
[11] Mr Snell’s concerns about the judge’s factual summary were these:
(a)The judge proceeded on an assumption that Mr Heke had “joined in with others in the beating of” the victim. Mr Snell submitted that there was no basis for that conclusion, which was inconsistent with the jury’s acquittal of Mr Heke on the charge of assault using a bottle as a weapon. The only assault Mr Heke was found guilty of was the assault with the beer crate, which came after the general assault involving punching, kicking, and hitting with bottles had come to an end.
(b)The judge proceeded on the basis that Mr Heke had been implicated in the earlier burglary. The judge apparently drew that inference from an item of clothing found on the premises, which item was said to have Mr Heke’s DNA on it. Mr Snell complained that there was no evidence before the court about that clothing and the DNA. He said that the judge must have got that reference from a deposition statement. The Crown had not led that evidence at trial and it was not part of the Crown’s case that Mr Heke had been involved in the burglary. Ms Edwards confirmed that that was the case.
[12] We consider there is some justification in Mr Snell’s complaint in this regard. Clearly it is relevant on an assessment of the proved offending that it occurred in the context of a burglary and then a gang assault on the victim. But it would clearly be wrong to treat Mr Heke as though he had been involved in the burglary and had taken part in the earlier assault of the victim. After all, he had not been charged with burglary and, on the charge of assault with a bottle, a charge which related to the general gang assault, he was acquitted.
[13] Accordingly, we shall approach this sentence appeal on the basis of the agreed facts set out in Mr Snell’s submissions.
Lack of remorse as an aggravating factor?
[14] The second reason why the judge adopted an inappropriate starting point was, Mr Snell submitted, a result of the judge regarding what he perceived to be Mr Heke’s lack of remorse as an aggravating factor, driving up the starting point. Mr Snell submitted that a lack of remorse, even if established, was not an aggravating factor which should drive up a starting point before considering mitigating factors.
[15] Mr Snell’s concern under this head was based on what the judge had said in [5] of his sentencing notes. Mr Snell also pointed to the following sentence later in the sentencing notes: “Normally that fact [Mr Heke’s youth] would be reflected in a very significant discount from sentence, even in the absence of any remorse and acknowledgement of guilt.” Mr Snell submitted that this showed that the judge had raised the starting point because Mr Heke had “elected to defend the charge and [had not shown] repentance or remorse [for] his offending”. The judge, Mr Snell submitted, had “deemed that the lack of mitigating factors in effect amounted to aggravating features”.
[16] We do not accept that criticism. There is nothing in the judge’s reasoning to indicate that he regarded a lack of remorse or repentance as an aggravating factor.
Inconsistency with appellate authorities
[17] Mr Snell submitted that the judge had also fallen into error because he had failed to have regard to appropriate appellate authorities. Mr Snell noted that the judge had not referred to any authorities when fixing the two year starting point. Mr Snell referred us to R v White CA180/99 21 July 1999 and several High Court authorities. He submitted that a two year starting point was clearly excessive in light of those authorities.
[18] Ms Edwards accepted that the sentence was “stern” and “at the top of the range available to the judge in the exercise of his discretion”. But she submitted that it was within range. She referred us to this court’s decision in R v McMillan CA317/01 31 October 2001.
[19] We accept Mr Snell’s submission on this point. If one considers the proved offending in this case and compares it with the offending in White and McMillan, the inevitable conclusion is that Judge Adeane’s starting point was outside the acceptable range. The offending here was less serious than Mr McMillan’s and roughly on a par (perhaps slightly less serious) than Mr White’s.
[20] Having determined that the starting point was outside the acceptable range, we must now fix a starting point. We believe that should have been 17 months’ imprisonment. That happens to be near the top of the range Mr Snell submitted to us on the basis of his analysis of High Court and Court of Appeal authorities.
Mitigating factors
[21] Mr Snell submitted that the judge had erred in failing to take into account two mitigating factors, namely Mr Heke’s youth and the progress Mr Snell said Mr Heke had made since his arrest for this offending.
[22] We cannot accept this submission. The judge was obviously mindful of Mr Heke’s youth – he was 17 at the time of the offending. The judge observed, correctly, that normally that would warrant “a very significant discount”. But in this case he considered it was overborne by the seriousness of Mr Heke’s prior offending, including a robbery and an aggravated robbery.
[23] So far as alleged progress since this offending was concerned, the judge was obviously somewhat cynical about that, particularly since Mr Heke had reoffended while on bail.
[24] Judge Adeane, as the trial judge, was in a much better position than we are to assess mitigatory factors. He did consider Mr Heke’s youth and gave a reason as to why he did not consider it merited a normal discount in this case. He also considered the matters mentioned in the probation report as to alleged progress since the offending, but considered, as he was entitled to do, that such progress was tempered by the further offending while on bail.
[25] As we read the judge’s sentencing notes, he effectively considered that the possible mitigating factors of youth and progress were counterbalanced by personal aggravating factors of previous relevant offending, including offending while on bail awaiting trial on this very offending. The judge’s reasoning in that regard cannot be faulted.
[26] We consider that the judge was correct in effectively finding that personal factors relating to the offender, both aggravating and mitigating, roughly balanced out, with the consequence that no adjustment from starting point was required. His only error was in his selection of a starting point.
[27] Applying that logic, we too make no adjustment to our starting point of 17 months’ imprisonment.
Result
[28] For these reasons, we allow the appeal. The appropriate sentence for this offending was 17 months’ imprisonment.
[29] Mr Heke did not pursue his appeal against Judge Adeane’s refusal to grant leave to apply for home detention. Accordingly leave to appeal is similarly refused on the substituted sentence.
Solicitors:
Crown Law Office, Wellington
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