The Queen v Leon Witute

IN THE COURT OF APPEAL OF NEW ZEALAND

CA464/00
CA 04/01
CA 06/01

THE QUEEN

LEON WITUTE
TROY ANDERSON
MOTU MAUNSELL

Hearing:	20 March 2001
Coram:	Tipping J Robertson J Young J
Appearances:	M J Knowles for Appellant Witute P B McMenamin for Appellant Anderson H F Croft for Appellant Maunsell S P France for Crown
Judgment:	21 March 2001

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

The three appellants appeared for sentence in the District Court at Christchurch on 14 December 2000. They had faced an indictment which contained seven counts relating to two separate incidents in the early hours of the morning of 27 July which the sentencing Judge described as “street thuggery”.
Mr Witute pleaded guilty to demanding with menaces and a charge of theft. Mr Maunsell pleaded guilty to assault with intent to injure and two charges of common assault. Mr Anderson pleaded guilty to charges of demanding with menaces, assault with intent to injure, male assaults female and common assault.
The Judge in his notes on sentencing (having noted that there had previously been more serious charges and that there had been disputes about some of the allegations) outlined the facts. We repeat this in the form used in the District Court :
In relation to the first incident at about 3.30 am in The Square you, Witute, initiated matters by confronting two young men and demanding a cigarette. They did not have a cigarette but one of them proffered a lighter which you snatched. Then in company with you, Anderson, you demanded money. In the meantime you, Maunsell, confronted the other complainant and effectively diverted him. There was no violence I accept between you and that other complainant. The two complainants then walked away. You, Anderson, punched one complainant on the side of the head. It was a nasty example of street thuggery, demanding money and reacting violently when frustrated.
No victim impact reports have been produced in respect of those two victims. The assault, as it happens was not a serious one of its kind. I deal with you on the basis that there has been no permanent physical damage to them. They would have both suffered frights.
The next incident happened within the hour, this time in Cashel Mall. You changed the venue slightly in the course of your collective drunken parade through the city. You then abused a young couple who happened to be at an ATM machine. You, Anderson, demanded money from the young man, you then punched him about the head. You, Maunsell, joined in and did likewise. It has been suggested that you were at first acting in defence of Anderson when the other young man retaliated. That is simply nonsense. This wasn’t a fight, this was gratuitous street violence on your part.
The victim went to the ground, you continued punching him. You, Maunsell, kicked him at least five times to the upper body and the head. His young woman companion intervened in an attempt to protect him and you, Anderson, and Maunsell pulled her away and threw her to the ground. The pair of you continued to strike the male and even after the police arrived and parted you, you both continued to taunt the victims. You, Witute, were there on this occasion. You were a spectator but you in the end face no charges in relation to that matter.
Mr Witute was sentenced to an effective term of 18 months imprisonment, Mr Anderson to an effective sentence of 2 years imprisonment, and Mr Maunsell to an effective sentence of 2 years imprisonment. In the case of Mr Anderson the Judge indicated a starting point of 3 years while he is silent about that aspect for Mr Witute and Mr Maunsell.
In respect of all the appellants the Judge refused to suspend sentence and only in Mr Anderson’s case was leave given to apply for home detention.
The appeals were advanced partly on the basis that the learned District Court Judge misunderstood the factual position upon which pleas of guilty had been entered. There are two documents which are headed as summary of facts with regard to each of the incidents. They are both headed with the names of the three appellants, although in each case only two of the appellants were convicted of charges out of the separate incidents.
The matter is complicated as these summary of facts include substantial reference to acts and activities of a person against whom no charge was proceeded with. The matter is further complicated by the fact that the Court was presented with a document on behalf of the then counsel for Mr Maunsell, which Mr Witute’s counsel submits is an accurate summation of relevant facts. The District Court Judge also had what was described as a synopsis of Crown submissions on sentence. This had some factual errors in it and placed a very different complexion on the deposition evidence.
It is clear that there had been negotiations between counsel for the three persons charged and the Crown about appropriate charges and pleas. In those circumstances it is incumbent on everyone to ensure that there is clearly identified the basis upon which pleas have been entered. If it is necessary the Court can hear evidence on sentencing but no Court should be faced with the confusion and uncertainty which attended this matter.
It is now submitted that the District Court Judge was unable to resist being influenced by the irrelevant, incorrect and/or misleading material which was introduced by the Crown. As a result it is submitted that the District Court Judge wrongly considered that there were aggravating features which did not exist. It is contended that sentences of imprisonment were not called for at all, that if there had to be terms imprisonment imposed they should have been shorter, and any sentences of imprisonment should have been suspended.
In the case of Mr Witute, it was submitted that when the Judge made the finding that there were insufficient rehabilitative factors in place he ignored or overlooked the important comment in the Probation report :
It is my opinion that a term of imprisonment will further entrench this man in that system and it may well have a detrimental affect on his future and on the future of his young family.
Although there are many common threads, there are discrete factors which weigh in each case.
On behalf of Mr Witute it is first submitted that the Crown in its submissions and the Court in dealing with the case, implicated Mr Witute in the second incident, although no counts were laid against him in respect of that matter. We are not persuaded that on a full analysis of the material it is established that the Judge was led into error, but the potential for that perception certainly existed.
In this Court the Crown accepted that 18 months was a “stern” or “severe” sentence following a plea of guilty in respect of the two charges upon which Mr Witute pleaded guilty and was convicted. It is to be noted that the appellant has a substantial list of previous convictions including assault, male assaults female and possession of knife in a public place and the Crown submits that there was a clear need to deter this type of activity. On the other hand there was a relatively positive pre-sentence report and no actual violence on the part of Mr Witute.
Assuming that a reasonable allowance was made for the plea of guilty, the Judge must have concluded that a starting point in the vicinity of 2 years was called for. We are satisfied that that was excessive for this 21 year old man, even if one takes the view that he initiated matters by confronting two strangers demanding cigarettes, grabbing a lighter and demanding money with menaces.
We acknowledge that deterrence was important but there must be proper proportionality. We have been persuaded that a proper starting point could not have been higher than 18 months which is consistent with the reasoning of this Court in R v Mako [2001] 1 NZLR 170. After allowing for his plea of guilty and the rehabilitative prospects referred to, a sentence of 12 months would have adequately met the total circumstances. On the basis of the charges and the relevant facts this man was the least involved and the sentencing Judge held that s 5 of the Criminal Justice Act did not apply.
The rehabilitative issues which are referred to in the report are of significance. Section 8A of the Criminal Justice Act provides :
8A. Limitation on combined sentences – (1) No court shall, in respect of any offence, impose on an offender a community-based sentence cumulative on a sentence of imprisonment, if the court ought not to have imposed a sentence of imprisonment at all.
(2) Where a court imposes a community-based sentence cumulative on a sentence of imprisonment, the total duration of the combined sentences shall not exceed the term of imprisonment that would otherwise be appropriate for that offence.
Supervision (as was strenuously recommended in this case) is a community based sentence.
We are persuaded that supervision with special conditions aimed at coping with this man’s propensity for violence is an essential factor in this sentencing. Accordingly we have concluded that it is appropriate that he should be sentenced to 6 months imprisonment followed by 6 months supervision. Thereby the twin goals of condemnation and deterrence coupled with positive rehabilitative processes are achieved.
Mr Maunsell was involved only in the second incident although this was clearly the more serious and involved considerable violence. His participation in the major incident was aggravated by his actions in the other assaults, one of which was an assault on a woman. It is submitted that the 2 years on the assault with intent to injure as against a maximum penalty of 3 years was not justified. That submission appears to overlook the fact that the sentences on the other charges were to be served concurrently, although we acknowledge that there is difficulty when the Judge did not indicate a starting point against which allowance was made for the guilty pleas and other mitigating factors.
We are not satisfied that it has been demonstrated that the 2 year effective sentence was manifestly excessive. This man was involved in a serious incident of street violence with entirely unprovoked attacks on people who should have been safe in what they were doing.
We are not attracted to any mechanical approach to sentencing which involves a multiplying out of maximum sentences (or even possible sentences) and thereafter applying the totality principle. Sentencing always involves a weighing of all relevant factors relating to the offence and the offender with the emphasis upon the overall proportionality of the final result. Mr Maunsell was involved in punching and kicking his victim on the ground and he demonstrated a persistence which justified a stern approach being adopted. This man has substantial previous convictions including assault with intent to rob, demands to steal, common assault and robbery. His was a case calling for both personal and general deterrence.
The sentencing Judge noted the position of Mr Anderson as a complete paradox in that on the factual situation he was the initiator of violence on both occasions, but his personal situation was significantly different in that at 29 years of age he had no previous convictions.
As far as disparity is concerned, the argument might have been advanced that Mr Anderson should have received a greater sentence than Mr Maunsell on the basis of culpability in the actual incident, but he appears to have had particular leniency extended by the Judge because of his lack of previous convictions.
We are not persuaded by Mr McMenamin’s endeavour to suggest that the offending was not of such gravity as to support the sentences imposed. Hassling and attacking people who are lawfully going about their activities in public places, particularly when it culminates in punching and kicking of innocent people on the ground requires firm condemnation and the clear message that those who indulge in it forfeit their right to be within the community. The antagonistic and provocative attitude adopted by this appellant is part of the offending. It is not to be put to one side in determining the gravity of the allegations.
Although we accept that it is unhelpful to indulge in mathematical accumulation exercises, we are not persuaded that Mr Anderson’s sentence was excessive.
In the District Court the issue of suspension was raised on behalf of all the appellants. It is not pursued by Mr Maunsell on appeal on the basis that with the passage of time it has become academic. We are not satisfied in any event that the sentencing Judge was wrong to refuse to suspend any of the sentences of imprisonment. Although there may be strong arguments to be made in favour of rehabilitation in respect of each of these young men, there is in our judgment a greater priority to be given to the clear denunciation of behaviour of this sort which would be weakened, if not removed, in granting suspension.
We note that Mr Anderson was given leave to apply for home detention. The Crown have not cross appealed on that point. We do not see that merciful indulgence as having any flow on effect on the position of Mr Witute and Mr Maunsell in light of their very different criminal records.
The appeal by Mr Witute is allowed on the charge of demanding with menaces. The sentence of 18 months imprisonment is quashed. He is sentenced to 6 months imprisonment to be followed by 6 months supervision. In all other respects the sentences imposed in the District Court on all three appellants are confirmed. The appeals of Mr Maunsell and Mr Anderson are dismissed.

Solicitors:
Helen Croft, Wellington for Appellant Anderson
K J McMenamin & Sons, Christchurch for Appellant Maunsell
Crown Law Office, Wellington

[2001] NZCA 76

21 March 2001