The Queen v Piripi

[2006] NZCA 258

IN THE COURT OF APPEAL OF NEW ZEALAND

CA189/06

THE QUEEN

v

CALEB JAMES PIRIPI

Hearing:29 August 2006

Court:O'Regan, Williams and Heath JJ

Counsel:W N Dollimore for Appellant

M A Corlett for Crown

Judgment:18 September 2006 at 11 am

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe sentence of 18 months imprisonment imposed in relation to the count of injuring with intent to injure on 26 January 2005 is quashed and we substitute a sentence of nine months imprisonment.  We uphold the sentence of 18 months imprisonment on the count of injuring with intent to injure on 13 January 2006.  That sentence to be cumulative with the nine months imposed for the 2005 count, making a total effective sentence of two years three months.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       The appellant Mr Piripi was sentenced to an effective term of imprisonment of three years for two charges of injuring with intent to injure.  The first of these charges involved an assault by Mr Piripi on his then girlfriend.  He was convicted after a jury trial on the injuring with intent to injure charge, but was acquitted on another charge of kidnapping.  The incident leading to the second charge of injuring with intent to injure occurred about a year after the first, while Mr Piripi was on bail.  This involved a street attack on a man who was unknown to Mr Piripi.  The sentencing Judge, Judge Spear imposed sentences of 18 months imprisonment on each charge, and directed that these be served cumulatively.

[2]       Counsel for Mr Piripi contends that the sentence for the first charge was manifestly excessive, arguing that:

(a)The Judge incorrectly stated the facts, in a manner which indicates that the Judge thought the incident was more serious than it actually was;

(b)The Judge did not give sufficient recognition to Mr Piripi’s youth and his lack of previous convictions involving violence.

[3]       In relation to the second sentence, it was contended that there was disparity with the sentence imposed on a co-offender involved in the same incident, who was sentenced by the same Judge to 250 hours community work and reparation of $500, and also insufficient recognition for youth and the fact that no weapon was used.

Did the Judge overstate the facts of the first charge?

[4]       In his sentencing notes, the Judge summarised the facts of the first offence as follows:

The evidence established that you were experiencing difficulties in your relationship with the complainant.  You decided at some stage to teach her a lesson and you attacked her.  You punched and kicked her around her arms and her upper legs.  You did so repeatedly.  You then dragged the complainant into your car where the assault continued.  The complainant was left in a great deal of pain and covered with bruises on her arms and legs.  It was, without question a ferocious attack in the physical respect and a frightening attack because of the calculated or deliberate targeting of the complainant’s arms and legs as against other parts of her body. 

You acknowledged to the Police that you targeted her arms and legs essentially because you did not want to cause her serious injury.  That showed a rather cold-blooded approach to this attack.

[5]       Counsel for Mr Piripi, Mr Dollimore, said that this description of the facts went well beyond the evidence.  There was no kicking, and the allegation that Mr Piripi dragged the complainant into his car was, in fact, the foundation of the kidnapping charge on which he was acquitted.  The kidnapping incident was alleged to have happened on the day following the incident of injuring with intent to injure. 

[6]       This contention was made in oral submissions by Mr Dollimore, not having been previously raised in written submissions.  Counsel for the Crown was unprepared to answer it, and we adjourned the appeal to allow him to make inquiries.  As a result of those inquiries he reported back that the Crown accepted that the Judge had been in error in his description of the facts.  The incident involved punches to the arms and legs, but not kicks, and did not involve dragging the complainant into the car.  He accepted that this meant that the facts were significantly different from those stated by the Judge. 

Did the Judge make sufficient allowance for mitigating factors?

[7]       Mr Dollimore said that the Judge had not given sufficient weight to the fact that Mr Piripi was only 19 years of age at the time of the offending, and had no previous convictions for offences of violence.  The Judge clearly acknowledged both of these factors at [12] of his sentencing notes.  Having done so, however, he then noted the essentially negative tone of the pre-sentence report.  The report writer had noted Mr Piripi’s motivation was “questionable”, that he “did not seem to understand the seriousness, and seemed to have a blasé attitude about the charges” and that he “gives little thought to what he does, the consequences, and little thought afterwards”.  The report writer assessed the risk of re-offending as between medium and high.

[8]       While this Court has made it clear that the youth of an offender may justify a reduced sentence, that will be so only where there are real prospects of rehabilitation and an unlikelihood of re-offending: R v Mako [2000] 2 NZLR 170 at [65]-[66]. In the light of the pre-sentence report in this case, which casts significant doubt on the prospects of rehabilitation and indicates a real risk of re-offending, those comments cannot be applied to Mr Piripi. We therefore conclude that the Judge did not err in attaching comparatively little weight to the youth factor in this case.

Assessment of sentence for first charge

[9]       In the light of the above comments, we now assess the sentence imposed for the first charge.  We have particular regard to the fact that the offending was less serious than the Judge characterised it.  In our view a starting point in the region of 12 months was appropriate for the actual offending, from which it was appropriate to make some allowance for the belated guilty plea, Mr Piripi’s youth and his lack of previous convictions for violent offending.  In the light of our earlier comments we do not overstate the youth/prior record factors.  In total an allowance of about 25% is appropriate, leaving a final sentence of nine months imprisonment. 

Disparity of sentences for second count

[10]     The second incident was a street attack involving Mr Piripi and two others.  The sentencing Judge described the circumstances of that charge as follows:

The circumstances of that latter offending are disturbing.  This young man, the victim, in January 2006 was having a night out with his girlfriend and his girlfriend’s sister.  There was apparently some difference of opinion between the victim and his girlfriend’s sister.  There was an argument that developed between them.  You were out on the town with another young man.  You started to follow the victim’s group although you did not know them.  Whether you started to follow them deliberately or coincidentally is not entirely clear.  However, you decided to become involved in this argument to the extent that you attacked this man for no reason at all.  He was knocked to the ground either by you or your associate and, while he was on the ground, he was then set upon and punched and kicked around the body and head. 

The complainant was rendered unconscious by the assault and can still recall nothing about the incident except the fact of the person who punched him.  He was hospitalised and states that he is still in pain from the injuries he sustained.  He lost income because of his time off work.  He said he did not know you or your associate and could not understand – and still cannot understand – why you decided to attack him.

…

After the complainant was knocked to the ground, you did not stop there but you carried on with your fists and your boots or shoes or whatever you had on your feet, kicking him around the head and upper body.  He was left with a swollen black eye, grazes on the left side of his face, swollen lip and chipped teeth.  He also had a sore hip and (states in his report dated February 2006) that he is still experiencing trouble seeing out of his left eye.

[11]     The Judge noted that he had, himself, sentenced the co-offender to 250 hours community work.  He noted that the co-offender was charged with a lesser charge (assault with intent to injure) and said that the co-offender must have been sentenced on the basis that he was not responsible for any of the victim’s injuries.  He also noted that the co-offender had pleaded guilty at an early stage and had been ordered to pay reparation of $500, in addition to the sentence of 250 hours community service.  The co-offender had no previous convictions.

[12]     The disparity point arose only during oral submissions, and we asked Crown counsel to make further inquiries about the co-offender’s sentencing as well.  As a result of these inquiries he reported that the Judge had correctly identified the different charge faced by the co-offender, but that it was not correct that the co-offender had inflicted no injury on the victim.  Crown counsel provided us with a copy of the statement of facts on which the co-offender was sentenced, which differed in some respects from the summary of facts on which the appellant was sentenced: apparently this was attributable to the fact that different officers had dealt with the different participants in the incident. 

[13]     The summary of facts for Mr Piripi says:

[Mr Piripi] and his associate were watching an argument between a group of three females and one male, the victim in this matter.

[Mr Piripi’s] associate threatened to attack the victim.

[Mr Piripi’s] associate punched the victim in the head with a closed right fist knocking him to the ground.

[Mr Piripi] then joined with his associate in punching the victim in the head with closed fists several times while the victim was on the ground.

[Mr Piripi] and his associate then kicked the victim in the head with his foot several times while the victim was on the ground.

[14]     The summary of facts in relation to the co-offender says:

[The co-offender] was watching the argument from the sidelines and then decided to join in.

He approached the victim and punched him in the face.

This punch knocked the victim to the ground where [the co-offender] and another male associate began to repeatedly punch the victim around the head and shoulders and kick him in the torso.

The victim was initially caught unawares by the attack and was not able to defend himself. 

A third unknown male who was not involved in the argument also joined in the assault, kicking the victim once in the head and knocking him unconscious.

[The co-offender] and his associate then continued to kick the victim while he was unconscious on the ground.

[15]     It is clear that the initial punch was, in fact, thrown by the co-offender, not by Mr Piripi.  It also appears that the kick which rendered the victim unconscious was the action of a third person who was not identified, and that Mr Piripi and his co-offender were equal participants in the violence.

[16]     Accordingly we are satisfied that the Judge’s explanation for the different sentences imposed on the appellant and the co-offender was based on a mistaken impression of the different roles.  In fact, the culpability of the appellant and the co-offender is similar and they are of the same age.  However, the appellant was being sentenced for a more serious charge, and, of course, at the time of the offending he was on bail for another incident involving an allegation of injuring with intent to injure for which he was later convicted.  Thus he cannot claim the benefit of being a first offender in relation to the 2006 incident.  In addition, although Mr Piripi pleaded guilty to this charge, the plea came at a late stage, in contrast to the early plea of the co-offender.

[17]     In our view the sentence of 18 months imprisonment for the second count was an appropriate response to the serious offending by Mr Piripi, while on bail for another offence involving serious violence.  That means that the issue before us is whether an otherwise appropriate sentence should be reduced because of the disparity between the sentence imposed on Mr Piripi and that imposed on his co-offender.  As this Court said in R v Lawson [1982] 2 NZLR 219 at 223, the issue in such circumstances is not merely whether the offender thinks that he has been unfairly treated, but whether there is a real justification for that grievance. The question is, would a reasonably minded independent observer, aware of all the circumstances of the offence and of the offenders, think that something had gone wrong with the administration of justice?

[18]     In the present case it seems clear that the co-offender was treated unduly leniently, but we do not believe that this justifies a reduction in an otherwise appropriate sentence for Mr Piripi.  As we noted earlier, a Court may be justified in a lenient sentencing response where the offender is young and there are good prospects for rehabilitation.  That may have been the case in relation to the co-offender, but it certainly is not the case in relation to Mr Piripi.  On the contrary, his brief sentence report indicates low prospects for rehabilitation, and at the time of the second count he was on bail for an earlier offence of violence.  In our view that makes it inappropriate to reduce the sentence on disparity grounds in this case.

Result

[19]     In the result, we allow the appeal.  We quash the sentence of 18 months imprisonment imposed in relation to the first count and substitute a sentence of nine months imprisonment.  We uphold the sentence of 18 months imprisonment on the

second count, that sentence to be cumulative with the nine months sentence imposed for the first count.  The result will be a total term of imprisonment of two years and three months, rather than the three years imposed in the District Court.

Solicitors:
Crown Law Office, Wellington