The Queen v Rapira
[2003] NZCA 217
•5 September 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA318/02
CA328/02
CA334/02
CA340/02
CA341/02
CA358/02
CA93/03THE QUEEN
v
RIKI RAPIRA
BAILEY JUNIOR KURARIKI
ALEXANDER TOKORUA PEIHOPA
JOE EDWIN KAUKASI
WHATARANGI RAWIRI
CASIE RAWIRI
PHILLIP KAUKASIHearing:10 June 2003
Coram:Elias CJ
Gault P
McGrath JAppearances: S P France, C Gordon and A Jordan for Crown
P J Kaye for Rapira
F P Hogan for Kurariki
R M Mansfield for Peihopa
P L Borich and R Craig for J E Kaukasi
C L Harder for Whatarangi Rawiri
S D Cassidy for Casie Rawiri
M Dyhrberg for Phillip Kaukasi
Judgment:5 September 2003
JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ
Table of Contents Paragraph Number Introduction 1 The offending 5 The appeals against conviction 10 The directions to the jury 16 The knowledge required of a secondary party to murder under s66(2) where a principal is convicted of murder under s168 21
The knowledge required of a secondary party to manslaughter under s66(2) where a principal is convicted of murder under s168 28
Departure from common purpose
36
Alexander Peihopa appeal against conviction
38
Whatarangi Rawiri appeal against conviction
49
Bailey Junior Kurariki appeal against conviction
61
(a) The s22 directions
65
(b) The “act” known to be wrong or unlawful
71
(c) The direction in R v Brooks
78
(d) The evidence of Louie Borrell
80
(e) Prejudice in the evidence of Constable Johnson
83
(f) Conflict of interest on the part of Mr Sloane
90
(g) KFC attempt
97
(h) Conviction against weight of evidence
98
The sentences imposed
99
Peihopa and Rawiri appeal against life imprisonment 116 The starting points adopted for the sentences 126 (a) Manslaughter
128
(b) Aggravated robbery
133
(c) Attempted aggravated robbery
135
(d) Theft
137
(e) Consideration of totality
139
The factors justifying differentiation in sentence
143
Remorse
148
Youth
152
Casie Rawiri appeal against sentence
156
Conclusion
161
Introduction
[1] Michael Choy died at Auckland on 13 September 2001 as a result of a blow to the head inflicted by Alexander Peihopa on 12 September during the course of an aggravated robbery participated in by all appellants other than Casie Rawiri. Those participating in the robbery were charged with murder as defined by s168 of the Crimes Act 1961. Apart from Bailey Junior Kurariki, who was too young to be charged, all were also charged with aggravated robbery under s235. All apart from Kurariki and Joe Kaukasi were also charged with attempted aggravated robbery arising out of an earlier incident involving a Kentucky Fried Chicken (“KFC”) delivery driver.
[2] Alexander Peihopa and Whatarangi Rawiri were convicted at trial of murder. Riki Rapira, Bailey Junior Kurariki, Joe Kaukasi, and Phillip Kaukasi were convicted of manslaughter. Apart from Peihopa all those convicted of murder and manslaughter were convicted as parties to culpable homicide in reliance on s66(2) of the Crimes Act 1961 through their participation in a common design to rob Mr Choy. All those charged with aggravated robbery were convicted, Peihopa after pleading guilty before trial. Rapira was acquitted on the attempted aggravated robbery charge. Alexander Peihopa, Whatarangi Rawiri and Phillip Kaukasi were convicted of attempted aggravated robbery at trial.
[3] The appellants convicted of murder or manslaughter appeal their convictions and the sentences imposed upon them for those and the other offences. Casie Rawiri, who was charged with theft from the person of Mr Choy and with the earlier attempted aggravated robbery of the KFC delivery driver, pleaded guilty one week before the trial. She appeals her sentence only.
[4] A number of points are raised by the various appeals. The principal legal issues concern the knowledge required by s66(2) of parties to murder and culpable homicide (an issue common to the appeals of all those convicted of manslaughter and to the appeal of Whatarangi Rawiri against her conviction for murder), the availability of a verdict of manslaughter for a secondary party where a principal offender is convicted of murder under s168 of the Crimes Act, the admissibility of hearsay evidence under the exception for diagnostic history considered in R v Rongonui [2000] 2 NZLR 385 (an issue in the appeal of Alexander Peihopa only), the directions properly to be given to a jury where the Crown must prove in accordance with s22 of the Crimes Act that a person under the age of 14 years knew either that the act constituting the offence was wrong or that it was contrary to law (an issue only in relation to Bailey Junior Kurariki), displacement of the presumption of life imprisonment for murder under s 102 of the Sentencing Act 2002 (raised by the appeals of Alexander Peihopa and Whatarangi Rawiri), and the approach properly adopted to the sentencing of young offenders convicted of very serious offences.
The offending
[5] The appellants together implemented a plan to rob a delivery driver of food and money. The plan was organised and led by Phillip Kaukasi, then aged 16 years. It entailed ordering food and drink from a fast-food outlet for delivery to a residential address chosen because it had a driveway entrance which provided concealment for the group and because of its proximity to the house where the group was to gather. The order was to be placed using a public telephone or a prepaid cellphone to ensure that the call could not be traced back to the appellants. The group planned to conceal themselves and wait while Whatarangi Rawiri, aged 17, and Bailey Junior Kurariki, aged 12, pretending to be the customers, engaged the delivery driver. One of the group was to be armed with a club. All members of the group were to assist in robbing the delivery driver of the food and drink and taking any cash he had. Casie Rawiri, who at 20 was the only adult involved in the planning, had stipulated at an early meeting that the robbery was not to go ahead if the driver was a woman or a Pacific Islander.
[6] On 9 September 2001 Casie Rawiri telephoned KFC and placed an order for delivery to an address in Settlement Road. Phillip Kaukasi armed himself with a piece of wood. Whatarangi Rawiri and Bailey Kurariki stood in the driveway of the address. Casie Rawiri, Alexander Peihopa, and Phillip Kaukasi were concealed nearby. When Phillip Kaukasi realised that the delivery driver was a woman, he dropped the piece of wood and ran off. Whatarangi Rawiri and Bailey Kurariki pretended to have lost the money for the order. The delivery driver left unharmed.
[7] On 12 September 2001, the same general plan was put into operation again. Those directly involved in implementing it were Phillip Kaukasi, Whatarangi Rawiri, Alexander Peihopa, Riki Rapira, Joe Kaukasi, and Bailey Kurariki. Earlier in the day the positions to be taken up by each were arranged. A baseball bat was hidden near the address selected. Whatarangi Rawiri rang Pizza Hut from a public phone booth and ordered food and drink. On the way to the address Alexander Peihopa collected the baseball bat. Whatarangi Rawiri and Bailey Junior Kurariki again acted as customers. The others concealed themselves. Joe Kaukasi was the lookout. When the driver, Michael Choy, was speaking to Rawiri and Kurariki, Phillip Kaukasi and Riki Rapira started to take the pizzas from the car. Alexander Peihopa struck Michael Choy on the left side of the head with the baseball bat with considerable force. The appellants at the scene left with food and drink and went back to the house at which they had earlier assembled.
[8] Michael Choy was fatally injured by the blow. He knocked at the door of a neighbouring house but was not able to get help. Some time later, he staggered past the house where the group had taken the pizzas and was seen by Casie Rawiri and Lisa Waikato, an offender who was separately dealt with by the Court after she pleaded guilty to theft. They went out and took money from him assisted by Alexander Peihopa. Mr Choy’s belt bag was cut from him with a knife brought by Casie Rawiri from the house. No assistance was provided to Michael Choy despite his evident serious injuries. He managed to get to his father’s house, some distance away, where he collapsed outside. Michael Choy died early the next evening after being found by his father early in the morning and taken to hospital. The cause of his death was established as having been from a blow to the left side of his head, delivered with sufficient force to cause extensive fractures of the skull.
[9] These facts, summarised from the sentencing notes of Fisher J in the High Court, are the background to the appeal. They are not contentious.
The appeals against conviction
[10] Some of the points taken on the appeals against conviction for murder and manslaughter are common to more than one appellant. Others are distinct. It is convenient to take the principal points common to more than one appellant first and then to turn to each appellant for points specific to that appellant.
[11] The charges of murder were based upon the definition of murder contained in s168 of the Crimes Act. It provides that culpable homicide (defined by s160 to include the killing of a person by an unlawful act) is murder “whether the offender means or does not mean death to ensue . . . if he means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section….”. Subsection (2) includes the offence of robbery, contained in s234.
[12] The Crown case was that Alexander Peihopa meant to cause grievous bodily injury to Michael Choy when he struck him with the bat to facilitate robbery. It was not in dispute that Peihopa struck Michael Choy in the course of the robbery and caused his death. He indicated preparedness to plead guilty to manslaughter. But he disputed any intention to cause grievous bodily injury. This issue of intent was the single question of fact the jury had to consider in relation to the charge of murder against Peihopa. There is no criticism on behalf of Peihopa on the appeal of the Judge’s direction on the law, or of the way in which he explained to the jury its application to the disputed facts. The ground of the appeal was, rather, that the Judge had wrongly ruled as inadmissible relevant evidence the defence wished to call. This ground is specific to Peihopa and it is dealt with at paragraph [38] below.
[13] All other appellants were charged as secondary parties. The Crown relied upon s66(2) of the Crimes Act which provides:
(2)Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
[14] As is indicated below at paragraphs [17] and [18] the Judge in his summing up made it clear that a party under s66(2) must have known that the infliction of grievous bodily injury was a probable consequence of the prosecution of robbery before he or she could be guilty of murder. The jury verdict indicates that it determined that Whatarangi Rawiri had such knowledge, but that those convicted of manslaughter did not.
[15] Those convicted of manslaughter raise a general point of some importance. They contend that where a principal is convicted of murder, a secondary party under s66(2) must contemplate that the principal may kill in the prosecution of the common purpose before a conviction for manslaughter can be reached. It is argued that the Judge failed to direct the jury that such foresight was necessary and instead wrongly directed the jury that contemplation that Peihopa would strike Michael Choy as part of the prosecution of the common plan was sufficient for a conviction for manslaughter.
The directions to the jury
[16] The Judge’s oral directions to the jury on the legal elements of manslaughter were based upon a written aid in the form of a questionnaire. The questionnaire was distributed to the jury by the Judge before closing addresses by counsel. How the questionnaire worked was explained to the jury by the Judge at the time it was distributed. The Judge emphasised that on all issues identified the Crown had the burden of proof. That warning was also endorsed on the questionnaire. Only those issues remaining in contention at the end of the case were listed in the questionnaire for determination by the jury. Thus, for example, the questionnaire identified that the only issue relating to Alexander Peihopa was whether he had the intent necessary for murder; his guilt of manslaughter was not in issue. In relation to the other accused, the flow of the questionnaire was also explained by the Judge. The available verdicts in respect of the death of Mr Choy were identified for each accused as: not guilty of culpable homicide; guilty of manslaughter; and guilty of murder. In relation to Bailey Junior Kurariki the Judge explained that in addition to the elements of manslaughter or murder, the Crown had an additional requirement under s22 of the Crimes Act to prove that Kurariki knew that his actions were wrong or contrary to law.
[17] The pattern of questions was repeated for each accused. It is enough to set out the questions relating to the issue of murder and manslaughter for Phillip Kaukasi, who was the first accused dealt with on the questionnaire:
2.2: Phillip Kaukasi: party to manslaughter through common intention
2.2.1Did Phillip Kaukasi by his words or conduct, with others including Alexander Peihopa, form a common intention to rob a Pizza delivery driver and to help each other to do it?
If no, find Phillip Kaukasi NOT GUILTY on count 2 and move to question 3.2.1 [dealing with the charge of aggravated robbery]. If yes, move to next question.
2.2.2Did Phillip know that a probable consequence of carrying out the robbery would be that one of the group would intentionally strike the delivery driver?
Note: “Probable” means something that might well happen.
If no, find Phillip Kaukasi NOT GUILTY on count 2 and move to question 3.2.1. If yes, he is guilty of manslaughter. To see whether he is guilty of murder move to the later questions that follow regarding GBI/Robbery murder.
2.2:Phillip Kaukasi: party to GBI/Robbery murder through common intention
Note:Question 2.23 arises only if (a) you found Alexander Peihopa guilty of murder and (b) you found Phillip Kaukasi guilty of manslaughter (as to which see questions 2.2.1 and 2.2.2).
2.2.3Did Phillip know that a probable consequence of carrying out the robbery would be that one of the group would intentionally cause the driver grievous bodily injury?
If no, and you have answered yes to question 2.2.2, on count 2 find Phillip Kaukasi NOT GUILTY of murder but GUILTY of manslaughter. If yes, on count 2 find Phillip Kaukasi GUILTY of murder.
[18] In summing up, the Judge explained the charges by reference to the questionnaire, explaining that it “is the framework for all of the ground you are going to cover when you retire to consider your verdict”. In addition, the jury had a booklet which included the text of s168 and s66(2) of the Crimes Act. The Judge explained that other provisions included in the booklet when it was distributed at the outset of the trial, including s167 and s66(1), were no longer relevant to the case. He told the jury that the law about parties “has been built into the questionnaire to the extent that you need to know it”. In expansion upon the questionnaire the Judge went on to say:
[81] . . . and then we turn the page to Phillip on page 7 and we are now talking about 12 September in relation to Phillip in respect of three different matters and its useful to have them all dealt with on the same two pages because the evidence is broadly the same for all three even though different legal decisions need to be made.
[82] One concerns the question whether he was a party to manslaughter through common intention. The second has to do with whether he was a party, not just to manslaughter, but to murder through common intention. And then the third moves on to count 3 which is whether he was a party to aggravated robbery by knowingly helping or encouraging. Just going back through those, the first requirement for Phillip and for others in order to be party to manslaughter is that by words or conduct with others, including Alex, he would have to have formed the common intention to rob a pizza delivery driver and to help each other to do it. Now that needs to be proved, like everything else, beyond reasonable doubt. But you might think that in the case of Phillip it is not strongly disputed that he did indeed form exactly that common intention.
[83] Then, if so, you move on to the next question, did he know that a probable consequence of carrying out the robbery would be that one of the group would intentionally strike the delivery driver? And that is very much in contention and is a real focus of Miss Dyhrberg’s remarks. On that subject, you’ll see the note there that probable means that something might well happen. Mr Harder is perfectly correct when he says it has to be more than just a possibility.
[84] Then the next stage to it is that if you find that he didn’t have that intention or if, of course he hadn’t formed the common intention with others in the first place, then you would find him not guilty on count 2 and that would be the end of count 2. If you get to the stage that you find yes to the questions 2.2.1 and 2.2.2 he would be guilty of at least manslaughter and you would then move on to the next stage to see whether it wasn’t just manslaughter but murder. . . . .
[85] Now still talking about page 7, we’ve got to the point that we have addressed the questions about Phillip in relation to manslaughter and if you’ve found, yes he is guilty of at least manslaughter, you move to 2.2.3 which is whether his mental element was sufficient to take it up to murder. But it’s important to see that note there that this question can arise only if you have found Alexander Peihopa guilty of murder. Before you can be a party to something the crime has to be committed by the principal. So if you had found Alexander guilty only of manslaughter then you couldn’t go beyond that for Phillip or any of the others. But if you do get to the stage, yes Phillip is guilty of manslaughter and Alexander is guilty of murder that is how you get to 2.2.3 and you ask whether he knew that a probable consequence of carrying out the robbery would be that one of the group would intentionally cause the driver grievous bodily injury – and that, of course, is very much in issue – and if not then you would have merely manslaughter. If yes you would have murder for Phillip.
. . . .
[19] Later, during his comment upon the evidence relating to Whatarangi Rawiri, the Judge reiterated the direction that the accused must know that serious injury was a probable consequence before a conviction for murder could be entered:
[97] Now Mr Harder quite rightly says that’s a question about possibility and that the test here is probability, that she must have known that serious injury to him was a probable consequence and intentional serious injury, she must have known that that would probably be a consequence of the plan that they had formed.
[20] The scheme of the summing up and questionnaire treat a secondary party as guilty of murder if the principal commits murder as defined by s168 in the course of a robbery and the secondary party knows that the infliction of grievous bodily injury is a probable, if undesired, consequence. It treats the secondary party as guilty of manslaughter if he knows that it is a probable consequence that the principal will strike someone and death in fact results from that unlawful act. The principal question raised by the appeals against conviction is whether these directions are correct.
The knowledge required of a secondary party to murder under s66(2) where a principal is convicted of murder under s168
[21] In general, murder requires intent to kill or foresight of death. Exceptionally, a killing to facilitate another serious offence does not: by s168, the principal is guilty of murder if he intends to cause grievous bodily injury to facilitate one of the offences identified by the section and death results. The purpose of the expanded definition of murder was considered by this Court in R v Tuhoro [1998] 3 NZLR 568 at 573:
Section 168 reflects a policy deeming persons to be guilty of murder when they have intentionally inflicted serious injury for the purpose of facilitating the commission of specified offences at the higher end of the scale. Uniquely, in relation to definition of murder, foresight of a killing is not required; the provision is explicit in that respect. At common law death caused in the commission of a felony involving personal violence was murder, see R v Jarmain [1945] 2 All ER 613. Once a series of acts involving violence commenced the performer had to accept the consequences and could not plead that at some stage they become inadvertent. As expressed in s168 the concept is a less absolute one, requiring (for present purposes) an intent to cause grievous bodily harm to facilitate the carrying out of the specified offence. Subject to this amelioration of the felony-murder rule however there is a legislative intent that persons prepared to inflict serious injury to facilitate the commission of grave crimes must take the consequences if death results.
[22] A secondary party under s66(2) of the Crimes Act is liable for “every offence” committed by another party to a common intention to prosecute any unlawful purpose if the commission of “that offence” was known to be a probable consequence of the prosecution of the common purpose. If the offence committed by the principal is murder on the basis of s168, a secondary party will be guilty of murder if he knows that the principal intends to cause grievous bodily injury for the facilitation of a specified offence. Just as intention to kill or knowledge that death is likely to ensue is not necessary for the liability of the principal under s168, it is not necessary for a secondary party. That is the conclusion reached in R v Morrison [1968] NZLR 156, R v Hardiman [1995] 2 NZLR 650 at 652, and R v Tuhoro [1998] 3 NZLR 568 at 572-573. It is a conclusion compelled by the provisions of the statute and the policy it implements. It is consistent with the approach adopted in Canada and Australia in the application of comparable legislation (R v Trinneer (1970) 10 DLR (3d) 568; R v Jackson (1993) 26 CR (4th) 178; R v Barlow (1997) 188 CLR 1).
[23] Counsel for the appellants submitted that Morrison, Hardiman, and Tuhoro should not be followed. They relied on statements in decisions of this Court in R v Hamilton [1985] 2 NZLR 245, R v Tomkins [1985] 2 NZLR 253 and R v Te Moni [1998] 1 NZLR 641 which suggest that a party to a joint enterprise will be guilty of murder only if he knew killing with murderous intent to be a real risk and will be guilty of manslaughter only if he knew that there was a real risk of a killing short of murder.
[24] Hamilton and Tomkins were not cases concerned with murder as defined by s168. Outside the s168 definition, a principal must either intend to kill or foresee the likelihood of death (s167). A secondary party under s66(2) to murder as defined by s167 must therefore know that offence, including as it does intentional killing or grievous bodily injury likely to cause death, is a probable consequence of the prosecution of the common purpose. The comments in Tomkins and Hamilton are directed at culpability under s167. In Hamilton the Court made it clear at p251 that it was not considering s168 and made no comment upon it.
[25] Knowledge of the likelihood of death is not required for the offence of murder as defined by s168. In Te Moni the case for the prosecution against the secondary parties had been put on the bases of both s66(1) and s66(2) and the charge of murder was laid under both s167 and s168. There was however no discussion of s168 on appeal. It was principally concerned with whether a killing was in the prosecution of the common purpose under s66(2) or was outside it. The Judge had directed in terms of knowledge that a killing was a probable consequence: a killing with murderous intent (including an intention to cause serious injury known to be likely to cause death) would make the secondary parties guilty of murder; a killing without that intent but in the course of an enterprise which “envisaged some degree of violence” would make the secondary parties guilty of manslaughter. No complaint was made as to these directions. As the Court noted on the appeal, they overstated the requirement of intention in a case based solely on s66(2), but that was to the advantage of the appellants. The references to “a real risk of killing” (drawing on the statements in Tomkins) are to be seen in the context of the appeal.
[26] The relationship between s168 and s66(2) was fully considered in R v Tuhoro. The Court was invited to reconsider its decision in R v Hardiman on the basis that Hardiman was inconsistent with R v Tomkins. Eichelbaum CJ, who delivered the judgment of the Court, pointed out that s168 was not in issue in R v Tomkins. After reviewing the case law, the Court concluded (at 573) that a requirement that a secondary party contemplate a real risk of killing “would render s168(1)(a) ineffective where the Crown relied on s66(2) to hold secondary parties liable”. Such a result was inconsistent with the legislation and it policy:
It is consonant with the intent of the legislature that parties to the offending should likewise be liable to the fullest extent notwithstanding that in their case too they did not foresee the death of the victim. Having regard to the increasing number of persons prepared to combine for major criminal activity, as Mr Pike submitted it is neither contrary to public policy nor unjust to hold them to account on the same basis as the actual perpetrator of any crimes within the scope of their criminal plan.
[27] In the present case, the Crown contended that the unlawful purpose being prosecuted was itself the specified offence of robbery. On the Judge’s directions, the jury did not reach the issue of manslaughter or murder if it did not first decide that each accused, together with others including the principal offender, had joined in the common intention to rob the driver. At that stage, the essential question for murder under s168 was whether each accused had knowledge that intentional infliction of grievous bodily injury by another party to the common intention was probable. The direction was correct. It conformed with R v Tuhoro. It was appropriately tailored to the facts of the case in a manner helpful to the jury.
The knowledge required of a secondary party to manslaughter under s66(2) where a principal is convicted of murder under s168
[28] Where murder is committed by the principal, it entails culpable homicide with one of the intents prescribed by s167 or 168. Culpable homicide without such intent does not amount to murder but constitutes the offence of manslaughter (s170).
[29] Under s160(2) of the Crimes Act homicide is culpable “when it consists in the killing of any person . . . by an unlawful act”. Although “unlawful act” is not defined by the legislation, it includes an unlawful assault intended to cause physical harm which is not trivial (R v Renata [1992] 2 NZLR 346, 349: R v Church [1966] 1 QB 59, 70; R v Creighton (1993) 105 DLR (4th) 632). It is not necessary for a principal to foresee a risk of death to be guilty of manslaughter (and, indeed as such foresight would constitute murderous intent under s167, its requirement would defeat the scheme of culpability provided by the murder/manslaughter distinction).
[30] On behalf of those convicted of manslaughter in the present appeal it is argued that a party under s66(2) must know that death is a probable consequence of the prosecution of the common purpose. It is argued that it is not enough that the secondary party know that harm by assault is a probable consequence. That approach would have the odd result of requiring foresight of more significant injury than the law requires of a principal to murder or manslaughter.
[31] Under s66(2) a secondary party is guilty of “every offence” the commission of which is foreseeable as a probable consequence of the prosecution of a common unlawful purpose. An “offence” is defined by s2 to include “any act . . . for which any one can be punished under this Act”. The act for which the principal is liable to conviction of manslaughter if death in fact ensues, on the facts of the present case is intentionally causing bodily harm by an unlawful assault. If the secondary party under s66(2) knows that the infliction of physical harm which is more than trivial or transitory is a probable consequence of prosecution of the common purpose (here, to rob), then he is guilty of the offence of manslaughter.
[32] It is not necessary for the offence of manslaughter that death be intended or foreseen by a secondary party. That was made clear in R v Renata and R v Hardiman. On this point the judgment in Hardiman is unreported in [1995] 2 NZLR 650). In the full text (17 May 1995, CA 409/92 at 8) the Court considered the direction on manslaughter. The trial Judge in that case had directed the jury that, if the secondary party was not a party to causing grievous bodily harm, he could be guilty of manslaughter if a party to an unlawful act, an assault with intent to rob. The Court rejected a submission, made in reliance on R v Tomkins, that before the appellant could be guilty of manslaughter she must be shown to have appreciated a real risk of killing in the carrying out of the robbery:
However, this Court made it clear in R v Renata (1991) 7 CRNZ 616 that notwithstanding what was said in general terms in Tomkins, where the parties have agreed to carry out an unlawful act which attracts the operation of the law of manslaughter if death ensues (as the Judge put it, an assault with intent to rob), then it does not matter that the death was not intended or foreseen by a secondary party under s66(1)(b)-(d). He or she will still be guilty of manslaughter.
[33] In R v Tuhoro the Court was invited to reconsider Hardiman. It affirmed the approach earlier adopted. We consider that decision to be correct in application of the legislation and the authorities. Applying it, we are of the view that the Judge’s summing up in the present case accurately identified the issues for the jury and was in accordance with law.
[34] The jury was directed to consider manslaughter only if satisfied that each accused had formed a common intention with others, including Alexander Peihopa, to rob the delivery driver. The Crown case was put on the basis that the common purpose included the use of a baseball bat to silence or incapacitate the delivery driver to facilitate the robbery. An intentional striking constitutes an unlawful assault. Harm to the victim which was more than trivial was integral to the common purpose. In that context, it was unnecessary for the Judge to refer distinctly to the level of harm intended or foreseen, as Mr Borich submitted was required. Knowledge that Peihopa would “intentionally strike” the delivery driver sufficiently incorporated a level of harm that was more than trivial. All elements of the offence of manslaughter were therefore identified by the Judge. The jury was properly instructed in accordance with s66(2) that the secondary parties were guilty of manslaughter only if they knew that the striking was a probable outcome of the prosecution of the purpose.
[35] The Judge’s direction that it was essential to a conviction for manslaughter that each accused know that it was a probable consequence of the robbery that “one of the group would intentionally strike the delivery driver” is a direction which, in context, required foresight of harm, though not the foresight of grievous bodily harm required for a conviction of murder. Such distinction appropriately mirrors the difference between s168 murder and culpable homicide. The fact that Michael Choy had died as a result of a blow from Alexander Peihopa at the time of the robbery was acknowledged. The jury was properly directed that each secondary party could be found guilty of manslaughter only if he knew that it was a probable consequence of carrying out the robbery that one of the group would intentionally strike the delivery driver.
Departure from common purpose
[36] For Joe Kaukasi, it is argued that the Judge erred in not directing the jury that they should acquit unless satisfied that the actions of Peihopa in striking the driver on the head were within the plan. Mr Borich points to the different verdicts as indicating that the jury must have concluded that Peihopa intended to cause grievous bodily injury to the driver but concluded that those convicted of manslaughter did not know of his intent. He submits from this that “intentional use of grievous bodily injury via the bat, was beyond the common purpose”.
[37] It is clear that a secondary party may be convicted of manslaughter when the principal offender is convicted of murder (R v Hamilton at 251). Indeed, in many cases it will be a misdirection not to leave the question of manslaughter to the jury. Different foresight or intent as to consequences within the prosecution of the same common purpose is reflected in the hierarchy of culpability provided by the legislation, following a continuum of foreseeable harm. It is only if the principal steps outside the common design in a way totally unforeseen, that issues as to the application of s66(2) liability arise (as to which see R v Tomkins [1985] 2 NZLR 253, R v Te Moni [1998]1 NZLR 641). This is not such a case. The acts giving rise to liability could not have been outside the common purpose on the Judge’s direction to the jury. The jury had to be satisfied that each accused first joined in the plan to rob the delivery driver and knew that “a probable consequence of carrying out the robbery would be that one of the group would intentionally strike the delivery driver”. If the striking was known to be a probable consequence of the robbery, it cannot have been a departure from the plan. Lack of knowledge of Peihopa’s intent to inflict grievous bodily harm affects the culpability of the secondary parties for murder, not their guilt of manslaughter.
Peihopa appeal against conviction
[38] Alexander Peihopa appeals his conviction of murder on the grounds that the Judge had wrongly excluded proposed defence evidence as to lack of intent. The proposed evidence was from a psychologist who had observed Peihopa, including during the course of the trial and who had obtained from him information about his history of alcohol and drug use. This evidence was a foundation for the opinion evidence of another psychologist, Dr Bridgman, as to Peihopa’s understanding of the consequences of violence.
[39] Dr Bridgman’s brief of evidence, provided to the Judge, suggested that Peihopa may have diminished capacity for differentiating between reality and media-depicted violence with the result that he would have unrealistic expectations as to the injuries likely to result from a single blow to the head. The Judge ruled the evidence admissible, subject to a proper evidential basis being laid for the opinion that Peihopa was “significantly more vulnerable to media misrepresentation than other ordinary members of the community” (the only aspect upon which he accepted that there was room for expert evidence).
[40] To provide that evidential foundation, the defence proposed to call Mr Hayns, a psychologist who had been involved in assisting to ensure that the young accused were able to participate effectively in the trial. He undertook an assessment of Peihopa’s suggestibility and capacity based on IQ testing and reported social factors, including Peihopa’s use of alcohol and drugs. The Crown objected to the evidence The clinical testing was undertaken at a stage in the trial when Peihopa would have been aware that it was to his advantage to score poorly. The social history reported by Mr Hayns was based on information obtained at interview from Peihopa, also during the course of the trial.
[41] The Judge ruled as follows:
The Court has since my last ruling in relation to the expert evidence as to Alex’s involvement heard submissions from counsel at a more focused level relating to the factual basis upon which the expert opinion would be founded. One of the foundations for the opinion was the premise that Alexander had a substance abuse problem relating both to marijuana and alcohol. That premise was taken from clinical testing conducted by Mr Hayns, another psychologist three days ago on 13 August. Alexander was required to answer questionnaires relating both to marijuana abuse and alcohol abuse. Multi-choice answers were given the effect of which was to indicate that he was a chronic marijuana user, scoring 8 on a certain drug abuse screening test compared with a score of 5 and above being “at risk”. He was also found to be a binge drinker. That and other details led Mr Bridgman to assume that he had a substance abuse problem.
The Crown objects to the hearsay foundation for that evidence given that it was essentially a series of exculpatory statements by the accused which would avoid his having to give evidence in the trial.
The principles have recently been reviewed by the Court of Appeal in Rongonui [2000] 2 NZLR 385 paras 48-54. It seems clear that facts relied upon by an expert of an uncontroversial nature will usually be acceptable though from a hearsay source, particularly in relation to medical and family histories given to a psychiatrist or psychologist. The evidence is more likely to be accepted in doubtful cases where it is substantiated by independent authoritative records. Conversely, facts which are controversial are likely to be excluded, particularly where there is not corroboration beyond assertions by the accused from outside the witness box. In the end the question is simply whether the facts relied upon seem so incontrovertible that it would be unduly technical to require the evidence to be given in a conventionally admissible way.
In the present case Miss Gordon points out that the test undertaken by Alexander took place after there had been discussed in Court in his presence matters relating to the admissibility of Dr Bridgman'’ evidence including the question whether there were factors peculiar to Alexander which justify that evidence. There must be at least a risk that Alexander would have realised that a major drug abuse problem would be more helpful to his cause than painting a picture as a moderate social drinker.
I would not regard it as controversial to assert that Alexander did consume marijuana and alcohol. It is not only inherently likely but there is some support for that in the evidence which would be provided by his father and in the fact that in his videotaped interview he refers to having consumed gin on the day in question. It is therefore a matter of degree rather than whether he consumed those substances.
On the question of degree, Mr Mansfield points out that there was a report prepared on 17 October 2001 by Dr Tapsell in which he describes some consumption of alcohol by Alexander once to twice a week, the assertion that he had been intoxicated on only one occasion and that he was smoking cannabis approximately several times per week. Particularly in the area of alcohol consumption, the test results offered by Alexander to Mr Hayns show a dramatically higher level of consumption. In those circumstances it could not be said that the facts relied upon are uncontroversial. In evidence law terms the solution in that situation is very simple, namely that Alexander should give the evidence from the witness box. I appreciate that in tactical terms that may be another matter but my ruling is that evidence as to the drug and alcohol consumption will need to be given in a conventionally admissible form and not indirectly through Mr Hayns.
[42] Without the foundation of evidence of alcohol and drug abuse, the defence elected not to call Dr Bridgman (the admissibility of whose evidence was still opposed by the Crown). In the event, no evidence was called on behalf of Peihopa.
[43] Mr Mansfield submitted that the Judge’s ruling effectively precluded the defence calling Dr Bridgman, because Dr Bridgman relied heavily on Peihopa’s use of alcohol and drugs to place him in an “at risk” category where he was particularly susceptible to media distortions of the effects of violence. The evidence related to the sole question in issue on Peihopa’s trial for murder: whether he intended to cause grievous bodily injury. It was said on behalf of Peihopa that the fact that media influence over young people particularly susceptible “would have added significant weight to submission to same effect by counsel”. There was no realistic risk that it was unreliable; there was at most a potential for it to be self-serving in the circumstances which should not require its rejection.
[44] The admission of hearsay evidence of diagnostic history was considered by this Court in R v Rongonui [2000] 2 NZLR 385. The admission of such evidence is appropriate when it would be unnecessarily technical to exclude it because it is largely non-contentious and the surrounding circumstances make it probable that it is true. In Rongonui, the background information, relied upon by the defence experts had been supplied by the accused but was substantially verifiable from historical prison and medical records or was consistent with them and reported by the accused at a time when there was no purpose to be gained in distorting matters (Rongonui at paragraphs 48-51). (To the extent that the opinion evidence was based on a version of the facts as to what had happened at the time of the homicide in that case, there was an evidential foundation in the Crown case (Rongonui at paragraphs 53-64)).
[45] The present case is different. The diagnostic history of substance abuse was designed to form the basis for evidence that Peihopa was likely to be unrealistic about the effects of violence. It was taken from him at a time when he knew it was to his advantage to identify significant abuse. The extent of the abuse was not substantiated by earlier medical or other records. It was a matter of controversy: Peihopa had given an account to another doctor on an earlier occasion which described less significant use. In those circumstances, the proposed evidence was rightly excluded.
[46] Moreover, the exclusion of Dr Hayn’s evidence and the defence decision not to call Dr Bridgman did not prevent the issue of media distortion of Peihopa’s understanding being properly put to the jury. The issue whether a young person in Peihopa’s position might have had unrealistic expectations induced by media depictions of violence was identified as a question for the jury by counsel and the Judge, without the need for expert evidence on the point.
[47] The Crown relied upon the force of the blow and Peihopa’s acknowledgement to the police that the intention in hitting Michael Choy was to knock him out to stop him calling out as evidence from which the jury could infer intent to cause grievous bodily injury. Peihopa did not say in the interview that he had not intended serious injury and did not give evidence as to his expectations. But the defence submissions emphasised that, in the circumstances of media misrepresentation of the effects of serious violence, the jury could not be sure that a fifteen year old boy who had been drinking and who had little time for reflection had intended serious injury. The Judge in his summing up referred to the competing contentions and added some emphasis of his own to the defence arguments as to the misleading effects of media depictions of violence:
You may think that there is a good deal in what Mr Mansfield had to say about the misrepresentation of violence on television and in the news media and play stations and movies where, despite repetitive blows, including being knocked out, people miraculously and routinely spring up again unaffected by them. And Mr Mansfield says that the population in general really have a very false conception as to what is going to happen if you belt someone on the head and how could a 15 year old pumped up with alcohol and adrenaline with a split second decision like that be expected to know the horrendous consequences of a blow of that sort?
[48] The jury was fully appraised of the defence contention. No evidential basis for it was required by the Judge. At its highest, Dr Bridgman was able only to offer the opinion that someone of Peihopa’s profile could be vulnerable to unrealistic expectations about the effect of violence (including the ‘knocking-out’ of a victim) because of media depictions of it. The Judge’s summing up acknowledged as much. In the circumstances, the evidence was not necessary for the defence to be put. The assessment of whether Peihopa intended serious bodily injury or whether his judgment was affected by media depictions of violence and the heat of the moment was squarely identified for the jury.
Whatarangi Rawiri appeal against conviction
[49] On behalf of Whatarangi Rawiri, Mr Harder raises a number of additional appeal points, not taken by other appellants. They can be dealt with briefly. We are satisfied that there is no substance in the issues raised.
[50] First, it is contended that, because robbery only and not aggravated robbery is included in the specified offending in s168(2), reliance upon the definition of murder in s168(1)(a) is not available when the offence being facilitated was aggravated robbery. This submission was put to the trial Judge, who rejected it, notwithstanding what he thought to be “some oblique support” for the argument in R v Joyce [1968] NZLR 1070 at 1076. In that case, this Court declined to hold that the defence of compulsion was excluded for aggravated robbery by express exclusion of the defence for robbery. Fisher J considered that there was no basis in logic or statutory policy to hold that the Crown could not rely upon s168(1)(a) where the offence facilitated is one of aggravated robbery. We agree, and for the reasons given by the Judge. The reasoning in R v Joyce is not convincing in this different context. Aggravated robbery under s235 includes the offence of robbery under s234. An intention to facilitate an aggravated robbery is an intention to facilitate a robbery with the aggravating features identified by the Crimes Act. That conclusion, based on logic, is consistent with the statutory scheme. As Fisher J said
Parliament could not possibly have intended that an accused person could be guilty of murder if the offence facilitated were robbery plus some aggravating elements.
[51] This conclusion is not affected by the re-ordering of s168(2) in the Crimes Amendment Act 2003. Mr Harder submits in a memorandum of 21 August that the fact that Parliament has re-enacted the reference to s234 indicates a legislative intention to exclude aggravated robbery (s285). On the view we take, reference to aggravated robbery is unnecessary because it includes the qualifying offence of robbery.
[52] The second point taken on behalf of Whatarangi Rawiri is that the verdicts of manslaughter in respect of the other secondary parties under s66(2) are inconsistent with the verdict of murder returned in respect of her. As indicated in paragraph [37] above, there is no inconsistency. The verdicts were available to reflect differing degrees of knowledge by each accused. The jury verdict entailed acceptance of the Crown case that the secondary parties knew that an assault with intent to cause grievous bodily injury was a probable consequence of the common purpose in relation to Whatarangi Rawiri, and rejection of that view in relation to those convicted of manslaughter. The jury was properly directed as to the intent required for both available verdicts. The evidence available against each of the secondary parties was distinct. In particular, the video interview of Whatarangi Rawiri contained damaging acknowledgements which provided an evidential basis for her conviction of murder.
[53] Mr Harder pointed to statements in the interview consistent with an expectation of harm less than serious injury. He stressed that Whatarangi Rawiri’s acknowledgement of a “possibility” of death was not the statutory knowledge of “probability” in s66(2). Whatever language used by the appellant in her interview, however, the Judge made it quite clear to the jury that foresight of a possibility of serious injury was not enough: the appellant had to know that serious injury was a probable consequence of the common purpose (see passage from summing up set out in paragraph [19] above). The assessment of the appellant’s interview was a matter for the jury. There were a number of acknowledgements made in the course of the interview, including an acknowledgement that the driver was to be “beaten up” “probably” to the point of unconsciousness, which amply supported a conclusion of knowledge of serious injury. There was also evidence about Whatarangi’s involvement in the planning and implementation of the plan upon which the jury could have drawn a distinction between her knowledge and that of the other secondary parties.
[54] Mr Harder submits that the defence case was inadequately covered in the Judge’s summing up to the jury. Two points are made. First, that the Judge wrongly indicated to the jury that manslaughter was conceded. When this error (a result of an earlier indication given on behalf of the defence which was not ultimately maintained) was pointed out to the Judge immediately following the retirement of the jury, the jury was at once recalled and the correct position explained. The Judge emphasised that the jury needed to ask itself “whether all elements in relation to Whatarangi are proved beyond reasonable doubt”. That correction removed any misunderstanding.
[55] The second respect in which it was suggested that the defence case was inadequately put was the Judge’s failure to repeat a defence suggestion in closing that Whatarangi Rawiri had opted out of the common purpose before Mr Choy was hit. The factual basis relied upon by defence counsel for this submission to the jury was that Whatarangi Rawiri had told the driver, on his inquiry, that he could leave his lights on if he wanted to. (In fact, the lights were then turned off.) It is submitted on the appeal that the Judge should have reminded the jury of this contention because it differed from the plan which had relied on darkness in the driveway. There is no substance in this point. The Judge had stressed adherence to the common purpose was an essential ingredient for liability. There was no misdirection. The evidence relied upon was slight and not inconsistent with the common purpose to rob. On the Crown case it entailed Whatarangi Rawiri and Kurariki pretending to search in their pockets for money while Peihopa and the others approached unseen. In that context an acquiescence in a suggestion by the driver that he could leave his lights on could hardly be construed as a departure from the plan. The defence was entitled to make a submission to the jury on the point. But the Judge was not obliged to refer to it.
[56] It was submitted that the Crown failed to prove that Whatarangi Rawiri knew that it was a probable consequence of the common purpose that Michael Choy would suffer grievous bodily injury. In the absence of misdirection on the law and in circumstances where there was ample evidence upon which the jury could conclude that the appellant had that knowledge, this ground is misconceived. The issue was one for the jury.
[57] A submission was made that the Judge should have warned the jury as to the use it could make of the appellant’s acknowledgement in the interview that death was a “possible” outcome. That acknowledgement was of probative value because it is in itself an acknowledgement of risk of serious injury. The fact that the acknowledgement was as to “possibility” was addressed by the Judge’s direction that serious injury had to be known to be a probable consequence. No further direction was needed.
[58] It was submitted that defence counsel had been wrongly prevented from pursuing a line of questions when cross-examining the interviewing officer. Mr Harder had started to take the officer through the questions and answers recorded in the video. He advised the Judge, and the Judge recorded, that he wished to ask a series of questions “as a precursor to asking the officer whether he admits that a particular line of questioning was unfair”. The Judge then indicated some preliminary views as to the permissible scope of cross-examination:
My understanding of the position is that the only role of the witness is to give evidence as to questions of fact, namely matters that he saw and heard. I do not consider it the proper role of cross examination to conduct a debate as to the fairness or unfairness of what the witness did. Nor can I see the utility of obtaining from the officer a selection of particular questions asked and answers given when these are already before the jury in their primary form of the audio and video recording, reinforced by their own notes in the form of the draft transcript as checked and amended by them.
Mr Harder would like the opportunity to reflect on those remarks over the lunch hour before addressing me further as to the intended matters for cross examination. I should make it plain that in no way do I wish to inhibit cross examination which is directed to questions of fact rather than argument and in circumstances where these facts are relevant to the issues that the jury will have to decide.
Counsel did not seek to reopen this matter with the Judge. He did ask some further questions as to the fairness of questions asked and whether they were “good questions”, which were objected to by Crown counsel and not persevered with.
[59] On the appeal Mr Harder contends that the approach taken by the Judge prevented him developing, through questions of the Detective, the picture that the appellant was passive and open to suggestions and likely to have been overly influenced by her boyfriend, Phillip Kaukasi. There are a number of answers. The Judge’s indication was given in relation to a line of questions directed at fairness. No point as to apparent passivity and suggestibility was raised either with the Detective in questions or in response to the Judge’s indication. Counsel did not seek to ask any questions directed at that issue (although he did return to suggest lack of fairness). In any event, the witness was not qualified as an expert to venture an opinion upon suggestibility. Any point to be taken from the interview could, as the Judge suggested, be made as a matter of submission on the video. It was the primary evidence. Moreover it is not clear how the question of influence by Kaukasi bears upon the issues of intent and how the defence could have been prejudiced by the indication given. The Judge was at pains to stress that lines of cross-examination directed at facts and issues the jury had to decide would not be inhibited.
[60] Finally, Mr Harder submits that a jury question before the summing up indicates that it continued to believe that s167 murder was being relied upon. That question was answered by the Judge telling the jury that s167 was irrelevant and by the summing up in terms of s168 alone.
Bailey Junior Kurariki appeal against conviction
[61] In addition to the appeal advanced in common with other appellants as to the direction on intent for manslaughter, a number of points specific to Kurariki were advanced by Mr Hogan. They are based upon
·the directions given by the Judge under s22 of the Crimes Act as to Kurariki’s understanding of the acts upon which his liability is based,
·the admission of prejudicial evidence
·the sufficiency of the evidential basis for conviction.
[62] Section 22 of the Crimes Act applies to all children between the ages of 10 and 14. It provides by subsection (1):
(1) No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law.
[63] To demonstrate that Kurariki knew that the acts constituting the offence were wrong, the Crown called two witnesses: Constable Johnson, a police youth aid officer, and Mr Sloane, a former headmaster at a school attended by Kurariki. Constable Johnson described Kurariki as “streetwise” and independent. Mr Sloane gave evidence of the level of understanding shown by Kurariki during the period he was a pupil, some four years before the events the subject of the trial. It was not possible to call a teacher who had had dealings with Kurariki more recently because of his lengthy truancy in the intervening years. The evidence given by these witnesses is the subject of additional points as to prejudice, dealt with below at paragraphs [83] to [96].
[64] In addition to the witnesses giving direct evidence as to Kurariki’s understanding, the Crown relied upon the evidence of his reactions at the time or shortly after the robbery given by other witnesses. Those reactions were said to be consistent with knowledge that what happened was wrong.
(a) The s22 directions
[65] The jury had the text of s22. It was first provided before the Crown witnesses on the topic of s22 were called. The Judge at that stage directed the jury as to the requirements of s22 as follows:
The first matter that arises is the knowledge which is required under New Zealand law on the part of a child under the age of 14 years before that child could be liable in law. On that subject the law is that no person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14 years unless he knew either that the act or omission was wrong or that it was contrary to law. So in the case of Mr Kurariki or BJ the Crown in addition to proving the normal elements of murder in this case would for him also have to satisfy you that at the time of his acts in question he either knew that they were wrong or knew that they were against the law. So that’s to avoid the possibility that because of someone’s extreme youth they might do something not realising it was wrong or against the law.
[66] Before Mr Sloane was called, the Judge reminded the jury about the content of s22 and explained:
The Crown is now about to call evidence which it says will help you to decide whether on the night of 12 September 2001 BJ knew that what he was doing was wrong or against the law. I should make it clear that that is the sole relevance of the evidence that you are about to hear from Mr Sloane and there will be at least one other witness, a police officer, who will give evidence on the same subject. So this evidence is not to be used for any other purpose in the trial.
[67] The Judge’s directions as to s22 were developed in the summing up by reference to the questionnaire. The questions listed for Bailey Kurariki followed the sequence of the questions for the other accused with the addition of a third question in the sequence to a conclusion of guilt on the manslaughter charge:
2.6.3 Did Bailey Kurariki know that his act of forming a common intention with others to rob a delivery driver and help each other to do it in circumstances where one of the group would intentionally strike the delivery driver was wrong or contrary to law?
[68] In the oral summing-up, the Judge dealt first with the defence and prosecution contentions on the evidence as to Kurariki’s participation and knowledge, before dealing with s22. He referred to the defence criticism of evidence as to whether Kurariki was involved in the planning meeting on the morning of 12 September and at a further meeting in the evening. He referred to challenges made to the reliability of the evidence of the witness, Louie Borrell which placed Kurariki inside Lisa Waikato’s house at the time of the morning meeting and at a second meeting in the evening. The Judge indicated that in respect of the evening meeting the jury “might think there’s no safe evidence on which to conclude that he took part in planning inside the house later that day”, and that in relation to the evidence of Louie Borrell about the morning meeting the jury would have to consider the challenges to his reliability made by defence counsel. The Judge commented that although the evidence of Kurariki’s involvement in the planning meetings which preceded the robbery needed to be “traversed carefully”, “the more important issue” was whether, if Kurariki was at the scene, “he knew that a bat was going to be there and was going to be used”. The Judge emphasised that “unless the Crown can show that [Kurariki] knew that a bat was going to be there and that it was going to be used then really that’s the end of it”.
If only concurrent sentences are to be imposed
(b) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(c) each of the lessor offences must receive the penalty appropriate to that offence.
[140] The Judge in the present case addressed the penalty appropriate for the totality of the offending explicitly in settling the sentence for the offenders who were most culpable in respect of the different charges. The Judge was of the view that Phillip Kaukasi, as the leader and organiser of the aggravated robbery and attempted aggravated robbery, was the most culpable of the group. The starting point indicated of 10 years for manslaughter was he considered insufficient to reflect the totality of the offending and impose effective accountability for the offences of aggravated robbery and attempted aggravated robbery. Cumulatively, the total from the starting points identified would have been 21 years. That was not appropriate because of the significant overlap in the factors bearing on culpability. The Judge therefore concluded that three years should be added to the indicative manslaughter sentence to achieve a starting point which reflected the totality of the offending.
[141] Similarly, in the case of Casie Rawiri the Judge considered that the starting point of 4 years for attempted aggravated robbery, if concurrently imposed upon the sentence for theft, would be insufficient recognition of the totality of the offending. For that reason he indicated a starting point of 6 years imprisonment against which to consider the circumstances personal to this offender.
[142] The approach adopted was entirely appropriate. The indicative starting point for the lead sentence in both cases was insufficient to recognise the totality of the culpability. It was necessary for the starting point to be adjusted upwards to ensure adequate accountability for the separate offending. The adjustments made were a proportionate response which was no more than was required in the circumstances.
The factors justifying differentiation in sentence
[143] It is clear from the careful scheme of the sentences that the differences in the sentences imposed followed largely from the fact that Phillip Kaukasi was regarded as the leader and the different ages of the offenders. Riki Rapira and Joe Kaukasi were not convicted in respect of the attempted aggravated robbery of the KFC driver. Bailey Kurariki were convicted and sentenced only for manslaughter. The indicative starting sentence of 13 years for Phillip Kaukasi in relation to the totality of the offending therefore required adjustment in its application to these offenders. The other differences are not substantial except for guilty pleas (in the case of Peihopa’s sentence for aggravated robbery and attempted aggravated robbery, and Casie Rawiri’s sentence for attempted aggravated robbery and theft). That reflects the apparent assessment that, although Phillip Kaukasi was the leader, all other participants were fully involved both in the plan and its execution. It also reflects the Judge’s view that, with the exception of Whatarangi Rawiri, the other offenders had yet to come to realise the enormity of what they had done or to feel genuine remorse. In those circumstances the only significant mitigating circumstance for most of those sentenced was their youth.
[144] The discounts of 2 years and one year received by Peihopa against the sentences received by Phillip Kaukasi for aggravated robbery and attempted aggravated robbery reflect his guilty pleas to those charges. The discount of 1 year received by the other offenders from the sentence imposed upon Phillip Kaukasi for aggravated robbery reflects Phillip Kaukasi’s role as organiser and leader.
[145] Against the indicative sentence of 13 years for the total offending, Phillip Kaukasi received a deduction of one year in acknowledgement of his age. The Judge noted that no other mitigating circumstances justified reduction: Phillip Kaukasi had a record of offending since the age of 14; he was on Youth Court bail at the time of the offences.
[146] The indicative starting point for the sentences of Riki Rapira and Joe Kaukasi on a totality basis is not distinctly identified by the Judge. Since they were not sentenced for the attempted aggravated robbery, the starting point seems to have been the 10 years identified as appropriate for the manslaughter without inclusion of an additional element for the aggravated robbery component (the aggravating circumstances of which may have been thought to be sufficiently reflected in the indicative sentence for manslaughter). In the case of Riki Rapira the Judge took into account not only his age but also his difficult early upbringing and some positive indications for rehabilitation in imposing the lead sentence for manslaughter of 9 years. Joe Kaukasi was considered to have been of similar culpability to Riki Rapira but his sentence of 8 ½ years reflected the fact that, at just 15, he was nearly one year younger than Rapira at the time of the offending. Bailey Kurariki’s sentence of 7 years for manslaughter represents a discount of nearly three years over the indicative starting point of 10 years in reflection of his youth.
[147] These comparative weightings for the sentences between the different accused in terms of their culpability are not directly challenged. Instead, it is suggested that the Judge was wrong to dismiss suggestions of remorse and has given insufficient concession to reflect youth.
Remorse
[148] The Judge took the view that none of the offenders, other than Whatarangi Rawiri, had significant insight into what they had done. He expressed some scepticism about indications of remorse offered through counsel. The objective assessments provided to the Court by the writers of the pre-sentence and psychological reports did not substantiate any such mitigating factor. They indicated continued minimisation of culpability rather than an acceptance of responsibility for it.
[149] It may be difficult in any particular case for a Judge to assess the extent to which an offender may be genuinely remorseful for what he or she has done. Ms Dyhrberg emphasised the need for caution in concluding that young people are not contrite and have insufficient insight into their offending. They may find it difficult to express themselves or they may be attempting to cope by appearing unaffected. The circumstances of trial may make it difficult for young people to reflect beyond their own immediate predicament. Insights relayed by counsel should not be dismissed out of hand.
[150] There may be some sense in caution in considering the contrition of young people in the context of sentencing, particularly immediately following trial. But whether or not the offenders here were unable to express themselves adequately, remorse was a factor which was of limited relevance in the circumstances of the offending. The real significance of expressions of contrition to sentencing is that they indicate acceptance of responsibility which is usually a first step towards rehabilitation. Other ends in sentencing are unaffected: the need for denunciation and deterrence is not significantly affected by the response of the particular offender.
[151] The Sentencing Act 2002, in providing for eligibility for parole after one-third of a sentence has been served, takes away much of the need for anxious prediction about how an offender will face up to the consequences of the offence and the prospects for his or her successful rehabilitation. The material before the Court in the present case understandably left the Judge unconvinced about the insight and contrition of the offenders. That was not an exacerbating circumstance in the sentencing. It left the consideration of response as one for future assessment by the Parole Board. That was appropriate. No significant discount for remorse could have been given in the present circumstances, even had the Judge accepted the suggestion of defence counsel that the apparent show of unconcern was a façade.
Youth
[152] The youth of an offender is a factor relevant to sentencing. The reason is not that youth by itself prompts leniency. In some cases it may indicate immature judgment which affects culpability. In other cases it may suggest that the prospects of rehabilitation are better than in the case of a mature offender. In R v Mahoni (1998) 15 CRNZ 428, 436 it was explained that taking the youth of an offender into account “is not founded solely on consideration for young persons”:
[T]here is benefit to the community in ensuring that the chance of rehabilitation is not shut out, and in reducing the prospect of a youthful offender emerging from prison a more hardened criminal than he went in.
[153] Any consideration of youth must, however, give way to the public interest. The Judge was right to take the view that the youth of the offenders was not a factor which in the circumstances could be given great weight. This was not impulsive behaviour. It was deliberate, repetitive and organised criminal activity. It was offending of a kind too commonly undertaken by young people in groups. The offending was of serious violence and had tragic consequences. A deterrent sentence was called for. The eligibility of the offenders for parole after one-third of their sentence is served means that there is no inevitability that they will serve inappropriately lengthy periods of imprisonment. In the case of Rapira and Joe Kaukasi their rehabilitative prospects can be addressed by the Parole Board before they turn 20.
[154] In the case of Bailey Kurariki that assessment will be undertaken before he turns 17. Bailey Kurariki, despite his youth, played a significant role in the offending. He, with Whatarangi Rawiri, was the decoy for the delivery. He described to a witness his distraction of the attention of the delivery driver and his giving the signal to Alexander Peihopa to strike Mr Choy. The three year concession in the sentence imposed is attributable almost entirely to Kurariki’s youth. No further allowance would have been appropriate in the public interest in condemnation of the crime or fair as between the other offenders.
[155] The discounts applied by the Judge responded to the different ages of each offender. Additional concession to their youth was not available in the circumstances. The aggravating circumstances of the offence and the participation of the appellants meant that their youth was outweighed by the need to impose a sentence which condemned the offending and held them accountable for their actions.
Casie Rawiri appeal against sentence
[156] As has already been indicated at paragraphs [135] to [138] above, we reject the contention that the starting points adopted by the Judge for the offences of attempted aggravated robbery and theft were too high. The remaining contentions by Mr Cassidy for Casie Rawiri are that the Judge treated her wrongly, as having cut Mr Choy’s belt-bag from him during the theft, set the starting point for the totality of the offending too high at six years, and insufficiently took into account Casie Rawiri’s guilty plea and offer to assist the Crown.
[157] Who used the knife to cut the belt bag from Mr Choy is less significant than the other factors identified by the Judge as the seriously aggravating circumstances of Casie Rawiri’s offending. Casie Rawiri was nearly 21 years of age at the time of the offending. She was fully involved in the plan to rob the KFC delivery driver. That plan gave rise to an attempted aggravated robbery which was very nearly completed. Casie Rawiri was an active participant in formulating the plan and assigning roles. As an adult, the Judge considered that her participation would have given comfort to the other offenders, so much younger than her. The pre-sentence report contained an acknowledgement by Rawiri that she had been angry with the others after the Michael Choy robbery that they had not taken his money. She acknowledged taking a knife from the kitchen of her house when she saw Mr Choy stumbling past. She and Lisa Waikato joined up with Alexander Peihopa to take the money from him. The disputed fact is whether it was Casie Rawiri or Lisa Waikato who used the knife to cut the belt bag from Mr Choy. That particular circumstance pales into insignificance beside the substantial involvement which is not contentious. Although Mr Cassidy criticised the Judge’s description of Rawiri as a “vulture,” the depiction is borne out by the facts. Moreover, the starting point for the theft sentence of 2 ½ years was arrived at independently of consideration of who cut the bag off Mr Choy and was the sentence imposed upon Alexander Peihopa for the same offence.
[158] The Judge was fully justified in concluding that the starting points identified for the attempted aggravated robbery (4 years) and the theft (2½ years) if imposed concurrently would not adequately reflect the totality of the offending. The offences were distinct. There was no overlap of aggravating circumstances, as in the case of the manslaughter and aggravated robbery convictions. The circumstances of the theft were truly abhorrent. Casie Rawiri was an adult who was fully responsible for her actions and had encouraged serious criminal activity by those much younger than her.
[159] The starting point of 6 years for the totality of the offending was appropriate. It can be compared with that identified for Lisa Waikato. She was charged with the same theft and with being an accessory after the fact of the aggravated robbery. The accessory liability was in respect of sheltering the other offenders and taking steps to hide evidence. The Judge treated the offending as part of a continuous offending on the one night. There was no involvement in the earlier serious attempted aggravated robbery. The starting point adopted for Lisa Waikato was three years imprisonment. With allowances for early co-operation with the police, sincere remorse, and commendable efforts to turn her life around, a deduction of 15 months led to a sentence of 18 months on both counts.
[160] Casie Rawiri, by contrast, pleaded guilty a matter of a few days before the trial began. The offending included the serious attempted aggravated robbery with which Lisa Waikato was not involved. Casie Rawiri on pleading guilty offered to give evidence against the other accused, although the offer was not in the end acted upon. The Judge deducted 1½ years from the indicative sentence to reflect these factors. No other mitigating circumstances, such as were available to Lisa Waikato, justified further reduction. The pre-sentence report indicated little motivation to change and assessed Rawiri as at risk of re-offending. She showed little insight into the offending and her culpability. In the circumstances we are satisfied that the allowance made for mitigation was sufficient.
Conclusion
[161] For the reasons given, all appeals against conviction and sentence are dismissed.
[162] It is appropriate to record our admiration for the way in which the trial Judge conducted this anxious case. The youth and number of the accused placed especial burdens upon him. His rulings and directions to the jury were thorough, careful, and helpful. He accurately organised the large volume of material before the court at trial and at the sentencing hearing. Such attention to the task has greatly assisted us on the appeal.
Solicitors:
Crown Law Office, Wellington
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