The Queen v Stafford

[2009] NZCA 88

IN THE COURT OF APPEAL OF NEW ZEALAND

CA521/2008
[2009] NZCA 88

THE QUEEN

v

JOSHUA ANARU STAFFORD

Hearing:9 March 2009

Court:Glazebrook, Rodney Hansen and MacKenzie JJ

Counsel:D H Quilliam for the Appellant

G H Allan for the Crown

Judgment:19 March 2009 at 4.00 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION AND SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Rodney Hansen J)

[1]       After trial in the District Court at Gisborne before Judge Perkins and a jury, Mr Stafford was found guilty of assault with intent to cause grievous bodily harm.  He had earlier pleaded guilty to two charges of assault with a weapon.  He was sentenced to nine years imprisonment on the charge of assault with intent to cause grievous bodily harm with concurrent sentences of one year’s imprisonment on the two lesser charges.

[2]       Mr Stafford appeals against his conviction and sentence.

Background

[3]       The charges arose out of a series of altercations, which occurred in Huxley Road, Gisborne on 19 November 2007.  Late in the afternoon, Mr Stafford was walking alone along the road in suburban Gisborne.  A family group of seven were walking in the opposite direction along the footpath on the other side of the road.  The group comprised William Kohunui and Stephanie Gray, both in their forties, their four children aged between 17 and 8 years of age and the teenage friend of one of the children.

[4]       As Mr Stafford and the family group approached one another, Mr Stafford began to taunt and abuse the eldest child of Mr Kohunui and Ms Gray, Jackson Gray.  Mr Stafford was put out because Jackson Gray was wearing a blue jacket signifying his association with the Black Power gang, whereas Mr Stafford was wearing a red jacket indicating his allegiance to the Mongrel Mob.

[5]       As verbal taunts were exchanged, Mr Stafford approached the group.  He was holding two “stubbie” bottles of beer.  He threw one at Jackson Gray, hitting him on the arm.  Stephanie Gray stepped between the two to prevent further violence.  Mr Stafford hit her over the head with the second bottle with sufficient force to break it.  The assaults with the beer bottles led to the charges of assault with a weapon.

[6]       As Mr Stafford walked away from the scene, a utility vehicle drove past carrying three Mongrel Mob associates of Mr Stafford.  He waved the vehicle down.  It came to a halt nearby and the three occupants alighted, each carrying a weapon.  They were the driver, Rongomai Taiapa, who was armed with an iron bar, and Cohen Irwin and Vernon Waihape, who were travelling on the back of the utility, and carried, respectively, a machete and a hammer.

[7]       Messrs Irwin and Taiapa attacked William Kohunui.  Mr Taiapa struck him on the upper arm while Mr Irwin swung the machete.  As Mr Kohunui brought his arm up to protect himself, his thumb was severed by the machete.

[8]       Mr Waihape joined Mr Stafford, who had returned to the scene, in attacking Jackson Gray.  As Mr Gray attempted to run away, Mr Taiapa got back into the utility and drove it at him.  He avoided injury by taking cover behind a power pole.

[9]       The melee came to an end on the approach of a police car summoned by nearby homeowners who had witnessed the confrontation.  The assailants left the scene and were apprehended sometime later.

[10]     Mr Irwin pleaded guilty to assaulting Mr Kohunui with intent to cause grievous bodily harm.  Messrs Stafford, Taiapa and Waihape faced alternative charges of assault with intent to cause grievous bodily harm to Mr Kohunui and assault with intent to injure him.  Mr Stafford and Mr Taiapa were found guilty of wounding with intent to cause grievous bodily harm.  Mr Waihape was found guilty of the lesser alternative charge and of possession of an offensive weapon.

Conviction – grounds of appeal

[11]     In support of the appeal Mr Quilliam submitted:

(a)The verdict was unreasonable in that, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty – see Owen v R [2008] 2 NZLR 37;

(b)The verdict was inconsistent with the jury’s decision to find Mr Waihape guilty of the lesser charge of wounding with intent to injure;  and

(c)The Judge misdirected the jury in his summing up.

Verdict unreasonable

[12]     Mr Quilliam argued, as he had at trial, that the altercation in which all four assailants were involved should be analysed as two separate incidents – the attack on Mr Kohunui by Messrs Irwin and Taiapa and the attack on Jackson Gray by Messrs Stafford and Waihape.  He relied on the evidence of Jackson Gray that the incidents took place 10 ‑ 15 metres apart and that there was no evidence of any communication between the two pairs of assailants or any overt forms of assistance or encouragement.  Mr Quilliam said the evidence would not permit a jury to conclude that Mr Stafford could have foreseen that Mr Irwin would attack Mr Kohunui in the way he did, or that he assisted or encouraged him in any way.

[13]     In order to find Mr Stafford guilty as a party to the assault by Mr Irwin, the jury had to be satisfied that he:

(a)Assisted in the assault upon Kohunui.

(b)His assistance was intended in the sense that:

(i)He knew of the “essential matters” constituting the offending against Kohunui; and

(ii)It was his intention or purpose to aid or assist in the acts constituting that offending.

Assistance

[14]     We are satisfied that there was evidence to support a finding that Mr Stafford assisted in the assault on Mr Kohunui.  It was open to the jury to find that he flagged down the utility for the purpose of enlisting the aid of its occupants.  The defence suggested that his purpose was to obtain a lift away from the scene, but the alternative interpretation was plainly available.  It was the view taken by the trial Judge in dismissing an application to discharge Mr Stafford at the conclusion of the Crown case and on sentence.  It was a readily available inference, having regard to Mr Stafford’s belligerent conduct to that point, the angry mood that persisted after the initial assaults (Mr Stafford continued to shout abuse from the middle of the road) and, of course, his immediate return to the fray as soon as his associates arrived.

[15]     It is true that Mr Stafford and Mr Waihape focused their attention on Jackson Gray while the other two attacked Mr Kohunui.  It does not follow that they did not assist Messrs Irwin and Taiapa.  It was open to the jury to reject the defence case that there were effectively two separate incidents.  Even if the two victims were 10 ‑ 15 metres apart, as Jackson Gray estimated at depositions (no other witnesses were asked), it presents as an artificial characterisation of what occurred.  Independent witnesses spoke of an attack which took place at great speed with the assailants “charging for this family”.

[16]     We see no reason why the jury should not have accepted the prosecution’s argument that this was an attack by one group collectively on another with each of the assailants providing assistance and encouragement to the others.  This was achieved in a practical way by the attackers splitting into pairs, each pair concentrating on one of the adult males in the family.  One of the consequences was the defenders were prevented from rendering assistance to one another.

Intention

[17]     Mr Stafford could not be responsible as a party for the assault by Mr Irwin unless he had foreseen that there was a real or substantial risk of an assault with a weapon which would be likely to cause grievous bodily harm.  For this purpose it was not necessary that he foresee the precise acts and the manner of carrying them out: R v Witika [1993] 2 NZLR 424 at 432.

[18]     We are satisfied that the evidence established that Mr Stafford had the requisite knowledge.  It was open to the jury to infer that Mr Stafford saw the weapons in the hands of his associates as they emerged from the vehicle.  (Mr Gray, who was standing nearby said he saw them.)  The obvious corollary is that when he joined in the attack, Mr Stafford would have foreseen a real possibility that someone was going to be seriously injured.

[19]     An intention to assist in the offending was also established on the evidence.  Mr Stafford was withdrawing from the confrontation when his associates arrived.  He immediately joined them in the attack, obviously appreciating that the presence of three armed men provided a material advantage.  As Mr Allan submitted, the jury was entitled to convict on the basis that Mr Stafford understood that his presence and actions facilitated or encouraged his co-offender’s attack upon Mr Kohunui, just as their presence and actions encouraged and facilitated his own re-engagement in the confrontation.

Inconsistent verdicts

[20]     Mr Quilliam argued that Mr Stafford’s conviction on the charge of assault with intent to cause grievous bodily harm could not stand against the jury’s finding that Mr Waihape (who joined him in the attack on Jackson Gray) was guilty of the lesser charge of assault with intent to injure.  He questioned how Mr Stafford’s conviction on the more serious charge could be sustained, having regard to the circumstances in which Mr Waihape became involved in the fracas.  He had alighted from the truck with Mr Irwin, like him armed with a weapon, and would have been in a better position than Mr Stafford to foresee what was likely to occur.

[21]     The basis on which a verdict may be set aside on the basis of inconsistency was discussed in R v Shipton [2007] 2 NZLR 218 (CA). This Court said at [75]:

The general principle has long been that a conviction is unsafe if no reasonable jury, properly instructed, could have arrived at the conclusion which was in fact reached (R v Wharton [1955] Crim LR 120 per Devlin J). The burden is on the accused to demonstrate that the only explanation for the inconsistency must be that the jury was confused or adopted the wrong approach, thus making the verdict unsafe. Only this can warrant the intervention of an appellate Court, and generally there ought to be a curial reluctance to interfere with a jury verdict (R v H [2000] 2 NZLR 581 at p 589 per Keith J).

The burden on an appellant is to show that the “verdicts are so inconsistent that they cannot stand together, being logically inconsistent in the sense that a reasonable jury, applying their minds to the facts, could simply not have reached the verdicts they did in fact reach” - Shipton at [80].

[22]     As Mr Allan submitted, the difference in the verdicts must be attributable to the jury’s assessment of differences between what Mr Waihape foresaw as likely to occur and what was foreseen by his co-offenders.  We are satisfied that there were factors which could have influenced the jury to the view that Mr Waihape’s apprehension of what might happen differed from those of the other participants.  He was younger than his co-offenders; he had only just turned 18 at the time of the offending.  We were told that, unlike the others, there is no evidence he had any direct gang affiliations.  Unlike Mr Stafford, he had not been involved in the earlier incident.  We think Mr Allan is right to say that the jury could well have concluded that he may not have shared or appreciated the gravity of intent of his co-offenders. 

[23]     It may well be that the jury also took into account that, alone among the four offenders, Mr Waihape did not actually strike anyone.  Unlike Mr Stafford, he was not an instigator of the confrontation and, unlike Mr Taiapa, he did not directly assist Mr Irwin.  These factors may well have appealed to the innate sense of fairness and justice of the jury as a basis for distinguishing between him and his co-offenders.  An apparently inconsistent verdict may not be unreasonable if such considerations could explain the verdicts – R v H [2000] 2 NZLR 581 at [27].

[24]     The differing verdicts are readily explicable and each are independently supportable on the evidence.  There is no inconsistency which might suggest that the jury was confused or adopted the wrong approach in finding Mr Stafford guilty of the more serious charge.

Misdirection

[25]     The Judge’s summing up was not recorded and was reconstructed from his notes.  It is accepted that it may not be entirely accurate and would have been embellished in the course of delivery.  Two aspects of it were criticised by Mr Quilliam.

[26]     The first is a direction (repeated later in the summing up) that the jury had to decide:

... whether the accused – whether it be one of them, two of them or all three of them – assisted in [the] attack and were parties of [sic] it.

Mr Quilliam submitted that the terms of the direction wrongly excluded the possibility that none of the three were a party to Mr Irwin’s attack with the machete. 

[27]     We see no risk that this aspect of the Judge’s summing up would have led the jury astray.  The Judge made it clear in other parts of his summing up that the case against each individual accused had to be considered separately.  After reviewing the defences put forward by each, his notes record that he said:

Remember the onus is on the Crown to prove the elements on the charges beyond reasonable doubt.  Any reasonable doubt must be applied for the benefit of the accused.  Consider each charge against each of the accused separately.  Do not assume because you find one of them guilty or not guilty that that verdict should apply to the others.

We do not think there is any prospect that the passages relied on could have been understood by jurors to mean that it was not open to them to acquit all three. 

[28]     The second criticism is of two passages in the summing up in which the Judge referred to the actions of Messrs Stafford and Waihape as “isolating” Jackson Gray.  Mr Quilliam argued these may have influenced the jury to a view, contrary to the evidence of Jackson Gray himself, that he was not isolated as a result of the actions of his two assailants.

[29]     We accept that in these passages of his summing up the Judge might have been understood as conveying his own view of what occurred.  But it was a view that was open on the evidence, contrary to Mr Quilliam’s submission; Jackson Gray himself said in evidence that Messrs Stafford and Waihape tried to surround him.  It was accordingly a view that the Judge was entitled to express, provided he left the final decision to the jury.  Which he did.  It is clear, when the Judge’s remarks are read in context, that the precise role of Messrs Stafford and Waihape was left open for the jury to decide.  We see no risk that the jury was diverted from the key factual issues by the way in which the evidence was characterised by the Judge.

Appeal against sentence

[30]     Judge Perkins sentenced Messrs Stafford and Taiapa to nine years imprisonment, Mr Irwin to seven years imprisonment and Mr Waihape to ten months home detention and 200 hours community work.  For the three offenders convicted of assault with intent to cause grievous bodily harm, he adopted a starting point of nine years.  He gave Mr Irwin a discount of two years to recognise his guilty plea.  He found no aggravating or mitigating factors to affect the sentence of the other two.  He saw Mr Waihape as in a different category, describing his involvement as minimal.  He was also given credit for his youth and clear record.

[31]     Mr Quilliam submitted that Mr Stafford’s sentence was excessive in relation to those of Messrs Irwin and Waihape, both of whom were armed.  He submitted that Mr Stafford shouldered an unfair proportion of blame for the actions of others, over whom he had no control.

[32]     The starting point of 9 years adopted for those convicted of the most serious offence could not be criticised.  The offending involved a number of the aggravating features identified in R v Taueki [2005] 3 NZLR 372, including extreme violence, serious injury, the use of weapons, multiple attackers and elements of gang warfare. It fell within band 3, warranting a starting point of between 9 and 14 years imprisonment.

[33]     The sentence imposed on Mr Stafford was in keeping with those imposed on his co-offenders.  The Judge rightly treated Mr Waihape as in a different category.  The culpability of the remaining three offenders was broadly at the same level.  While Mr Stafford was only indirectly involved in the assault on Mr Kohunui and was unarmed, he was the initial aggressor, the instigator of the confrontation and had earlier assaulted Stephanie and Jackson Gray with a bottle.  The Judge was entitled to assess his criminality overall at the same level as Messrs Irwin and Waihape.

Result

[34]     The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law, Wellington