The Queen v Te Kira

[2006] NZCA 95

IN THE COURT OF APPEAL OF NEW ZEALAND

CA423/05

THE QUEEN

v

JOHN TE KIRA

Hearing:15 May 2006

Court:O'Regan, Panckhurst and Potter JJ

Counsel:D G Slater for Appellant

F E Guy Kidd for Crown

Judgment:18 May 2006 

JUDGMENT OF THE COURT

The appeal against sentence and conviction is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1]       On 19 September 2005 the appellant was convicted of wounding with intent to cause grievous bodily harm pursuant to s 188(1) of the Crimes Act 1961 following a trial in the District Court at Invercargill.  On 21 October he was sentenced to a term of three years’ imprisonment by the trial judge, Judge Butler.

[2]       The appellant appeals his conviction and sentence to this Court.

Facts

[3]       On 7 September 2004 the appellant was at a Mongrel Mob gang house in Invercargill.  He was looking after the premises and was there alone.  The complainant, a drug addict who had been evicted from the place at which he had been staying, approached the premises.  The appellant offered the complainant shelter for the night.  The complainant was armed with a butcher’s knife, but the appellant was unaware of this.  The appellant let the complainant in and returned to his bed.

[4]       The complainant found a baseball bat on the premises.  He attacked the appellant.  At least three blows were directed at the appellant’s head.  The attack was unprovoked and at trial, the complainant could not recall why he attacked the appellant.  Judge Butler found at sentencing that the complainant was undergoing a psychotic episode as a result of having used morphine and methadone earlier in the day.  The appellant struggled with the complainant and took both the bat and the butcher’s knife from him.  The appellant then attacked the complainant with the knife.  Eleven wounds and two bruises were inflicted on the complainant’s body.  One of the wounds was potentially life threatening.  The complainant’s lung was bruised and a chest drain was required.  One wound was to the complainant’s head.  The complainant gouged one of the appellant’s eyes during the fracas.

[5]       At trial, the appellant contended he had acted in self-defence.  The Crown accepted he had been entitled to defend himself in the circumstances as he saw them to be, and that the force he used was reasonable in the circumstances as he saw them up until the point that he attacked the complainant with the knife.  Thus the only issue at the trial was the reasonableness of the force the appellant used.

[6]       In the course of his summing up, Judge Butler put the defence to the jury and directed them that it was for the Crown to prove beyond reasonable doubt that the appellant was not acting in self-defence.  No issue was taken with the directions given by the Judge.

Conviction appeal

[7]       The conviction appeal was on the basis that “the jury came to the wrong conclusion on the evidence before it”.  The statutory ground of appeal which the appellant seeks to invoke is s 385(1)(a), namely that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.

[8]       As stated in the decision of this Court in R v Ramage [1985] 1 NZLR 392 at 393, the test for the application of s 385(1)(a) stated is:

…if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant.  It is not enough that this Court might simply disagree with the verdict of the jury.

[9]       As this Court noted in R v McDonald CA142/04 29 July 2004 at [18], if there is evidence available to a jury, which, if accepted, would support its verdict, then the verdict would not be impugned on the grounds of “unreasonableness”. 

[10]     The submission made by counsel for the appellant, Mr Slater, was that it was open to the jury to find that the force used by Mr Te Kira was reasonable in the circumstances as he believed them to be, and that they were wrong to find otherwise.

[11]     The reasonableness or otherwise of the appellant’s response to the complainant’s attack on him was a jury issue, and we are in no doubt that the verdict was available on the evidence before the jury.  The position was well summarised by the trial Judge in his sentencing notes:

The appellant’s initial response to being attacked with the baseball bat was a reasonable response, but once he had disarmed the complainant of the baseball bat and the knife, his action in inflicting numerous wounds with the knife and hitting the complainant with the baseball bat went too far, and that was why the jury ultimately found that the Crown had successfully excluded self defence. 

[12]     Ultimately, Mr Slater’s submission was that the jury had just “got it wrong”.  That invites us to substitute our views for that of the jury, but that is not the test which we must apply.  We are satisfied that there was evidence available to the jury on which they could properly conclude that self defence was excluded.  That means that the statutory ground of appeal in s 385(1)(a) is not made out.  We therefore dismiss the appeal against conviction.

Sentence

[13]     In sentencing, Judge Butler expressed sympathy for the appellant insofar as the situation in which the appellant found himself was not of his own making.  He said that the appellant had no choice to plead guilty in light of his decision to raise self-defence.  He said the reason self-defence failed was that the jury was not convinced of the reasonableness of the appellant’s response to the attack.  The self-defence was excessive.

[14]     The Judge referred to the decision of this Court in R v Taueki [2005] 3 NZLR 372. In that case, it was said that the infliction of serious injury, the use of a weapon and attacks to the head were factors contributing to the seriousness of offending in grievous bodily harm cases (at [31]). Judge Butler thought that in the appellant’s case some serious injury was caused, but there was no deliberate targeting of the complainant’s head. The Judge thought aggravating features of serious injury and the use of a knife brought the appellant’s offending within band one as stipulated in Taueki.  This called for a starting point of between three and six years’ imprisonment.  The Judge then noted that this Court in Taueki considered excessive self-defence to be a factor conducing to a lower starting point.  The Judge selected a starting point of three years’ imprisonment.

[15] The Judge then considered personal factors. He identified two aggravating features. The appellant had a lengthy list of criminal convictions and was subject to a sentence of community work at the time of the offending. He found there were no personal mitigating factors, but said the factors referred to at [13] above had to be taken into account as part of the assessment of the overall justice of the case. He found that those factors cancelled out any aggravating features and imposed a sentence of three years imprisonment.

[16]     Mr Slater submitted that the sentence was manifestly excessive in the unusual circumstances of the case, and that a sentence of two years imprisonment would have been more appropriate. 

[17]     Counsel for the Crown, Ms Guy Kidd, said the Judge had correctly applied that decision of this Court in Taueki.  The Judge placed the offending at the lower end of band one.  In doing so, he identified that there were two of the aggravating features listed in [31] of Taueki, namely the serious injury inflicted on the complainant, and the use of weapons.  On the other hand, there were two factors which were identified in Taueki at [32] justifying a reduction in the starting point which would otherwise apply, namely provocation and excessive self defence. She said if the latter factors had not been present, a starting point of somewhere around five years would have been required. She said it was clear that the Judge had given significant weight to the factors of provocation and excessive self defence in coming to a starting point of three years.

[18]     In our view, the Judge correctly identified the relevant factors from Taueki and weighed them in a principled way.  There is no proper basis on which we could interfere with his assessment of the starting point.  We reject the contention by Mr Slater that the Judge did not give sufficient weight to the provocation faced by the appellant, and the element of excessive self defence.  As the trial Judge, Judge Butler was best placed to assess and make allowances for, these factors.  Nor could there be any issue taken with the way the Judge dealt with the personal aggravating and mitigating features.  As the Judge himself noted, the features which he took into account as mitigating features were not, strictly speaking, mitigating factors, but he properly took them into account in the evaluation of the overall justice of the case.

[19]     We are not persuaded that there was any error of approach by the Judge, nor are we persuaded that the sentence imposed is excessive, let alone manifestly excessive.

[20]     In those circumstances the appeal against sentence is also dismissed.

Solicitors:
Crown Law Office, Wellington