White v R
[2017] NZCA 322
•27 July 2017
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA413/2016 [2017] NZCA 322 |
| BETWEEN | DEON MICHAEL WHITE |
| AND | THE QUEEN |
| CA444/2016 | |
| BETWEEN | TANIORA WAYNE ROPIHA |
| AND | THE QUEEN |
| CA481/2016 | |
| BETWEEN | CARL WILLIAM PATERSON |
| AND | THE QUEEN |
| Hearing: | 1 May 2017 |
Court: | French, Mallon and Wylie JJ |
Counsel: | A J D Bamford for Appellants White and Paterson |
Judgment: | 27 July 2017 at 10.30 am |
JUDGMENT OF THE COURT
AMr Paterson’s application to extend the time for filing his conviction appeal is granted.
BMr Ropiha’s application to extend the time for filing his conviction and sentence appeal is granted.
CMr White and Mr Paterson’s applications to extend the time for filing their sentence appeals are declined.
DMr White, Mr Paterson and Mr Ropiha’s appeals against conviction are dismissed.
EMr Ropiha’s appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
The three appellants (Messrs White, Paterson and Ropiha), together with a fourth offender (Mr Peck), were convicted following a District Court jury trial before Judge Zohrab of a number of offences arising out of a home invasion.[1] The home invasion was of a “tinnie” house occupied by a number of people, and its purpose was to obtain money using threats and violence.
[1]One charge of aggravated burglary under ss 232(1)(a) and 66 of the Crimes Act 1961 (maximum penalty 14 years’ imprisonment); one charge of assault under ss 196 and 66 (maximum penalty one year’s imprisonment); one charge of threatening to do grievous bodily harm under ss 306 and 66 (maximum penalty seven years’ imprisonment); four charges of kidnapping under ss 209 and 66 (maximum penalty 14 years’ imprisonment); and one charge of aggravated robbery under ss 235(b) and 66 (maximum penalty 14 years’ imprisonment).
The appellants appeal against their convictions on a number of grounds. These grounds concern the Judge’s approach to two hostile witnesses, the prospect that a perception of witness intimidation may have influenced the jury, the contention that a mistrial should have been ordered, the Judge’s directions on party liability and the Judge’s directions on claim of right.
The four offenders were sentenced to the following terms of imprisonment: six years and 11 months (Mr White), six years and two months (Mr Paterson), six years and four months (Mr Ropiha), and six years and seven months (Mr Peck).[2] Mr Ropiha appeals his sentence. He contends his sentence was manifestly excessive because the starting point (six years and nine months, which was adopted for all the offenders) was too high and the discount afforded for time spent on electronically monitored bail was insufficient.
[2]R v White [2016] NZDC 13623 [Sentencing notes].
Mr Paterson’s conviction appeal and Mr Ropiha’s conviction and sentence appeal were filed late. They have explained why this happened. We accept an extension is appropriate.
Mr White and Mr Paterson belatedly sought to appeal their sentences having reviewed Mr Ropiha’s sentence appeal submissions. The Crown opposed an extension to bring their sentence appeal on the basis there has been no legitimate explanation for the delay and there is no merit in the appeal. For the reasons that follow, we agree. We decline to grant an extension of time for Mr White and Mr Paterson to appeal their sentences.
Background
The events giving rise to the charges took place on the evening of 6 October 2014 at an address in Richmond, near Nelson. Zane Stronach and others lived at the address and operated a tinnie business from it.
Initially Mr White, Mr Peck and Mr Paterson entered the house (the first visit). Mr Stronach was present, along with at least three others: Mr Roberts, Mr Partridge and a person they called Chrommie. According to the Crown case at trial, there was a heated discussion, along with alleged violence and a demand for money or drugs from Mr Stronach. Mr White, Mr Peck and Mr Paterson allegedly obtained $100 and then left.
Messrs White, Peck and Paterson returned to the house a short time later with Mr Ropiha (the second visit). Some of the group were wearing Nomad clothing. They had with them knives including a Swiss Sword. Mr Stronach and four others (Mr Roberts, Mr Partridge, Mr Bettany and Ms Lee) were present. Some of the occupants were assaulted and threats of violence were made. At some point Mr Stronach’s partner Ms Peters arrived at the house. Mr Stronach was taken by Mr White and Mr Paterson to obtain $500. Mr Peck and Mr Ropiha remained at the house with the others and gave them to understand they could not leave.
Mr White, Mr Paterson and Mr Stronach then drove to Mr Stronach’s mother’s house. Mr Stronach’s mother went with the group to an ATM where she withdrew $500. Ms Stronach drove in her vehicle with Mr Stronach; Messrs White and Paterson were in another vehicle. Ms Stronach insisted that before handing over any money she wanted to know that Mr Stronach’s partner Ms Peters (who was still back at the house) was freed. Once both cars arrived at Mr Stronach’s house, Mr White went inside and returned with Ms Peters. Mr Stronach’s mother then handed over the money to Mr White. After this Mr White’s group left.
At some stage during the above events, Mr Stronach phoned his mother’s partner and told him to call the police.
The appellants’ defence was that Mr White and Mr Stronach knew each other and Mr Stronach owed Mr White money. Mr White had permission to enter the house. There was no violence and no money was taken on the first visit. On the second visit there was minor violence and a heated exchange because Mr White wanted his money. Mr Stronach agreed to get it. Those left at the house were not detained against their will. Mr Stronach deceived his mother into believing he was in danger in order to get her to pay the money he owed to Mr White.
In relation to the first visit, Mr White, Mr Peck and Mr Paterson were charged with aggravated burglary (charge one), assault of Mr Stronach (charge two), and aggravated robbery of Mr Stronach (relating to the $100, charge three). The jury returned not guilty verdicts on these three charges.
In relation to the second visit, Mr White, Mr Peck, Mr Paterson and Mr Ropiha were charged with:
(a)aggravated burglary (charge four);
(b)assaults to Mr Roberts (charge five), Mr Bettany (charge six), and Mr Stronach (charge seven);
(c)threatening to do grievous bodily harm to Mr Stronach (charge eight);
(d)kidnapping of Mr Stronach (charge nine), Mr Roberts (charge 10), Ms Lee (charge 11), Mr Bettany (charge 12), Mr Partridge (charge 13), and Ms Peters (charge 14); and
(e)aggravated robbery of Ms Stronach (relating to the $500, charge 15).
The Judge discharged the defendants on charges six, 11 and 12 at the end of the Crown case.[3] The jury returned not guilty verdicts on charge seven, but guilty verdicts on all the remaining charges for all the defendants.
Hostile witnesses
Mr Stronach’s statements
[3]R v White [2016] NZDC 9584 (Ruling 7).
The principal complainant was Mr Stronach. He made a statement to the attending police officer on the night of the incident. He told the officer that some guys had come to his address and demanded $500 from him. He said he, Mr Bettany and Mr Roberts were beaten up and Ms Peters had been held by them. He said the guys had knives and one of them had what looked to be pistol down his pants (he could not tell if it was real but it looked like it was). They had tried to grab his fingers and cut them off, and they told him that if he contacted the police they would kill him. He provided descriptions of the guys. He knew one of them as “Fish” and another as “D” (Messrs Ropiha and White).
Mr Stronach subsequently provided three formal statements to the police — on 7 October, 15 October and 18 November 2014. In his 7 October statement he focussed on the second visit. He said the first visit took place about a week earlier. During the first visit the three men tried to drag him to their car but stopped and said they would return later. In his second statement he changed this to say the first visit, when the men tried to drag him to the car, actually occurred earlier on the same night. In the second statement he said it was only on the second visit that Fish was there. The 18 November 2014 statement was a compilation of the two earlier statements.
Events at trial
It was not in dispute that Mr Stronach was a “street level” cannabis dealer. He, along with his mother and Ms Peters, failed to answer witness summonses for the first day of the trial (16 May 2016) and warrants for their arrest were issued. The trial was unable to start that day for unrelated reasons. With some difficulty, a police officer managed to locate Mr Stronach in the early hours of 17 May 2016.
The trial commenced on 17 May 2016 and Mr Stronach was called as the Crown’s first witness.[4] It was apparent essentially from the outset that Mr Stronach was not going to give evidence about the incident. The prosecutor made several attempts to ask him questions, but these were met with “no comment”, “can’t remember” or similarly unhelpful responses. After nearly half an hour of this, the jury retired, the witness was stood down and an application to declare the witness hostile was granted in chambers.[5] No voir dire was sought by anyone at this stage.
[4]We were informed from the Bar, without objection, that Mr Stronach looked untidy and dirty (like he had been “dragged from a bush”), and spoke quickly and with hostility in a manner which the notes of evidence do not entirely convey.
[5]R v White [2016] NZDC 8863 (Ruling 1).
When the trial resumed before the jury, the prosecutor informed Mr Stronach he was going to take him through the main points of his police statements. He proceeded to do so. Mr Stronach remained evasive and unhelpful. Throughout he maintained that he could not remember making the statements to the police and he could not remember what had happened that night. At the end of the examination in chief his three statements were produced as exhibits.
In cross-examination by defence counsel, Mr Stronach was slightly more helpful from a defence perspective. He accepted the following things:
(a)He wanted to withdraw his statements because when he spoke to the police he was affected by drugs and alcohol.
(b)He sold cannabis from the house, when people came to visit he tended to be in his bedroom, and he had surveillance cameras at the house so he could monitor people coming and going to the house.
(c)He had previously met Mr White and had not disclosed this to the police.
(d)He and Mr White had been in text communication on other occasions where they had made arrangements for Mr White to visit him, Mr White had offered to help sort out someone who was at Mr Stronach’s house and who he described as being weird with a knife, and Mr Stronach had asked Mr White to give him a ride to Mapua.
However, when the defendants’ version of events that evening were put to Mr Stronach, he reverted to responding that he could not remember what happened.
The Crown called evidence from a number of others who were present on the evening. One of those, Mr Roberts, was also declared hostile. He had given a statement to the police on 7 October 2014 which was broadly consistent with the other Crown witnesses’ evidence. This included that he had seen a “bulge around the waistband” of Mr White’s pants by the front pocket, which looked like the outline of a gun although he could not see what it actually was. Like Mr Stronach, it quickly became apparent that he did not intend to cooperate. He responded “no comment” to most of the prosecutor’s questions. He also said he could not remember the evening because he was a “stoner”.
An application to declare Mr Roberts hostile was made in chambers. The Judge decided Mr Roberts should first be given an opportunity to refresh his memory from his police statement. If Mr Roberts did not respond favourably to that opportunity, the Judge indicated the prosecutor could renew his application and it would be granted. There would be no need for that renewed application to be made in chambers.[6] Again there was no voir dire sought before this decision was made.
[6]R v White [2016] NZDC 9385 (Ruling 5).
When the trial resumed before the jury, Mr Roberts said his memory would not be assisted by seeing his 7 October 2014 statement. He was then declared hostile. The prosecutor took him through his statement. He accepted he had made the statement, but said he could not remember saying anything to the police and he could not remember anything about the incident. At the end of the examination in chief, his statement was produced as an exhibit. In cross-examination by defence counsel Mr Roberts similarly responded with “no comment”, or that he could not remember, to most questions. He also said his formal statement to the police was completely inaccurate and he had been on acid at the time.
At the end of the Crown case, defence counsel applied to have Mr Stronach’s three statements and Mr Roberts’ statement ruled inadmissible and removed from evidence, and for a direction that the jury ignore all of the questions and answers in their evidence about those statements.[7] They argued Mr Stronach’s statements were unreliable because they had internal inconsistencies, they did not refer to his prior relationship with Mr White, and Mr Stronach was a drug user. They were also concerned at the number of statements from Mr Stronach, which meant the Crown was adducing prior consistent statements. They argued that the Crown was aware Mr Stronach would be hostile, he was a key witness, his hostility meant cross‑examination by defence counsel was fruitless and they were therefore denied the ability to advance an effective defence. The submission that they were unable to advance an effective defence was also made about Mr Roberts’ evidence.
[7]R v White [2016] NZDC 9083 (Ruling 6).
The Judge ruled that the statements were admissible.[8] He considered the statements’ reliability was supported by their consistency with other Crown witnesses and from the exhibits found at the scene and at properties associated with the defendants. He considered defence counsel had been able to undermine their statements and they were able to advance an effective defence. He said he would give directions to the jury about the need for caution when considering these statements and he would note for the jury the issues identified by defence counsel. Consistent with that ruling, the Judge’s summing up included a direction about the need for caution when considering these statements, the reasons why caution was needed and that the jury should consider if other evidence assisted them in assessing the reliability and weight that could be placed on the statements.
Intractably hostile from the outset?
[8]At [46].
The appellants made a number of submissions on this part of the appeal. First, they submitted Mr Stronach should not have been called at all because his hostility was apparent to the Crown when he failed to answer his summons and was difficult to locate. This submission relies on the Supreme Court’s comments in Morgan v R that “[i]ssues of fairness may arise when a witness is expected to be hostile and is called for the purpose of getting the unsworn statement before the jury.”[9] However, as the Chief Justice said, a prosecutor is not to be criticised for calling a witness expected to be hostile to see if in fact he will prove intractable.[10] In this case Mr Stronach’s failure to answer his summons did not necessarily mean he would not cooperate in the witness box. We consider that the prosecutor was entitled to call Mr Stronach to see if he would cooperate.
No voir dire
[9]Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508 at [40] per Blanchard, Tipping, McGrath and Wilson JJ.
[10]At [18].
Next the appellants submitted the procedure by which the statements were adduced was unfair. They submitted there should have been a voir dire from which it would have become apparent that the witnesses’ hostility was such that the defendants would not be able to offer an effective defence. Consideration could also have been given about how to deal with the statements in a manner that was fair to the defendants.
As discussed in Morgan, where a witness is hostile a judge must be satisfied that leading evidence based on the witness’ previous statement, or its production, will not have an unfairly prejudicial effect on the proceeding.[11] In some cases it may be necessary for the judge to hear what the witness says, and how he or she reacts in cross-examination by the defence, in the absence of the jury.[12] A judge “should not hesitate to hear submissions and, if appropriate, evidence in the absence of the jury when dealing with hostility and related exclusion issues”.[13]
[11]At [40].
[12]At [42].
[13]At [42].
In this case the applications to declare Mr Stronach and Mr Roberts hostile were heard in chambers. Counsel had the opportunity to raise concerns about whether the witnesses’ statements should be put to them. Defence counsel submitted that all three statements should be put to Mr Stronach because there were inconsistencies between them which they might wish to explore in cross‑examination. The Judge considered the reliability of the statements by noting they were “rich in detail” and did not give the appearance of someone whose memory was impaired because of gross intoxication.[14] He also considered Mr Stronach’s performance in the witness box was that of someone who did not want to engage in the process rather than someone who could not remember. In relation to Mr Roberts, the Judge’s ruling noted that none of the defendants wished to be heard on the application. The Judge considered Mr Roberts was unwilling to engage rather than that he was actually unable to remember the events.
[14]Ruling 1, above n 5, at [16].
We consider the Judge approached the matter correctly and fairly to the defence. It was for the defence to test the reliability of the witnesses’ statement in a voir dire and their intractability if they wished to do so. We consider what occurred did not mean they were unable to offer an effective defence. Some progress was made in the cross-examination. For example, defence counsel were able to argue that, based on their previous text messages, Mr White had authority to enter Mr Stronach’s room, the $500 was the simple collection of a debt, and Mr Stronach had accompanied them willingly and had deceived his mother about what was happening. Mr Stronach’s unreliability, as shown by his recantation of his statement, was consistent with this theory.
Statements produced as exhibits
Next the appellants submitted the statements should not have been adduced, or they should have at least been edited, and a mistrial should have been declared once they had been adduced. This was because the two witnesses had been so uncooperative that the jury would disregard all their oral evidence and simply take their written statements as their evidence. The submission made at the trial, that the statements were too unreliable to be adduced, was also repeated.
We do not accept this submission. Defence counsel did not seek to have the statements edited. On appeal they have not specifically pointed to any part of the statements they consider ought to have been redacted because its prejudice outweighed its probative value or for any other reason. The prosecutor had taken the two witnesses through their statements, essentially sentence by sentence. The written statements therefore simply provided a convenient reference point for the jury. The process adopted enabled the jury to form their impression of the two witnesses having seen and heard them in the witness box, and comparing their memory of what they said with reference to their statements and notes of evidence if required. The Judge directed the jury that the evidence consisted of what the witnesses said at the trial, the statements produced and the exhibits, and they would have the notes of evidence to refer to. We agree with the Judge that the statements were not so apparently unreliable that they should not have gone to the jury. There was no error in any of this.
Unreliability warning
Lastly on this aspect of the appeal, the appellants submitted the Judge’s reliability warning was insufficient. This submission was made in the context of the Judge having ruled that he would give a warning, but it would not be in emphatic terms because there was other evidence supporting the reliability of the statements.[15] Counsel for Mr Ropiha submitted the Judge had not said the jury should be cautious about accepting anything in the statements, instead directing them that unreliable evidence could be saved if there was other supporting evidence.
[15]R v White [2016] NZDC 9391 (Ruling 8).
If a judge considers evidence may be unreliable, he or she may warn the jury of “the need for caution” in deciding whether to accept the evidence or the weight to be given to the evidence.[16] It is not necessary for the judge to use any particular form of words in giving the warning.[17] The appellants’ contention was that the Judge’s choice of words was insufficient in the circumstance.
[16]Evidence Act 2006, s 122(1).
[17]Section 122(4).
The Judge told the jury it was for them to decide what evidence they accepted but “even the Crown has acknowledged” that if all the jury had was the evidence of Mr Stronach it was unlikely they would be able to find the charges proven beyond reasonable doubt. He “urged” the jury to consider what defence counsel had to say about the evidence of Mr Stronach and Mr Roberts, including their submission that they had not had a fair opportunity to challenge their evidence because of the witnesses’ lack of cooperation. He also summarised what the defence said were the important inaccuracies in Mr Stronach’s statement. He said these matters meant it would be:
… sensible that [the jury] exercise caution when looking at the evidence of both Mr Stronach and also Mr Roberts, and particularly their written statements and that [they] should look to other evidence to see whether or not that assists [them] in assessing the reliability and the weight that can be attached to the evidence, particularly those written statements of Mr Stronach and also Mr Roberts.
This was a case where the potential unreliability of the two witnesses was obvious. Their evidence did not stand alone. It was supported in material respects by the other Crown witnesses and the physical evidence. Further, the fact the jury did not return guilty verdicts on all counts suggests the jury heeded the Judge’s warning. Three of the four charges in respect of which not guilty verdicts were returned were charges that relied on Mr Stronach’s evidence alone.[18] The Judge’s direction was full, fair, clear and correct. Nothing more was required from him.
Witness intimidation
[18]Charge two (an alleged assault on Mr Stronach in his bedroom during the first visit which was not seen or heard by the other witnesses); charge three (an alleged aggravated robbery of Mr Stronach in his bedroom during the first visit which was not seen or heard by any other witness); and charge seven (an alleged assault on Mr Stronach in his bedroom during the second visit which was not seen or heard by any other witness).
Counsel for Mr White and Mr Paterson submitted the procedure adopted by the Judge in relation to Mr Stronach and Mr Roberts allowed their hostility to be “played out” in front of the jury. This, together with what is described as the “rather hasty and sloppy” mode of evidence processes, would have given the jury the impression the appellants were intimidating the witnesses. We do not accept this submission.
It did not follow that Mr Stronach and Mr Roberts were uncooperative because they were scared of the appellants. Such a conclusion would have involved speculation on the jury’s part. There were other possible reasons for their lack of cooperation including, for example, their own criminal backgrounds and likely aversion to cooperating with police. The Judge gave a direction the jury were not to apply prejudice in their reasoning and repeated defence counsel’s submissions about not applying prejudice. This extended to the appellants’ gang connections which were just background and added nothing to the case.
The mode of evidence applications were made when it became apparent that it would assist three of the witnesses to give their evidence behind a screen. The Judge gave the usual explanation that the use of screens was simply a technique to make the witnesses feel comfortable and the jury should not read anything into the use of this technique, hold it against the appellants, or think it said anything about the appellants.
Should a mistrial have been ordered
At the conclusion of the Crown case, and after the Judge had ruled the statements of Mr Stronach and Mr Roberts were admissible, defence counsel applied for a dismissal of all charges.[19] One of the grounds for this application was that the way the trial had proceeded was so unfairly prejudicial to the defendants that it would lead to unsafe verdicts. The Judge rejected this submission.
[19]R v White [2016] NZDC 9486 (Reasons for Ruling 7); and Criminal Procedure Act 2011, s 147.
On appeal, counsel for Mr White submitted the unfair prejudice should have led to the Judge declaring a mistrial. This relied on the grounds of appeal we have already discussed and which we have not accepted. The only additional matter raised was that Mr White said he was forced to give evidence because of the lack of engagement from Mr Stronach and Mr Roberts. We do not accept this submission. It is speculative to suggest that if Mr Stronach and Mr Roberts had not been hostile, they would have accepted Mr White’s version of events. As it was, the defence were able to submit the two witnesses were too unreliable to be believed.
Claim of right direction
Counsel for Mr White submitted the Judge’s claim of right directions were inadequate. He said this was an important part of Mr White’s defence. Mr White’s position was that, on the first visit, $100 was not taken from Mr Stronach — Mr Stronach paid what he owed to Chrommie. Mr White also said Mr Stronach owed him $500. This was supported by the evidence of others who said this was part of a heated exchange at the house on the night.
We do not accept this submission. The Judge discussed this matter throughout his summing up:
(a)He directed the jury that, although Mr White had given evidence, he did not have to prove his innocence and the burden of proof remained on the Crown. He reminded the jury that Mr White’s evidence was that there was no theft of the $100, and the $500 given to him was legitimately owed to him.
(b)The Judge returned to this topic when summarising the case for the defence. He noted the contention that Mr White had a legal right to the $500.
(c)He referred to this again when discussing charge one (the aggravated burglary), charge three (the aggravated robbery of the $100) and charge 15 (the aggravated robbery of the $500).
(d)In relation to charge 15, when discussing Mr White’s claim that the $500 was a debt owed to him, the Judge directed the jury that the Crown had to prove the defendants “acted without claim of right, that is without a belief that the taking was lawful”.
(e)This direction was also set out in the jury question trail for charges three and 15.
We consider the Judge dealt with this aspect of the defence properly.
Party liability
This ground of appeal concerns Mr Ropiha’s conviction for the aggravated robbery of the $500 from Mr Stronach’s mother (charge 15). The charge list for all four defendants referred to s 66 of the Crimes Act 1961 but did not specify the basis on which any of them was said to be liable. In opening the case the Crown submitted the defendants were liable on each of the charges, whether they carried out the act themselves or as part of a group. The Crown submitted that if the person who carried out the act was guilty, “the others would also be guilty as parties because together they formed the common intention to carry out the unlawful purpose of going to Mr Stronach’s house and obtaining money from him by use of threats and violence”. Mr Ropiha’s liability on charge 15 was therefore put on a s 66(2) basis.
Mr Ropiha’s counsel submitted there was no evidence Mr Ropiha knew the $500 was going to be taken from Mr Stronach’s mother. He submitted it was reasonably possible that Mr Ropiha thought Mr Stronach was going to get the money himself from a nearby ATM or was simply going to ask his mother for the money. There was no mention of his mother at the house. He therefore submitted there was no evidence Mr Ropiha had the necessary foresight of both the physical and mental elements of the essential facts of what was to come. In other words, the commission of the offence by his two colleagues against Mr Stronach’s mother was not known to be a probable consequence of the operation.[20]
[20]See Crimes Act, s 66(2).
The Court has been unable to agree on whether to accept this submission.
The majority (French and Wylie JJ) considers it unfounded. The submission assumes the identity of the intended victim was an essential element of the offence and accordingly that Mr Ropiha was required to have foresight of the fact Mr Stronach’s mother — as opposed to Mr Stronach himself — was the intended victim. However, that approach is inconsistent with the authorities and contrary to the factual context of this case. A secondary party need not anticipate all the details of the offence actually committed, so long as they anticipate the essential matters.[21] Mr Ropiha’s counsel’s submission was therefore that one of the essential matters is the identity of the person from whom the money was to be taken. That would mean criminal liability would turn on the happenstance of whether Mr Stronach’s mother handed the money directly to Messrs White and Paterson or gave it in the first instance to her son who in turn handed it onto them.[22] That simply cannot be right either in principle or logic.
[21]R v Moroney CA10/93, 26 May 1993 at 12–13; R v Kimura (1992) 9 CRNZ 115 (CA) at 117; R v Baker (1909) 28 NZLR 536 (CA); and R v Bainbridge [1960] 1 QB 129 (CA).
[22]The majority notes the evidence was equivocal on this question.
The majority acknowledges the brevity of the Judge’s directions on charge 15 but considers that reflects the reality of the trial dynamics. Mr Ropiha’s defence was that he was participating in a legitimate debt recovery operation. The focus was thus very much on the issue of claim of right. Criticism of the Judge’s directions on charge 15 also needs to be tempered by consideration of the fact that earlier in the summing up he had already explained party liability under s 66(2) and what it was the jury needed to be sure about. The question trail for charge 15 also told the jury they needed to be sure Mr Ropiha had played some definite part to achieve the common design. In these circumstances that was sufficient.
The majority is satisfied the summing up, read as a whole, was adequate.
The majority is further satisfied the evidence against Mr Ropiha was strong and there has been no miscarriage of justice. The evidence, from a number of witnesses, established that Mr Ropiha was in the room with Mr Stronach when the plan to get money off Mr Stronach’s mother was formulated. More importantly, the evidence showed that Mr Ropiha played an active part in a plan to obtain money by intimidating Mr Stronach. The innovation to involve Ms Stronach was merely an incidental variation of detail.[23]
[23]See AP Simester and WJ Brookbanks Principles of Criminal Law (4th ed, Thompson Reuters, Wellington, 2012) at [6.4.4(4)(e)].
Justice Mallon does not agree. Her concern is that no one (neither the Crown, Mr Ropiha’s counsel nor the Judge) focussed on what needed to be proven to convict Mr Ropiha on this charge.[24] More importantly the jury question trail for Mr Ropiha on this charge proceeded as though he was a joint principal in the aggravated robbery of Ms Stronach. It simply asked whether the jury was sure that a) Mr Ropiha stole $500 from her (noting it was not necessary for a defendant to have physically taken the $500 provided he had “played some definite part to accomplish the design”); b) he had used violence or threats of violence to extort the stolen property or to prevent or overcome resistance to it being stolen; and c) Mr Ropiha was acting together with Messrs White, Peck and Paterson. The question trail on this charge was not therefore put on a s 66(2) basis. It did not ask the jury if they were sure that Mr Ropiha knew the commission of an aggravated robbery of Ms Stronach was a probable consequence of commission of the common purpose (to rob Mr Stronach). The question trail did not include any question directed to Mr Ropiha’s mens rea on this charge.
[24]The closing addresses focussed on the defence theory that Mr Stronach owed Mr White the money. The Judge’s summing up reflected the closing addresses.
In answer to this appeal point the Crown submitted nothing more from the Judge was required because this would have meant implicitly accepting the premise there had been a robbery and this would have undermined the defence theory. Justice Mallon does not accept this. The jury needed to be satisfied the Crown had proven the charge against Mr Ropiha.
In Mallon J’s view it was by no means inevitable that the jury would have concluded he had this knowledge even if the jurors had been asked to consider this (and they were not). Mr Stronach said in his statements that he was in his bedroom with Mr White, Mr Peck and Mr Ropiha when they threatened him with violence if he did not get the money. He told them he could get the money from his mother. However, this aspect of his statements was not supported by other Crown evidence. Given the Judge’s caution about Mr Stronach’s statements, it was reasonably possible that the jury would disregard this aspect of his statements. Mr Partridge, who gave the fullest account of those witnesses who were present, said Mr Stronach had told them before he left with Mr White and Mr Peck that it was “all good” and he had “just got to go for a little mish with these guys and sort it out”.
In Mallon J’s view the jury’s verdict on this charge is not safe. She would have quashed Mr Ropiha’s conviction on charge 15.
The Court, by a majority, is not satisfied there was a miscarriage of justice. Therefore Mr Ropiha’s appeal against conviction on charge 15 is dismissed.
Mr Ropiha’s sentence appeal
The Judge’s assessment of the facts for sentencing included the following findings:
(a)between the first and second visits Mr Ropiha had been enlisted by the other three men to assist with getting money or drugs from Mr Stronach;
(b)knives were obtained between the first and second visits, apparently from Mr Ropiha’s house, and all four men were aware of the presence of knives;
(c)all four men had gone to the house, which was a residential house as well as tinnie house, intending to obtain money and/or drugs by violence or threats of violence;
(d)in Mr Stronach’s bedroom a threat was made to cut off his fingers and the knives must have been produced at this point;
(e)Mr Stronach was genuinely terrified and distressed;
(f)while there may not have been overt violence and intimidation of the others in the house, the purpose was to assert control over them; and
(g)while Mr Ropiha and Mr Paterson did not go to the ATM, they enabled the offending by ordering the others at the house into a bedroom and keeping them there.
As he did in respect of all the defendants, the Judge adopted a starting point of six years and nine months’ imprisonment.[25] No uplift was applied for Mr Ropiha’s previous convictions. A discount of five months was given for the 15 months Mr Ropiha had spent on electronically monitored bail (EM bail),“[s]ome of that ha[d] been restrictive in nature, some less restrictive”.[26] This meant an end sentence of six years and four months’ imprisonment.
[25]Sentencing notes, above n 2.
[26]At [78].
Counsel for Mr Ropiha submitted the starting point was too high. He emphasised that entry was not forced, only a small amount of money was taken, Mr Stronach was unharmed, the assault on Mr Roberts was modest, Mr Stronach’s mother was not threatened or harmed, the other victims in the house were robust, and their detention was short, unobtrusive, and cannabis was consumed. Counsel referred to a number of cases and submitted a starting point of four years would have been appropriate.[27] He also submitted the discount for time spent on EM bail should have been eight months. A comparison was made with the discount of four months which Mr White and Mr Paterson each received for a period of 11 months on EM bail.
[27]Including R v Crawford [2009] NZCA 479; R v Pairama [2015] NZHC 2994; R v Dubovsky CA278/00, 16 November 2000; R v Francis [2016] NZHC 646; and R v MacCulloch [2005] 2 NZLR 665 (CA).
The Crown submitted the aggravating factors put this offending into the category of case for which a starting point of seven years’ imprisonment is appropriate.[28] The Judge’s lesser starting point reflects the matters which counsel for Mr Ropiha relied upon. The Crown submitted the cases relied on by Mr Ropiha support the starting point taken by the Judge. It submitted the discount allowed for time spent on EM bail was available to the Judge.
[28]R v Mako [2000] 2 NZLR 170 (CA) at [58].
We consider the Judge’s starting point was available to him. Some of the aggravating factors, which potentially placed the offending in the category of cases where a seven year starting point was available, were present only to a limited degree. The Judge was therefore correct to adopt a starting point at less than seven years’ imprisonment. We consider his starting point could have been lower than six years and nine months.[29] But we agree with the Crown that the cases relied on for Mr Ropiha do not demonstrate the starting point was outside the available range. We particularly note Pani v R, which has some similarities to the present case (although that case involved greater violence, there was only one victim), in which a starting point of seven years was upheld by this Court.[30]
[29]For example we consider this case was materially less serious than Wairea v R [2012] NZCA 423 in which a seven year starting point was regarded as appropriate.
[30]Pani v R [2011] NZCA 45.
The extent of the discount allowed for time spent on EM bail is left to the Judge’s discretion.[31] For 15 months on EM bail it was open to have allowed a greater discount than five months. However we note, as the Judge did, that not all of the time was spent on the most restrictive terms. We are not able to say that without a larger discount, the end sentence was manifestly excessive.
[31]Chea v R [2016] NZCA 207; and R (CA528/2016) v R [2017] NZCA 210 at [14].
Accordingly, we dismiss Mr Ropiha’s sentence appeal.
Result
Mr Paterson’s application to extend the time for filing his conviction appeal is granted. Mr Ropiha’s application to extend the time for filing his conviction and sentence appeal is granted. Mr White and Mr Paterson’s applications to extend the time for filing their sentence appeals are declined.
Mr White, Mr Paterson and Mr Ropiha’s appeals against conviction are dismissed. Mr Ropiha’s appeal against sentence is dismissed.
Solicitors:
Bamford Law, Nelson for Appellants White and Paterson
Zindels, Nelson for Appellant Ropiha
Crown Law Office, Wellington for Respondent
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