HARVEY v R [2017] NZCA 171

HARVEY v R [2017] NZCA 171 [10 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA412/2016[2017] NZCA 171BETWEEN ERUERA HARVEYAppellantAND THE QUEENRespondentCA435/2016BETWEEN LIBYA CURTIS TAMIHEREAppellantAND THE QUEENRespondentHearing: 5 April 2017Court: Randerson, Clifford and Whata JJCounsel: T Epati for Appellant HarveyN H Wright for Appellant TamihereE J Hoskin for RespondentJudgment: 10 May 2017 at 10:30amJUDGMENT OF THE COURTA Mr Harvey's appeal against sentence is dismissed.B Mr Tamihere's appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Harvey and Mr Tamihere were co-offenders in a violent gang invasion ofa family home. Mr Harvey was sentenced to five years' imprisonment foraggravated burglary and unlawful assembly.1 Mr Tamihere was sentenced to six years' imprisonment on charges of aggravated burglary, injuring with intent to cause grievous bodily harm and unlawful assembly.[2] They appeal against their sentences.Grounds for appeal[3] They appeal on the grounds that:(a) A starting point of six and a half years for Mr Harvey was excessive given his limited involvement in the offending; and(b) The Judge should have applied a discount for Mr Tamihere's youth,given that he was only 20 years old at the time of the offending.Background[4] Mr Tamihere is a patched member of the Black Power gang. Late in the evening of 10 October 2014 he was set upon by members of the Mongrel Mob. He suffered a significant head injury for which he would ultimately need surgery. Later that night he and several other members of the gang, including Mr Harvey (who was a prospect), made their way to a residential home at Childers Road to exact utu (revenge). The residents there hid while the group yelled and banged on the back door. They were told they could find who they were looking for at another home located on Karaka Street.[5] Upon arriving at the Karaka Street address Mr Tamihere was confronted by one of the complainants, Mr Green. Mr Tamihere swung a metal baseball bat at him, hitting him in the head, in the arm and in the ribs. The sentencing Judge found that Mr Harvey also entered the yard of the property about this time. Many of the group1 R v Parata [2016] NZDC 14274.were armed with weapons including sticks, bats and scooter handles, some of which were picked up at the Karaka Street address.[6] Mr Tamihere and others in the group forced their way into the house, wielding their makeshift weapons. The home was occupied by 15 people including a number of children. Mr Harvey did not enter the house. The group were eventually forced out of the house on to the front yard where a large brawl involving weapons ensued. Shortly after the police arrived and arrested the participants.[7] Shortly before trial Mr Tamihere pleaded guilty to charges of aggravated burglary, injuring with intent to cause grievous bodily harm and unlawful assembly. Mr Harvey was found guilty after trial on charges of aggravated burglary and unlawful assembly.Sentencing[8] Judge Cathcart adopted a seven-and-a-half-year starting point for Mr Tamihere's aggravated burglary and unlawful assembly charges. The Judgeagreed with the Crown that it was a "vigilante attack" motivated by the attack onMr Tamihere. He did not accept that the provocation caused by the attack on Mr Tamihere justified the violent retribution. He described the offending as a"distressing and terrifying" pack attack, with a significant amount of actual violence and damage to property. He considered the entry into a private dwelling with children at the early hours of the morning a serious aggravating factor. He concluded that this organised and violent attack required a stern response, with the sentence sending a message to gang members that this sort of behaviour will not be tolerated.[9] Judge Cathcart then uplifted Mr Tamihere's starting point by ten months toreflect the offending represented by the injuring with intent charge, resulting in atotal starting point of eight years and four months' imprisonment.[10] Turning to mitigating factors, the Judge reduced the starting point by ten months for the significant injury suffered by Mr Tamihere as a result of the attack on him. He found that this injury may have affected his thought processes during theoffending. A further reduction of ten months for the psychological effects of that injury was also applied. After discounts of four months for the time spent in electronically monitored bail and four months for his guilty pleas, an end sentence ofsix years' imprisonment was imposed. A concurrent sentence of three years'imprisonment was imposed for the injuring with intent to cause grievous bodily harm charge.[11] In sentencing Mr Harvey the Judge accepted a logical distinction had to be drawn between Mr Harvey and the offenders who entered the dwelling house. He consequently fixed a starting point of six and a half years. He also accepted that there was no direct evidence that Mr Harvey had assaulted anyone while in the enclosed yard. But, looking at the totality of evidence, the Judge concluded that thejury's verdict was far more consistent with the proposition that he was a principaloffender to the extent he entered the yard with requisite intent to assault the occupants, aware weapons were being carried. On this basis he did not accept the suggestion that Mr Harvey was simply "big-noting" in his police interview when hesaid he hit someone over the head, and made no further reduction to the starting point.[12] Turning to mitigating factors, Judge Cathcart gave a 14-month reduction foryouth, noting his concern that someone Mr Harvey's age had to go to jail. A furtherfour-month discount was applied for remorse. As a result, Judge Cathcart arrived ata final sentence of five years' imprisonment for Mr Harvey.Jurisdiction[13] This Court must allow an appeal against sentence if the appellants establish there is an error in sentence and that a different sentence should be imposed.2 We now turn to address each of the appeals separately.Mr Harvey's appeal[14] Ms Epati advances Mr Harvey's appeal on the basis that:2 Criminal Procedure Act 2011, s 250(2).(a) Mr Harvey had a minimal role in the offending. The only evidence ofMr Harvey's physical involvement came from his police video interview, in which he described setting foot just within the boundary of the enclosed yard onto the driveway to defend and remove Mr Tamihere from further assaults;(b) A starting point of around four years should have been adopted to reflect that Mr Harvey:(i) was essentially a "follower";(ii) was unarmed;(iii) did not assault anyone;(iv) only entered the property (the yard) briefly; and(c) Applying appropriate discounts for youth and remorse, the endsentence would be just over three years' imprisonment.Assessment[15] The culpability of each co-offender must be assessed by reference to the particular role each of the co-offenders played in their joint offending. As this Court stated in R v Kohey:3[20] Whilst it is vital for a sentencing Court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender'sculpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedent and taking into account any aggravating or mitigating features personal to the offender.[16] More recently this Court has said:43 R v Kohey (2003) 20 CRNZ 62 (CA).4 Shailer v R [2017] NZCA 38 (footnotes omitted).[46] The starting point involves a consideration of the offending itself, rather than considerations personal to the offender. The juristic concept of"offending" includes aggravating and mitigating features relating to thecommission of the offence. That includes, as s 8(a) confirms, the offender'spersonal culpability. A defendant may, for instance, have a secondary or limited part in the commission of the offence. Reduced culpability may reduce the starting point of the sentence.[17] We do not accept Ms Epati's central contention that the Judge gave insufficient weight to the different circumstances of Mr Harvey's offending. TheJudge acknowledged:(a) A logical distinction had to be drawn between those offenders who entered the dwelling house and Mr Harvey, which resulted in Mr Harvey's starting point being set at six and a half years;(b) There was no direct evidence that Mr Harvey assaulted anyone while he was in the enclosed yard; and(c) Mr Harvey was not part of the sustained effort by others to try to force their way into the house.[18] In addition, as Ms Hoskin submitted, Mr Harvey's statement to the policeincluded the following admissions:(a) He played a role in assembling the group of offenders, calling "a couple of [his] bros" once he heard about the attack on Mr Tamihere;(b) He smashed on the door and kicked the gate at the Childers Road property;(c) He went to the Karaka Road property to "knock people out [to] seeif they like being gang-bashed";(d) He armed himself with a tent pole once at the property, which he usedto "[smack] someone over the head" with the intention of knockingthem out; and(e) He only dropped the weapon when told to by police.[19] Ms Epati nevertheless submitted that Mr Harvey's admissions were "big-noting" and the evidence at trial showed a distinct lack of involvement. This included evidence from one of the victims (in fact a long-time friend of Mr Harvey'sfather) that he did not see Mr Harvey attacking anyone and that the only time that he saw him was on the road. Ms Epati also says that none of the occupants of the house identified Mr Harvey as actively involved in the fighting. She submitted that thissupported Mr Harvey's account that he only entered to remove Mr Tamihere fromthe melee.[20] We accept there is no direct evidence placing Mr Harvey in the thick of the invasion at any time, except his statement to the police. But, like this Court inTe Kahu v R, we think this is a proper case to defer to the sentencing Judge'sassessment of the relative culpability of the various participants.5 The Judge had the benefit of hearing all of the evidence first hand and he was in the best position to assess Mr Harvey's relative involvement in the circumstances of the offending. In any event, his admission that he "smacked someone over the head" with a "big" poleprovided ample basis for a finding of active involvement.[21] Furthermore, we are not satisfied that a substantially greater discount is warranted, given the clear support role played by Mr Harvey in what was a violent gang-related home invasion. We also observe that the totality of Mr Tamihere'soffending resulted in a cumulative starting point for him of eight years and four months. We consider a 22-month difference between starting points accurately reflects their relative involvement in the offending overall. Finally, Mr Harvey's18-per-cent discount for youth adequately recognises his overall culpability as well as the relative harshness of a lengthy term of imprisonment for him.[22] This appeal is therefore dismissed.5 Te Kahu v R [2012] NZCA 473 at [30].Mr Tamihere's appeal[23] Ms Wright submits that Mr Tamihere should have received a discount for youth like Mr Harvey, who is in fact older than Mr Tamihere. In support of this submission she refers to the psychological report prepared by Mr Peter Bowker. This report includes the following observations:(a) Mr Tamihere is from Ngāti Porou, was brought up in a loving whānauenvironment, and is familiar with his whakapapa;(b) Prior to his first conviction and imprisonment, he had not belonged toa gang, though he had been "around" a gang social milieu;(c) His whānau and his partner disapprove of his involvement, and he understands their concerns;(d) He is inclined to downplay his head injury and the impacts on him, and makes light of the fact that he was set upon by several gang members. However, the injuries were serious and required major surgery to repair a fractured eye socket with ongoing consequences for him;(e) Mr Tamihere also continues to minimise the offending by suggestingthat it was a "run-in", rather than a premeditated or planned attack;(f) Mr Tamihere presents as a reasonably bright individual who has a good level of familial support in the community, but his engagement with the Black Power gang has strengthened the likelihood of further antisocial behaviour;(g) There are a number of pro-social supports in place for Mr Tamihere,particularly from his partner and immediate whānau;(h) He has demonstrated insight into this support and there is some indication that he could be usefully engaged in exploration around this issue and his future orientation; and(i) Mr Tamihere has expressed readiness to engage in appropriate programmes within the Department of Corrections, including medium-intensity rehabilitation programmes if he is eligible and also alcohol and drug programmes.[24] Mr Bowker concludes that the court may consider Mr Tamihere is a young man with good potential to engage in appropriate programmes, and that an eventualrelease plan considering a transfer to reside with whānau in Nelson perhaps offers aneffective pathway towards a constructive and productive pro-social lifestyle into the future.[25] Ms Hoskin responds that at 20 years old at the time of offending, Mr Tamihere is not easily categorised as a youth. In any event she submits that Mr Tamihere does not trigger any of the guideline factors set out in Churchward v R.6 In particular Ms Hoskin submits:(a) This was not a fleeting or impulsive act of youthful indiscretion;(b) Mr Tamihere was not a vulnerable person, being the instigator of the offending and a lead actor throughout;(c) There is no suggestion that Mr Tamihere failed to appreciate the gravity of his offending;(d) His prospects of rehabilitation are limited due to his entrenchment in gang culture;6 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.(e) He was assessed by the Provision of Advice to the Court Report as having a high risk of reoffending, showing little remorse and continuing to minimise his involvement; and(f) He has received a previous sentence for violent offending.[26] Ms Hoskin also contends that there is no disparity between the sentences of Mr Tamihere and Mr Harvey, given that Mr Harvey:(a) Was only a prospect for the gang, and was thus more susceptible to pressure and influence;(b) Has expressed motivation to remove himself from gang culture;(c) Has displayed empathy for the victims;(d) Has showed a willingness to comply with rehabilitation; and(e) Had not previously been convicted of a violent offence.[27] Ms Hoskin also refers to R v Mako, which she submits suggests that substantial discounts for youth in relation to repeat serious violent offenders may not be appropriate where a genuine willingness to reform is absent.7Assessment[28] We accept that Mr Tamihere was the instigator of the offending and appreciated the consequences of his actions. He also may now be hardened to the positive influences of rehabilitation. But we do not accept that his actions were those of a mature adult. They were not carefully planned out. On the contrary they were the acts of an impulsive and immature young man. This Court has long recognised that adolescents do not possess either the same level of cognitive or psychological development and maturity as adults.8 Accordingly we consider some7 R v Mako [2000] 2 NZLR 170 (CA) at [65]–[66].8 R v Slade [2005] 2 NZLR 526 (CA) at [43]; see also Churchward v R, above n 6, at [77] and [79]–[81].modest recognition could have been given to account for Mr Tamihere's relativelyyoung age and immaturity.[29] We acknowledge that unlike Mr Harvey, Mr Tamihere appears to have normalised violent gang offending and become hardened against the positive influences of rehabilitation. We also consider the psychological report optimistically describes Mr Tamihere as a young man with good potential to engage in appropriate programmes. Unfortunately, he continues to minimise the consequences of his behaviour. These are strong factors militating against a significant discount for youth.[30] But participation in a gang is not an automatic bar to a youth discount. Mr Tamihere did not shed the markers of adolescence and acquire the maturity of adulthood on gaining his patch with Black Power at the young age of 19. If anything, Mr Tamihere's induction into the Black Power while serving his firstsentence of imprisonment is indicative of his youthful vulnerability to the influence of gangs. Furthermore, given his supportive whānau, we do not considerMr Tamihere's prospects of rehabilitation to be hopeless. In these circumstances, amodest discount for youth, in the order of five to ten per cent, would not have been unreasonable to recognise the effect of Mr Tamihere's immaturity on his culpabilityand to achieve a measure of parity in sentencing.[31] Overall, however, we do not consider that the end sentence was manifestly excessive.9 The Judge was very generous in providing a 20-month discount for Mr Tamihere's head injury. While the head injury is a relevant factor to be weighed,we doubt its significance as a contributor to the offending. In our view, therefore, a 20-month discount encompassing youth and the head injury is adequate in the circumstances.[32] Accordingly, the appeal is dismissed.9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].Result[33] Mr Harvey's appeal against sentence is dismissed.[34] Mr Tamihere's appeal against sentence is dismissed.Solicitors:Rishworth Wall & Mathieson, Gisborne for Appellant HarveyCrown Law Office, Wellington for Respondent