DANIELS v R [2018] NZCA 62

DANIELS v R [2018] NZCA 62 [21 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA179/2017[2018] NZCA 62BETWEEN HONE RANKIN DANIELSAppellantAND THE QUEENRespondentHearing: 27 February 2018Court: Gilbert, Simon France and Whata JJCounsel: G W Walsh and M J James for AppellantZ R Johnston for RespondentJudgment: 21 March 2018 at 2.30 pmJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Daniels was convicted and sentenced to five years and 10 months'imprisonment on charges of possession of methamphetamine for supply, offering tosupply methamphetamine, assault with intent to injure, and three charges ofthreatening to kill. He appeals against his convictions on the assault and threateningto kill charges. The appeal against conviction is based on new alibi evidence.Mr Daniels appeals against his sentence claiming it was manifestly excessive.Background[2] Mr Daniels was a street dealer in methamphetamine. The evidence at trialpointed to at least seven occasions where Mr Daniels had supplied methamphetamineand 28 occasions where he had offered to supply methamphetamine. Approximately13 grams was found to be involved.[3] The background to the assault and threatening to kill charges is described in astatement to the police made by the complainant, who was Mr Daniels' partner at thetime. She would later retract several parts of that statement. The parts which survived,however, were enough to convince the jury of Mr Daniels' guilt on the assault andthreatening to kill charges. This is a summary of those parts.[4] On 9 May 2015, Mr Daniels was unwell and spent the morning in bed at thecomplainant's home. At about 1 or 2 pm, Mr Daniels woke up and was upset when hedid not find the complainant next to him in bed. They had an argument and Mr Danielsleft. Later that day, Mr Daniels rang the complainant and asked what she was doing.She told him that she was going out with a friend.[5] At some stage, the complainant's friend picked her up and dropped her off at aClarkin Road address. Mr Daniels then arrived at the Clarkin Road address.He became aggressive. He yelled at her "Do you want me to punch your head in?"She ran to the bathroom and he threatened her again. She ran out the back door andwent to a neighbour's house. She waited there for about half an hour. She told aflatmate what had happened and the flatmate rang the police. She did not want to talkto the police because she was afraid of what Mr Daniels might do. Later she waspicked up by one of Mr Daniels' friends who then picked up Mr Daniels.[6] They drove around for a time and then, at about 2 am, the complainant wasdropped off at the Clarkin Road address. The complainant says Mr Daniels spentSunday, 10 May 2015, with his daughter because it was her birthday. One ofMr Daniels' friends went to the complainant's house and found out that thecomplainant's flatmate had called the police. She told Mr Daniels this. At some stage,Mr Daniels came back to the Clarkin Road address and told the complainant to get inthe car. He drove to a carpark and one of his associates pulled up next to them.Mr Daniels said to his associate that the complainant had been speaking to the policeand had told them everything. He then turned around and grabbed the complainant bythe neck and started choking her. She had trouble breathing but did not loseconsciousness. She says Mr Daniels then pulled out a knife and turned to his associateand said "I need to cut her up". He went on to say "We need to kill her. We need toput her in the boot". He was waving the knife around while saying this. Mr Danielslater told the complainant that she needed to get out of town and he dropped her off athome. He said that if she went to the police, he would kill her sister and her sister'sbaby.New evidence[7] Ms Fontaine Anne Terei has sworn an affidavit. Ms Terei is the former partnerof Mr Daniels and has one child with him. She has a clear memory of Sunday, 10 May2015 because it was their daughter's eleventh birthday. Ms Terei provides a detailedaccount of her movements with Mr Daniels from about 10 am through to Mr Daniels'curfew at 8 pm.Appeal against convictionThe charges[8] The appeal against conviction relates to the following offences:(a) assault with intent to injure on 10 May 2015;(b) two charges of threatening to kill the complainant on 9 May and10 May 2015; and(c) threatening to kill the complainant's sister on 10 May 2015.Submissions[9] Mr Walsh submits the evidence of Ms Terei becomes critical fromthe appellant's perspective as relevant alibi evidence in relation to events alleged tohave occurred on 10 May 2015. It is said to provide a plausible account ofthe appellant's whereabouts between at least as early as 8 am to about 8 pm on 10 May2015. Mr Walsh concedes the evidence is not fresh as it could have been obtained forthe trial with reasonable diligence. But the entire episode was kept from Ms Terei toavoid her becoming aware that Mr Daniels was having an affair. The evidence is saidto be a credible and detailed account of the appellant's whereabouts at critical times.If the evidence is accepted, he submits that it provides a complete answer to the latercharges of assault with intent to injure and threatening to kill. Mr Walsh submits thatthe evidence impacts on the safety of the convictions.Threshold[10] The new evidence is not fresh. With reasonable diligence, it could have beenobtained for trial. The central issue therefore is whether there is a risk of a miscarriageof justice if it is excluded.1 The resolution of this issue depends on the credibility andcogency of the evidence.2Assessment[11] We are satisfied there will be no miscarriage of justice if the evidence isexcluded. The evidence lacks probative cogency on a material issue. As the Crownsubmits, the precise timing of events was never an issue at trial. Significantly, even ifMs Terei's evidence is accepted as true, it is not inconsistent with the complainant'sevidence that Mr Daniels spent Sunday with his daughter because it was her birthday.There was no dispute about this at trial. It was, in short, an assumed fact thatMr Daniels spent the day with his daughter. At most, Ms Terei's evidence could do nomore than emphasise this assumed fact. Furthermore, we see merit in the Crown'ssubmission that it can be assumed the tactical decision was made not to call alibi1 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and Pora v R [2015] UKPC 9, [2016]1 NZLR 277 at [39].2 H (CA240/2015) v R [2016] NZCA 57 at [25].evidence given that, on the face of the record, Ms Terei's statement was notinconsistent with the complainant's police statement.Sentence appeal[12] Mr Daniels was found guilty of supplying methamphetamine, offering tosupply methamphetamine, assault with intent to injure, and three counts of threateningto kill. Judge Spears adopted a starting point of four years' imprisonment on themethamphetamine charges. He uplifted this by 18 months for assaulting with intentto injure and, on three occasions, threatening to kill the complainant and her sister. Afurther uplift of four months for prior offending was added to this start point. An endsentence of five years 10 months' imprisonment was imposed.[13] Mr Walsh submits both the start point of four years for the drug offending andthe end sentence of five years 10 months were too high. He further submits thecumulative uplift of 22 months was excessive having regard to the totality principle.It is accepted that the sentencing Judge correctly identified that the offending fellwithin band two of R v Fatu which states that starting points of three to nine years'imprisonment are appropriate for supply of methamphetamine between five grams and250 grams.3 However, Mr Walsh says sentences for comparable offending haveattracted starting points of between three and three and a half years.4 In terms of theuplifts, Mr Walsh refers to Taingahue v NZ Police.5 In that case, sentences of nine to12 months' imprisonment were identified as appropriate for assaults with intent toinjure.3 R v Fatu [2006] 2 NZLR 72 (CA) at [34].4 Referring to R v Whakatihi HC Palmerston North CRI-2011-054-463, 12 October 2012;R v McIntosh [2012] NZHC 3110 and Sun v Police [2015] NZHC 414.5 Taingahue v Police HC Wellington CRI-2009-485-75, 17 August 2009 at [16].Assessment[14] The key issue is whether the sentence was fairly within the range of sentencesavailable for offending of the present type and scale.6 It involves two dealing chargesinvolving approximately 13 grams of methamphetamine.[15] A starting point of four years is not out of the range for this offending. It wasthe starting point suggested as appropriate by the Court in Sun v Police for offendinginvolving a slightly larger quantity of methamphetamine (14.5 grams).7 In addition,while starting points of three years and six months' imprisonment have been adoptedfor similar levels of methamphetamine offending, it is important to take into accountthe role played and the charges faced by Mr Daniels. He was charged as a supplierand active street dealer. This distinguishes this case from the facts in R v Whakatihicited by Mr Walsh. A starting point of three and a half years' imprisonment wasadopted in Whakatihi but that was for a single charge of possession for supply of14 grams of methamphetamine.8[16] Similarly, an uplift of 22 months for the violence offending and priorconvictions is not excessive. Strangulation is serious violence offending, particularlyin a domestic context involving a vulnerable victim. There were multiple threats tokill, including a threat against the complainant's sister. In combination, this offendingwas markedly more serious than the offending in Taingahue. That case involved astart point sentence of 12 months for a single assault with intent to injure.9Furthermore, Mr Daniels' offending was in response to the complainant allegedlyspeaking to the police about his drug offending. This was an aggravating factor. Whilehe was not charged with attempting to pervert the course of justice, intimidation ofthis kind must be deterred. If anything, the uplift was light.[17] The appeal against conviction and sentence is dismissed.6 Criminal Procedure Act 2011, s 250.7 Sun v Police, above n 4, at [3]–[5].8 R v Whakatihi, above n 4, at [2]–[3], and [15].9 Taingahue v Police, above n 5, at [16].Solicitors:Crown Law Office, Wellington for Respondent