TE HIKO v R [2019] NZCA 41

TE HIKO v R [2019] NZCA 41 [8 March 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA321/2017[2019] NZCA 41BETWEEN JAMES WILLIAM MANUOA TE HIKOAppellantAND THE QUEENRespondentHearing: 13 February 2019Court: Miller, Simon France and Peters JJCounsel: DRF Gardiner for AppellantK S Grau for RespondentJudgment: 8 March 2019 at 10.00 amJUDGMENT OF THE COURTA The application for leave to adduce new evidence is granted.B Both appeals are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Te Hiko appeals both his conviction for the murder of Nina Thompson andthe minimum period of 17 years attached to his sentence of life imprisonment. Headmits manslaughter but says that because he was impaired by alcohol and drug usehe lacked murderous intent, and he claims that the evidence does not sustain aninference that he used a weapon (a steel pipe or bar). He says that trial counsel did notadequately advance his case on these issues. With respect to sentence, he says that thecrime was not sufficiently brutal or callous to engage s 104(e) of the Sentencing Act2002.The Crown case[2] Ms Thompson was killed at the home she shared with Mr Te Hiko. There wereno eyewitnesses apart from Mr Te Hiko, whose evidence was plainly rejected by thejury, and also by the trial Judge, Gilbert J, at sentencing.1 The Crown case rested onforensic evidence showing that Ms Thompson was beaten to death in the bedroom.A steel pipe was found with a hair and contact bloodstains on it. The blood was hers.She had many wounds, some defensive in nature. Head injuries caused her to loseconsciousness and inhale blood, and perhaps vomit, which blocked her airways.Mr Te Hiko called the police the following morning. He admitted killingMs Thompson with his hands and feet.The trial[3] The Crown called 24 witnesses, including a pathologist, Dr Simon Stables,who recounted Ms Thompson's injuries in detail. He counted at least 70 separateinjuries. The pipe could have caused some of them, based on their size, depth andwell-defined impact. There were no skull fractures, but deep injuries to the brain stemsuggested that she had experienced blows that caused the brain to move and twist, withrapid loss of consciousness following. Under cross-examination Dr Stables acceptedthat most of Ms Thompson's injuries would not have caused death and he could notexclude other causes of brain trauma, such as falling against furniture.[4] Mr Te Hiko deposed to his addiction to methamphetamine and abuse of alcoholand his efforts to seek treatment. He had been waiting for a place in a residentialtreatment facility at the time of the killing, which was triggered by conflict afterMs Thompson invited people around to drink, contrary to an agreed "safety plan"designed to keep him sober. He ended up drinking and he also smokedmethamphetamine, as he was prone to do after drinking. An argument developed after1 R v Te Hiko [2017] NZHC 1260 [sentencing notes].the guests left. He threatened to leave Ms Thompson, and she gave him to understandthat she may have been unfaithful but refused to name the other man. He attacked her.This action he attributed to the effects of methamphetamine. The assault continuedfor maybe 30 minutes. He admitted punching her in the head and kicking her bodybut denied using the pipe.[5] Mr Te Hiko's cross-examination did not go well for him. The prosecutor beganby establishing that he claimed to have hit her many fewer than 70 times, then had himconcede that he was acting purposefully, punishing her for refusing to name the otherman. He admitted that he was very angry. He claimed that he never used the steelpipe. He claimed to have no memory of parts of the incident yet could recount how hehad kicked her. He accounted for her blood on the pipe by saying the police or ESRmust have planted it. There was evidence consistent with him having nomethamphetamine that evening; he had texted someone asking if they could supplyhim.[6] The defence advanced in closing was that the Crown could not establish thatMr Te Hiko acted recklessly, knowing that he might kill. Counsel argued that he wasaffected by intoxication, suggesting that he had no real understanding of how severethe beating was. Transference could explain blood on the pipe.The appeal[7] There are now three grounds of appeal. Mr Te Hiko first says he was notadequately prepared to give evidence, and so suffered in cross-examination. For thishe blames trial counsel, Mr Edwards, saying that insufficient time was spent briefinghim. Both men have sworn affidavits and Mr Edwards was cross-examined before us.[8] Second, Mr Te Hiko says that the implications of his drug addiction formurderous intent were not adequately explained. He seeks leave to adduce theevidence of his drug counsellor, Tokerau Putai, who deposes to Mr Te Hiko's addictionand genuine attempts to gain control over it. He explains that psychosis was a riskfactor for Mr Te Hiko when under the influence of methamphetamine. We observethat this evidence does not go so far as to suggest Mr Te Hiko may have lackedmurderous intent.[9] Finally, Mr Te Hiko contends that too much was made of the metal bar. Heargues that it is unlikely to have been used. He points to blood spatter on the bedroomceiling, suggesting that it was in a pattern inconsistent with use of the bar.[10] As to sentence, Mr Te Hiko says that the killing lacked the degree ofcallousness and brutality required for s 104.Conviction[11] We deal first with the allegation of counsel error. We are satisfied that therewas no error, still less of the magnitude necessary to occasion a miscarriage of justice.[12] We begin by recording that Mr Edwards accepts it was not easy to meetMr Te Hiko before trial. The trial was to be held at Rotorua, but Corrections heldMr Te Hiko at Rimutaka Prison and refused to transfer him to Waikeria Prison untilshortly before trial. Mr Gardiner, for the appellant, sought to establish throughMr Edwards that Mr Te Hiko might have been moved earlier had counsel only triedharder.[13] It may bear repetition that this Court has often said that deficiencies in trialcounsel's effort or process do not suffice in themselves. On a counsel error appeal itis necessary to show that (a) but for counsel's failings something else likely wouldhave happened and (b) there is a real risk that a miscarriage resulted.2[14] Here the 'something else' was that, had counsel tried harder, Mr Te Hiko wouldhave been made available for in-person meetings and would have been better briefed.Mr Gardiner put the first of these claims to Mr Edwards, but proof would have requiredevidence about Corrections' processes. There was no evidence that Mr Te Hiko'stestimony would have differed either. The evidence actually was that Mr Te Hiko isan intelligent man who took a close interest in the case, and was made aware of theCrown evidence, and had a brief of evidence prepared based on his own diary of events2 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J. See also R v Clode[2008] NZCA 421, [2009] 1 NZLR 312; Loffley v R [2013] NZCA 579; Gosnell v R [2014] NZCA217, [2014] 3 NZLR 168; Hall v R [2015] NZCA 403, [2018] 2 NZLR 26; Kaka v R [2015]NZCA 532; Langley v R [2016] NZCA 71; and Ross v R [2017] NZCA 587.as he recalled them. The brief was clearly written to advance the defence that in hisintoxicated state Mr Te Hiko did not subjectively appreciate the risk that the beatingmight kill. He understood that murderous intent was the issue. Mr Gardiner wasunable to point to any specific respect in which Mr Te Hiko's evidence would havediffered from the brief, or from the account he gave in evidence.[15] That being so, the argument came down to the proposition that, had Mr Te Hikobeen better prepared, he would have presented more sympathetically to the jury. Theshort answer is that we accept Mr Te Hiko did not present well and we have noted thatcross-examination went badly for him, but it could hardly be otherwise given thenarrative he offered in evidence. The slightly longer answer is that Mr Edwards'testimony, which accords with our reading of the evidence at trial and on appeal, isthat Mr Te Hiko is a strong-willed person who wanted to tell the story his way and wasconvinced the jury would believe him. We observe that this is not a case in which anappellant blames counsel for having advised him to give evidence, or for his failure toplead guilty in the face of an overwhelming Crown case. Mr Te Hiko's stance remainsthat he is not guilty of murder and his evidence ought to have been accepted.[16] We turn to the claim that the steel pipe assumed more evidential significancethan it could bear. Mr Gardiner did not suggest that the prosecutor misstated theevidence, or that the Judge did so in summing up. He argued rather thatMs Thompson's wounds did not necessarily prove the pipe was used and that, had itbeen used, there would have been more blood spatter. This reduces to an argumentthat it was not open to the jury to draw the inference that it was used. We do not agree.We find the inference well-nigh irresistible.[17] As noted, Mr Putai's evidence does not assist Mr Te Hiko on the convictionappeal. It recounts sympathetically Mr Te Hiko's struggle with addiction and hisefforts to get help, but that is all. The possibility that Mr Te Hiko was so affected bymethamphetamine as to lack murderous intent was squarely before the jury. It cannotbe said that their verdict was unreasonable.Sentence[18] Gilbert J found Mr Te Hiko a man of considerable intelligence and abilitywhose downfall is attributable to drug and alcohol abuse. Despite a disadvantagedbackground, Mr Te Hiko attained qualifications as a bushman and logger and a riggerand scaffolder, and he worked successfully for long periods in those industries.[19] However, the Judge found that s 104(1)(e) of the Sentencing Act was "squarelyengaged".3 The murder was committed with a high degree of brutality andcallousness:[28] You punched and kicked Ms Thompson at least 70 times withtremendous force. You lifted her off the ground by her hair on severaloccasions and continued to attack her while she was unconscious andcompletely defenceless. You also struck her several times with the heavy ironpole including on her head and body. It would have been clear to you thatMs Thompson was unconscious and fighting for her life, yet you chose not toseek medical attention for her.[20] The Judge did not discern remorse; on the contrary, Mr Te Hiko sought tominimise what he had done and still had not accepted full responsibility. Nor did theJudge accept that Mr Te Hiko was heavily affected by drugs and alcohol at the time ofthe killing. He also noted that Mr Te Hiko has a number of convictions for maleassaults female.[21] As in the High Court, the argument that s 104 was not engaged proceededbefore us on the premise that the facts were as Mr Te Hiko claims. We are satisfiedthat the facts were as the trial Judge found.[22] However, we have recognised that Mr Te Hiko was trying to deal with hisaddiction and attempting to keep alcohol and drugs out of the home. There was nopremeditation, and although he ought to have called an ambulance he evidently hopedMs Thompson would recover. He did not deny that he had killed her. This is not acase in which the offender delayed seeking help, or interfered with evidence, to3 Sentencing notes, above n 1, at [27].distance himself from the crime, so adding callousness to brutality.4 Murders in whichdeath resulted from a severe or sustained beating are not uncommon, and they are notnecessarily made more brutal because a weapon was used.[23] We asked counsel to provide us with a table of comparable cases, so that wemight test the proposition that this murder did not engage s 104(1)(e). We observethat in some of those cases MPI starting points of fewer than 17 years were adoptedfor murders in which victims were beaten to death,5 but in others s 104(1)(e) wasapplied.6 We have also considered some additional authorities in which starting pointsof 17 years or more were adopted in comparable circumstances.7 The beating in thiscase was savage and prolonged. Having regard to the comparable cases, it cannot besaid that the Judge erred by applying s 104(1)(e).[24] Mr Gardiner did not invoke manifest injustice, but we record that Mr Te Hiko'spersonal and mitigating circumstances fall well short of establishing it here. He hassome commendable personal qualities, and he was seeking to deal with the addictionthat may have contributed to the murder, but these considerations are offset by his pasthistory, absence of remorse, and the sheer brutality of the attack.4 See for example Akash v R [2017] NZCA 122. See also R v Fenton HC Whangarei CRI-2006-088-3599, 28 February 2007; R v Haerewa HC Wellington CRI-2010-085-4794, 6 September2011; and R v Eddy [2014] NZHC 1543.5 See for example R v Ngeru HC Wellington CRI-2008-085-5996, 11 December 2009; R v PiriniHC Whangarei CRI-2010-027-0448, 22 April 2010; R v Berry HC Auckland CRI-2010-092-2165,7 December 2010; R v Callaghan [2012] NZHC 596; R v Eddy above n 4; and R v Akuhata[2015] NZHC 1098.6 See R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602; Lavemai v R [2016] NZCA 363; andAkash v R, above n 4. See also R v Uluakiola HC Auckland CRI-2005-952-2580, 17 March 2006;R v Fenton, above n 4; R v Arnopp HC Palmerston North CRI-2006-054-5847, 29 February 2008;R v Sikuvea HC Wellington CRI-2007-032-1449, 25 July 2008; R v Terewa HC Rotorua CRI-2009-087-2744, 19 February 2010; R v Haerewa, above n 4, ; R v Wara HC Hamilton CRI-2010-019-5681, 30 September 2011; R v Gosnell [2013] NZHC 1313; R v Findlay [2017] NZHC 2551;and R v Puna [2018] NZHC 79.7 Akash v R, above n 4; Wallace v R [2010] NZCA 46; and R v Williams [2005] 2 NZLR 506 (CA).Also see R v Uluakiola, above n 6; and R v Haerewa, above n 4.Result[25] The application for leave to adduce new evidence is granted.[26] The conviction and sentence appeals are dismissed.Solicitors:Crown Law Office, Wellington for Respondent