WINTER & HANSON v R [2018] NZCA 469

WINTER & HANSON v R [2018] NZCA 469 [31 October 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA690/2017[2018] NZCA 469BETWEEN JESSE-JAMES WINTERAppellantAND THE QUEENRespondentCA96/2018BETWEEN NICHOLAS ANDREW HANSONAppellantAND THE QUEENRespondentHearing: 29 August 2018Court: Miller, Mallon and Gendall JJCounsel: A J Bailey and E Huda for Appellant WinterA G James for Appellant HansonS K Barr for the RespondentJudgment: 31 October 2018 at 3.30 pmJUDGMENT OF THE COURTA Mr Winter's application for an extension of time to appeal his sentence isgranted.B Mr Winter's appeal against conviction is dismissed.C Mr Winter's appeal against sentence is dismissed.D Mr Hanson's appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Mr Winter and a co-defendant, Mr Kumar, were convicted as parties on twocharges of wounding with intent to cause grievous bodily harm and one charge of maleassaults female following a jury trial in the Christchurch District Court beforeJudge O'Driscoll.1 Shortly before trial, two other co-defendants, Mr Hanson andMs McGrath, pleaded guilty to these charges for their involvement in the groupassaults.[2] Mr Winter appeals against his conviction on two grounds. First, the trial Judgewrongly admitted a prejudicial text message sent by Mr Hanson. Secondly,the trial Judge erred in failing to provide the jury with an included lesser offence fortheir consideration. Mr Winter also seeks to appeal against his sentence of eight years'imprisonment.2 He says that, because of delay in the prosecution of the trial andthe appeal, he was unable to undertake a rehabilitation programme which impeded hisparole prospects and this should lead to a reduction in his sentence.[3] Mr Hanson appeals against his sentence of 10 years and nine months'imprisonment. This included a cumulative sentence of two years and three months'imprisonment for firearms and other charges which arose when he was apprehendedon the group offending.3 He contends the cumulative sentence was too high, having1 Crimes Act 1961, ss 66(2), 188(1) (maximum penalty 14 years' imprisonment), and 194(b)(maximum penalty two years' imprisonment).2 R v Hanson [2017] NZDC 27289 at [87]. Mr Winter also appeared for sentencing on unrelatedcannabis offending but received no additional term for this.3 This cumulative sentence was for possession of utensils for methamphetamine (Misuse of DrugsAct 1975, s 13; maximum one year's imprisonment and/or $500 fine); unlawful possession offirearms (Arms Act 1983, s 45(1); maximum penalty four years' imprisonment and/or $5,000fine); unlawful possession of explosives (ammunition) (Arms Act, s 45(1); maximum penaltyfour years' imprisonment and/or $5,000 fine); and unlawfully taking a motorcycle (Crimes Act,s 226(1); maximum penalty seven years' imprisonment). This was accompanied by breach ofrelease conditions, breach of bail and the review of supervision on which Judge O'Driscollordered a concurrent sentence of three months' imprisonment and a review of the sentence ofsupervision on those charges.regard to totality. He also appeals the 60 per cent minimum period of imprisonmentimposed on his sentence of eight and a half years' imprisonment for the group assaults.[4] Mr Winter did not file an appeal against sentence when he first filed his noticeof appeal in November 2017. It appears he first indicated an intention to appeal hissentence in his submissions filed just before the hearing of this appeal. He thus needsan extension of time to appeal. We address this issue from [65] below.The background[5] As described by the Judge at sentencing, the genesis of this offending was anargument between Ms McGrath and Daniel Hatcher, who were in a relationship, onSunday morning, 30 August 2015. Mr Hatcher went to visit a friend at a house-bus inthe Northwood area of Christchurch, where his friend's mother and her partner(Mr Ambrose) lived. Ms McGrath knew where Mr Hatcher had gone and was sendinghim texts in the course of the day.[6] The Crown case was that, at the instigation of Ms McGrath, a plan wasdeveloped to go to the house-bus that night to seriously assault Mr Hatcher.Ms McGrath first recruited Mr Hanson. He went to Ms McGrath's house in Hornbyand joined with Ms McGrath in making threats to Mr Hatcher via text messages andphone calls. Ms McGrath also sent text messages to other persons inviting them to"smash Dan". Later in the day Mr Winter and Mr Kumar, with whom Mr Hanson hadbeen in contact, joined in the plan. All three men were associated with the Bandidosgang. Mr Winter was Ms McGrath's half-brother and a flatmate of Mr Hanson's.[7] A text message placed Mr Kumar as being on the way to Ms McGrath'sHornby address at 7.52 pm. Text messages and cellphone polling data put Mr Winterat this address at around 9.54 pm. The four of them travelled in Ms McGrath's carfrom her Hornby address to the house-bus in Northwood. Mr Hanson had a knife orknives with him. The group were in the vicinity of the house-bus at around 10.20 pm.At that stage Mr Ambrose and his partner were socialising with other guests:Mr Williams and Ms Spencer. Mr Hatcher was no longer there, having left with hisfriend at around 8.30 to 9 pm.[8] Mr Hanson knocked on the door of the house-bus. Mr Ambrose came to thedoor and told Mr Hanson that Mr Hatcher was not there. What happened next isdescribed by the Judge at sentencing as follows:4[10] What then appears to have happened is what I would describe as afrenzied attack by you Mr Hanson. You initially attackedMr Ambrose. You cut him across his nose, Mr Williams came to thedoor. Mr Hanson you stabbed Mr Ambrose in the shoulder, neck, armand hand as well as his face. Mr Ambrose was kicked. Mr Hansonyou then stabbed Mr Williams in the forehead and I am also satisfiedthat Mr Williams was kicked and punched by both you Mr Kumar andMr Winter during the incident. Ms Spencer was also assaulted and atsome time her thumb was cut.[11] The four of you then left the address and went back to Ms McGrath'saddress. [9] Mr Ambrose suffered the most serious injuries. He sustained deep wounds tohis shoulder and the bridge of his nose, and an array of other wounds and lacerationsto his face, neck, forearm and hand, and some bruising to his arm and body. He wasrequired to undergo an emergency operation. The physical, emotional and financialconsequences are ongoing. Mr Williams sustained a deep laceration on his foreheadwhich required seven stitches, a superficial laceration to the back of his head, severallacerations to his hand which required seven stitches, and sore ribs and bruising.He found the violence traumatic and is very apprehensive after dark. Ms Spencer wastreated at the scene for a gash to her hand and bruising to her thigh. She too hasongoing emotional effects from the attack.[10] The Crown contended Mr Winter and Mr Kumar were parties to the woundingwith intent to cause grievous bodily harm to Mr Ambrose and Mr Williams unders 66(2) of the Crimes Act 1961. It was alleged they had agreed with Ms McGrath andMr Hanson to carry out a serious assault on Mr Hatcher, and the wounding with intentto cause grievous bodily harm of Mr Ambrose and Mr Williams was a probableconsequence of carrying out that common intention.[11] Mr Kumar accepted he travelled with others to the house-bus. His defence wasthat he did not agree with the others to carry out an unlawful act or to help with thatand he did not know Mr Hanson had a knife. Mr Winter said he travelled with the4 R v Hanson, above n 2.group but remained in the car when the others walked up to the house-bus. He alsoadvanced the same defences as Mr Kumar.[12] A key issue at trial was whether Mr Kumar and Mr Winter were aware thatMr Hanson had a knife. Amongst the text messages was a message from Mr Hansonto his girlfriend, sent at 7.13 pm on the evening of the assaults, saying "Arming up todn wht we do" (meaning "Arming up to do what we do"). Following attempts byMr Hanson to contact Mr Kumar by phone, at 7.52 pm Mr Kumar sent a text messageto Mr Hanson that he was "On my way homie". Mr Winter sent a text message to hisgirlfriend at 9.01 pm, saying he was going on a "mish". There were no messages fromMr Kumar or Mr Winter about knives or weapons, no evidence that either of them hadtaken a knife with them to the house-bus, and no evidence that either of them had usedthe knife in the assaults.[13] The Crown's case was circumstantial. The police had arrived at Ms McGrath'shouse in Hornby about 23 minutes after receiving a 111 call reporting the violence atthe house-bus. Ms McGrath and Mr Kumar were in the driveway in a car, with theheadlights on, as though they were about to leave. There was a fire in the backyard inwhich a t-shirt was being burned. Mr Kumar told the police he had just metMs McGrath and they were on a Tinder date, which was later established to be a lie.The police found a knife in Ms McGrath's handbag. Inside the house the police foundthree knives in the kitchen sink, and an empty kitchen knife block in full view on thesofa in the lounge. Forensic testing found DNA from the three victims on the knivesfound in the sink and blood on Mr Kumar's jeans. Mr Winter was not apprehendeduntil six weeks later. Text messages on his phone showed he had tried to set up a falsealibi for the evening. When interviewed about his involvement he denied knowingMr Hanson, denied he had sent the messages on his cell phone and denied knowing aperson, who was in fact his girlfriend, to whom messages had been sent.[14] The Crown contended the text messages and phone data showed Mr Kumarand Mr Winter were present at the house before they set off for the house-bus inNorthwood. Given the knife block was in plain view in the lounge, and they hadtravelled to the house-bus in the same car, the Crown argued they must have knownthat knives were being taken and that Mr Hanson was armed when he first engaged inthe attack on Mr Ambrose.Conviction appeal: the text messageDistrict Court ruling[15] At a pre-trial hearing on 14 February 2017, when all four defendants were tostand trial, the Judge tentatively indicated that all the phone and text messages wereadmissible against the authors of them (under s 27(1) of the Evidence Act 2006), andtheir admissibility against others would depend on the evidence at trial and be thesubject of directions to the jury.5[16] The trial was scheduled to commence on 3 July 2017. On 23 June 2017,Mr Hanson and Ms McGrath pleaded guilty to the charges. The Crown alertedthe Court that this changed the basis on which their phone and text messages wereadmissible. The Crown sought a ruling that they were admissible under s 22A ofthe Evidence Act. This presented challenges for the start of the trial because therewere hundreds of text messages and phone calls. However, the first trial ended in amistrial due to a juror conduct issue.6 A new trial commenced on 10 July 2017 bywhich time the Judge had been able to give his ruling.[17] Section 22A of the Evidence Act provides that a hearsay statement isadmissible against a defendant if:(a) there is reasonable evidence of a conspiracy or joint enterprise;(b) there is reasonable evidence that the defendant was a member of theconspiracy or joint enterprise; and5 As subsequently recorded in R v Kumar [2017] NZDC 14861 at [10]–[13], the Judge consideredit would be preferable to hear the evidence before determining whether the three conditionsunder s 22A of the Evidence Act 2006 were met. This was particularly so because there was theprospect of reluctant witnesses who might give evidence at variance to their formal writtenstatements.6 At [24].(c) the hearsay statement was made in furtherance of the conspiracy orjoint enterprise.[18] The Judge considered there was reasonable evidence of a joint enterprise tocause violence to Mr Hatcher. This included the evidence of animosity betweenMs McGrath and Mr Hatcher; Mr Hanson making contact with Mr Kumar andMr Winter; Mr Winter and Mr Kumar going to Ms McGrath's address; all fourtravelling together to the address where Mr Hatcher was believed to be; the presenceof all four defendants at the house-bus; the attempt to locate Mr Hatcher in thehouse-bus; the use of violence to three people at the house-bus; and travelling fromthe scene together.7[19] The Judge considered there was reasonable evidence that Mr Kumar was amember of the joint enterprise. This included a phone call made by Mr Kumar toMr Hanson; Mr Kumar's admission that he was going to Ms McGrath's addressshortly after the call; Mr Kumar being located at Ms McGrath's address around23 minutes after the violence at the house-bus; and Mr Kumar fitting evidence thatone of the males at the house-bus was Indian and wearing a blue t-shirt with stripes.8[20] The Judge considered there was also reasonable evidence that Mr Winter wasa member of the joint enterprise. This included Mr Winter's text and phone messagesand phone calls to Mr Hanson; Mr Winter's text messages and phone calls toMs McGrath; the text message from Mr Winter to his girlfriend that he was going ona "mish"; cellphone polling data, which showed Mr Winter's phone travelling fromthe vicinity of Ms McGrath's house to the vicinity of the house-bus and travelling backto Ms McGrath's house, consistent with the timing of the offending; and evidence thattwo males, in addition to Mr Hanson, had inflicted the violence.9[21] As to whether hearsay statements were made in furtherance of the jointconspiracy, the Judge referred, in particular, to Kayrouz v R that:107 At [60]–[68].8 At [69]–[70].9 At [70].10 Kayrouz v R [2014] NZCA 139 at [35] (footnotes omitted). statements made during the conspiracy will be admissible when they are"part of the natural process of making the arrangements to carry out theconspiracy". That evidence would be admissible when it could be said thatit "showed the enterprise in operation". In contrast, merely incidentalstatements even if they refer to the conspiracy or aspects of it are notadmissible if they are not intended to advance or further the common purposeof the conspiracy.[22] The trial Judge ruled that the text message, "Arming up to dn wht we do", sentby Mr Hanson to a third party, was admissible against Mr Kumar and Mr Hanson. Inthe Judge's view, this was an action done in furtherance of the joint enterprise to inflictviolence on Mr Hatcher.11The Judge's directions to the jury[23] For the jury to convict Mr Kumar and Mr Winter as parties to the woundingwith intent charges, the jury needed to be sure that inflicting really serious injury tosomeone other than Mr Hatcher was the probable consequence of their commonintention to inflict a serious assault on Mr Hatcher. In summing up, the Judge directedthe jury they could only be sure of this if Mr Kumar and Mr Winter knew, at the timethey engaged with the victims at the house-bus, that Mr Hanson was "armed".[24] The Judge referred to Mr Hatcher's evidence that he had received threats fromMr Hanson and Ms McGrath saying they were going to stab and cut him. He alsoreferred to the "Arming up to dn wht we do" text from Mr Hanson sent at 7.13 pm.He reminded the jury of the evidence about the knives and knife block found atMs McGrath's house.[25] The Judge discussed that the Crown invited the jury to infer that Mr Kumarand Mr Winter knew that Mr Hanson was taking a knife with him to the house-bus.He explained that the Crown contended it was a reasonable inference that there wouldhave been a discussion about the knife, especially because of where the knife blockhad been seen at the Hornby address a short time after the violence on the house-busoccupants. He summarised the defence contentions that Mr Hanson and Ms McGrathmay have hidden the knives; Mr Ambrose and Mr Williams had not initially seen theknives (implying it was initially concealed); a witness had described Mr Kumar as11 R v Kumar, above n 5, at [85].being in shock during the incident; and it was not a safe inference that Mr Winter hadever left Ms McGrath's car when it was parked near the house-bus.[26] The Judge discussed some other matters and then gave directions on thetext messages between Mr Hanson and Ms McGrath, messages sent by them to others,and messages received by them from others. He said these text messages were relevantto whether Mr Hanson and Ms McGrath formed a common intention to carry outsomething unlawful and whether Mr Kumar and Mr Winter agreed to participate.The Judge then referred to some of the messages the Crown relied on to show thiscommon intention. This included the "arming up" text. He said the jury could usethis to show a common intention with Mr Hanson and Ms McGrath and, if the juryfound Mr Kumar and Mr Winter joined the common intention at a later stage, the textcould be used to prove a common intention on all of the parties to carry out a seriousassault.[27] The Judge then said:I direct you, however, that the texts cannot be used by you to prove knowledgethat Mr Kumar and Mr Winter had any knowledge of the knife in thepossession of Mr Hanson. That must be proved in some other way such asthe Crown inviting you to draw the inference about the possession of the knifeby Mr Hanson from the presence of the knife box.Submissions on appeal[28] Mr Winter submits the Judge erred in admitting the "arming up" text message.He says that the action of "arming up" may have been in furtherance of the jointenterprise, but the focus under s 22A is on whether the statement was made infurtherance of the joint enterprise. He says it was not: it was not a statement to advancethe group's objectives; it was not in the nature of Mr Hanson trying to reassure aparticipant in the joint enterprise; it was not sent to a participant in the joint enterprise;it did not involve Mr Hanson attempting to recruit into the joint enterprise the personto whom he sent the text message; and the text message did not assist the enterprise.[29] Mr Winter submits the text had little probative value for the purpose for whichthe Judge directed it was relevant — whether there was a common intention to inflictserious violence. He submits its probative value was outweighed by the risk of unfairprejudice. This was particularly because the jury were aware the defendants had gangconnections as part of the evidence about the connection between the parties.The admitted facts included that Mr Winter was a probationary member ofthe Bandidos gang, Mr Hanson was a prospect of that gang, and Mr Kumar was afriend of both of them. Mr Winter says the risk of prejudice that arises in such casesneeds to be carefully managed. The jury may have reasoned that the reference to "we"in the text ("arming up to dn wht we do") referred to the Bandidos gang, and wasevidence that it was customary for Mr Hanson and the gang to arm himself with aknife when violence was contemplated.Our assessment[30] The "arming up" text was from Mr Hanson to his girlfriend when she had beenasking where he was. It was made before Mr Winter and Mr Kumar had agreed toassist Ms McGrath and Mr Hanson. It was not made to enlist them, or to instruct themor to advance their objectives. If it was admissible, it was only as evidence of the jointenterprise in operation at a time when Mr Winter and Mr Kumar were not part of thatenterprise. As to such statements, this Court observed in R v Messenger:12[21] A theory of ratification, however, may allow a statement made by aco-conspirator before a person joined the conspiracy to be admitted in orderto prove the origin, character and object of the conspiracy but not the person'sparticipation in the conspiracy when a person decides to join a conspiracyafter its inception, he or she is taken to have accepted the plan as it hasdeveloped and the steps that have already been taken towards arranging theintended unlawful acts. He or she is thus taken as impliedly ratifying the stepsalready taken by the co-conspirators in furtherance of the common purpose.[31] The Judge's directions to the jury followed this approach. The text wasadmissible to prove what the object of the joint enterprise was. It was not admissibleto prove what Mr Winter's participation in the joint enterprise was: that is, whether heintended to assist the joint enterprise to carry out a serious assault on Mr Hatcherknowing that Mr Hanson was carrying a knife. The risk of unfair prejudice was thatthe jury would use the text as evidence that Mr Winter knew Mr Hanson had a knifewhen he involved himself with the violence. The Judge's directions specifically dealtwith that risk. He made it clear that the Crown relied on the evidence about12 R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779.the defendants having travelled from Ms McGrath's house to the house-bus in the onevehicle and that the knife block was found sitting on Ms McGrath's sofa shortly afterthe violence occurred.[32] In our view it is debatable whether the text was "in furtherance of the jointenterprise". It could have been viewed as an incidental text to a third party rather thanin furtherance of the conspiracy. Some judges might have ruled the text message asinadmissible against Mr Winter and Mr Kumar on this basis. Others might have takenthe approach the Judge did here. In our view it was open to the Judge to take the viewhe did. We consider the Judge appropriately dealt with any unfair prejudice arisingfrom the text through the direction he gave. We note that had Mr Hanson not pleadedguilty, there could be no question that the text was admissible against him. The Judgewould have made a similar direction about it not being evidence that Mr Winter knewabout the knife. The jury would be expected to follow that direction. There is noreason to expect the jury not to have followed the Judge's direction here.[33] We therefore dismiss this ground of appeal.Conviction appeal: included offenceThe submission[34] Mr Winter contends the Judge erred in not providing an included lesser offencefor the jury to consider on the wounding with intent charges. The Crown casedepended on the jury being sure that Mr Winter knew Mr Hanson was armed with aknife. Mr Winter submits the jury should have been directed to consider an offence ofinjuring with intent to injure (s 188(2)) or assault with a weapon (s 202C) if they werenot sure that Mr Winter knew about the knife.[35] He notes that for the jury to convict him of those charges they needed to besure of five things:(a) Did Mr Hanson commit the offence of grievous bodily harm?(b) Was there a shared understanding or agreement to seriously assaultMr Hatcher?(c) Did Mr Winter agree to help the others participate in seriouslyassaulting Mr Hatcher?(d) Did the wounding occur in the course of pursuing the agreement?(e) Did Mr Winter know the offence of wounding was a probableconsequence of carrying out the joint agreement?[36] Mr Bailey, Mr Winter's counsel, acknowledges the Crown case on the first fourof those questions was extremely strong. He says the fifth element, as to Mr Winter'sknowledge and foresight, was the crucial and finely balanced issue.[37] Mr Bailey says the jury's assessment of this was in the context of the followingfactual background: Mr Winter had attempted to involve himself and assist with aserious assault against Mr Hatcher; three innocent members of the public were injuredas a result (one very seriously and another extremely seriously); Mr Winter andMr Kumar jointly assaulted (by kicking and punching) one of those innocent membersof the public (Mr Williams) after he had been knocked to the ground; Mr Winter wasa probationary member of the Bandidos gang; he was a friend of and lived at the sameaddress as Mr Hanson (a gang prospect), and Mr Hanson's step-father (the Bandidospresident); and the Bandidos gang customarily "arm up" to "do what we do".[38] Against that background Mr Bailey says the jury would have had a naturalreluctance to acquit Mr Winter and, by failing to provide an alternative offence,the Judge placed the jury in an "all or nothing" position.The law[39] Section 143 of the Criminal Procedure Act 2011 provides:Included offencesIf the commission of the offence alleged (as described in the enactmentcreating the offence or in the charge) includes the commission of any otheroffence, the defendant may be convicted of that other offence if it is proved,even if the whole offence in the charge is not proved.[40] An included offence is one where, on proof of all the ingredients of the majoroffence, the defendant must necessarily have committed the lesser offence.13 It hasbeen held, for example, that injuring by an unlawful act is necessarily included inwounding with intent or injuring with intent,14 and assault using a knife is necessarilyincluded in wounding with intent to injure if the wound was caused by a knife.15[41] A trial judge's obligations to put an alternative included charge to the jury, asdiscussed in R v Mokaraka,16 was summarised in McDonald v R as relevant to theissues in that case, as follows:17(a) The mere fact that an included charge is possible does not mean itmust be put to the jury. It is a matter of discretion for the trial judge;(b) There must be a live issue as to whether no more than the elements ofthe lesser charge will be proved. This is a threshold question.The jury must be squarely confronted with the possibility that all ofthe elements of the lesser charge are proved on the evidence withoutany of the elements of the principal charge;(c) Once this inquiry is cleared, the following circumstances tell againstputting the included charge: the lesser charge is trifling whereas theprincipal charge is very serious such that the lesser charge coulddistract the jury; the question of included charges is raised too late inproceedings such that prejudice results to one party in the way the trialis conducted; the inclusion of the lesser charge provides a pretext forthe jury softening its verdict where, if it discharged its duty, it couldonly find the accused guilty on the principal charge or not guilty;(d) The judge's discretion to put the included charge is broad.An appellate court will not intervene unless it is satisfied that the jurymay have convicted the accused out of reluctance to see him or her"get away" with disgraceful conduct.[42] In Mokaraka the Court had said that, it followed from the last of these points,"there may be cases — we think few — in which the trial Judge will need to take the13 R v Norris (1988) 3 CRNZ 527 (HC) at 529.14 R v Garr (1909) 28 NZLR 546 (CA) at 548; and R v Carr (No 2) [1995] 2 NZLR 339 (HC)at 342.15 R v Morgan [2005] 1 NZLR 791 (CA) at [13].16 R v Mokaraka [2002] 1 NZLR 793 (CA).17 R v McDonald [2007] NZCA 142 at [11]. The Supreme Court, in declining leave to appeal,noted that counsel did not suggest that the principles from R v Mokaraka should be reconsidered:McDonald v R [2007] NZSC 66 at [3].initiative".18 Particularly if the jury raised the possibility, the Court would need "togive serious consideration to an included charge or, depending upon thecircumstances, a warning " that they should not be reluctant to acquit because theyregard the defendant as guilty of an offence but not the offence the prosecution haslimited itself to.19 The Court also said that the trial judge " is obliged to put anincluded charge to the jury only if necessary in the interests of justice".20[43] The offending in Mokaraka involved a group of five who entered a houseoccupied by three elderly woman and a middle-aged man. Two of the group hadclimbed through the window. One of them was armed with a knife. The other(Mr Te Hira) went to the back door and let in three further men. Two of the grouprepeatedly assaulted the male occupant. Two of the group held the three women.Members of the group repeatedly asked where "the drugs" were.21 They ransackedthe house and stole various items of property.[44] Mr Ti Hira was charged with aggravated burglary on a s 66(2) basis.That offence is committed if a person committing a burglary has a weapon. It wassubject to a maximum imprisonment term of 14 years. In contrast, a burglary withouta weapon carried a maximum imprisonment term of five years. The key trial issuewas whether Mr Ti Hira knew that one of the group had a knife.22[45] Shortly after the closing addresses, the jury asked the Judge whether it waspossible for them to consider a lesser charge. The Judge declined to allow the jury toconsider the lesser alternative available on the evidence. On appeal this Courtconsidered Mr Ti Hira's conviction should be quashed. The Court was left with a realconcern that Mr Ti Hira could have been wrongly convicted of aggravated burglarydue to the jury's reluctance to see him escape any sanction for his participation in aserious case of unlawful entry with criminal intent.2318 R v Mokaraka, above n 16, at [19].19 At [19].20 At [14].21 At [4].22 At [25].23 At [34].[46] In contrast, the Court in McDonald did not have to assess the scope of the broaddiscretion it described nor how an appellate court should assess whether the jury mayhave convicted the defendant out of reluctance to see him or her "get away" withdisgraceful conduct. This was because there was no proper evidential basis for thealternative scenario which would have founded the included charge.24[47] Mr Bailey, on Mr Winter's behalf, provided submissions about the position inthe United Kingdom, Canada and Australia.25 He submits that these jurisdictions takea different approach to the New Zealand position, and he invited us to reconsider thatposition.[48] Focussing on the United Kingdom position, there are two key differences.First, it is not a matter of broad discretion for the trial judge to direct the jury on anincluded offence when one of the elements of the offence charged is in doubt butthe defendant is plainly guilty of some offence.26 The trial judge must do so wherethere is an obvious alternative offence which is raised by the evidence.27 While it maysuit either side not to have the included charge put to the jury for tactical reasons,the trial judge has a responsibility to do so in the interests of justice because:28In any criminal prosecution for a serious offence there is an important publicinterest in the outcome The public interest is that, following a fairlyconducted trial, defendants should be convicted of offences which they areproved to have committed and should not be convicted of offences which theyare not proved to have committed. The interests of justice are not served ifa defendant who has committed a lesser offence is either convicted of a greateroffence, exposing him to greater punishment than his crime deserves, oracquitted altogether, enabling him to escape the measure of punishment whichhis crime deserves. The objective must be that defendants are neitherover-convicted nor under-convicted, nor acquitted when they have committeda lesser offence of the type charged. The human instrument relied on toachieve this objective in cases of serious crime is of course the jury. But to24 R v McDonald, above n 17, at [13].25 United Kingdom: R v Coutts [2006] UKHL 39, [2006] 1 WLR 2154; Von Starck v The Queen[2000] 1 WLR 1270 (PC); R v Abdi Aziz Ali [2006] EWCA Crim 2906; and R v Hodson [2009]EWCA Crim 1590. Canada: R v Sarrazin 2011 SCC 54, [2011] 3 SCR 505. Australia: James vR [2014] HCA 6, (2014) 253 CLR 475.26 There is a seriousness threshold. For example, it has been said this does not apply to summaryproceedings: R v Coutts, above n 25, at [23] per Lord Bingham.27 R v Coutts, above n 25, at [23] per Lord Bingham, [62] per Lord Hutton, and [100] perLord Mance. Lord Rodger at [84] considers this is subject to not undermining the fairness ofthe trial. See also Von Starck v The Queen , above n 25, at 1275: "But if there is evidence onwhich a jury could reasonably come to a particular conclusion then there can be fewcircumstances, if any, in which the judge has no duty to put the possibility before the jury".28 R v Coutts, above n 25, at [12] per Lord Bingham.achieve it in some cases the jury must be alerted to the options open to it. Thisis not ultimately the responsibility of the prosecutor, important though his roleas a minister of justice undoubtedly is. Nor is it the responsibility of defencecounsel, whose proper professional concern is to serve what he and his clientjudge to be the best interests of the client. It is the ultimate responsibility ofthe trial judge.[49] Secondly, where an obvious included offence is not put to the jury,an appellate court's intervention is not subject to being satisfied that the jury may haveconvicted out of a reluctance to see a defendant "get away" with disgraceful conduct.The failure to put an obvious included offence raised by the evidence is a materialmisdirection rendering the conviction unsafe. The reason is that:29There is no reliable means by which an appellate court can measurewhether or how a jury may react to an unnatural limitation of the choices putbefore it. One is entitled to assume that juries go about their task in the utmostgood faith, but the concern is with the subconscious as well as consciousreactions. as a matter of human experience, a choice of decisions may beaffected "by the variety of choices offered, particularly when a particularchoice [is] not the only or inevitable choice".[50] The United Kingdom's position on when an included offence should be put tothe jury is neatly summed up as follows:30Where an obvious alternative verdict presents itself in respect of some morethan trifling offence and can without injustice be left for the jury to consider,the judge should in fairness ensure that this is done [51] The submissions for Mr Winter invited us to reconsider the New Zealandapproach particularly in light of the United Kingdom position. As Mr Bailey says, theNew Zealand approach to limit appellate intervention to cases where the jury may haveconvicted out of a reluctance to see a defendant get away with disgraceful conduct isderived from dicta in R v Maxwell.31 As is discussed in R v Coutts, two lines ofauthority developed: some which followed that dicta and some which did not.32R v Coutts held that this dicta should no longer be followed.29 R v Coutts, above n 25, at [99] per Lord Mance citing the reasoning of Callinan J in Gilbert vThe Queen (2000) 201 CLR 414 at [101].30 R v Coutts, above n 25, at [100] per Lord Mance.31 R v Maxwell [1990] 1 WLR 401 (HL) at 408 per Lord Ackner.32 R v Coutts, above n 25, at [46]–[60] per Lord Hutton.[52] We consider it is not appropriate for a divisional court to review the existingposition in New Zealand. The differences in approach do not concern the key principlethat an included offence must be put to the jury when, despite the tactical decision oftrial counsel, it is in the interests of justice to do so. For the reasons we go on toexplain, Mr Winter's appeal does not require an assessment to be made on the areaswhere there are differences.What happened at the trial[53] We are advised that, at the end of the aborted first trial, Mr Winter's trialcounsel invited the prosecutor to consider a plea to a charge under s 188(2). That didnot eventuate. However, at some point during the trial, Mr Winter's trial counsel alsoraised with the Judge the concern that the jury may improperly convict the appellanton the grievous bodily harm charges unless an alternative lesser charge was offered tothem for consideration. Whilst no formal ruling was given, the Judge did not accedeto that request.33 Absent any record, we do not know the Judge's reasons for this. Asthe Judge issued formal rulings on other matters arising in the trial, we infer thatinclusion of a lesser included offence being put to the jury did not assume sufficientimportance in the trial to cause the trial Judge to consider the matter in any detail.[54] The Crown had pitched its case on an all or nothing basis. If the jury were notsure that Mr Winter knew about the knife or knives, they could not convict him.The Crown's closing address therefore focused on why the jury should conclude thatMr Kumar and Mr Winter must have known about the knife.[55] This was also the focus of Mr Winter's trial counsel's closing address tothe jury. Near the outset of that address he said:They are not being charged with trying to get involved in something that wasunlawful. They are not being charged with getting involved in somethingwhich is unlawful and it leading to unfortunate significant consequences tosome victims. They are getting charged with participating in an activity andthe Crown say they knew the sort of consequences that did happen were goingto happen and, importantly, the Crown must — and you will be told thistomorrow in black and white — the Crown must prove, in relation to33 There is no transcript covering this discussion. The Crown advises there is nothing in the caseon appeal that records an application and counsel has not been able to identify any informal notethat might assist with identifying the relevant part of the hearing to be transcribed.Mr Winter, that he knew a knife or knives were being taken to the scene. Ifyou can't be sure of that then forget about everything else we've heard, youwill be directed to find the charges not proved against Mr Winter.[56] He finished with this:When you look at it, members of the jury, and when you have clearly in theback of your mind that Mr Winter must have known that the knives beingtaken to the scene, before you can go on to consider everything else, you'renot going to be near there. It would be very unfair if you say well let's justfind him guilty 'cos he might have been up to something or probably was upto something no good or wanted to be up to something no good. It would beequally unfair if you say he's got some connection with the Bandidos gang,for whatever that's worth. People aren't guilty by just association in thiscountry and it would be a very sad day if it came to that. The verdicts youshould return for Mr Winter are ones of not guilty. Thank you.[57] The trial Judge directed the jury "in the strongest possible terms" to put asideany prejudice from feelings they might have about violence, drugs and gangs orsympathy towards the complainants. He provided the jury with a question trail. Hedirected them to acquit the defendants if the Crown had not proven the elements of thecharges. He directed they could only conclude the infliction of really serious harm tosomeone other than Mr Hatcher was a probable consequence if they knew "at the timeof engagement with" the victims that Mr Hanson was armed.[58] It is apparent the jury were focused on this issue. During deliberations the jurysought clarification on when exactly the "point of engagement" was and whether itwas, for example, at the point when the stabbing commenced or the initial contact atthe door. The jury were directed this was at the stage that Mr Hanson asked forMr Hatcher and was told by Mr Ambrose that Mr Hatcher was not there.Our assessment[59] Mr Winter (and Mr Kumar) were charged as parties on a joint enterpriseliability basis to offending Mr Hanson (and Ms McGrath) had already admitted to.Section 66(2) of the Crimes Act allows the possibility of a conviction on an includedlesser charge, rather than the charge on which the principal offender(s) are convicted.It provides that the members of the joint enterprise are "a party to every offencecommitted by any of them if the commission of that offence was known to be theprobable consequence". In other words, if wounding with intent to injure or assaultwith a weapon is an offence included within wounding with intent to cause grievousbodily harm, then Mr Hanson has committed those offences, and Mr Winter will be aparty to those included offences if he knew that was a probable consequence of theprosecution of their common purpose.[60] We accept that assault with a weapon is included within wounding with intentto cause grievous bodily harm where a knife has been used to inflict the wounding.34In this case, the interests of justice did not require that it be put to the jury. For MrWinter to have been convicted as a party to this offending he would need to have hadknowledge of the knife. If he had that knowledge, then he was properly convicted asa party to wounding with intent to cause grievous bodily harm.[61] We also accept that wounding with intent to injure is included within woundingwith intent to cause grievous bodily harm.35 If Mr Hanson wounded the victims withintent to cause grievous bodily harm, he had also wounded them with intent to injurethem (grievous bodily harm being a very serious "injury"). However, in this case thereis the complication that the wounding occurred to people who were not the target ofthe common plan. It is conceivable that someone other than the target may bewounded in a plan to carry out serious injury to the target, if a member of the jointenterprise is armed with a knife. But if Mr Winter, as a member of the joint enterprise,did not know that one of their number has a knife, could the jury have been sure thathe knew as a probable consequence that someone other than the target would bewounded? In our view that would not be a safe inference. It was the knife that elevatedthe risks of the enterprise and the potential for others to be harmed in carrying out theenterprise.[62] We consider it is reasoning along these lines that is likely to have been inthe Judge's mind in not taking up defence counsel's suggestion of putting woundingwith intent to injure to the jury. This is consistent with the Judge's ruling that the juryhad to be sure Mr Winter knew about the knife. As he put it to the jury in hissumming-up:34 Crimes Act, ss 188(1) and 202C.35 Section 188(1) and 188(2).You could only conclude that the infliction of really serious injury to someoneother than Mr Hatcher was a probable consequence of the common intentionor the carrying out of the common intention to seriously assault Mr Hatcher if Mr Winter knew at the time of engagement with Mr Ambrose,Mr Williams and Ms Sinclair that Mr Hanson was armed. If you are satisfiedbeyond reasonable doubt that Mr Winter knew that Mr Hanson was armed,that may be a relevant factor as to whether the defendants knew that seriousinjury in the form of a wounding with intent to cause grievous bodily harm toothers was a probable consequence of the commission of the commonpurpose. If you are not satisfied beyond reasonable doubt that Mr Winter[knew] that Mr Hanson was armed, you could not conclude that the woundingof the two strangers in this case, Mr Ambrose and Mr Williams, was aprobable consequence of the commission of the common purpose.(Emphasis added).[63] Absent knowledge of the knife, there was no specific evidence as to the levelof violence to someone other than Mr Hatcher that Mr Winter should have anticipatedas a probable consequence. This left assault as a potential alternative.36 That was sotrifling in the context of this group violence that it was not required to be put to the juryin the interests of justice. The United Kingdom approach requires putting obviousalternatives to the jury, not any alternative at all.[64] We therefore dismiss this ground of appeal.Mr Winter's sentence appealBasis for appeal[65] Mr Winter sought an extension of time to appeal his sentence. This is on thebasis that considerable delay between his arrest and his sentencing caused prejudiceto the determination of his release on parole.[66] Mr Winter was in custody from the date of his arrest. His parole eligibilitydate was 17 June 2018. On 20 June 2018 Mr Winter appeared before the Parole Board.The Parole Assessment Report prepared for that hearing did not support Mr Winter'srelease until he had satisfactorily completed a Medium Intensity RehabilitationProgramme. The Report also stated that he had not been able to engage in thatprogramme because of his undetermined appeal against conviction. The Parole Board36 This was the Judge's view about the assault on Mr Williams' partner. On this charge the Judgedirected the jury that knowledge of the knife was irrelevant.considered it premature to consider parole and the matter was deferred fornine months.[67] Mr Winter seeks a reduction in his sentence because of this. He seeks anextension of time because he says it was not until the delay between his sentencingand the hearing of the appeal that the delay in the final disposition of the chargebecame undue. In the circumstances, we grant the necessary extension and considerthe argument on its merits.The law[68] Everyone who is charged with an offence has the right to be tried without unduedelay.37 This applies to the time that elapses between arrest and final disposition,including any appeal.38 A reduction in sentence may be an appropriate remedy forundue delay in some circumstances.39Was there undue delay?[69] Mr Winter was arrested on 16 October 2015. On 19 August 2016, a trial datefor 13 February 2017 was set. This was adjourned to 3 July 2017 on Mr Hanson andMs McGrath's application. As discussed above, the first trial ended in a mistrial, buta second trial commenced on 13 July with guilty verdicts returned on 19 July 2017.Sentencing took place on 29 November 2017. Mr Winter's conviction appeal wasfiled on 30 November 2017 and heard on 29 August 2018.[70] In summary, there were 20 and a half months between Mr Winter's arrest andhis trial, four and a half months between his trial and sentencing, and nine monthsbetween sentencing/filing his appeal and the hearing of his appeal. While shortertimeframes are desirable, that is not always possible. For example:37 New Zealand Bill of Rights Act 1990, s 25(b).38 Williams v R [2009] NZSC 41, [2009] 2 NZLR 750 at [10].39 In R v Manawatu (2006) 23 CRNZ 833 (CA) at [28] the position was left open. In Williams,above n 38, the trial Judge had reduced the defendant's sentence because of delay. In rejectingan appeal that a stay was the appropriate remedy, the Supreme Court commented that where anaccused is convicted after being on bail pending trial, a reduction in sentence is likely to be theappropriate remedy: at [18]. Where an accused is in custody, the time will count towards theservice of the term of imprisonment.(a) The adjournment of the February 2017 trial date occurred when asupplementary ESR report, identifying Mr Hanson's DNA on one ofthe knives, became available close to that date. It appears the reporthad not been completed earlier because it was first necessary to obtainsuspect compulsion orders. Mr Winter and Mr Kumar opposed theorders. The orders were granted at a pre-trial hearing inDecember 2016.(b) An issue arose after trial and before sentencing about access to medicalrecords for one of the victims.(c) On 25 May 2018 counsel filed a joint memorandum requesting adirection that Mr Winter and Mr Hanson's appeal be heard together.40An issue arose about whether this Court had jurisdiction to hearMr Hanson's appeal. This was resolved with this Court's minute dated25 June 2018.[71] At least some of the delays were therefore for Mr Winter's benefit or in hisinterest. We consider Mr Winter has not shown that his right to a trial without unduedelay was breached. We dismiss his sentence appeal.Mr Hanson's sentence appeal[72] Mr Hanson's sentence appeal concerns the cumulative sentence of two yearsand three months' imprisonment he received and the minimum period of imprisonmentof 60 per cent.The cumulative sentence[73] On 8 October 2015, the police executed a search warrant at Mr Hanson'saddress in connection with the group offending at the house-bus on 30 August 2015.They found: a used methamphetamine pipe in Mr Hanson's wardrobe; twopump-action shotguns, both with their serial numbers ground off and one cut down to40 This was also sought for Mr Kumar's appeal. However his appeal was not pursued.form a pistol grip; and 103 shotgun shells in various locations in the garage and aroundthe property.[74] On the same day, following a report of a stolen motorbike, Mr Hanson wasfound attempting to remove a battery from that motorbike. He was searched and foundto be in possession of a .22 rifle, approximately 34 rounds loaded into two magazineclips, and 39 unused shotgun cartridges.[75] He was charged with unlawful possession of firearms and ammunition,possession of a methamphetamine utensil and unlawfully taking a motor vehiclearising from these searches. The Judge regarded the firearms offending as serious.41Mr Hanson had possession of more than one firearm in different locations and accessto ammunition. The firearms were obviously intended for illegal purposes. The Judgeconsidered that looking at all of the charges together, on a totality basis, an appropriatesentence was three years' imprisonment. He discounted this by 25 per cent forMr Hanson's early guilty plea.42 That brought the sentence down to two years andthree months. He considered a cumulative sentence, on the eight and a half years'term for the group violence, was appropriate because the firearms charges weredifferent in nature and kind. He considered this did not breach the totality principle"[t]aking into account the nature and seriousness of the charges".43[76] Mr Hanson submits a cumulative sentence of no more than 12 months wasappropriate with reference to cases where the firearms charges are an aggravatingfeature of drugs offending.44 The Crown acknowledges that in cases of this kinduplifts of 12–18 months are common.45 The Crown submits a different approach isappropriate when the firearms and other offending are unrelated in time, place andcircumstances to the group violence.[77] We accept the Crown's submission. The charges arising from the8 October 2015 searches were unrelated in time, place and circumstance. It was41 R v Hanson, above n 2, at [45].42 At [46].43 At [47].44 Crutchley v R [2015] NZCA 473; Slape v R [2015] NZHC 2637; and Bidois v Police [2017]NZHC 589.45 Mills v R [2016] NZCA 245 at [18].appropriate to assess a sentence for them on a totality basis, to impose that sentencecumulatively on the sentence for the group violence and to check that this did notoffend the totality principle. This is the approach the Judge took. The cumulativesentence imposed was at the stern end of the available range, as was the sentence forthe group violence. However, as the Judge said, this was serious offending.[78] We therefore dismiss this ground of Mr Hanson's sentence appeal.Minimum period of imprisonment[79] Mr Hanson submits the minimum period of imprisonment should have been50 per cent and not 60 per cent. He says that, although he has a lengthy list of previousconvictions, the Judge took that into account in imposing a six month uplift on thestarting point for the group violence. He says his history of violent offending is limitedand is comparable to Ms McGrath's and Mr Winter's. The Judge imposed neither anuplift nor a minimum period of imprisonment on their sentences. He says the Judge'sapproach created some disparity with them. Although he had the primary role ininflicting the violence, that warranted no more than a 50 per cent minimum period.[80] We accept that amongst Mr Hanson's 45 previous convictions his convictionsfor violent offending are relatively limited in number:(a) 30 April 2015: common assault (four months' imprisonment);(b) 15 June 2013: male assaults female (community work and supervision);(c) 14 December 2008: injuring with intent to injure (two years'imprisonment); and(d) 29 August 2008: common assault (community work and intensivesupervision).[81] However, he also has convictions for possession of a knife (2013), threateningbehaviour (2012) and possession of an offensive weapon (2012). Moreover, hisconviction history displays a persistent disregard of authority, court orders, and theproperty of others. Amongst other things, he has convictions for failing to stop forpolice, failing to provide a blood specimen and failing to provide his details whenapprehended on driving offences. He has several convictions for unlawfully takingmotor vehicles, thefts and burglaries. He also has several convictions for failing tocomply with court orders.[82] The pre-sentence report writer described Mr Hanson's offence history assuggesting a high likelihood of reoffending which was unlikely to reduce unlessMr Hanson successfully addressed his significant alcohol and drug abuse and his senseof entitlement. The group violence on 30 August 2015 was his most violent offendingto date and occurred when Mr Hanson had been under the influence of alcohol anddrugs.[83] The Judge imposed a minimum period of imprisonment because the offendinginvolved serious violence and Mr Hanson had a high likelihood of reoffending and avery high risk of harm to others.46 Having regard to the need to protect the community,a minimum period of imprisonment of 60 per cent was open to the Judge.[84] It was open to the Judge to differentiate Mr Hanson from Ms McGrath for thereasons he gave. She had not offended since 2009, had not committed similaroffending and was assessed as being at a low risk of reoffending.47 It was also opento the Judge to differentiate Mr Hanson from Mr Winter for the reasons he gave.Mr Winter had a shorter list of previous convictions, his last offence was in 2011 or2012 and he was not the instigator of the group violence.48[85] We therefore dismiss this ground of Mr Hanson's sentence appeal.Result[86] Mr Winter's application for an extension of time to appeal his sentence isgranted.46 R v Hanson, above n 2, at [50].47 At [63].48 At [70].[87] Mr Winter's appeal against conviction is dismissed.[88] His appeal against sentence is dismissed.[89] Mr Hanson's appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent