HOWARD v R [2018] NZCA 633

HOWARD v R [2018] NZCA 633 [21 December 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA189/2018[2018] NZCA 633BETWEEN KERSHAW NGATAPIRI HOWARDAppellantAND THE QUEENRespondentHearing: 25 October 2018Court: Brown, Courtney and Katz JJCounsel: J W Mackey for AppellantJ E L Carruthers for RespondentJudgment: 21 December 2018 at 12.30 pmJUDGMENT OF THE COURTA The appeal is allowed.B The appellant's sentence of 10 years and three months' imprisonment forintentionally causing grievous bodily harm is quashed and substitutedwith a sentence of seven years and 10 months' imprisonment, cumulativeon the sentence for CRN 16044005935.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In the early hours of 28 June 2015, there was an incident at an address in theAuckland suburb of Point England in which a young man, Owen Talatau, was shot inthe face. Following a trial before Judge R G Ronayne and a jury, the appellant,Kershaw Howard, was convicted of being party to causing grievous bodily harm withintent to do so and of presenting a firearm. The Judge imposed a sentence of 10 yearsand three months' imprisonment to be served cumulatively on a sentence of four yearsand two months' imprisonment for aggravated robbery that Mr Howard was alreadyserving.1[2] Mr Howard appeals the sentence on the basis that the Judge erred by:2(a) sentencing on an incorrect factual basis;(b) taking too high a starting point; and(c) failing to consider totality.The offending[3] Mr Howard was 27 years old at the time of the offending. The principaloffender in the assault on Owen Talatau was Mr Howard's 16-year-old neighbour,Tevita Tukia.[4] On the night of 27 June 2015, a group had gathered at the Talatau family hometo socialise and watch a rugby game. At some time after midnight, Mr Tukia walkedpast the address. There was a scuffle between him and Owen Talatau's friend,Allen Malau. Mr Tukia was drunk. Other people present told him to go home, whichhe did.[5] Some hours later, a neighbour of Tevita Tukia and Mr Howard saw Mr Tukiago to Mr Howard's house and Mr Howard give Mr Tukia a rifle. The two then droveoff in Mr Howard's white Mercedes. At about 3 am, Owen Talatau saw Mr Tukiareturn to the Talatau property in the vehicle. There seemed to be other people in thevehicle but only Tevita Tukia got out. He was holding a metal object (possibly a1 R v Howard [2018] NZDC 5820.2 Mr Howard also filed an appeal against conviction, but this was subsequently abandoned.machete) and stood outside the house hitting the front fence and screaming andcursing. Eventually he got back into the vehicle and it drove away.[6] At about 3.30 am, the white Mercedes returned to the Talatau property.There were at least three people in it, including Mr Howard, Mr Tukia and Mr Tukia'sfather. Those still present at the Talatau's address included Owen Talatau and hisbrother Oliver Talatau, Owen's partner, Jacinta Tatireta, and their friends, Allen Malauand Elifasa Sopi. At about the same time, Tevita Tukia's sister, Meleana Tukia, whohad been out looking for her brother, also arrived at the address. Of all those presentit appears that only Meleana Tukia was sober.[7] Within a short time Tevita Tukia tried to engage Allen Malau in a fight.Meleana Tukia tried to calm her brother down. Mr Tukia Snr became involved in afight with some of the other people. All the witnesses were agreed that Tevita Tukiapointed the rifle at Owen Talatau and shot him. There were, however, inconsistenciesin the various accounts as to what Mr Howard was doing during this time and how therifle came to be in Tevita Tukia's hands.First and second grounds of appeal: the factual basis for sentencing and thestarting point[8] The first two grounds of appeal overlap so we deal with them together.Mr Mackey, for Mr Howard, argued that the Judge wrongly sentenced Mr Howard onthe basis that his culpability was equal to that of Mr Tukia and, as a result, took toohigh a starting point.The factual basis for sentencing[9] The Judge sentenced on the basis that Mr Howard had handed the gun toMr Tukia immediately before Mr Tukia shot Owen Talatau. Mr Mackey, forMr Howard, argued that there was no evidential foundation for the Judge to proceedon that basis.[10] The Crown case had been that Mr Howard was in the Mercedes when it arrivedat the Talatau property at 3.30 am, and that he got out of the vehicle with the gun andpointed it at Allen Malau before handing it to Tevita Tukia, who then shotOwen Talatau. But other witnesses described Mr Tukia being handed the gun by anunidentified person sitting in the vehicle. The Judge sentenced Mr Howard on thefollowing basis:3 Mr Tukia exited the front passenger door of your vehicle and began yellingand swearing at the group. You exited the vehicle, you were holding the rifleand you pointed it in the direction of the group. Mr Tukia's father becameinvolved in a physical altercation with at least one person at the address; atsome point during that altercation he was lying on the ground.The victim of your offending, Mr Talatau, was standing near to where thealtercation was taking place. You gave the rifle to Tukia, he raised it uppointing it directly at the victim who was standing approximately 10 metresfrom him, he fired the weapon resulting in one round hitting the victim in theface. (Emphasis added.)[11] Under s 24(1) of the Sentencing Act 2002, a court must accept as proved allfacts that are essential to a finding of guilt and "may accept as proved any fact thatwas disclosed by the evidence at the trial". Where the evidence at trial would supportmore than one factual conclusion, it is the Judge's responsibility to identify the factshe or she finds established, provided that the finding is not inconsistent with the jury'sverdict.4 The position is summarised in R v Connelly:5The Judge in a jury trial is effectively the thirteenth fact finder.Where, following a verdict(s) of guilty the Judge is required to sentence aprisoner the Judge is entitled, where the evidence supports it, to reach his orher own view of the facts relevant to sentencing provided that such a view isnot inconsistent with the verdict The Judge is not bound to accept theversion of facts most favourable to the prisoner.[12] The Crown case focused on Ms Tukia's evidence; in closing, the prosecutordid not refer to the evidence of the other witnesses at the scene, all of whom differedfrom Ms Tukia. Ms Tukia gave evidence of seeing her brother arrive at the address inthe white Mercedes. She said that there were four people in the car, three of whomshe knew. She saw her brother get out of the car from the rear passenger seat.She walked down towards the car to speak to her brother. Allen Malau had also come3 R v Howard, above n 1, at [4]–[5].4 R v Lunjevich [2012] NZCA 454 at [9]; and B (CA58/16) v R [2016] NZCA 432 at [75]–[76].5 R v Connelly [2008] NZCA 550 at [14].down. She saw Mr Tukia and Allen "going off at each other". She then describedseeing "Ski" (Mr Howard) get out of the car. She said:Um he had a gun and he held it up, and it was pointing towards Allen.[13] She told Mr Howard to put the gun away. At that stage, her father, Mr TukiaSnr, got out of the car. He got out from the rear seat on the driver's side. Ms Tukiatold her father to get back into the car, which he did. But later he got out againMs Tukia described what happened next:A: Allen and – oh Owen and Oliver and their group also came downtowards where myself and my brother and Allen and (inaudible) I(inaudible) got out of the car again and ended up in a fight withsome boys or a boy. I don't know their names. And that time mybrother was still just trying to fight with Allen just over the glasses orwhatever it was, ah, he was still doing the same thing. I, like, thoughtmy dad would be alright, like, he could take the hiding I stoppedfocusing on my brother (inaudible) tell them to stop bashing my dadand then the time that I turned away from my brother, he ended upwith the gun. I heard it, the gunshot. By then they, or the person thatwas giving my dad a hiding, stood back but when I turned my brotherhad the gun.Q: And how much time would you say passed from when you last sawSki pointing the gun at Allen to the time that your brother had the gun?A: I just turned to tell him to leave my dad alone and my brother had thegun.Q: And at this point your dad's being beaten up by someone?A: Yes.Q: Focused on him, is that right?A: Yes.Q: And then you said you turned around and the next thing you see isyour brother Tevita's holding the gun and then your brother shot thegun?A: Yes he shot once.(Emphasis added.)[14] In comparison, Owen Talatau said:So after Tevita was calling for his dad he quickly ran back to the person sittingin the passenger seat of the vehicle where he received the rifle and that's wherehe started turning then pointing it at us.[15] Oliver Talatau did not see how Mr Tukia got the rifle. Jacinta Tatireta, whoseevidence was read by consent, saw a male get out of the left rear door of the vehicle,approach the front passenger door and the male in the passenger seat hand the firstman a firearm. Shortly afterwards she heard a loud clicking noise and sawOwen Talatau holding his face.[16] Allen Malau, whose statement was read by consent, was standing in the middleof the road further up from the address. He said that a man got out of the left rearpassenger door and pulled out a "gat (a long barrel of a rifle gun)" and then pointed itfirst at him, then at two of the people with him, each in turn, and then at Owen, whomhe shot.[17] Elifasa Sopi (whose statement was read by consent) said:The guy's sister was talking to the guy that had been threatening Allen andhad managed to get him to go back to the car. This guy's dad was windingeverything up again and was making everything worse again. This made this young guy who had been talking to Allen angry again.This guy went to the car and was passed something by the driver which turnedout to be what looked like as a rifle type weapon.He pointed this rifle in an aiming type hold as if looking down a range at Ollie that were about ten metres away from him.[18] Although it was open to the jury to find that that an unidentified person handedMr Tukia the rifle from inside the car, it was equally open to it to infer from Ms Tukia'sevidence that Mr Howard got out of the vehicle with the gun and then handed it toMr Tukia. In our view, the jury must have accepted Ms Tukia's account because onlythat account could have supported the guilty verdict on the charge of presenting afirearm; only Ms Tukia described Mr Howard pointing the firearm at other membersof the group. It follows that Mr Howard had the firearm initially and Mr Tukia couldonly have obtained it from Mr Howard.[19] In these circumstances, the Judge was bound to sentence on the basis thatMr Howard handed the gun to Mr Tukia. There was, therefore, no error in the factualbasis on which the sentencing proceeded.The starting point[20] Mr Mackey's alternative argument was that the Judge took a starting point thatwas higher than that taken for the principal offender, Mr Tukia, and failed to properlyreflect Mr Howard's actual culpability.[21] Mr Tukia had been sentenced the previous week by Judge H M Taumaunu,who had identified nine years' imprisonment as an appropriate starting point for theoffending but adjusted it to eight years to reflect the influence of Mr Tukia's father:6If the influence of the father was not a factor in this case, I would have had nodifficulty in simply accepting the Crown's position that the starting pointshould be nine years' imprisonment. I have reached the conclusion today thatthere should be some adjustments to that starting point to reflect the true natureof the influence of the father in terms of this offending and I adopt the startingpoint of eight years' imprisonment to reflect that particular factor, bearing inmind the other aggravating factors that I have already borne in mind.(Emphasis added.)[22] It appears that Judge Ronayne did not have access to Judge Taumaunu'ssentencing notes and did not fully appreciate the basis on which Mr Tukia's sentencingproceeded. He simply said that it had been drawn to his attention that the startingpoint taken for Mr Tukia was eight years and emphasised that Mr Tukia had only been16 years old at the time.7 He then turned to consider Mr Howard's position:8The aggravating features of your offending are these: first, the offendinginvolved extreme violence. This offending must have been quite literallymillimetres away from being a homicide. Pointing a loaded gun at someone'sface and pulling the trigger is, frankly, as bad as it gets when it comes toviolence. I also bear in mind, Mr Howard, that you repeatedly sought out thisconfrontation and violence so the level of violence as an aggravating featureis present to a high degree, in my view.Secondly, and arising from that last remark I have just made, is the level ofpremeditation in your offending. This was well planned, you deliberatelyarmed yourself and you went twice to the scene with weapons. You providedyour car, you provided your gun, you handed it, twice, to Mr Tukia and yougave your obvious and active support. You, yourself, had of course, presentedthe firearm, pointing it at the other group just before handing it to Mr Tukia.The level of premeditation in the offence is present to a high degree.6 Police v Tukia [2016] NZDC 4420 at [21].7 R v Howard, above n 1, at [8].8 At [9]–[10] and [13].Parity is a principle of sentencing but your involvement as a co-offender, asidefrom not pulling the trigger, is indistinguishable from Mr Tukia. As I havesaid, he was a youth at the time. For your offending, I take a starting point ofnine and a half years' imprisonment. (Emphasis added.)[23] Mr Carruthers, for the Crown, acknowledged that the Judge's reference toMr Tukia's age was an error but contended that the starting point of nine-and-a-halfyears was available because the Judge could properly have sentenced on the basis thatMr Tukia was under his father's influence at the time, which justified the lower startingpoint. In the circumstances, Mr Howard could be regarded as the more culpable of thetwo. Mr Carruthers also argued that, in any event, the conventional application ofR v Taueki indicated that the starting point of nine-and-a-half years was appropriate.9This was street violence that was premeditated, involved the use of a lethal weaponbrought to the scene and an attack to the head in an extremely violent manner resultingin serious injury.[24] We do not accept the first of these submissions. The material before ussuggests that the Judge was unaware of the basis on which Mr Tukia was sentenced.To the contrary, his description of Mr Howard's culpability as "indistinguishable"from that of Mr Tukia suggests that he intended to sentence on the basis that they wereequally culpable.10[25] Although there have been cases in which the person actually firing the shot hasbeen treated as more culpable,11 it is not invariably the case. In R v Huata, forexample, Collins J treated the principal and party as equally culpable and took thesame starting point for both the principal offender, who shot the victim, and the party,who drove the getaway car.12 There is no reason, in principle, that the starting pointfor a principal offender and a party should not be the same, if the circumstances of theoffending warrant that.13 Conversely, there is no reason, in principle, that the9 R v Taueki [2005] 3 NZLR 372 (CA), at [40]–[41].10 R v Howard, above n 1, at [13].11 See for example R v Raroa [2012] NZHC 1280.12 R v Huata [2012] NZHC 2735. See also Huata v R [2013] NZCA 470, where one of the groundsof appeal raised by the party to the offending was that the starting point of 11 years' imprisonmentfor wounding with intent to cause grievous bodily harm was too high. This Court concluded thatthe starting point was available to the Judge and appropriate (at [22]).13 R v Mako [2000] 2 NZLR 170 (CA) at [64]; and R v Smart CA57/94, 24 May 1994.culpability of the party could not be greater than the principal, resulting in a higherstarting point, though that situation is likely to be rare. The task of the sentencingjudge is to make an assessment of the relative culpabilities and find a starting pointthat appropriately reflects them.[26] Mr Mackey's argument was, essentially, that Mr Tukia was to be regarded asmore culpable than Mr Howard because he pulled the trigger. He relied on R v Isaaka,in which a starting point of three-and-a-half years was taken for an offender foundguilty as a party to a violent attack by one prisoner on another.14 The starting point forthe principal offender had been nine years. Mr Isaaka's starting point of three-and-a-half years recognised his much lower culpability; he had not instigated the attack, apartfrom punching the victim once had not participated directly in it and had not providedany weapon. His involvement had been to ensure that there was no interference fromother prisoners so as to give the principal offender a "clear run" in carrying out theattack.[27] In our view, Mr Howard's offending is not comparable to that in Isaaka.Mr Howard played a much more critical role. He was more than ten years Mr Tukia'ssenior. He knew that Mr Tukia was drunk and angry. He had actually threatened othermembers of the group with the rifle before passing it to Mr Tukia. In thecircumstances, this act was both assistance and encouragement. It must have beenobvious to Mr Howard that Mr Tukia might very well pull the trigger. In our view, theJudge was correct to assess Mr Howard's culpability as equal to that of Mr Tukia.[28] However, treating Mr Howard and Mr Tukia as equally culpable would haverequired the same starting point to have been taken for each. The Judge took a startingpoint that was six months higher than that taken by Judge Taumaunu in sentencingMr Tukia (before he allowed adjustments for the influence of Mr Tukia's father).Provided that the starting point taken for Mr Tukia's offending was appropriate, thesame starting point ought to have been taken for Mr Howard.[29] Looking at comparable cases, an appropriate range for the starting point in thiscase was nine to nine-and-a-half years. For example, in Huata one defendant remained14 R v Isaaka [2014] NZHC 2608.in the getaway vehicle (which he had stolen, and after the attack destroyed) and theother went to the victim's car and shot him twice through the window. The victim washit in his arm and buttock and was considered lucky to have survived.15 The samestarting point of 11 years was taken for both offenders. In R v Waa, R v Hone and R vNathan Mr Waa told Mr Hone and others to "get" a member of a rival gang that hehad spotted riding his motorbike. Mr Hone drove after the victim and when he caughtup to him, Mr Nathan (who was in the car) shot the victim in the back. The victim hadextensive surgery but was expected to make a full recovery. The same starting pointof ten years was taken for all three defendants.16 Although similar to the presentoffending these cases were more serious than the present offending because they arosein the context of gang warfare.[30] In this case, although the nine-and-a-half year starting point was within range,have regard to the Judge's assessment of Mr Howard's culpability as indistinguishablefrom that of Mr Tukia, considerations of parity meant that nine-and-a-half years forMr Howard was too high. The appropriate starting point was nine years.Third ground of appeal: failing to consider totality[31] The third ground of appeal is that the Judge failed to consider the issue oftotality. This issue arose because, between being arrested in June 2015 for the currentoffending and coming to trial in October 2017, Mr Howard committed and wassentenced on a charge of aggravated robbery. As a result, when he came to besentenced in March 2018 for the assault on Mr Talatau, Mr Howard was alreadyserving a sentence of four years and two months' imprisonment for the aggravatedrobbery committed in November 2016. The cumulative sentence imposed for thegrievous bodily harm to Mr Talatau meant that Mr Howard would serve a total of14 years and five months' imprisonment.[32] Section 85(2) of the Sentencing Act required the Judge to stand back andconsider whether the effective end sentence resulting from the cumulative imposition15 R v Huata, above n 12.16 R v Waa HC Napier CRI-2007-020-1518, 7 May 2008; R v Hone HC Napier CRI-2007-020-1518,30 July 2008; and R v Nathan HC Napier CRI-2008-020-4688, 11 June 2010. This Court approvedthose starting points in Pekepo v R [2011] NZCA 305.of that sentence was proportionate to the gravity of the overall offending or not.17The Crown accepted that the Judge did not consider totality. However, Mr Carrutherssubmitted that no reduction would have been necessary so that the end sentence wasnot manifestly excessive.[33] Some understanding of the aggravated robbery offending is necessary to decidethis issue. Mr Howard had entered a local superette in the middle of the day wearinga balaclava and gloves. He presented a loaded, double-barrelled sawn-off shotgun atthe sole female attendant and demanded money and cigarettes. He kept the gunpointed at the shop attendant while she removed cash from the till and cigarettes fromthe cabinet before taking the items and leaving.[34] In sentencing, Judge J C Down took a starting point of five years for theaggravated robbery and uplifted it by three months for other unrelated offending(possession of cannabis material and shotgun cartridges without a licence).18The Judge then imposed a further uplift of six months to reflect Mr Howard's previousconvictions. After a three-month discount for remorse, the result was an adjustedstarting point of five years and six months, from which a 25 per cent discount wasallowed for guilty pleas, leading to an end sentence of four years and two months'imprisonment.[35] One aspect is immediately clear as a potential concern; both Judge Down andJudge Ronayne imposed uplifts for Mr Howard's previous offending. The upliftimposed by Judge Down reflected Mr Howard's history up to February 2017(excluding the current offending). The nine-month uplift imposed by Judge Ronanyereflected Mr Howard's entire history, including the aggravated robbery offending.There was, therefore, a total uplift of 15 months and an element of double-counting.[36] Further, Judge Ronayne imposed the nine-month uplift on the basis thatMr Howard's history was "very serious" and showed Mr Howard to be "a thoroughlyviolent individual".19 We think this overstated the position. Although Mr Howard's17 See Opetaia v R [2013] NZCA 434 at [32]; and Ashcroft v R [2014] NZCA 551 at [10]–[12].18 R v Howard [2017] NZDC 1288.19 R v Howard, above n 1, at [7].criminal history includes violent offending, most of his convictions are not for violentoffences. His first convictions for violent offending related to a spate of offending inJune 2006 that involved one robbery (by assault) and five aggravated robberies(manually) committed on 19 June 2006 (presumably arising from the same incident),one robbery (by assault) on 23 June 2006, one aggravated robbery (other weapon) on28 June 2006 and one robbery (by assault) on 30 June 2006. They were all dealt withtogether and concurrent sentences of six years and three months' imprisonment wereimposed.[37] Apart from that spate of offending, the next violent offence occurred in 2009,for injuring with intent to cause grievous bodily harm for which he was sentenced toone year and six months' imprisonment. There was no further violent offending untilthe 2016 aggravated robbery of the superette. Although this is a bad history, we thinkthat an effective uplift of 15 months is too high. A total uplift of six months wouldhave been adequate.[38] If a starting point of nine years had been taken and no further uplift imposed(on the basis that the uplift imposed by Judge Down was sufficient) the total length ofimprisonment for both the current offending and the aggravated robbery of thesuperette would have been 13 years and two months' imprisonment. We consider thatis still too high. This was undoubtedly serious offending that warranted a sternsentencing response but we note that there were no fatal injuries, nor really significantinjury with long term effects. In our view, an appropriate result would be 12 years'imprisonment in total for both sets of offending. This would mean adjusting thesentence downwards by a further 14 months for totality.Result[39] The appeal is allowed.[40] Mr Howard's sentence of 10 years and three months' imprisonment forintentionally causing grievous bodily harm is quashed and substituted with a sentenceof seven years and 10 months' imprisonment, cumulative on the sentence forCRN 16044005935.Solicitors:Crown Law Office, Wellington for Respondent