TE RUKI AND TAMOU v R [2018] NZCA 319

TE RUKI AND TAMOU v R [2018] NZCA 319 [23 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA705/2017[2018] NZCA 319BETWEEN LAURENCE TYSON TE RUKIAppellantAND THE QUEENRespondentCA4/2018BETWEEN ZINZAN WAIMATE BROOK TAMOUAppellantAND THE QUEENRespondentHearing: 22 May 2018Court: French, Ellis and Woolford JJCounsel: P M Keegan for Appellant in CA705/2017M S Boyd for Appellant in CA4/2018K S Grau and K L Kensington for RespondentJudgment: 23 August 2018 at 2 pmJUDGMENT OF THE COURTA The appeal against conviction by Mr Tamou is dismissed.B The appeals against sentence by Mr Tamou and Mr Te Ruki are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] On 10 November 2017, Zinzan Tamou and Laurence Te Ruki, together with athird man, William Pouha, were found guilty by a jury of wounding with intent tocause grievous bodily harm and participation in an organised criminal group.[2] On 7 December 2017, Judge Sygrove sentenced each of the three men tofive years' imprisonment.1 Earlier three other men involved in the same offence hadpleaded guilty to the same charges. They had been sentenced to three years andnine months' imprisonment after receiving a discount for their guilty pleas.2[3] Mr Tamou now appeals against both conviction and sentence. Mr Te Rukiappeals against sentence. Mr Pouha has not appealed.Factual background[4] The victim of the assault wanted to sell some dive gear. Mr Tamou said he wasinterested, so the victim drove to Mr Tamou's house with an acquaintance and the gear.On arrival he spoke with Mr Tamou. Four men then arrived by car. They were thethree men who had earlier pleaded guilty, and Mr Te Ruki. Mr Te Ruki was wearinga Black Power patch. One of the other men had a Black Power fist tattooed on hischeek.[5] The three men immediately began assaulting the victim. When he fell to theground the assailants kicked and stomped on his face, head and body. While theassault continued, Mr Te Ruki told the victim's acquaintance that if he said anythingthey would hunt him down and "fuck [him] up" too. One of the men then rangMr Pouha, the president of the South Island chapter of Black Power, on his mobilephone. The phone was put on loud speaker. Mr Pouha told the victim the assault wasbecause he had gone to a house occupied by Mr Pouha's niece and threatened her.While this was occurring, Mr Tamou stood by and watched the assault, but did nottake part in the violence. Mr Te Ruki also did not take part in the violence.1 R v Te Ruki [2017] NZDC 28071 [sentencing notes].2 R v Ngataierua [2017] NZDC 13173.[6] The assault lasted about 10 minutes. Mr Te Ruki and the three others left inthe car in which they had arrived, having taken the dive gear and other property fromthe victim.[7] It was the Crown case that this was an organised Black Power gang hit on thevictim and that although Mr Tamou, Mr Te Ruki and Mr Pouha did not take part in theviolence, each played their part in the assault, such that they were just as guilty as thethree men who actually assaulted the victim and pleaded guilty to the same charges.Appeal against convictionUnreasonableness of verdict[8] Mr Tamou submits that the jury verdict was unreasonable because the factorsrelied upon by the Crown to show his participation in the assault were so significantlyundermined during the trial that no reasonable jury could find him guilty beyondreasonable doubt.[9] The five factors highlighted in the Crown's closing address were:(a) Mr Tamou's association with Black Power;(b) the arrangements made by Mr Tamou for the victim to come to hishouse, ostensibly for the purpose of buying dive gear from the victim;(c) the stalling of the victim by Mr Tamou to ensure the former's presenceoutside the house when members of Black Power arrived;(d) the theft of the dive gear, which indicated that the Black Powermembers knew the victim was there to sell dive gear; and(e) Mr Tamou's actions in subsequently wiping the blood off the car inwhich the victim arrived.[10] In her submissions, Ms Boyd, counsel for Mr Tamou, acknowledges there wassome evidence available of the first and fifth factors relied upon by the Crown.She submits, however, that there needed to be some evidence of the factors betweenMr Tamou's prior association with Black Power, and subsequent actions in wiping theblood off the car, in order for the verdicts against him to be reasonable.[11] We are of the view that there was evidence of Mr Tamou's participation in theassault by making arrangements for the victim to come to his house and ensuring thathe remained there until after the assault. An inference was clearly open that he knewof the planned assault and that he made the arrangements in that knowledge.[12] The victim gave evidence that he contacted Mr Tamou before he left Waitarato tell him he was on his way. Although a specific time was not arranged, Mr Tamouknew that he was then coming to his house. The victim also said he messagedMr Tamou while on his way from Waitara to Inglewood, where he picked up the divegear, and then on to Mr Tamou's house. The police did not, however, find a mobilephone belonging to Mr Tamou. The victim's acquaintance who was driving the caragreed that the victim had a mobile phone with him, though did not recall him usingit during the journey.[13] The victim also gave evidence that when he arrived at Mr Tamou's address hegot out of the car and went to talk to Mr Tamou. Mr Tamou came outside and told himhe was "making a feed" and went back inside, so the victim went back to the car alone.He says the other car containing the Black Power members pulled up"pretty instantly".[14] Again, the evidence of the victim's acquaintance was slightly different.He says the victim went onto Mr Tamou's property, but was not sure whether thevictim went inside the house. He says the victim was gone for maybe a minute andthen came back to the car accompanied by Mr Tamou. The victim and Mr Tamou wentto the back of the car and then the other car pulled up. Ms Boyd emphasised anotherinconsistency: whether or not Mr Tamou was by the car, and therefore standing nextto Mr Te Ruki, during the assault.[15] Whether or not Mr Tamou accompanied the victim back to the car before theother car pulled up is not significant. Nor is the fourth factor relied upon by the Crown.The theft of the dive gear may well have been opportunistic. What is clear, andsignificant, is that all the evidence demonstrated Mr Tamou remained in the vicinityduring the assault, whether or not he stood beside Mr Te Ruki.[16] In those circumstances, it was open to the jury to infer that Mr Tamou had madearrangements for the victim to come to his house and ensured he remained there untilafter the assault.[17] Counsel for Mr Tamou submits it was more likely the arrival of the carcontaining the Black Power members was a coincidence. Again, with respect, it wasopen to the jury to infer this was no coincidence. We ourselves think it was a stronginference.[18] It is well-established that a verdict will only be unreasonable if, having regardto all the evidence, the jury could not reasonably be satisfied to the required standardthat the defendant was guilty.3 The threshold for interference with a guilty verdict onthe basis of unreasonableness is high.4 The weight to be given to discrete pieces ofevidence is essentially a jury function. A jury also has advantages over an appealcourt. It is usually better placed to assess the honesty and reliability of witnesses.We are of the view that, in the present case, there are no grounds to impugn the jury'sverdict on the basis of unreasonableness.Miscarriage of justice[19] Mr Tamou also submits that there has been a miscarriage of justice occasionedby three issues:(a) erroneous pre-trial rulings regarding Witness B and Witness C;(b) the Judge's failure to manage the victim properly when he gaveevidence; and(c) two key errors in the Judge's summing up to the jury.3 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].4 Kuka v R [2009] NZCA 572 at [75].[20] Witness B and Witness C were neighbours who witnessed parts of the assault.Three weeks before trial the Crown advised the defence that it did not intend to callthem. Three days before trial counsel for Mr Tamou applied for an order requiringthe Crown to call them. The Judge declined the application on the basis the evidenceof Witness B and Witness C was only peripheral to the Crown case.5 Counsel thenapplied for disclosure of the identities of the witnesses so that they could besummonsed for the defence. That application was also declined on the basis that theywere not crucial to the defence case either.6[21] In a statement given to police, Witness B says he did not see the assault start,but saw dogs being pulled back and then "kicks just started raining down on someone".He describes about five people standing around and at any one time there wereprobably three of them kicking. He did not know the name of the young man wholived at the address, but he was there, and had been in and out of his property whilethe assault was happening. He did not recall him doing anything.[22] Witness C describes the two cars and a man standing next to one of them whoappeared to be kicking something on the edge of the grass. He says he saw seven menaltogether, including one who was standing in the driveway outside the house.[23] Counsel submits that the evidence of Witness B and Witness C would havebeen relevant in assisting the jury to reject the victim's evidence that Mr Tamou stoodbeside Mr Te Ruki during much of the assault. The victim explicitly denied thesuggestion Mr Tamou was going in and out of his property while the assault washappening.[24] Apart from the victim giving evidence of the movements of Mr Tamou, thevictim's acquaintance, who had driven him to the scene of the assault, also gaveevidence of what he saw. He thought Mr Tamou was inside the fence and had stoodback during the assault, although he was not 100 per cent sure. He was not askedwhether he saw Mr Tamou going in and out of his property.5 R v Te Ruki [2017] NZDC 24937 at [22].6 R v Te Ruki [2017] NZDC 25002 at [1].[25] In the way the case was presented by the prosecution, we are of the view thatthe decision not to require the prosecution to call Witness B and Witness C was not anerror. The court will not lightly interfere with a prosecutor's decision about whichwitnesses are to be called, except where it can be shown that a prosecutor has actedunfairly to a defendant.[26] The prosecution must put its case fully and fairly and call any crediblewitnesses who can give evidence as to matters in issue, including all evidence essentialto the unfolding of the prosecution's narrative.7 Here there was never any suggestionMr Tamou took part in the violence. The prosecution's case was Mr Tamou madearrangements for the victim to come to his house and ensured he remained there untilafter the assault. Mr Tamou's actual location during the assault was thereforeirrelevant. Nothing Witness B or Witness C could say would have assisted the jury inassessing the prosecution's case.[27] As to the Judge's alleged failure to properly manage the victim when he gaveevidence, there is no doubt the victim was difficult to cross-examine. He expressedfrustration at being asked repetitive questions. He objected to propositions being putto him. He asked questions of counsel. He was sometimes rude.[28] The Judge did, however, intervene on a number of occasions. He advised thevictim that the different lawyers were entitled to ask the same questions. He directedthe victim to answer questions with a simple "yes" or "no" while advising counsel toask shorter questions. He directed the victim not to ask questions of counsel. At onestage he cautioned the victim when he sarcastically replied to counsel "You can read,good on you yeah".[29] The role of a trial judge is to control the trial,8 with an overriding obligation toensure that the defendant receives a fair trial.9 Although the victim was less thancooperative with cross-examining counsel, counsel for Mr Tamou was unable to pointto any particular aspect of his case which was undermined by the victim's conduct.7 Rapana v R [2015] NZHC 2286 at [14]; citing R v Wilson [1997] 2 NZLR 500 (HC) at 502–505;and Seneviratne v R [1936] 3 All ER 36 (PC).8 Hastings v R [2015] NZCA 180 at [24].9 Kaka v R [2015] NZCA 532 at [29]–[30].We agree with the Crown that nothing he said was improper, inadmissible orprejudicial. The victim was the key prosecution witness and defence counsel soughtto undermine his credibility and reliability by asking him many questions aboutunrelated criminal offending. This frustrated the victim who clearly thought such aline of questioning was irrelevant.[30] We are of the view that the Judge responded appropriately to the various issuesthat arose. The victim's conduct did not come close to contempt of court.When directed to answer questions by the Judge, the victim did so. The Judge had noduty to intervene merely because the defence cross-examination strategy was notparticularly successful.[31] The two key errors said to have been made by the Judge in summing up were:(a) a reference to the prosecution case that "Mr Tamou is also alleged tohave been present at the assault" and "that he stood by during thebeating"; and(b) a summary of the prosecution case that:when they arrived at the address, Mr Tamou came out of thehouse and after a brief discussion, went back into the houseand after that messaged [the victim] that he was going to gethimself a munch. Shortly after that a car arrived and out ofthe car got Mr Te Ruki and three other males.[32] As to the first alleged key error, counsel submits the expression "stood by" canonly mean "stood by Mr Te Ruki". She submits that, although the victim said thatMr Tamou was standing by Mr Te Ruki for most of the assault, the Crown was carefulnot to close on the issue of where Mr Tamou was during the assault. We are, however,of the view that the expression "stood by" does not mean "stood by Mr Te Ruki".It merely means he was present and did not participate in the violence. That wasthe Crown case. Both the victim and the victim's acquaintance placed Mr Tamou atthe scene of the assault as did Witness B and possibly Witness C. There was no error.[33] As to the second alleged key error, it appears that the Judge was mistaken whenhe referred to Mr Tamou messaging the victim after going back into the house that "hewas going to get himself a munch". The victim gave evidence of messaging Mr Tamouwhile on the way to his house, but did not say Mr Tamou messaged him that he wasgoing to get himself a munch. The victim said Mr Tamou told him that when he firstspoke to him after arrival at the house.[34] At the conclusion of the summing up, counsel in fact drew the Judge's attentionto the mistake, as a result of which the Judge called the jury back into court to correctthe mistake. There was, accordingly, no prejudice to the defence case.[35] We are of the view that the two alleged key errors, either singularly or together,do not amount to a miscarriage of justice. The first was an accurate description ofthe Crown case and the second was inconsequential and was in any event corrected bysubsequent advice to the jury.Appeal against sentence[36] Both Mr Tamou and Mr Te Ruki appeal against sentence. Counsel forMr Tamou submits that the Judge erred in considering Mr Tamou equally culpable toMr Te Ruki and Mr Pouha. She submits that the evidence demonstrated Mr Tamou'slesser involvement. He was not directly involved in inflicting the violence. He didnot watch over the assault or threaten anyone. He was not wearing a patch. There wasno evidence he knew the assault was to be severe. She submits the Judge erred byapplying a "but for" test in assessing culpability, noting that the assault would not haveoccurred without the involvement of each of the defendants,10 instead of consideringthe particular actions of each person and how that contributed to the offending as awhole.[37] Counsel for Mr Te Ruki submits that where there are multiple offenders withdifferent levels of involvement in the offending, the actual culpability of each offenderneeded to be properly assessed. A party's culpability or degree of involvement in theoffence may differ greatly from that of the principal. He submits the Judge was wrongto conclude Mr Te Ruki was, in effect, the leader of the three defendants who actuallycommitted the assault under his command or direction. The evidence established it10 Referring to sentencing notes, above n 1, at [6].was Mr Pouha who ordered the assault. The only evidence of Mr Te Ruki'sinvolvement was his presence during the assault wearing a Black Power patch andthreatening the victim's acquaintance.[38] Counsel for Mr Te Ruki also submits the Judge fell into error in failing to takeinto account the time he spent on electronically-monitored bail. He submits s 9(2)(h)of the Sentencing Act 2002 provides time spent on electronically-monitored bail is amitigating feature that must be taken into account. Mr Te Ruki'selectronically-monitored conditions were very restrictive and akin to home detention.Starting point[39] Section 8(e) of the Sentencing Act requires a court to take into account thegeneral desirability of consistency in respect of similar offenders committing similaroffences in similar circumstances. As this Court has observed previously, fixing thestarting point is the mechanism for seeking consistency in sentencing.11Accordingly, starting points for co-offenders may differ based on their level ofinvolvement in the offending to ensure starting points reflect culpability and areconsistent;12 if different levels of involvement are established, lesser offenders shouldreceive lighter sentences.13[40] There are, however, no rigid criteria for assessing who is a lesser offender.Much of the time it will be obvious. But different roles do not necessarily reflect lesserculpability; even in aggravated robberies, the driver of a getaway car does notnecessarily receive a lighter sentence.14[41] Here, the Judge summarised the defendants' involvement as follows:15[6] I have asked myself this question on a number of occasions in regardto each of you. Would this attack on [the victim] have occurred without yourinvolvement? The answer is no. Each of you are equally culpable and I willnow tell you why.11 R v Mako [2000] 2 NZLR 170 (CA) at [53].12 Police v Egden [1977] 1 NZLR 123 (CA) at 126.13 Taueki v R [2005] 3 NZLR 372 (CA) at [42]; and R v Gledhill [2009] NZCA 415 at [17].14 R v Moanunui [1983] NZLR 537 (CA) at 543.15 Sentencing notes, above n 1.[7] The attack on [the victim] had all the hallmarks of a well-plannedmilitary operation in that the chain of command started with Mr Pouha whoas the president of the South Island Black Power gang ordered the strike.Accordingly, Mr Pouha, without you having ordered the strike this operationwould never have taken place and as well during the assault you spoke to[the victim] and told him the reason for the assault which was that he had gonearound to a house occupied by your niece some time ago with a firearm andthreatened her in regard to some Chinese drug dealers in Christchurch.[8] Mr Teruki, although you had not taken part in the physical assault youstood guard in full Black Power regalia, effectively as the commander of thethree foot soldiers who were carrying out the assault under your command anddirection. You were there to make sure there was no interference by anymembers of the public, remembering this assault was carried out in broaddaylight in a suburban street and when you spoke to [the victim'sacquaintance] who was waiting in the car for [the victim] and who was theonly one who could possibly be a witness to the attack you went up to him,apparently with a smile on your face, and said, "You didn't see any of this orwe will hunt you down and fuck you up." The smile I venture to say was morein the style of a smiling assassin rather than a pleasant "gidday mate" type.[9] You, Mr Tamou, lured [the victim] to your house on the pretence ofbuying dive gear when in fact you knew all along that he was going to receivea beating from other fellow Black Power members. You were effectively theintelligence officer, orchestrating everyone to be at the right place at the righttime. You stood by without offering [the victim] any assistance whatsoever.I do note that as [the victim's acquaintance's] car was about to leave you wiped[the victim's] blood off it.[10] Accordingly I regard all three of you as equally responsible for thiscowardly, intimidatory attack carried out in broad daylight in a suburbanNew Plymouth street. Without each of your individual input this attack wouldnot have taken place and the jury accepted this in finding you all guilty.[42] The Judge likened the assault to a military operation with each man playing anequally important role. Mr Pouha ordered the assault. Mr Tamou lured the victim tohis house knowing that an assault was to occur. Mr Te Ruki was there to intimidateand keep order. This was a gang activity in which each defendant joined. Mr Tamouand Mr Te Ruki were in fact also convicted of participation in an organised criminalgroup. In those circumstances, we are of the view that there was no error in the Judge'sconclusion that Mr Tamou, Mr Te Ruki and Mr Pouha were equally culpable, and asculpable as the men who actually carried out the assault. The Judge was in a uniqueposition, having given sentence indications and sentenced the three co-offenders aswell as presiding over the trial in which Mr Tamou, Mr Te Ruki and Mr Pouha werefound guilty. He had a comprehensive knowledge of the case and each of thedefendants' involvement in it, and was best placed to assess relative culpability.Time spent on bail[43] The sole remaining issue is whether the Judge erred in not taking into accountthe 13 months spent by Mr Te Ruki on electronically-monitored bail. Counsel forMr Te Ruki submits he should have done so, not only because of the provision ins 9(2)(h) of the Sentencing Act that time spent on electronically-monitored bail is amitigating feature that must be taken into account, but also because the co-offenderswho had been sentenced earlier received a sentencing credit of four months for theeight months they had spent on electronically-monitored bail. The Crown submitsthat, in the event, no discount for time spent on electronically-monitored bail wasactually given to the three co-offenders who pleaded guilty. We do not consider eithersubmission accurately reflects the approach taken by the Judge.[44] Mr Te Ruki and the three co-offenders were originally charged with woundingwith intent to cause grievous bodily harm, which carries a maximum sentence of14 years' imprisonment.16 The prosecution offered to accept guilty pleas to a lessercharge of injuring with intent to cause grievous bodily harm, which carries a maximumsentence of 10 years' imprisonment,17 if all four defendants pleaded guilty. It was onthat basis that the four defendants sought a sentence indication from the Judge.[45] In a sentencing indication dated 16 March 2017, the Judge took a starting pointof five years' or 60 months' imprisonment. He reduced the starting point byfour months for all four offenders to reflect they had been on restrictive terms of bail.From the revised starting point of 56 months' imprisonment he then gave a discountof 25 per cent for guilty pleas, which resulted in an end sentence of three years andsix months' imprisonment. 18[46] Mr Te Ruki did not accept the sentencing indication. The prosecution thereforeproceeded with the original charge of wounding with intent to cause grievous bodilyharm against all four offenders. Mr Te Ruki's three co-offenders then sought asentencing indication on that original charge.16 Crimes Act 1961, s 188.17 Section 189.18 R v Ngataierua DC New Plymouth CRI-2016-043-1405, 16 March 2017 [first sentencingindication] at [8].[47] In a further sentencing indication dated 9 June 2017, the Judge did not giveextensive reasons, but merely stated:19The defendants have all been in custody to a certain extent since I last gavemy sentencing indication and what I regard as a fair and reasonable sentencein all the circumstances is one of three years and nine months imprisonment.[48] This was accepted by the three co-offenders who were each sentenced tothree years and nine months' imprisonment on 16 June 2017.20 The Judge did notelaborate on the minimal reasons given in the sentencing indication dated 9 June 2017.[49] The Crown submits that a starting point of five years' imprisonment appears tohave been maintained, along with the 25 per cent discount for the guilty pleas. If thiswere true, the Judge must have allowed no discount for other mitigating factorsincluding electronically-monitored bail. We are of the view, however, that the Judge'sremarks should not be interpreted in the manner submitted by the Crown. The Judgewas giving a sentence indication in respect of an offence with a significantly highermaximum sentence. He said the Crown submission that a higher starting point shouldbe adopted was an "entirely appropriate submission",21 and said further:22 we are effectively in a different ball game now in that we now have thecharge of wounding with intent with causing grievous bodily harm whichcarries a 14 year sentence of imprisonment as compared to injuring with intentto cause grievous bodily harm which carries a 10 year sentence ofimprisonment.[50] In those circumstances, it is unlikely that he maintained a starting point offive years' imprisonment. Some uplift to the starting point was necessary to reflectthe more serious offence the four defendants then faced.[51] We are of the view that it was appropriate for the Judge to adopt a starting pointof five and a half years' imprisonment for the more serious charge of wounding withintent to cause grievous bodily harm. The Judge had earlier indicated that four monthsshould be deducted in respect of all four defendants, including Mr Te Ruki, for19 R v Ngataierua DC New Plymouth CRI-2016-043-1405, 9 June 2017 [second sentencingindication] at [6].20 R v Ngataierua, above n 2.21 R v Ngataierua, above n 19, at [4].22 R v Ngataierua, above n 19, at [5].restrictive terms of bail which would bring the starting point back to five years andtwo months' or 62 months' imprisonment.[52] In his second sentence indication, the Judge made specific reference to the factthat the defendants had all been in custody to a certain extent since he gave his earliersentencing indication in reaching his decision on what the end sentence should be.23We are therefore of the view that another deduction of two months would have beenappropriate, which would have brought the adjusted starting point back to five years'or 60 months' imprisonment. A full 25 per cent discount for guilty pleas would thenhave been applied to make the sentence imposed on the three co-offenders one ofthree years and nine months' imprisonment.[53] Mr Te Ruki was not eligible for the 25 per cent discount for a guilty plea as hewent to trial. We are of the view that on a proper analysis of the sentencing process,Mr Te Ruki did receive a six-month deduction from the otherwise appropriate sentencefor the time he spent on electronically-monitored bail. A discount for the timeMr Te Ruki spent on electronically-monitored bail was appropriate, but there is noparticular formula the Judge was required to apply to determine the discount.24 We aresatisfied the Judge's discount was appropriate. He did not err.Result[54] The appeal against conviction by Mr Tamou is dismissed.[55] The appeals against sentence by Mr Tamou and Mr Te Ruki are dismissed.Solicitors:Crown Law Office, Wellington for Respondent23 Second sentencing indication, above n 19, at [6].24 Rangi v R [2014] NZCA 524 at [10].