KIRI v R [2021] NZCA 155

KIRI v R [2021] NZCA 155 [3 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA633/2020[2021] NZCA 155BETWEEN RAWIRI TAKUIRA KIRIAppellantAND THE QUEENRespondentHearing: 16 March 2021Court: French, Ellis and Muir JJCounsel: A J McKenzie for AppellantB F Fenton for RespondentJudgment: 3 May 2021 at 9 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Following a District Court jury trial, Mr Rawiri Kiri was found guilty of beinga secondary party under s 66(2) of the Crimes Act 1961 to an offence of injuring withintent to cause grievous bodily harm.11 Crimes Act 1961, s 189(1).[2] The presiding Judge, Judge Garland, sentenced Mr Kiri to a term ofimprisonment of three years and seven months.2[3] Mr Kiri now appeals both his conviction and sentence.BackgroundThe key factual allegations of the Crown case[4] The complainant's partner had sold a member of the Kiri family a cell phonethat turned out to be faulty.[5] On 7 October 2019, Rawiri Kiri and his brother Lee Kiri travelled along withother members of the Kiri family to the complainant's address. They were bothwearing gang patches and colours. On arrival at the address, Rawiri Kiri got out firstcarrying a baseball bat. As they walked up the driveway, he handed Lee the baseballbat.[6] Lee Kiri entered the house and demanded to know the whereabouts of the girlswho had "ripped [him] off". The complainant approached and said the girls were notthere. He gave Lee $15 and a small bag of cannabis indicating that was what had beenreceived for the phone. Lee swung the bat at the complainant. The first swing missedand hit the doorframe. The second swing missed again.[7] The complainant then picked up a hammer and chased Lee outside. Rawiriwho had remained outside the whole time advanced towards them. Lee swungthe baseball bat at the complainant's head. The complainant raised his hand to protecthimself. The bat struck his elbow, fracturing it.[8] The brothers then returned to the vehicle and left. They were stopped soonafterwards by police. When the vehicle was searched, police found a baseball bat anda firearm.2 R v Kiri [2020] NZDC 21748 [Sentencing notes].The history of the charges[9] The brothers were initially jointly charged with aggravated robbery andunlawful possession of a firearm.[10] Both men entered pleas of not guilty to all charges.[11] In May 2020, there was a sentencing indication based on a proposed plea dealwhereby Lee would only be charged with injuring with intent to cause grievous bodilyharm and Rawiri would be charged with presenting a prohibited firearm.3[12] On 15 May 2020, Lee accepted the sentencing indication and pleaded guilty toinjuring with intent to cause grievous bodily harm. He was sentenced to a prison termof two years and ten months.[13] Rawiri however rejected the sentencing indication.[14] In June 2020, the prosecution amended the aggravated robbery charge againstRawiri to a charge of being a party under s 66 of the Crimes Act to Lee's offence ofinjuring with intent to cause grievous bodily harm.[15] The trial of Rawiri Kiri commenced on 18 August 2020.[16] The jury acquitted Mr Kiri of the firearms charge but found him guilty ofinjuring with intent to cause grievous bodily harm.Appeal against conviction for injuring with intent to cause grievous bodily harmThe argument[17] Mr Kiri was tried on the basis that he was a party under s 66(2) of theCrimes Act to his brother's offending. In the leading authority of Ahsin v R,the Supreme Court described the effect of s 66(2) in the following terms:43 There was a suggestion in some of the witness statements that a person had been seen carryinga firearm.4 Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 per McGrath, Glazebrook and Tipping JJ.[89] Under s 66(2), proof is first required that the defendant formeda common intention with one or more others to prosecute an unlawful purposeand to assist the other(s) in doing that. Each participant in such a commonpurpose will become liable as a party if one of the others commits an offencewhile prosecuting the common purpose, whether or not that offence wasan intended outcome, as long as that offence was known by the participant tobe a probable consequence of the prosecution of that purpose.[102] To summarise, in order to establish party liability under s 66(2),the Crown must prove beyond reasonable doubt that:(a) the offence to which the defendant is alleged to be a party wascommitted by a principal offender; and(b) there was a shared understanding or agreement to carry outsomething that was unlawful; and(c) the person(s) accused of being parties to that agreement had allagreed to help each other and participate to achieve their commonunlawful goal; and(d) the offence was committed by the principal in the course ofpursuing the common purpose; and(e) the defendant intended that the offence that eventuated becommitted, or knew that the offence was a probable consequenceof carrying out the common purpose. This requires foresight ofboth the physical and mental elements of the essential facts of theoffence.[18] In this case, there was no dispute about the first element. The principaloffender who had committed the offence to which Rawiri Kiri was alleged to be aparty was of course Lee Kiri. Evidence of his conviction for injuring with intent tocause grievous bodily harm was adduced at Rawiri's trial by way of an agreedstatement of fact under s 9 of the Evidence Act 2006.[19] It was the second element — the existence of the required shared understandingor agreement to do something unlawful — that was a key issue at trial and now thefocus of this appeal. What is contended on appeal is that the Judge misdirected thejury in responding to a question they asked about common purpose.[20] In order to explain the argument, it is necessary to outline briefly whathappened at the trial.[21] In his opening, the prosecutor did not identify the common purpose on whichthe Crown was relying in any detail. The only comment he made was to tell the jurythat the question for them would be whether Rawiri assisted Lee in any way when thelatter hit the complainant with the baseball bat and did the jury believe there was acommon purpose to do so? That suggested the alleged common purpose was to assaultsomeone.[22] In closing the prosecutor told the jury the Crown had to prove that there was: a shared understanding or a common intention to carry out somethingunlawful, namely to use violence, threats of violence, and intimidation in orderto resolve the phone dispute. They wanted to threaten and harm him, and they did exactly that.[23] Defence counsel, Mr McKenzie, in his closing, told the jury it was acceptedthere was an agreed purpose between the brothers but it was not to do anythingunlawful. Their common purpose was to confront the complainant and get a refundon the phone; to persuade the complainant to pay it back. They wanted to be takenseriously but there was no master plan to beat the complainant up or cause himgrievous bodily harm. Lee's offence was not committed in the course of carrying outthe common purpose. It was an unexpected turn of events due to the complainant'sproduction of the hammer.[24] In his summing up, the Judge said the key factual issue for the jury would bewhether having regard to all the circumstances, they could properly draw the inferencethere was a shared understanding or common purpose to go to the complainant'saddress with the intention of "using violence, threats of violence and intimidation".That description of the common purpose with the three conjunctive components —violence, threats of violence and intimidation — was also contained in the writtenquestion trail provided to the jury.[25] During the jury's deliberations,5 it sought clarification from the Judge aboutthe issue of the common purpose. The jury question read:We the jury require clarification in regard to charge 2, question 1 of thequestion trail.It states that the defendant Rawiri Kiri had a shared understanding that theywent to the home of [the complainant] with the intention of using violence,threats of violence and intimidation.We require clarification on whether their intentions align with one aspect ofthese or whether it must align with all aspects, e.g violence, threats andintimidation?[26] After conferring with counsel, the Judge directed the jury as follows.[27] He told them that the shared understanding or agreement between the brothersmust be to do something that is unlawful, that is, to commit a criminal offence.The Judge went on to say it would be unlawful to assault a person. He then stated thelegal definition of assault and explained that by virtue of that definition, it wouldtherefore be an assault and hence unlawful to use actual violence or to attempt to useviolence or threaten to use violence. The Judge then turned to intimidation andexplained the elements of the offence of intimidation under s 21 ofthe Summary Offences Act 1981, namely threatening to injure a person or a memberof that person's family with intent to frighten or intimidate them knowing his or herconduct is likely to cause that other person or family member to be frightened orintimidated.[28] Finally, the Judge told the jury:If the [defendant] and Lee Kiri had an understanding or agreement betweenthem to commit one or more of those crimes that would be sufficient to satisfythe issue posed in [question] 1.However — before you could be sure that there was a shared understandingor agreement between the 2 men to do something unlawful all 12 of you wouldneed to be agreed what that was — whether it was to commit an offenceinvolving violence and/or to commit an offence involving a threat of violenceand/or to commit an offence involving intimidation (in the terms I haveexplained).5 The Court's trial log records the question having been asked an hour and 30 minutes after the juryhad retired to consider its verdict.If you cannot reach unanimity on what the shared understanding or agreementwas between the 2 men to do something unlawful, then you could not answer[question] 1 with a "yes".You would have to be unanimous on just 1 aspect, or on 2, or on all 3, beforeyou could answer [question] 1 with a "yes".[29] On appeal, Mr McKenzie submitted that the Judge's response to the juryquestion was a misdirection which would likely have impacted on the outcome, thusgiving rise to the risk of a miscarriage.[30] In support of that central contention, Mr McKenzie argued that the directionenabled the jury to convict merely on one (most likely the least serious of the three)common intention which was contrary to the basis on which the parties had run theirrespective cases. The trial had been run on the basis that the alleged common purposehad three components and that the jury needed to be satisfied of all three.[31] According to Mr McKenzie, it was wrong for the Judge at such a late stage toin effect "[don] the garb of a prosecutor" and materially amend the Crown case.Mr McKenzie pointed out that the jury's question suggested it was unable to agree onall three elements of the alleged common purpose and so had the Judge not re-framedthe prosecution case in the way he did, the outcome of the trial would likely have beendifferent.Analysis[32] In our view, the Judge's response to the jury question was correct as a matterof law.6 That is to say, s 66(2) of the Crimes Act does not require there to be only oneunlawful purpose.7 There can be more than one. What matters is whether the multiplepurposes are all unlawful. A purpose to use violence is self-evidently an unlawfulpurpose. So too is a purpose to threaten violence, and a purpose to intimidate as6 According to the Crown, the direction was contrary to Ahsin v R, above n 4, at [170]–[180] andhence incorrect in requiring the jury to be unanimous on the same common purpose but it was anerror that favoured the defence. The appellant says the Judge was correct to require unaminity.It is not necessary for us to resolve that argument.7 As the Supreme Court stated in Ahsin v R, above n 4, at [102(b)], s 66(2) requires "there wasa shared understanding or agreement to carry out something that was unlawful". That does notpreclude there being many separate agreements to carry out different unlawful things, eachsufficient to support liability under s 66(2).defined in s 21 of the Summary Offences Act. Each of those purposes would in theirown right constitute an unlawful purpose within the meaning of s 66(2).[33] The key issue is however the point of the trial at which the direction was given.The prosecution had undoubtedly overstated its burden by making the three purposesconjunctive. But was it too late to correct that after the parties had closed theirrespective cases?[34] In our view, the answer to that question and thus the outcome of this appealdepends on the extent to which Mr Kiri was unfairly prejudiced by the late amendment.When pressed by us to identify the prejudice, Mr McKenzie submitted Mr Kiri wasprejudiced in several respects. He had lost the real chance of securing an acquittal.Further, he might have pleaded guilty if aware the alleged common purpose did notinclude violence and thus obtained a lesser sentence. Also, he made his election notto call evidence after the prosecution had closed its case on the basis that the commonpurpose had three conjunctive aspects.[35] We accept that Mr Kiri's chances of securing an acquittal were probablyreduced once the correct legal position was established but do not accept that in itselfamounts to unfair prejudice as to create the risk of a miscarriage of justice or an unfairtrial.[36] Nor do we accept that he was denied the opportunity to make an informeddecision about pleading guilty. The authorities are clear that while the prosecutionmust specify the alleged common purpose, it is given considerable latitude to adjustthe formulation of the alleged common purpose during the course of the trial.8The prosecution could have specified the formulation the Judge eventually directed —in response to the jury's question — in its closing address. It is very unlikely Mr Kiriwould have attracted a significant discount if entering a guilty plea at that time.[37] Further and in any event, the defence was not that the brothers may only haveintended to merely intimidate — that is, threaten to injure so as to frighten8 Ahsin v R, above n 4, at [242] per William Young J; and Edmonds v R [2011] NZSC 159, [2012]2 NZLR 445 at [49].the complainant. Rather, the defence was that there was no unlawful common purposewhatsoever. Mr McKenzie expressly submitted to the jury that the brothers had nocommon intention to do anything unlawful. In those circumstances, we would haveexpected Mr Kiri to provide a waiver of privilege and some affidavit evidence onappeal as to the nature of the evidence Mr Kiri would have given or called hadthe Crown closed on a disjunctive common purpose. None was provided.[38] We would also have expected Mr McKenzie to have raised this allegedprejudice when the Judge consulted counsel about the jury's question. It is clear fromreading the transcript of the exchange that Mr McKenzie's main concern was basedon a different — in our view mistaken — interpretation of the jury's question.He appears to have thought the jury was asking whether the brothers had to agree onthe same purpose, not whether they the jury had to be unanimous in respect of all three.Plainly, in order for a purpose to be a common purpose, it was necessary forthe brothers to share the same purpose. The jury could not have been under anymisapprehension on that point.[39] The Judge's direction on common purpose was the only ground of appeal.9It follows that the appeal against conviction is dismissed.Appeal against sentence[40] As mentioned, the Judge sentenced Mr Kiri to a term of imprisonment ofthree years and seven months.[41] In arriving at that sentence, the Judge adopted the following methodology.[42] First, he identified the aggravating features of the offending as beingpre-meditation, use of a weapon, attack to the head and home invasion.10These features meant, in his view, that the offending fell within band two of thisCourt's guideline decision of R v Taueki.11 Band two has a range of starting points ofbetween five and ten years' imprisonment. Adjusting for the lower maximum sentence9 A second ground of appeal relating to a Crown witness being declared hostile was abandoned.10 Sentencing notes, above n 2, at [31].11 At [35], citing R v Taueki [2005] 3 NZLR 372 (CA).under s 189(1) of the Crimes Act gave a range of starting points between three and ahalf and seven years.12 The Judge then considered a number of comparator cases,13and concluded that a starting point of three and a half years' imprisonment wasappropriate to reflect the seriousness of Mr Kiri's offending.[43] Three and a half years' imprisonment was the same starting point adopted bythe Judge who sentenced Mr Kiri's brother.14 That raised the issue as to whether thereshould be a lower starting point as had been advocated by Mr McKenzie. However inthe Judge's view the brothers were equally culpable.15[44] Having reached a starting point of three and a half years' imprisonment,the Judge then addressed factors personal to Mr Rawiri Kiri. That resulted inan increase to the starting point by three months on account of Mr Kiri's history ofviolent offending and the fact that he was subject to post-detention conditions ofsentence at the time of this offence.16 The Judge then applied a discount of two monthsfor time spent on electronically monitored bail,17 resulting in an end sentence of threeyears and seven months' imprisonment.[45] On appeal, Mr McKenzie takes issue with the Judge's starting point.He contends the Judge was wrong to consider Mr Kiri equally culpable with hisbrother. In Mr McKenzie's submission, Mr Kiri likely only had intention to intimidate,whereas the brother's intention was to cause grievous bodily harm which was a moreserious intention.[46] We do not accept that submission.[47] In our view, the Judge was entitled to regard the brothers as equally culpable.Even if the jury found the common purpose was solely to intimidate that meant the jury12 At [36].13 Kulimoeanga v R [2016] NZCA 129; Taingahue v R [2016] NZCA 557; Mackwood v PoliceHC Auckland CRI-2011-404-337, 17 November 2011; Rongonui v R [2017] NZCA 206; R v AtiHC Auckland CRI-2006-092-16228, 24 April 2008; and Morgan v R [2009] NZCA 341.14 R v Kiri DC Christchurch CRI-009-9126, 8 May 2020 [Sentencing indication]; and R v Kiri [2020]NZDC 14895 [Sentencing notes of Lee Kiri].15 Sentencing notes, above n 2, at [61].16 At [62]–[63].17 At [69].was satisfied the purpose was to threaten the complainant or whomever theyencountered at the address with injury. Further, the jury must have been satisfied thatRawari Kiri knew that the use of actual violence causing really serious harm wasa probable consequence of that shared intention. Both men donned gang garb. Rawiriwas the first to get out of the car. And he was the one carrying the baseball bat.He handed it to Lee and was present when the injury was inflicted. He was, asMs Fenton submitted for the Crown, integrally involved in the offending.[48] We are further satisfied that the starting point was consistent with the case lawthe Judge referred to and within range. No issue is taken with the Judge's approach topersonal aggravating and mitigating factors.[49] We conclude the end sentence was not manifestly excessive.[50] The appeal against sentence is accordingly dismissed.Outcome[51] The appeal against conviction is dismissed.[52] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent