RONGONUI v R [2017] NZCA 206

RONGONUI v R [2017] NZCA 206 [24 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA166/2017[2017] NZCA 206BETWEEN REECE TAURAKAHA RONGONUIAppellantAND THE QUEENRespondentHearing: 4 May 2017Court: Brown, Mallon and Wylie JJCounsel: J C Hannam for AppellantC A Brook for RespondentJudgment: 24 May 2017 at 10.00 amJUDGMENT OF THE COURTA The application for an extension of time to file the notice of appeal is granted.B The appeal against conviction is allowed.C The conviction for wounding with intent to cause grievous bodily harm is quashed and a conviction for injuring with intent to cause grievous bodily harm substituted.D The conviction for aggravated burglary is quashed and a conviction for burglary substituted.E The sentences of nine years' imprisonment and the imposition of a minimum period of imprisonment are quashed. Concurrent sentences ofthree years and four months' imprisonment are substituted on each of theamended charges.F The strike warning issued on 16 September 2014 in respect of the aggravated burglary conviction is cancelled.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] After a Judge-alone trial before Judge Roberts in the District Court at New Plymouth, Mr Rongonui was convicted of one charge of wounding with intent to cause grievous bodily harm, one charge of aggravated burglary and one charge of threatening to kill.1[2] On 16 September 2014 he was sentenced by Judge Roberts to nine years'imprisonment on the first two charges and three years' imprisonment on the third, thesentences to run concurrently. An MPI of six years was imposed.2[3] An appeal against conviction and sentence was heard by Peters J on 14 December 2015.3 However the proper first appeal court in respect of Mr Rongonui's conviction appeal was the Court of Appeal, not the High Court, as heinitially elected a jury trial.4 For the reasons explained in the minute of Kós P dated 21 February 2017 we consider that the decision of Peters J must therefore be treated as a nullity.[4] The present appeal was filed out of time on 7 March 2017 and consequently an extension of time is required. As the application for leave to appeal out of time was not opposed, it is granted.1 R v Rongonui DC New Plymouth CRI-2013-043-1313, 5 September 2014.2 R v Rongonui DC New Plymouth CRI-2013-043-1313, 16 September 2014 [Sentencing notes].3 Rongonui v R [2015] NZHC 546. The conviction appeal was dismissed but the sentence appealallowed, with the sentences of nine years' imprisonment reduced to eight years and threemonths.4 See the reasoning in Jackson v R [2016] NZCA 627.Appeal against conviction[5] One ground of Mr Rongonui's appeal against conviction was that the level ofinjury sustained by the complainant was not sufficient to qualify as a wound as that word is used in s 188(1) of the Crimes Act 1961. Related to that issue, Mr Hannam for Mr Rongonui contended that one of the Judge's several interventions (the numberof which were the basis of a separate ground of appeal) had resulted in a degree of curtailment of the exploration in cross-examination of the circumstances giving rise to the nature of the injury in question.[6] The Crown's written submissions suggested that it was possible to infer fromthe evidence that a wound was suffered by the complainant in the form of a small external wound (a small cut or scratch to the nose) or an internal wound (a bleeding nose) or both. However the Crown invited the Court, if it took a different view, to substitute a conviction for injuring with intent to cause grievous bodily harm rather than ordering a retrial.[7] In the course of exchanges with counsel at the hearing, the apparently minor nature of the injury was accepted and the position was reached that both Mr Rongonui and the Crown agreed to the appeal being resolved on the basis that a charge of injuring with intent should be substituted for the wounding charge and a substituted sentence would be imposed by this Court. That position was confirmed in a joint memorandum of counsel dated 11 May 2017 which stated:As confirmed at the hearing of this appeal on 4 May 2017, a more expedient way to achieve the same outcome [as what would have occurred had a retrial been ordered] is for this Court to simply amend the charges and impose a substituted sentence by consent; there is no need to remit the matter to the District Court for that process to be followed. The appellant and respondent both consent to that course; neither party wishes to preserve appeal rights by having the substitutions take place in the District Court. The amendment of the aggravated burglary charge to burglary was not canvassed at the appeal hearing, but given it would be inevitable if the matter were remitted to the District Court the parties agree this Court should substitute that conviction as well.[8] Under s 234 of the Criminal Procedure Act 2011 this Court can direct a conviction for a different offence (offence B) be substituted for the offence that a person has been found guilty of at trial (offence A) if satisfied that:(a) the person could have been found guilty of offence B at the trial for offence A; and(b) the trial judge (or jury) must have been satisfied of the facts that prove the person guilty of offence B.[9] As the two offences that are proposed to be substituted are lesser versions of the two charges that Mr Rongonui was convicted of at trial and rely on the same facts as found by the Judge, we are satisfied these two requirements are met.[10] Consequently in those circumstances we agree with the parties that:(a) The conviction for wounding with intent to cause grievous bodily harm should be substituted with a conviction for injuring with intent to cause grievous bodily harm.5(b) The conviction for aggravated burglary should be substituted with a conviction for burglary.6[11] Mr Rongonui received a first warning under the "three-strikes regime" foreach of his convictions for wounding with intent to cause grievous bodily harm and aggravated burglary.7 As the conviction for wounding has been substituted withanother "serious violent offence",8 the first strike warning given in respect of the conviction for wounding with intent to cause grievous bodily harm is now deemed to apply to the substituted conviction for injuring with intent to cause grievous bodily harm.9 However, as burglary is not a "serious violent offence", the first warning inrespect of the conviction for aggravated burglary must be cancelled.105 Crimes Act 1961, s 189(1).6 Section 231.7 Sentencing Act 2002, s 86B.8 Section 86A, definition of "serious violent offence".9 Section 86F(4).10 Section 86F(3).Sentence[12] As the parties' written submissions on the appeal against sentence had beenpremised on the original more serious charges, in their joint memorandum dated 8 May 2017 counsel made the following brief submissions for sentencing on the substituted charges:5 Taueki remains the controlling authority on a charge of injuring with intent to cause grievous bodily harm, with adjustments to reflect the lesser maximum penalty.6 The parties are agreed that this offending falls in the bottom half of Band Two, suggesting a starting point in the range of three and a halfto five years' imprisonment (for all matters). Some uplift will be required to reflect the appellant's previous history.7 In the unusual circumstances of this case the Crown accepts that the appellant may be given significant credit for the plea.8 An MPI will likely be of no practical effect given the length of time the appellant has spent in custody; accordingly none is sought by the Crown.[13] We agree that the offending the subject of the amended charges places Mr Rongonui within band two of R v Taueki,11 albeit with a downward adjustment to reflect the less serious substituted charges.12 The following aggravating features identified in the sentencing notes of Judge Roberts warrant that categorisation:13 Premeditation: Mr Rongonui travelling to the victim's address armedwith a pen gun with the intention of violence against the victim. Use of a weapon: Mr Rongonui picked up a small sledgehammer during the assault which he used to strike the victim. Attack to the head: Mr Rongonui struck the victim multiple times in the head both with the sledgehammer and his fists. Home invasion: Mr Rongonui unlawfully entered the victim's property.11 R v Taueki [2005] 3 NZLR 372 (CA) at [38].12 At [9].13 Sentencing notes, above n 2, at [22].[14] However, as the Crown submissions recognise, the number of aggravating features alone is not determinative and it is necessary to consider the extent to which they are present. The Crown submits, and we accept, that the present case fell at the lower end of the scale in several respects: The offending was not highly premeditated and certainly not sophisticated. Although there were attacks to the head, the injuries caused were not particularly serious — the victim himself said that he thought Mr Rongonui was "holding back". Given Mr Rongonui and the victim were associates, the unlawful entryonto the victim's property was not as serious as other home invasionscenarios.[15] Taking into account that an uplift is required to reflect the additional charge of threatening to kill, we consider that an appropriate overall starting point of four years' imprisonment is appropriate.[16] Prior to the incident in question Mr Rongonui had an extensive criminal history extending back to 1986. He had around 55 convictions in total, including many convictions for assault, and had already served 18 sentences of imprisonment. Judge Roberts considered that a six-month uplift for Mr Rongonui's previous historywas required.14 We agree.[17] In the joint memorandum the Crown accepted that in the "unusual"circumstances of the case Mr Rongonui should be given "significant" credit for theplea. While there was no guilty plea as such, we are prepared to accept the consent to the substitution of convictions, which was essentially to expedite the process that would likely have arisen had we quashed the convictions and ordered a retrial, as being in the nature of a guilty plea entitling Mr Rongonui to a discount.14 At [29].[18] The allowance that can and should be given for a guilty plea requires an evaluation of all the circumstances in which that plea is entered.15 We note that Mr Rongonui initially sought a sentencing indication, indicating the potential of a guilty plea prior to trial, but this was not pursued due to the charge of wounding. He had a reasonable defence to the charge of wounding, namely the lack of a wound, which may have entitled him to an acquittal, but had difficulties advancing thatdefence because of the Judge's interventions at trial. There is no opposition to thesubstitution of a conviction for injuring with intent to cause grievous bodily harm for that of wounding. Mindful of the submission of Crown counsel on the issue, we consider a discount of 25 per cent is appropriate in the unique circumstances of this case.[19] Consequently the period of four years and six months' imprisonment isreduced to final concurrent sentences of three years and four months' imprisonmentin respect of the convictions on the two amended charges. The concurrent sentenceof three years' imprisonment on the third charge is unaffected. We agree withcounsel that it is unnecessary to impose an MPI.Result[20] The application for an extension of time to file the notice of appeal is granted.[21] The appeal against conviction is allowed.[22] The conviction for wounding with intent to cause grievous bodily harm is quashed and a conviction for injuring with intent to cause grievous bodily harm substituted.[23] The conviction for aggravated burglary is quashed and a conviction for burglary substituted.[24] The sentences of nine years' imprisonment and the imposition of a minimumperiod of imprisonment are quashed. Concurrent sentences of three years and fourmonths' imprisonment are substituted on each of the amended charges.15 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [70].[25] The strike warning issued on 16 September 2014 in respect of the aggravated burglary conviction is cancelled.Solicitors:Hannam & Co Lawyers, New Plymouth for AppellantCrown Law Office, Wellington for Respondent