KULIMOEANGA V R [2016] NZCA 129

KULIMOEANGA V R [2016] NZCA 129 [15 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA143/2015[2016] NZCA 129BETWEEN WAME ROKOUA KULIMOEANGAAppellantAND THE QUEENRespondentHearing: 15 February 2016Court: Stevens, Simon France and Ellis JJCounsel: M J Phelps for AppellantK S Grau and Y Moinfar for RespondentJudgment: 15 April 2016 at 10.00 amJUDGMENT OF THE COURTThe appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Mr Kulimoeanga was sentenced to three years and nine months'imprisonment after a jury found him guilty of one count of injuring with intent to cause grievous bodily harm and one count of unlawfully carrying a firearm.1 He was acquitted on charges of kidnapping and injuring with intent to injure, and discharged on a further count of injuring with intent to cause grievous bodily harm when the jury could not reach a verdict. His co-offender was acquitted on all charges.1 R v Kulimoeanga [2015] NZDC 1360.[2] Mr Kulimoeanga now appeals both his conviction and sentence.Background[3] Mr Kulimoeanga had a grievance with a number of individuals and, in circumstances which are not presently relevant, went with his co-offender to their house in Flaxmere. In short, he believed that one of the occupants, Mr Esi Pailate, had been involved in a burglary at his home and that some of the stolen property might be at the Flaxmere house. Mr Kulimoeanga took a baseball bat with him to the house and his co-offender had a shotgun.[4] The two men confronted the occupants as they searched for Mr Kulimoeanga's stolen property. Mr Kulimoeanga struck Mr Elone Vaitaki a blow to the neck, using the baseball bat. Mr Vaitaki did not give evidence at trial but other witnesses said he was knocked to the ground and appeared to have been stunned or rendered temporarily unconscious. This was the basis for the fourth charge, injuring with intent to cause grievous bodily harm.[5] The third charge (a further count of injuring with intent to cause grievous bodily harm), on which the jury could not reach a verdict, related to an allegation that he had hit another of the occupants, Mr Lauti Pailate, on the arm with the bat when the occupant had tried to defend himself from a blow directed at his head.[6] While at the property, Mr Kulimoeanga's co-offender presented the shot gun and made threats to some of the occupants, including pointing it at children who were there. Mr Kulimoeanga was convicted as a party to the firearm offence, although the person charged as his co-offender was acquitted due to uncertainty over his identification.[7] At trial, one strand of the defence case was that Mr Kulimoeanga had gone to the Flaxmere address to look for his stolen property, and that what then occurred had been exaggerated by witnesses to deflect attention from the involvement of one oftheir number in the burglary at Mr Kulimoeanga's home. Defence counsel sought to build a foundation for this inference by establishing that none of the occupants had called the Police immediately, and that they were less than forthcoming in terms ofwhat they knew about Mr Kulimoeanga's apparent motivation for his visit to theFlaxmere property.[8] This theory was played out in defence counsel's cross-examination of one of the occupants of the house, Ms Tauranga. Ms Tauranga had given evidence that shehad seen Mr Kulimoeanga strike Mr Vaitaki's neck with the baseball bat. BecauseMr Vaitaki himself did not give evidence, Ms Tauranga was an important Crown witness in relation to the fourth charge.[9] Defence counsel asked Ms Tauranga why, when she called the Police to report the offending, she did not mention anything about Mr Pailate's alleged involvement in the burglary. Ms Tauranga maintained she had told the Police about that.[10] After Ms Tauranga had completed her evidence, the prosecutor raised the fact that there was a Police job-sheet regarding her call to Police, which had not been disclosed to the defence prior to the trial. The job-sheet recorded that Ms Taurangahad said to Police that Esi [Pailate] "was also accused of ripping Wame[Mr Kulimoeanga] off". Given the implications for Ms Tauranga's credibility as awitness, the Crown then indicated its wish to have the job-sheet put in evidence through a Police witness.[11] The following morning, defence counsel asked the Judge to declare a mistrial due to the non-disclosure of the job-sheet. The Judge declined to do so but suggested that Ms Tauranga could be recalled. Defence counsel did not wish to pursue that option. The Judge then permitted the job sheet to be put into evidence through a Police witness.The appeals[12] As to his conviction, Mr Kulimoeanga appeals on the grounds that:(a) a substantial miscarriage of justice occurred because the trial Judge refused to grant a mistrial as a consequence of non-disclosure of the job-sheet; and(b) the verdict in relation to count four (injuring Mr Vaitaki with intent to cause grievous bodily harm) was unreasonable and could not be supported by the evidence.[13] Other grounds recorded in the notice of appeal were not pursued before us.[14] As far as the sentence appeal is concerned Mr Kulimoeanga says:(a) the starting point for the totality of offending was too high; and(b) in the circumstances of the case, the sentence was manifestly excessive.The non-disclosure of the job-sheet[15] Mr Phelps submitted that the non-disclosure of the job-sheet and the Judge'srefusal to order a mistrial subsequent to its discovery resulted in a miscarriage of justice because:(a) the job-sheet undermined a plank of the defence theory of the case, which was based on the failure of the complainants and witnesses to tell the full story about the events that evening;(b) the line of cross-examination would not have been pursued with Ms Tauranga had the job-sheet been disclosed; and(c) defence counsel's questions in cross-examination therefore had the unintended effect of bolstering the credibility of Ms Tauranga, to the detriment of the defence case.[16] This last contention was based on the proposition that the defence had successfully undermined the credibility of the other Crown witnesses (as reflected inthe acquittals on the other charges) and so Ms Tauranga's evidence (and hercredibility) was critical in terms of securing the conviction which is now appealed by Mr Kulimoeanga.Discussion[17] We begin by recording our view that it is unfortunate that the Judge permitted the Crown to call the evidence of the job-sheet. The job-sheet should, undoubtedly, have been disclosed to the defence and was not. Suggesting that Ms Tauranga could be recalled did not address what was a legitimate defence concern arising from the late disclosure. We consider that refusing to allow the undisclosed job-sheet to be admitted in evidence and thus requiring the Crown to bear the consequences of the error would have been a more appropriate response.[18] But, what must be established for the purposes of the appeal is that a miscarriage of justice has occurred due to the non-disclosure of the job-sheet and subsequent decision not to grant a mistrial.2 The job-sheet was, of course, good evidence that (absent the disclosure issue) lent support to Ms Tauranga's evidence.However, we also accept the Crown submission that any prejudice to the defence arising from the non-disclosure was minor. To the extent the defence theory was that Crown witnesses had fabricated or exaggerated their accounts, the suggestion that Ms Tauranga had not told the Police about the alleged burglary formed but a small part of it. And, as matters stood, Ms Tauranga had responded to the questioning by saying she did raise it and there was no further challenge to that.[19] The Crown submission that the defence case did not rest solely on the exaggeration theory is borne out by the overview given by Mr Kulimoeanga's trialcounsel in his closing address to the jury. The defence relied, in particular, on inconsistencies between the accounts of various Crown witnesses, the implausibility of their evidence, and various motivations to lie. Notably the defence was successful in relation to a number of the charges faced by Mr Kulimoeanga.[20] Accordingly, and notwithstanding the view we have expressed at [17] above, we consider that no real prospect of a miscarriage of justice arises from the non- disclosure and the refusal to order a mistrial. This ground of Mr Kulimoeanga'sappeal against conviction therefore fails.2 Criminal Procedure Act 2011, s 232(2)(c).Unreasonable verdict[21] Relying on s 232(2)(a) of the Criminal Procedure Act 2011, Mr Phelps submitted that the guilty verdict on count four (injuring Mr Vaitaki with intent to cause him grievous bodily harm) should be set aside as unreasonable because it is unsupported by the evidence. It was further submitted that the guilty verdict cannot be reconciled with the failure to reach a verdict on count three (injuring Mr Pailate with intent to cause grievous bodily harm).Discussion[22] At the outset we note that we are not aware of an inconsistent verdicts challenge which has been advanced on the basis of an alleged inconsistency between a guilty verdict on one charge and a failure to reach a verdict on another. This appealground could only be available if the traditional description of "inconsistent verdicts" is broadened to encompass "inconsistent outcomes". Whether such anexpansion is conceptually possible is, perhaps, arguable. But in this case it is unnecessary to resolve the issue because we are satisfied there is no merit in the unreasonableness challenge.[23] As Ms Grau for the Crown submitted, there is a high threshold for intervening with a jury verdict on the grounds of unreasonableness. The weight given to aspects of the evidence is a jury function and reasonable minds may differ on matters of fact.3 In order to have a guilty verdict set aside on the grounds of inconsistency with an acquittal on another charge, an appellant must establish that the inconsistency is an affront to logic and common sense.4 The question is not whether the acquittal on one charge was reasonable but whether the conviction on the other was unreasonable in the sense required.[24] In Mr Kulimoeanga's case we consider that there was sufficient evidence for the jury to find count four proven beyond reasonable doubt. As to proof of injury, Mr Vaitaki was felled by the blow to his neck and, although there was conflicting evidence about whether he was knocked momentarily unconscious or merely3 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13].4 See the discussion in B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261.stunned, there was also evidence that his neck was sore the next day. And as tointent, the evidence was that Mr Kulimoeanga swung a baseball bat at Mr Vaitaki'shead or neck and, indeed, made contact sufficiently to make him fall to the ground. Collectively, this evidence forms a sufficient basis for a jury to infer that Mr Kulimoeanga injured Mr Vaitaki with intent to cause Mr Vaitaki grievous bodily harm.[25] Lastly, we consider that it would have been open to the jury to have reached different verdicts in relation to the third and fourth counts. The evidence for each count was different. In particular, the evidence given by both Mr Pailate and Mr Moatoane in relation to the third count was aptly described by Ms Grau as reluctant, evasive and equivocal. By contrast, because Mr Vaitaki refused to cooperate with Police, the evidence in support of the fourth count came from three women who were present at the Flaxmere address on the night in question. Their evidence was clear, strong and largely consistent. The jury's guilty verdict cannot therefore beseen as unreasonable,[26] This ground of appeal must also be dismissed. Consequently, the appeal against conviction is dismissed.Sentence appeal[27] In arriving at the end sentence of three years and nine months' imprisonment, Judge Adeane agreed with the Crown's submission that a starting point of four years'imprisonment was appropriate for the totality of Mr Kulimoeanga's offending. The Judge did not apply an uplift to the starting point, despite observing this could be justified to take into account the appellant's previous offending, which included a 2011 conviction for injuring with intent to injure. He then noted that Mr Kulimoeanga had spent some time (around seven months) on electronically- monitored bail conditions, and that this warranted a three month reduction.55 Mr Kulimoeanga was sentenced to three years and nine months' imprisonment on the lead charge of injuring with intent to cause grievous bodily harm, and one year's imprisonment (concurrent) for his part in the carriage of the firearm.[28] Mr Phelps submitted that the four year starting point of the sentence was too high and that the Judge did not correctly apply R v Taueki by failing to identify the relevant culpability factors or the band into which the offending fell.6 He accepted that the case involved two Taueki culpability factors, namely use of a weapon and attack to the head, but submitted that neither was present to a high degree. He emphasised that although Mr Vaitaki was struck on the neck and appeared to be dazed he was apparently suffering no ill-effects the next day.[29] Accordingly Mr Phelps submitted that the offending fell at the bottom end of band one and the starting point on the grievous bodily harm charge should have beenno more than two years and six months' imprisonment. He accepted that an uplift of six months would be appropriate for the firearm charge and that the absence of any uplift for previous convictions was generous, but said that any such generosity was offset by the small three month discount for time spent on EM bail.Discussion[30] It is trite that, as Ms Grau submitted, the critical question is whether the end sentence is manifestly excessive, not whether each of its parts can individually be justified.[31] Here, there is no real dispute that Mr Kulimoeanga's offending fell withinTaueki band one.7 Although not all were mentioned by the learned District Court Judge, the aggravating features here included the nature of the assault (an attack to the head/neck area), the use of a weapon (the baseball bat), a degree of premeditation (bringing the bat to the Flaxmere property), and the invasion of a home. After making an appropriate adjustment to the Taueki starting point to reflect the lesser seriousness of a s 189(1) charge, there could be no quibble with a starting point for the injuring with intent charge of two and a half to three years.6 R v Taueki [2005] 3 NZLR 372 (CA).7 This Court's decision in R v Taueki, above n 6, is the guideline authority for serious violent offending. Although that decision is directly concerned with wounding with intent to cause grievous bodily harm rather than injuring, it can be applied more widely, provided the guidelines are recalibrated to reflect the different degrees of seriousness of the two charges and the different maximum penalties applicable to each: see R v Taueki, above n 6, at [9]; and Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [28].[32] Once that point is reached, we consider it was open to the Judge to treat the presence of a firearm as either an aggravating feature of the injuring charge (which is what he did), or to uplift the starting point to reflect the additional firearm offence. Oneither approach, an uplift of between 12 and 18 months' imprisonment was warranted inthe circumstances of this case. The firearm was brandished in an attempt to intimidate. At some stage it was pointed at the persons present at the Flaxmere address including young children in the bedroom. Although the gun may not have been loaded, Mr Kulimoeanga had retrieved ammunition from his house. There was the potential for serious harm. Accordingly it cannot be said that a starting point of four years'imprisonment did not appropriately reflected the totality of Mr Kulimoeanga'soffending.[33] Mr Kulimoeanga's previous convictions could have been the subject of an additional uplift of around three months, but was not. As Mr Phelps accepted, it is not then possible to criticise as too modest the discount given for time spent on electronically-monitored bail. There were no other personal mitigating factors warranting a further reduction.[34] For these reasons, while perhaps at the upper end of the available range, anend sentence of three years and nine months' imprisonment cannot be said to bemanifestly excessive. We dismiss the appeal against sentence accordingly.Conclusion[35] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent