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Court of Appeal of New Zealand |
IN THE COURT OF APPEAL OF NEW ZEALAND
CA37/04CA70/04THE QUEENv
MICHAEL HUNA TE POUZENA RANGI HARRISHearing: 17 August 2004
Coram: O'Regan J Randerson J Doogue J
Appearances: R Laybourn for Te Pou
S K Ellis for Harris
F E Guy
for Crown
Judgment: 24 August 2004
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JUDGMENT OF THE COURT DELIVERED BY DOOGUE J
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[1] Michael Huna Te Pou and his partner Zena Rangi Harris were convicted of multiple offences following a trial by jury. On 16 December 2003 they were sentenced by Potter J, the trial Judge, in respect of those offences. The appellant Te Pou was sentenced for 16 offences, including two of aggravated robbery, one of assault with a firearm, five of kidnapping, two of injuring with intent, four of unlawful possession of firearms and ammunition, and two of receiving. The Judge imposed an overall sentence of 18 years on Te Pou. At the same time she imposed an overall sentence of eight years on the appellant Harris in respect of 11 offences, one of aggravated robbery, one of assault with a firearm, four of kidnapping, three of receiving, and four of unlawful possession of firearms and ammunition.
[2] Te Pou appeals in respect of his sentence. The basis of his appeal is that the sentence of 18 years imprisonment is manifestly excessive and that his sentence should not exceed a 15 year term of imprisonment imposed upon a co-offender Tommy Awaawa Tame Taitapanui.
[3] Harris appeals against her convictions in relation to offences of kidnapping, assault with a firearm, aggravated robbery and receiving. She also appeals against her sentence in respect of the first three of those offences and a further offence of kidnapping. Her appeal in respect of the first three convictions is based upon the grounds that they are against the weight of evidence and that the trial Judge misdirected the jury in respect of aspects of the law relating to parties and inferences. The appeal against the offence of receiving is upon the basis that there was no evidence to support a conviction. The appeal against sentence is based on the submission that the sentence imposed was manifestly excessive. In respect of the first three offences where there is a challenge to the sentence, it is submitted that the appellant’s conduct was less culpable than that of her co-offenders. In respect of the fourth offence, it is submitted there should have been a distinction between the sentence imposed on the appellant Te Pou and that imposed on the appellant Harris as the latter was said to be merely a bystander who had a minimal role.
Background
[4] The two appellants, along with the co-offender Taitapanui and another co-offender Kenneth Adrian Devon, stood trial in October 2003 in respect of some 25 separate counts. A further co-offender, Hugh Reece Nicholas, pleaded guilty and was sentenced on 20 February 2003 in the Kaikohe District Court to a term of nine years imprisonment with a minimum period of imprisonment of six years in respect of four offences of kidnapping and one of aggravated robbery.
[5] We adopt the summary of the offending for which the appellants and the co-offenders have been convicted and sentenced from the sentencing notes of Potter J:
Background facts
[7] The offending of which the prisoners have been convicted relates to 4 separate incidents: offending against Stefan Murdoch, the Kerikeri home invasion, offending against Hugh Nicholas, and offending in relation to items located at 130 Norton Road, Hamilton when the Police executed a search warrant there on 18 October 2002. I shall summarise the factual background in relation to all 4 incidents.
Offending against Stefan Murdoch
[8] The victim, Murdoch, had an interest in a massage parlour (Apollos) at 130 Norton Road. Zena Harris worked at the massage parlour. She and Murdoch reached an agreement to exchange their vehicles, his Toyota Hilux utility and her Mazda. $5,000 was to be paid to Mr Murdoch to balance the values. That payment was made. Mr Murdoch was concerned the paperwork in relation to the transfer was not completed and he raised that with Zena Harris. She assured him that everything would be fixed up.
[9] On the night of 11 September 2002 Zena Harris and Stefan Murdoch had an argument about a matter relating to the massage parlour. On the morning of 12 September Zena Harris and Michael Te Pou arrived at 130 Norton Road. Zena Harris proposed to Stefan Murdoch that they should go to her house in Huntly to fix up about the vehicles. At the invitation of Mr Te Pou, Mr Murdoch got into the driver’s seat of the Hilux utility with Mr Te Pou in the passenger seat. Zena Harris drove the Mazda. The vehicles left 130 Norton Road at about the same time. Shortly after leaving, Mr Te Pou punched Mr Murdoch in the head and pulled a pistol out of a flax bag which he pointed at Mr Murdoch. He told him to do what he was told and he would be all right. He instructed Mr Murdoch to drive to the Huntly pub and to park at the rear. Mr Te Pou went inside. Mr Murdoch remained in the vehicle as directed. He was intimidated by gang members who came out of the rear door of the hotel. Mr Te Pou returned to the vehicle and instructed Mr Murdoch to drive to Zena Harris’ house at Huntly. There in the kitchen Mr Murdoch was presented with a series of questions about his financial situation, which he was required to answer in writing seated at the kitchen table. Mr Te Pou was in the kitchen. Zena Harris was along a passageway of the house. Mr Murdoch was then instructed to drive the Hilux utility with Mr Te Pou in the passenger seat to the ATM machine for Westpac at Ngaruawahia. He was instructed to withdraw all the money in his accounts. He did so while Mr Te Pou stood on the footpath about 10 metres away. The Hilux was parked at the curb. Mr Murdoch was then directed to drive to his home in Ngaruawahia and to locate two sums of cash that he had hidden in the house. He did this while Mr Te Pou was in the house with him. Having collected the cash, Mr Murdoch presented it together with the money withdrawn from Westpac, to Mr Te Pou. Mr Te Pou told him to keep it and to give it to Zena Harris.
[10] Throughout the period that Mr Murdoch was in the company of Mr Te Pou the gun which had been pointed at him as they left 130 Norton Road remained on the floor of the passenger seat in a flax kit.
The Kerikeri home invasion
[11] After these events, Michael Te Pou and Zena Harris moved into 130 Norton Road. One of their acquaintances was Hugh Nicholas. At the instigation of a person S, Hugh Nicholas sought the services of Mr Te Pou to punish for perceived wrongs her brother G who lived with his family at Kerikeri. For reward, stated by Hugh Nicholas to be $10,000 and certain vehicles belonging to G, Mr Te Pou organised and directed events at Kerikeri pursuant to a plan developed by him involving Hugh Nicholas, the accused Tommy Taitapanui and Kenneth Devon.
[12] In the early hours of the morning of Saturday 13 October 2002 Taitapanui drove the Hilux utility (the vehicle of Stefan Murdoch) to Kerikeri accompanied by Hugh Nicholas and Devon. He was given a gun by Mr Te Pou. They stopped to buy a length of rope at a service station in Kaikohe and to seek directions to the property of the people at Kerikeri. They arrived there before 7 a.m. on Saturday 13 October. Hugh Nicholas knocked on the door and advised G who opened it, that he had come to collect the possessions of G’s father who had a few days previously had left the property. Shortly afterwards Hugh Nicholas knocked on the door for a second time and on this occasion Taitapanui with a gun and Devon with a crowbar, both wearing balaclavas or a light form of disguise, rushed in upon G. Devon hit him over the head with the crowbar and knocked him to the ground. They proceeded to bind, blindfold and gag him and place him on the bed in the bedroom he shared with his partner R. R also was bound, blindfolded and gagged, as were two teenage boys, a nephew of G and the son of R when they later returned to the property.
[13] The victims were intimidated and assaulted with loaded guns. They were forced at gun point to sign cheques and a purported “gift” to Hugh Nicholas of G’s two Triumph motorcycles. Devon and Hugh Nicholas loaded on to a trailer they had brought the two Triumph motorcycles, the property of G. They also took two motorcycle helmets and motorcycle clothing of G together with the house keys and a number of other items from the property. Mr Taitapanui and Mr Devon left after dark on the Saturday and returned to 130 Norton Road, Hamilton with the goods they had stolen transported in the trailer that they had brought with them to Kerikeri. Hugh Nicholas remained at the property continuing the vigil and torment of the victims until the middle of Sunday afternoon when he left the property with a gun that he had with him at all times during the detention of the victims.
[14] During the period when Hugh Nicholas and Kenneth Devon were loading the goods on to the trailer, R was subjected to digital penetration of her vagina by the second balaclaved man, Mr Taitapanui, who remained in the house guarding the victims.
[15] One of the motorcycles, the registration licence for the other and most of the goods taken were found at 130 Norton Road when the police executed a search warrant, and in the case of the registration licence for the other motorcycle, it was found on the person of Mr Te Pou when he was arrested.
Offending against Hugh Nicholas
[16] When Hugh Nicholas returned to 130 Norton Road on 14 October he was detained by the four prisoners, severely beaten over an extended period and eventually driven to near Rangiriri by Mr Te Pou and Zena Harris. He was left on the side of the road. He made his way to the Rangiriri Hotel from where the Police and medical services were alerted. He had been detained for 2 days. His hair had been dyed so he would look like G in order to make use of the stolen cheques.
The search warrant
[17] The Police executed a search warrant at Norton Road on 18 October 2002 and found there the items which are the subject of the firearms and explosive charges against Mr Te Pou and Zena Harris.
[18] On execution of the search warrant on 18 October 2002 a range of jewellery and other items were found at 130 Norton Road, being property stolen from the premises of Appliance Traders at 161 Victoria Street, Hamilton on 5 October 2002.
[19] Also found on execution of the search warrant were two Apple McIntosh computers stolen the previous month from Auckland University.
Reasons for sentences and the appeal
[6] The sentencing Judge identified the following aggravating factors relevant to each of the four separate incidents:
(i) In relation to the offending against Stefan Murdoch –
(ii) In relation to the Kerikeri home invasion
(iii) In relation to Hugh Nicholas
(iv) In relation to items found at 130 Norton Road
[7] The Judge went on to refer to mitigating factors. She took the view that there was little that could be said in mitigation in respect of any of the offending. Some of the matters advanced to her were a suggestion that the aggravating factors were not as bad as they might have been. Others related to the character of the victims Murdoch and Nicholas, which the Judge rightly put to one side.
[8] The Judge noted in respect of the Kerikeri offending:
[29] It is significant that defence counsel did not attempt to minimise the aggravating features of the Kerikeri offending, but sought to paint Hugh Nicholas as the prime offender and the person most responsible for the criminal conduct and the aggravating features of it. But the three male prisoners are guilty as parties in this offending. They not only actively participated in it, but in the case of Mr Taitapanui and Mr Devon, were there during a good part of the period when they say Hugh Nicholas was responsible for many of the gross features of the conduct towards the victims. Except for Mr Devon showing some compassion towards the female victim R and making some attempts to stem the worst of the assault against the victim G, they appeared to do nothing to attempt to curb or stop the sadistic, cruel behaviour they now ascribe to Hugh Nicholas. They were there. By their presence they aided and abetted it. Mr Te Pou orchestrated the bizarre event. Given that he equipped the others with a gun and gave instructions and details about punishing G, he cannot seek to distance himself from the actions of those to whom he entrusted the implementation of the plan.
[9] The Judge carefully traversed the victim impact statements. She then directly addressed the issue of parity in sentencing, which lies behind both appeals against sentence, as she traversed the position in respect of the sentencing of the offender Nicholas. She noted that the factors which entitled him to a discount were absent in relation to the offenders that she was dealing with. She noted further that he was not charged with injuring with intent to injure in respect of which all the other three males were convicted in respect of their treatment of the complainant G in relation to the Kerikeri home invasion.
[10] The Judge went on to cite from the decision of this court in R v Mako [2000] 2 NZLR 170 at [34]. She also noted other cases, which had been cited to her. She discussed the issue of cumulative and concurrent sentences.
[11] In sentencing Te Pou, the Judge noted the nature of the criminality of which he had convicted. She went on to refer to his personal position, he being aged 41. He and Harris had been in a relationship for seven years and had three children. He had other children. She noted that he had not co-operated in the pre-sentence report and had a lack of victim empathy and remorse. There was no offer to make amends. She referred to aspects of the pre-sentence report, which recorded that he was capable of gratuitous violence, intimidation, and exerting power and control over others by forceful means. The report noted that the offending reflected a callous disregard for the consequences of his actions on the lives of others and an apparent lack of social conscience. He was assessed as having a high risk of re-offending given the aggravating features of it.
[12] The Judge noted that his counsel said that the appellant had anticipated a further meeting to complete the interview but he was not given the opportunity to express remorse and he had sympathy for the Kerikeri victims. He said he did not anticipate the behaviour of the co-offender Nicholas.
[13] The Judge recorded that the appellant had seven prior convictions for receiving, one prior conviction involving a firearm and significant convictions for violence although they dated back to around 1980. Other prior convictions exhibited general anti-social behaviour. She could identify no mitigating factors in respect of the appellant Te Pou.
[14] In respect of the Kerikeri offending, which she regarded as the most serious, the Judge said that the appellant and his co-offenders had sought to portray Nicholas as the prime offender. However, the Judge remarked that the jury clearly accepted that Te Pou was the director of operations in relation to the Kerikeri offending and that he could not distance himself from what occurred. It was he who accepted the instructions to carry out the punishment of G in Kerikeri and negotiated his price, and it was he who received the spoils, as the Judge found the evidence showed. The Judge went on to note that it was the appellant who provided the Toyota Hilux vehicle for the transport north and the guns. Further, it was the appellant who instructed the other three male offenders what to do and he was in regular touch with them by cellphone, even if not present at the scene. The jury rejected the suggestion that the appellant was not involved in the arrangements.
[15] The Judge went on to reject the submission on behalf of the appellant that the offender Nicholas was clearly significantly more culpable in the Kerikeri offending than the appellant was. She accepted that he may have been the initial conduit for the appellant’s involvement and the front man at Kerikeri, but she categorised the appellant as “the director, the person responsible, who organised and instructed the commission of these horrendous crimes. He knew who he was sending to Kerikeri and why he sent them there.”
[16] The Judge went on to consider the appropriate sentence for the Kerikeri offending and the offending against Nicholas. She noted the aggravating factors, with Te Pou directing and having prime responsibility for the Kerikeri offending. She took a starting point of 13 years imprisonment. She imposed that sentence for the aggravated robbery and for each of the four convictions for kidnapping. She imposed a sentence of three years imprisonment for injuring with intent to injure. In respect of the offending against Nicholas, she imposed a sentence of three years for injuring with intent. All those sentences were concurrent. She further imposed sentences of three and a half years imprisonment in respect of the offending against the victim Murdoch, with the sentences to be concurrent amongst themselves but cumulative in respect of the Kerikeri and Nicholas offending. In respect of the four offences under the Arms Act, she imposed a sentence of one year’s imprisonment to be served concurrently but cumulative upon the other sentences. In respect of the two receiving offences, she imposed a sentence of six months imprisonment to be served concurrently but cumulative upon the other sentences. The result was the overall sentence of 18 years. She imposed a minimum term of imprisonment of eight years and eight months imprisonment in respect of the offence of aggravated robbery in relation to the Kerikeri offending.
[17] The Judge noted that the co-offender Taitapanui was to be sentenced for nine offences. In relation to the Kerikeri offences, there was one offence of aggravated robbery, four of kidnapping, one of injuring with intent and one of sexual violation by unlawful sexual connection. In relation to the offending against Nicholas, there was an offence of kidnapping and one of injuring with intent.
[18] The co-offender Taitapanui is 35 years old and the father of six children. He is a patched member of Mangu Kaha. The Judge noted that Taitapanui had a considerable list of previous convictions although only one for serious violence which was in 1986. The remaining criminal convictions represented a range of dishonesty, drug related, driving, and anti-social offending. He was assessed at a high risk of re-offending. There were no mitigating factors relating to him.
[19] The Judge accepted that in relation to the Kerikeri offending, Taitapanui’s role was as a hired or co-opted agent to do the bidding of Te Pou, with Nicholas at the front man. She accepted he was actively involved in the offending and that he carried a gun and issued threats of intimidation over a lengthy period of time.
[20] The Judge took a starting point for the offending of Taitapanui in respect of the Kerikeri offending and the offending against Nicholas of twelve years imprisonment. She imposed that sentence for the offences of aggravated robbery and each of the four offences of kidnapping. She imposed a sentence of three years imprisonment for injuring with intent to injure. All those sentences were concurrent. She went on to impose a sentence of three years imprisonment in respect of the offence of sexual violation by unlawful sexual connection with that sentence to be cumulative on the other sentences, giving a total of 15 years imprisonment.
[21] In relation to the offending against Nicholas, she imposed three years for each of the two offences with that term to be served concurrently with the sentences imposed for the Kerikeri offending. She imposed a minimum term of eight years imprisonment in respect of the offence of aggravated robbery in relation to the Kerikeri offending.
[22] The Judge went on to deal with the sentencing of the co-offender Devon. He was sentenced for one offence of aggravated robbery, five offences of kidnapping, and two of injuring with intent, relating to the events at Kerikeri and the offending against Nicholas.
[23] The offender was aged 34 years. He was single with a ten year old son. He had no previous convictions. He expressed remorse. He was assessed as having a high risk of re-offending and his motivation for addressing his drug problem was regarded as only moderate. He was the only one of the appellants who had shown any compassion for the female victim in the Kerikeri crimes. On the other hand, he had hit the male victim with a crowbar. The Judge accepted that he was a hired or co-opted agent.
[24] She took the same starting point of twelve years for the offending at Kerikeri and against Nicholas. However she made an allowance of one year to reflect the absence of aggravating factors, previous convictions and lack of empathy and remorse which were factored into that starting point for the co-offenders. She thus took a starting point of eleven years and imposed that sentence in respect of the offences of aggravated robbery and kidnapping, and three years imprisonment on the offence of injuring with intent to injure. In respect of the offending against Nicholas, she imposed three years for each offence with the sentences to be concurrent for those of the Kerikeri offending. She imposed a minimum term of imprisonment of seven years and four months. She rejected the submission that it should be no greater than the six years imposed on Nicholas as Devon did not enter a guilty plea at any stage.
[25] The Judge went on to deal with the position of the appellant Harris. She noted that Harris was convicted as a party in relation to the offending against Murdoch and Nicholas but not charged in relation to the Kerikeri offending, except to the extent of a receiving charge relating to the two Triumph motorcycles. She was sentenced for two offences of kidnapping, one relating to Murdoch and the other to Nicholas, assault with a firearm, and an aggravated robbery in relation to Murdoch, and on the firearms and receiving offences arising out of the exercise of the search warrant at 130 Norton Rd.
[26] The Judge noted that Harris was aged 33 years. She has six children by three different fathers. She was remorseful and accepting of the consequences of the serious offending which she said she regretted. She asserted to the probation officer that she was subject to physical and mental abuse from the appellant Te Pou. She stated that he had an influence over her, which caused her to fear for her safety and led her to being involved as a party in the offending.
[27] The Judge noted that Harris’s list of convictions dated back to 1998 and included charges of assault, the most recent arising from an offence in November 2002 when she was convicted of assault on a child and imprisoned for nine months. The appellant acknowledged her capacity for violence. She attributed her offending to drugs and alcohol, a propensity for violence, and criminal association. She said that she wished to change her way of life. The Judge recorded that letters from the appellant and her counsellor confirmed that. The Judge expressed the hope that she could achieve that intent.
[28] The Judge noted that the aggravating factors previously identified in relation to the offending against Murdoch and Nicholas applied in respect of the appellant Harris. She recorded that the appellant’s attempts to distance herself from those features were incompatible with the jury’s verdict.
[29] The Judge imposed upon Harris a sentence of three and a half years imprisonment in relation to each of the three offences against Murdoch, three years imprisonment in relation to the kidnapping offence against Nicholas, one years imprisonment in relation to the four offences under the Arms Act and six months imprisonment for the three receiving charges. While the sentences in each of those categories were to be served concurrently, they were to be cumulative upon the others, giving a total of eight years imprisonment. No minimum term of imprisonment was imposed, despite a submission by the Crown that that should occur.
Appeal of Harris against conviction
[30] As already noted, the case for the appellant Harris is that her convictions in respect of the offences against the victim Murdoch were against the weight of evidence and that the trial Judge misdirected the jury in respect of both parties and inferences. We put the appeal against the receiving conviction to one side for the moment.
[31] The attack on the Judge’s direction in respect of parties is primarily against what was said in the following part of the summing-up:
[66] If you are satisfied that was the case, that all three elements have been proved by the Crown, then both the principal party or parties and secondary parties, will be parties to any offence which is committed while they were putting their agreement into effect – if and only if, that particular offence was known to the secondary party, to be something that could well happen while they were carrying out the agreement. That is what “probable consequence” means – something that could well happen in the course of carrying out the agreement or the common intention they had formed. That is the fourth essential ingredient the Crown must prove.
[67] I emphasise that the Crown does not have to satisfy you that the secondary party knew that what happened would certainly happen. Also whether he intended or wanted it to happen is not the point. If you are satisfied that he knew it could well happen, that will suffice.
[32] It is submitted that the use of the words “to be something that could well happen” is contrary to the law. It is submitted that the Judge was effectively stating that a known possibility would be sufficient rather than probability being required. This sweeping submission was made without reference to authority and is in direct conflict with authority.
[33] In R v Gush [1980] 2 NZLR 92, 94 this Court said:
The two most common meanings are "more probable than not" and what Lord Reid described as "likely but not very likely". We prefer, for present purposes, to say that a probable event, in this second sense of the word, means an event that could well happen.
[34] That statement of the law has been approved in subsequent cases in this court including R v Piri [1987] 1 NZLR 66, 84.
[35] There is accordingly no substance whatever in this ground of appeal.
[36] The position is almost identical in respect of the appellant’s attack on the direction on inferences. The Judge gave a standard direction on inferences. She said:
[23] The next point I want to talk about, is inferences. You are entitled to act on logical inferences based on facts you find properly proved. If you find certain facts proved you may well feel justified in coming to the conclusion, though there is no direct proof of it, that another fact may be inferred from the proved facts. That sounds complicated, but in reality it is not. Drawing inferences from facts we know to be correct, is something we all do every day.
...
[31] To summarise. An inference must be a proper inference drawn from facts that you find have been proved, inferences are not speculation or guesswork. Inferences are not guesses. Rather they are logical, reasonable and fair deductions from facts that have been proved, logical deductions from facts that you are satisfied are proved.
[37] That is entirely in accord with what was said by this Court in R v Puttick (1985) 1 CRNZ 644, 647:
Inference is simply one of the mental processes which may be used by a jury in carrying out its primary task of assessing the evidence and deciding whether or not it establishes the guilt of the accused beyond reasonable doubt. Where the charge has several essential elements, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.
Since there is no distinction either in law or logic between facts established by direct evidence and those established by inference, so long as collateral or evidentiary facts need not be proved beyond reasonable doubt a direction that only "irresistible" inferences are permissible must constitute an unjustifiable restriction of the normal and proper use of inference. It must also tend to restrict the use by the jury of the combined knowledge and experience of its members, which is its greatest contribution to the trial process.
It must be equally unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other. To draw an inference either way from such facts would be pure speculation. Jurors should not be directed to accept or reject inferences when they have no logical basis for either step.
The extent of directions on inferences, as on any topic, will vary according to the significance of that topic in the particular case. In the present case the only significant inference the jurors were called upon to consider was as to the accused's state of mind and knowledge that the goods were stolen when he received them. This being an essential element of the offence, they were correctly directed they must be able to infer that fact beyond reasonable doubt.
In these circumstances any general direction as to the use of inference in this case, as in most cases, did not require special elaboration, and could have been in the simplest terms. It would have sufficed had the jurors been advised that in assessing the meaning of the evidence they were entitled to draw inferences, but that such inferences should be logical inferences from proven facts, not mere speculation or guesswork.
In these circumstances any general direction as to the use of inference in this case, as in most cases, did not require special elaboration, and could have been made in the simplest terms. It would have sufficed had the jurors been advised that in assessing the meaning of the evidence, they were entitled to draw inferences, but that such inferences should be logical inferences from proven facts, not mere speculation or guesswork.
[38] This court re-affirmed that approach in R v Hart [1986] 2 NZLR 408, 413 making clear that elaborate general directions about inferences were to be discouraged.
[39] The appellant submits, that despite that being the law, the Judge was obliged to go further and direct the jury that where there was were two equal inferences available to them, then neither should be drawn. No authority was stated for this proposition. It is quite contrary to the authorities already cited. Undoubtedly trial Judges do give such a direction in some cases but this Court has never held that it is obligatory. No reasoned justification for a change to the long established position has been indicated. Hence this ground of appeal is equally without substance.
[40] An alternative submission is made that when directing the jury in respect of the Crown case the Judge mentioned inferences relied upon by the Crown but did not also mention alternative inferences open to the defence case. She was at this stage summarising the respective cases for the parties. There is no suggestion she did not fairly put the appellant’s case. She had already given the jury clear and proper directions as to inferences. There is nothing in this point.
[41] A confused and further argument is made that if the Judge correctly dealt with the law relating to inferences and circumstantial evidence she did so in the wrong order and that could somehow have misled the jury. The Judge dealt with the topics in an entirely standard and proper way and we need say no more about this topic.
[42] We now deal with the submission that the verdicts finding the appellant guilty of kidnapping, assault with a firearm, and the aggravated robbery of the victim Murdoch were against the weight of evidence. It is in essence submitted that there is no evidence of any knowledge on the part of Harris that Te Pou would detain or assault the victim Murdoch, let alone any evidence of encouragement by her or the formation of a common intention for such actions.
[43] The respondent submits that there was ample evidence to support the convictions on the three offences relating to Murdoch. It is submitted that the jury could be satisfied that the two had formed a common intention to rob Murdoch and to assist each other in doing so. It is submitted that the following facts were proven:
- The arrangement for the swapping of the vehicles was made between Harris and Te Pou on the one hand and Murdoch on the other;
- Murdoch told Harris and Te Pou that he owed money on his vehicle and that he was going to pay that money off;
- There was debt owing on Harris’ Mazda but they did not inform Murdoch of this when the arrangements were made;
- Murdoch then had a discussion with Harris when he told her that there was still money owing on the car and discussed what was going to happen. He expressed concerns that it had not been sorted out;
- Harris said that everything would be sorted out and not to worry;
- On the night before the alleged kidnapping, Harris had an argument with Murdoch. She disapproved of him having a sexual relationship with one of the prostitutes. Harris walked out of the brothel premises. There was evidence indicating that she told Te Pou about this argument;
- The next morning Harris and Te Pou turned up. Harris told Murdoch that they would go to her house and sort out the car;
- Harris then separated from Te Pou and Murdoch. She took the Mazda. She left Murdoch with Te Pou. It was while in the vehicle with Te Pou that Murdoch got hit on the side of the head by Te Pou and when he turned to look saw that there was a gun pointed at him. When he questioned what was happening, Te Pou just told him to drive to Harris’s;
- Once the vehicle with Te Pou and Murdoch arrived at Harris’s home, she did not sit down with Murdoch and attempt to sort out the money owing on her former vehicle. She was however present in the house and Te Pou took the completed forms down the hallway of the house and then returned with another page full of questions which was again taken down the hallway; and
- After Murdoch had been forced to withdraw money and collect the cash that he held at the house, he was told by Te Pou to put it in his pocket and to give it to Harris. Te Pou told him that he was going to go and get her and bring her back and Murdoch was to give the money to her.
[44] It is further submitted that it was open to the jury to draw the inference from these facts that there was a common intention to rob Murdoch and to assist each other in doing so.
[45] In addition, it is submitted there was evidence from which the jury could conclude that the offences of containing Murdoch, assaulting him, and using a firearm in the course of the robbery, were known to be a probable consequence of the prosecution of robbery of Murdoch by Harris. It is submitted the jury could draw that inference from the evidence at trial, including the following facts:
- The presence in Harris’ home of three firearms and a significant quantity of ammunition, including ammunition in her handbag;
- The presence of Harris when Nicholas was assaulted by Te Pou; and
- Harris’ presence whilst Te Pou directed how the aggravated robbery in Kerikeri was to take place, including his directions that force was to be used on Gerald Cedric White and the provision of a firearm by him to Nicholas.
[46] It seems to us clear that the submissions of the respondent are well based and unanswerable. There was ample evidence for the jury to find as they did. They were fully entitled to reject Harris’s case, which was properly put to them. Once again there is simply no substance in the ground of appeal.
[47] The final point relating to the appeal by Harris against conviction is that the offence of receiving two Triumph motorcycles is not supported by the evidence as there was no evidence to suggest that they were given jointly or solely to Harris. The motor cycles arrived at the Norton Rd address of the two appellants with Nicholas. It is submitted they were given to Te Pou. It is submitted there was no evidence that Harris either dealt with or had custody and control of the motorcycles. It is further submitted that the evidence indicated that only Te Pou had custody and control and there is evidence of his later dealings with one of them.
[48] However, there was evidence upon which the jury could be satisfied that the two motorcycles in question were brought into the possession of the appellant Harris. They may also have been in the possession of the appellant Te Pou but that does not avoid her culpability. There was evidence that when the property was searched on 18 October 2002, one of the bikes was located in the garage of the address at which she was living with Te Pou and the car she drove was nearby. She was at the address the time the search warrant was executed. Other property stolen from Kerikeri was also located at the property.
[49] The witness Nicholas gave evidence that Harris was present when Nicholas returned to speak to Te Pou after discussing the arrangements of a deal. Harris was also present when Te Pou went and spoke directly to the person with whom the deal was to be done. She was also present at a discussion at the kitchen table where Te Pou discussed what was going to happen while the co-offenders were at Kerikeri and the items to be taken.
[50] The witness Nicholas gave evidence that Harris was present at a discussion when she affirmed that the motorcycles were to be taken.
[51] The witness Nicholas also gave evidence that Harris was present when he returned to the Norton Road property, the bikes having been taken from Kerikeri the previous night.
[52] There was thus ample evidence from which the jury could be satisfied that the two bikes were brought into Harris’s possession, which was what was required to be established for the act of receiving.
[53] Once again we have no doubt that there is simply no substance in the point of appeal. There was more than ample evidence to justify the jury rejecting the appellant’s explanation of events and convicting her of receiving.
Appeal of Te Pou in relation to sentence
[54] The essence of the submissions for Te Pou is that the totality of the offending of Taitapanui should have been reflected as the most serious, notwithstanding additional offences committed by Te Pou. It is submitted that Te Pou should not receive the severest of all the sentences. Notwithstanding that he may have been the director of the offending in Kerikeri, it is submitted that the offender Nicholas embarked upon an independent course of action there and that the appellant could not be culpable in respect of that. It is accepted the sentences imposed upon Nicholas were appropriate. It is submitted, however, that the appellant should have received a lesser sentence for the same offending. It is submitted that in any event the totality of the offending by Taitapanui was greater than that of Te Pou.
[55] It is accepted that the assessment of Taitapanui’s role in relation to the Kerikeri offending was appropriate. However, he alone faced conviction on a count of sexual violation. It is submitted that the sentence of three years imprisonment imposed for that offending was inadequate. It is submitted that when that offending is taken into account with Taitapanui’s other offending, he was the principal offender. It is further submitted that the sentence of three years and six months imprisonment imposed in respect of the offending in relation to Murdoch was manifestly excessive. It is submitted the conduct of the victim was relevant. However, the submissions made on behalf of the appellant do not turn on the conduct of Murdoch but on his character, which cannot be relevant.
[56] We have no doubt the Judge carried out a difficult sentencing exercise in an exemplary manner. She carefully considered the positions of each of the disparate co-offenders. As the trial Judge she was in the best position to evaluate the different roles of the offenders. She has done that rationally and justifiably. The appellant was the person responsible for unleashing Nicholas, Taitapanui and Devon onto the family at Kerikeri. He expected violence. He provided the means by which it could be carried out. He was in contact with those at Kerikeri. It is simply not open to him to say, “I am less responsible because Nicholas went further than I expected”. He may not have sanctioned every detail of what occurred but he sanctioned the broad thrust of the dreadful events at Kerikeri and the Judge was entitled to sentence him accordingly.
[57] Similarly, when considering the appellant’s position vis-à-vis Taitapanui it was inevitable the Judge would arrive at a higher sentence for the appellant. He was not only the primary offender but the extent of his crimes and their totality transcend those of Taitapanui. Indeed, he could perhaps consider himself fortunate that the differential was not greater given that we regard the sentence imposed for the Murdoch offending imposed on Te Pou as moderate rather than excessive. It is true Taitapanui committed the offence of sexual violation. However, in all other respects his culpability and the totality of his offending were substantially less than that of Te Pou.
[58] We therefore see no substance in this appeal against sentence. On any basis the ultimate sentence imposed on the appellant and any differences between his sentence and those of Nicholas and Taitapanui are thoroughly justified.
Appeal of Harris in relation to sentence
[59] Harris contests her sentence in respect of the offences against the victim Murdoch and the offence of intentionally injuring the victim Nicholas.
[60] In respect of the offending in respect of the victim Murdoch, it is submitted that the appellant’s conduct was less culpable for the following reasons:
- This was not a robbery of an innocent, unknown person in the street;
- The assault with intent to rob used minimal force;
- The assault while in possession a pistol was a minor one;
- The kidnapping was not a discrete offence, but part and parcel of the attempt to extract money from Murdoch;
- Murdoch knew the offenders and was behaving at the very least in a suspicious fashion with joint funds;
- The appellant’s involvement was minimal; and
- Murdoch lost nothing and indeed profited during the course of the offending against him.
[61] It is submitted further that the Judge placed insufficient weight on the conduct of the victim and on the limited role that the appellant had. It was submitted that this conduct should have been taken into account under ss 9(2)(c) and (d) of the Sentencing Act 2002. For the appellant, it is submitted that the victim profited in the past when the appellant was a mere worker in his brothel. This, however, has nothing to do with the offending against him and we fail to see how the character of the victim can be relevant to the offences against him.
[62] It is submitted that the three and a half year sentence in respect of the victim Murdoch is manifestly excessive.
[63] In relation to the victim Nicholas, it is submitted that the appellant was a mere bystander and that there should have been a distinction between the sentence imposed on her and the co-appellant Te Pou. It is submitted that her role was minimal. It is accepted she was present throughout and was involved in the dyeing of the hair of the victim and requesting that he give a signature. However, she was not a party to the injuring of the victim Nicholas.
[64] It is accordingly submitted that there should have been a distinction in the sentencing between the position of Te Pou, who was the principal in the kidnapping of Nicholas, and that of the appellant Harris.
[65] We accept that in respect of the offences against Murdoch, a number of the relevant features identified in Mako in assessing true culpability of an offender were present including:
- The degree of planning and preparation;
- The use of a firearm;
- The use of violence.
- The presence of threats and intimidation;
- The associated offending of detention;
- The impact on the victims; and
- The evidence of gang activity.
[66] While Harris’ involvement was less than that of Te Pou, it was significant and an important part in the offending in carrying out the common purpose. It is well accepted that parties to offences can receive the same penalty as the principal offender.
[67] The appellant’s submissions overlook the effect that the offending had on the victim as recorded by the Judge in her sentencing remarks:
That submission ignores the reality of the situation that this offending caused for Mr Murdoch who out of fear was obliged to leave his own home, to sell it without returning, to hire security guards to protect his property, to place his household goods in storage, and generally to meet the financial and emotional costs of relocating himself and redirecting his way of life as a direct consequence of the offending against him by Mr Te Pou and Ms Harris. His estimate was that in order to obtain a quick sale of his house property he was obliged to sell at an undervalue of approximately $10,000.
[68] So far as the Harris’s appeal against her sentence for kidnapping the victim Nicholas is concerned, there is no logic in her position. Te Pou was not charged with kidnapping Nicholas but with the separate offence of injuring him with intent to injure. He received a sentence of three years imprisonment for that offence. Harris’ co-offenders, Taitapanui and Devon, each received three year sentences for the offences of kidnapping and injuring with intent, those sentences to be concurrent. The offences were separate offences and were to be considered separately by the Judge in determining the appropriate sentence. The culpability for kidnapping someone is not necessarily less than the culpability for injuring that person. It was an extended detention of two days. The victim’s hair was dyed. He was treated poorly and not fed or given water. The appellant and Te Pou left him on the side of the road. Te Pou was not the principal in this kidnapping nor even charged with it. Thus, the sentence imposed on him is not directly relevant to that of Harris.
[69] Nor was Harris a minor party in the kidnapping. She played an important and necessary role in it and featured throughout the detention. She bought the hair dye and dyed Nicholas’ hair. She directed that he was to learn another man’s signature. She was aggressive. She was present when Devon struck Nicholas over the head with a solid steel bar. When Nicholas collapsed, she did not assist him or attempt to stop the other two men kicking and punching him. She forced him to change his clothes. She and Te Pou drove Nicholas to an address and she was together with Te Pou when they drove him to another address. She assisted Te Pou when he assaulted Nicholas. They together took Nicholas to Rangiriri where he was told to get out of the car.
[70] We reiterate the substance of what we have said in the first four sentences in paragraph [56] above. Harris seeks to minimise her involvement in serious offending. She seeks to distance herself from her partner of seven years, the father of three of her children and to suggest that she was a mere pawn in his activities. That is entirely inconsistent with the findings of the jury and the substance of the evidence before the court. It is apparent in respect of the offending against both the victims Nicholas and Murdoch the Judge was fully entitled to take the view she did and to assess the appellant’s culpability and the totality of her offending in the way that she did.
[71] Nothing has been advanced on behalf of the appellant that would entitle us to say that the sentence imposed upon her when viewed in its components or in its totality was manifestly excessive. It is significant that the Judge specifically rejected the Crown request for a minimum sentence. That in itself distinguished Harris from Te Pou.
Decision
[72] In the result, Te Pou’s appeal against sentence and Harris’s appeals against conviction and sentence are dismissed.
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URL: http://www.nzlii.org/nz/cases/NZCA/2004/197.html