IN THE COURT OF APPEAL OF NEW ZEALAND
CA98/2013
[2013] NZCA 640
BETWEEN
BON VINCENT NAMANA
Appellant
AND
THE QUEEN
Respondent
CA110/2013
AND BETWEEN
PAUL ANTHONY THOMPSON
Appellant
AND
THE QUEEN
Respondent
Hearing:
11 November 2013
Court:
Wild, Asher and Dobson JJ
Counsel:
V C Nisbet and P A Walker for Namana
N Levy for Thompson
H W Ebersohn for Respondent
Judgment:
11 December 2013 at 3 pm
JUDGMENT OF THE COURT
A
Mr Namana’s appeal, both against conviction and against sentence, is
dismissed.
B
Mr Thompson’s appeal, which is also against both conviction and
sentence, is also dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
NAMANA V R CA98/2013 [2013] NZCA 640 [11 December 2013]
Introduction
[1]
Both appellants appeal against their conviction and sentence.
[2]
The two appellants, together with Nigel Archibald and Ngahina Matiaha,
were tried in the District Court at Wellington in November 2012. Together with
Mr Archibald, both appellants were charged with aggravated robbery.
The two
appellants and Mr Matiaha were also charged with wounding with intent to cause
grievous bodily harm. The jury found the two appellants guilty of both charges,
Mr Archibald guilty of aggravated robbery and Mr Matiaha guilty on the wounding
charge.
[3]
Judge Mill sentenced the two appellants together with Messrs Archibald and
Matiaha on 30 January this year.1
Mr Namana was sentenced to an effective
sentence of nine years imprisonment, Mr Thompson to 10 years. Mr Archibald was
sentenced to three years imprisonment and Mr Matiaha to two years three months
imprisonment.
[4]
Mr Namana appeals his conviction on the grounds that the Judge failed
adequately to:
direct the jury about the unreliability of the evidence of the Crown’s two
main witnesses, Messrs Howes and Hodson; and
caution the jury about prejudice, given that all four accused were involved in
the Nomads gang, and that the events which featured in the trial were gang
related.
[5]
On his appeal against sentence, Mr Namana’s submission is that the Judge’s
sentencing starting point of eight years imprisonment on the aggravated robbery
charge was too high, resulting in a sentence that is manifestly excessive. The
submission is that the appropriate starting point was six to seven years.
1
R v Archibald DC Wellington CRI-2011-035-1557, 30 January 2013 [Sentencing notes].
[6]
Mr Thompson’s appeal against conviction is differently grounded.
He
submits that his trial counsel, Ms Elder, did not put his defence resulting in a
miscarriage of justice. There is no dispute that the agreed defence was an alibi one –
that Mr Thompson could not have been involved in either the aggravated robbery or
the wounding, because he was elsewhere at the relevant time. Mr Thompson had
told the police he was at the home of his co-accused Mr Archibald throughout the
evening when the offending occurred.
[7]
On his sentence appeal, Mr Thompson submits that his sentence of 10 years
imprisonment is manifestly excessive, and that the disparity with the sentence of four
years imprisonment imposed on Mr Howes, who was also involved in the aggravated
robbery but was sentenced separately, is gross and unjustifiable.
What happened
The aggravated robbery
[8]
On the evening of 26 July 2011 a number of men associated with the Nomads
Gang were at a gathering at Mr Howes’ home on Colombo Rd, Masterton. Some of
the men there were Masterton Nomads. They included Mr Howes himself, but also
Mr Hodson (Mr Howes’ 17 year old son), and Messrs Western, Hemi and Tiltyard. A
number of the men were Carterton Nomads, including both appellants, and Messrs
Archibald and Matiaha.
[9]
At some stage during the evening Mr Howes decided that more cannabis was
needed, and suggested robbing a tinny house in Masterton where it was thought there
would be cannabis and also cash. It seems most of the others present thought this
was a silly idea. Nevertheless, Mr Howes and two other men embarked on the
robbery. In the statements he made to the police on 28 July 2011 and 2 February
2012, Mr Howes identified the two other robbers as Messrs Thompson and Matiaha.
[10]
In his evidence at the appellants’ trial, Mr Howes said the two other robbers
were Mr Thompson, who had the rifle, and Mr Namana. This change caught all
counsel by surprise. Mr Namana had been charged with the aggravated robbery on
the basis of Mr Hodson’s statement to the police. Mr Hodson had told the police he
saw Mr Archibald take a sawn off .22 calibre rifle out of the fireplace on Colombo
Rd and pass it out the window to Mr Namana. Mr Hodson also told the police that
he had not seen any of the robbers leave the Colombo Rd address but, after the rifle
had been passed out the window, he had noticed that Mr Thompson and Mr Namana
were no longer there, and he assumed they had gone to do the robbery. He said that
Messrs Archibald and Matiaha were still at the Colombo Rd address. Mr Hodson
repeated this account in his evidence at the trial.
[11]
The three robbers drove in a white Nissan hatchback car to the tinny house on
Church St in Masterton.2 Mr Howes knocked on the door which was answered by
the female complainant in the robbery, Ms Rameka. Mr Howes and Mr Thompson
burst into the house, Mr Thompson brandishing the firearm. Mr Namana followed.
Messrs Namana and Thompson had their faces covered but Mr Howes did not. The
two victims subsequently identified Mr Howes from a photo montage.
[12]
The male complainant, Mr Brown, was sleeping on the lounge floor. After
kicking him awake, the robbers demanded drugs and money. After they were told
there were none, Ms Rameka was taken into the kitchen where, a little later,
Mr Thompson, pointing the rifle at her, made her bend over and kiss his boots.
[13]
Mr Brown was taken into the children’s bedroom (the children were not in
the house) where Mr Namana punched him and again demanded drugs. Mr Brown
lashed out in response and was getting the better of Mr Namana, who called out for
help. This came in the form of Mr Thompson armed with the rifle. Mr Brown then
stopped fighting and was again assaulted by both Messrs Namana and Thompson.
[14]
While this was happening, Ms Rameka fled to a neighbour’s house and called
the police. As she fled she noticed a white car outside the gate of her Church St
home.
[15]
When they realised Ms Rameka had fled, the robbers left the house, taking a
laptop and a tinny of cannabis they had taken from Ms Rameka. Mr Brown ran after
2
The relevance of this is that Mr Thompson accepted he had owned a white Nissan Sentra
hatchback registration FZD397. He claimed to have sold it “ages ago” but he and Mr Matiaha
were in it when the police stopped the car in Petone, Wellington on 15 June 2011.
them and threw a brick at their car as it left. He described the car as a white Nissan
Pulsar hatchback 89/91 model.
[16]
An argument developed between the three robbers as they were driving back
to Colombo Rd. It appears that Mr Howes was blamed for the failed robbery plan
and for leaving the rifle behind. In evidence Mr Howes said that Mr Thompson
punched him a couple of times in the head in the car.
The wounding
[17]
Back at the house things turned really sour. Mr Howes’ evidence was that he
was set upon, initially by Messrs Thompson and Namana. He was punched in the
face until he fell down and then kicked in the body and head. Mr Howes recalled
Mr Matiaha joining in and kicking him just before he lost consciousness.
[18]
In his evidence Mr Hodson said that about 30–45 minutes after he noticed
Mr Thompson (and also Mr Namana) was no longer at the Colombo Rd property,
Mr Thompson came into the kitchen the property in a frantic mood.
He told
Mr Archibald to go with him but told Mr Hodson to “fuck off” when Mr Hodson
tried to follow. Mr Hodson said he became concerned about his father (Mr Howes).
He went round the side of the house and saw his father lying on the ground behind
the white car with blood everywhere. He said that every time his father tried to get
up he was kicked and punched back down by Messrs Thompson and Namana.
Mr Matiaha joined in and kicked his father in the head. Mr Thompson kept saying to
Mr Hodson “fuck off, fuck off, he almost got us killed” and “he fucked up, he left
the gun at the house”.
[19]
In his evidence Mr Howes recalled drifting in and out of consciousness. He
remembered being taken to the shower, and falling out of the shower cabinet as he
started to lose consciousness again and being placed on a mattress where the Armed
Offenders’ Squad subsequently found him.
[20]
After his father had been cleaned up in the shower and put on the mattress,
Mr Hodson gave evidence that Mr Matiaha came in and urinated on his father and
removed his Nomad’s T-shirt.
[21]
Constables who arrived at the Colombo Rd property at 11.20 pm gave
evidence that they saw a white Nissan Sentra car reversing out of the drive, but then
driving back in when its occupants saw the police. One of the police officers
identified Mr Matiaha as the man who was standing at the entrance to the driveway
who suggested to the police “nothing to see here, you should keep on moving”.
Mr Namana’s appeal against conviction
[22]
First, Mr Nisbet submitted that the case demanded that the Judge give the
jury a special caution about accepting as reliable the evidence of Messrs Howes and
Hodson. He supported this submission with these points:
the “radical” and “concerning” (Mr Nisbet’s descriptions) change in
Mr Howes’ evidence, he identifying Mr Namana rather than (in previous
statements to the police) Mr Matiaha as one of his two co-robbers;
both the key Crown witnesses (Messrs Howes and Hodson) were associated
with the Nomads Gang, and the relevant events were gang related;
those two key witnesses were themselves related – father and son, and both
had motives to lie; and
the men at the gathering on Colombo Rd were all, to a greater or lesser
extent, affected by drink and drugs.
[23]
Because both Messrs Howes and Hodson had motives to give false evidence,
Mr Nisbet submitted that s 122(2)(c) of the Evidence Act 2006 applied here. Section
122(2) requires a Judge in a criminal jury trial to consider warning the jury of the
need for caution in deciding whether to accept evidence, or in relation to the weight
attributed to evidence:
(c)
… given by a witness who may have a motive to give false evidence
that is prejudicial to a defendant.
In giving the warning, it is not necessary for a Judge to use a particular form of
words: s 122(4).
[24]
Assuming s 122(2)(c) applied, we are satisfied that Judge Mill adequately
directed the jury in terms of s 122(1). The Judge’s directions are in the following
part of his summing up:3
[39]
Now the Crown, of course, going back to your document, rely on the
evidence of Andrew Howes and Tyler Hodson to say Mr Thompson was
there and also there is evidence of his car being at that address of …
Colombo Street that night. Now a lot has been said about Andrew Howes
and Tyler Hodson’s evidence and you will recall what has been said by
counsel.
[40]
Now it is important, it is important when you look at their evidence,
that you consider whether they both or either of them have a motive to lie.
The question is, is their evidence reliable? In this respect I have to say this,
the evidence of Andrew Howes and Tyler Hodson is critical to the cases
against all of the accused and you have to accept their evidence to find them
guilty and their evidence was strongly challenged in cross-examination by
all of the lawyers for the accused and essentially they were both accused of
falsely implicating the accused men for various reasons, for example to gain
a discount on sentence or a lighter sentence, to have charges reduced in
seriousness or perhaps to save their friends from suspicion or being charged.
As I recall they were the main criticisms, there may have been others.
[41]
Now what you make of their evidence is entirely a matter for you but
you must consider these criticisms and whether these people had motives to
lie about what happened when you are deciding to accept their evidence as
reliable and truthful. In the end it is for you to decide but also you will need
to consider whether Mr Howes’ evidence that it was Mr Namana and not
Mr Matiaha who was with him at … Church Street, you will have to
consider whether that is reliable too, given that he positively identified
Mr Matiaha earlier on and has said in fact on two times, prior to him giving
evidence the other day, that it was Mr Matiaha who was with him and the
defence suggest to you that if he can be wrong about who that was, how can
you rely on him when he says now that it was Mr Namana who was with
him. These are matters entirely for you but please take those matters into
account when assessing the evidence.
…
[44]
Now the defence challenge to Mr Hodson’s evidence is essentially
that he is not telling the truth and I talked about that just a moment ago. But
I just want to talk about one other possibility which Mr Nisbet, in fact raised
in his address to you. Tyler Hodson gave evidence that he identified
Mr Namana and indeed Mr Thompson as standing outside the window when
the rifle was allegedly handed out. And he also identified them later in the
driveway, when he says his father was being seriously assaulted.
[45]
As I said before, the challenge essentially to his evidence is that he is
lying. But if you consider that he is not lying about that, he is an honest
witness about that and he is saying what he believes he saw, then I just have
to caution you about that in this way. An honest witness who identifies
3
R v Archibald DC Wellington CRI-2011-035-1557, 23 November 2012 [Summing up].
something they see or someone they see, can be a mistaken witness. And a
mistaken identification, of course, can result in a serious miscarriage of
justice and a mistaken witness can be a convincing witness. So caution is
required.
[46]
There is some challenges, of course, to his evidence and Mr Nisbet
challenged him as far as Mr Namana was concerned, is that actually the
conditions were not that good for seeing someone outside the house that
night. And although Mr Hodson claimed there was lighting, there was
nothing in the photographs that showed that would be the case.
[47]
So you have to think about that. If he was an honest witness who
believed what he was saying, how well did he know this person,
Mr Namana, and indeed Mr Thompson who he said was out there. And how
good was the opportunity for him to see them out there when the rifle was
handed out. And there is also [counsel for Mr Archibald]’s description,
which you may take into account, of what was going on in the house that
night. There was quite a lot going on, there was quite a lot of drug taking, a
lot of drinking and a lot of pill popping and Mr Hodson said he was
participating in at least some of that and there were people moving around.
So you have to take those matters into account. It was perhaps a stressful
situation or a confusing situation where the witness was under the influence.
I am not saying you cannot accept his evidence but you must, again, just
caution yourself in that way.
[25]
Secondly, Mr Nisbet submitted that s 126 of the Evidence Act required the
Judge to warn the jury about Mr Hodson’s identification of Mr Namana. Mr Nisbet
did not press this submission, and we think rightly so. Paragraphs [45] to [47] of the
Judge’s summing up adequately comply with s 126.
[26]
Thirdly, Mr Nisbet submitted the Judge’s caution about prejudice arising
from the appellants’ gang membership was inadequate. This was what the Judge
said:
[5]
And in doing that, in assessing the inferences you draw from the
evidence, you will of course apply your collective common sense and your
knowledge of human nature. You are here as representatives of our
community and you are expected to apply your fair and wise judgement to
this case. And in doing so, as has been mentioned by counsel, you must put
aside any feelings of prejudice or sympathy one way or the other. You must
reach your verdicts in a dispassionate and calm manner. And of course there
are a number of things on which you could have feelings in this case. You
may have a poor opinion on gangs or what they do or allegedly do. You may
not agree with drug taking or drug dealing or benefit fraud or drinking to
excess. You may be sorry for some of the people that have appeared in this
trial. You may have been dismayed at Mr Matiaha’s attitude during his
interview and the profanity that he used. But if you have any of those
feelings about those things you must put those to one side. You must not
judge people in that way. You should judge the accused men as you would
want to be judged yourself.
[27]
Mr Nisbet’s response, when the Court inquired what more the Judge could
reasonably have said, was that the Judge could have “said it again and again”.
[28]
We see no force in any of Mr Nisbet’s criticisms of the Judge’s summing up,
which is comprehensive and fair.
It follows that Mr Namana’s appeal against
conviction is dismissed.
Mr Namana’s appeal against sentence
[29]
As we mentioned in [5] above, the nub of Mr Namana’s sentence appeal is
that the Judge, in taking the aggravated robbery as the lead charge, ought to have
adopted a sentencing starting point of six to seven years imprisonment, rather than
eight years.
[30]
The Judge identified these aggravating features of the robbery:
some planning, though not the most sophisticated;
unlawful entry into a private dwelling – a home invasion;
the wearing of disguises by Messrs Namana and Thompson;
use of a firearm, in particular to intimidate or threaten both victims; and
threats of violence and actual violence toward Mr Brown and threatening and
insulting behaviour toward Ms Rameka.
[31]
The Judge then referred to R v Mako, which is this Court’s guideline decision
on sentences for aggravated robbery.4 He observed that “a starting point of up to 10
years could be appropriate”, given the sort of aggravating features he had identified.5
He added a cautionary proviso, because some of the aggravating features were
common to all three robbers, and Mr Howes had earlier been sentenced to four years
imprisonment.
4
5
R v Mako [2000] 2 NZLR 170 (CA).
Sentencing notes, above n 1, at [23].
[32]
The Judge clearly had in mind the following paragraph in R v Mako:
[58]
Forced entry to premises at night by a number of offenders seeking
money, drugs or other property, violence against victims, where weapons are
brandished even if no serious injuries are inflicted would require a starting
point of seven years or more. Where a private house is entered the starting
point would be increased under the home invasion provisions to around 10
years.
[33]
The “home invasion provisions” referred to in that passage were repealed by
the Sentencing Act 2002. However, s 9(1)(b) of that Act included, as an aggravating
factor that the Court must take into account where it applied, “that the offence
involved unlawful entry into, or unlawful presence in, a dwelling place”.
After pointing that out, this Court in R v Fenton stated:6
[34]
Although the Sentencing Act does not repeat the automatic three-year uplift
of the maximum penalties that was enacted in 1999, the clear intent remains
that home invasion should be reflected in an increased sentence.
[35]
More recently, in Tiori v R, after reviewing a number of sentencing decisions,
this Court observed:7
[15]
These cases demonstrate that a “home invasion” element is a
seriously aggravating factor in aggravated burglary cases, justifying a
significantly higher starting point than would otherwise be appropriate. The
way in which that outcome is achieved is, however, different from the
approach adopted in the home invasion legislation.
[36]
As we have noted, Mr Nisbet submits that the eight years sentencing starting
point adopted by the Judge was one if not two years too high. To assess whether
there is force in this submission we have reviewed the sentencing decisions
summarised in the appendix to this judgment. That review has satisfied us that the
eight year starting point adopted by the Judge, though stern, was not manifestly too
high.
[37]
6
7
The result is that Mr Namana’s appeal against sentence is also dismissed.
R v Fenton [2008] NZCA 379 at [12].
Tiori v R [2011] NZCA 355.
Mr Thompson’s appeal against conviction
[38]
At the heart of this appeal was Ms Levy’s submission that Ms Elder had
simply not put Mr Thompson’s agreed alibi defence, either to the Crown’s witnesses
when cross-examining them, or to the jury in her closing address.
[39]
Dealing first with cross-examination, Ms Levy referred us to a number of
passages in Ms Elder’s cross-examination of Mr Howes, and to one in particular in
her cross-examination of Mr Hodson.
[40]
It is certainly correct that nowhere did Ms Elder directly confront Mr Howes
or Mr Hodson, by putting to them that they were lying when they said Mr Thompson
was one of the men at the Colombo Rd gathering, and was involved both in the
robbery and the wounding. But we do not accept Ms Levy’s submission that the way
Ms Elder framed her questions involved any implicit acceptance that Mr Thompson
was at Colombo Rd on the night in question, thereby giving the lie to his alibi
defence.
[41]
Rather,
the
whole
focus
of
Ms
Elder’s
cross-examinations
of
Messrs Thompson and Hodson was to attempt to expose their evidence as untruthful,
in particular because of their motives to lie and the inconsistencies and
unsatisfactory aspects of their accounts of what happened.
[42]
We reiterate that we see nothing in Ms Elder’s questioning which would have
indicated to the jury that Mr Thompson was no longer relying on his alibi defence.
[43]
Nor did Ms Elder give any such indication in her closing address to the jury.
Again, she did not expressly put the alibi defence. She did say this much:8
Now you saw them [Messrs Howes and Hodson] give evidence, and you saw
the other accused give evidence, and you saw Paul Thompson’s video and
you might think that there’s a big difference in the way that he interacted
with the police, in the sort of way that he presented himself, and the
information that he gave to the police compared to the others, and I suggest
to you that there was a big difference about the way he presented to the
police. …
8
Closing address of Ms Elder for Thompson, Case on Appeal at 356–357.
So I suggest to you that you can take a lot from the way that Paul Thompson
presented and the spontaneity and the clarity with which he spoke to the
police about what he was doing that night, where he was that night, who his
friends were. He didn’t shy away from the fact that he had mates in the
gang, Ngahina [Matiaha] particularly. …
[44]
We accept, of course, that Ms Elder could have mentioned Mr Thompson’s
alibi defence in her closing address to the jury. She could have suggested to the jury
that the alibi must leave them with a reasonable doubt about Mr Thompson’s
participation in the offending. Another counsel defending Mr Thompson might have
done that. But such a course would not have been without risk. Which course to
adopt was very much a tactical decision for defence counsel, either course being
acceptable trial advocacy. Certainly, the course Ms Elder adopted could not give rise
to a real risk of a miscarriage of justice.
[45]
The Crown had, of course, addressed the jury before the defence closings. So
Ms Elder knew the jury was in no doubt that Mr Thompson’s alibi defence was very
much alive. In closing, the prosecutor had said this to the jury:9
And then let’s look at Paul Thompson’s alibi, and you’ll have that statement
that he pre-prepared and brought to the police station. He wrote his alibi
before going to the police and he said in his DVD interview at page 3 of the
transcript when Detective Keane told him that he’d like to gain an account
he said, “Yeah, I just, um, wrote out the paper and he, and took it to him to
sign”, referring to taking it to a lawyer to sign. So Paul Thompson tells
police about his alibi, that he was at Nigel Archibald’s house. And in fact
Nigel Archibald confirms Paul’s version when spoken to by police in
September. But the Crown says to you that you should put this evidence to
one side because they have just sorted out their story between themselves to
get it around the evidence that the police already know.
And Paul Thompson just happens, by coincidence, to have his signature on
his pre-prepared statement witnessed by Nigel Archibald’s lawyer, Nigel
Archibald’s lawyer. Well Nigel Archibald, the person supporting and relying
on the same alibi, another unfortunate coincidence? The Crown says no.
Paul Thompson and Nigel Archibald have sorted out their story before Paul
Thompson came to the police with his pre-prepared statement and before
Nigel Archibald talked to police. Because if you have a think about it, Nigel
Archibald said in his statement that he had, “Heard through the grapevine
people had been arrested and stuff”, though we know Nigel doesn’t supply
an alibi for Ngahina because, the Crown says, he already knew that Ngahina
had told police that [he] was at [the Colombo Rd property] on that night.
9
Closing address of G Kelly for the Crown, Case on Appeal at 334–335.
[46]
Further, the Judge summed up on Mr Thompson’s alibi defence, and Ms Levy
made no criticism of the way in which he did that. She did submit that it did not
cure what she submitted was Ms Elder’s omission to close to the jury on the alibi.
This is how the Judge summed up the alibi:10
[33]
Now a very important piece of evidence is his statement to the police
where he gives a detailed alibi and there is also a statement from Nigel
Archibald that he was at his place, that is Nigel’s place that night. I have got
a note there, “alibi direction”, that is to remind me to tell you something that
is not in there.
[34]
Now both Mr Thompson and Mr Archibald have said that they were
at Mr Archibald’s home and they said that they were there together and this
raises a defence known as the defence of alibi. Now because an alibi is
claimed, it does not mean the defence has to prove anything. The onus of
proving the case remains on the Crown to prove beyond reasonable doubt
that the person is guilty.
[35]
If you accept, however, that Mr Thompson was at Mr Archibald’s
house when the robbery and wounding occurred or if you are left with a
reasonable doubt on this point as to whether he was there or not, you must
find him not guilty on both charges.
[36]
If you reject this evidence, that is you do not believe it, it does not
follow that Mr Thompson is guilty. You must still decide, on the evidence
that you accept, whether the Crown have proved the various elements
beyond reasonable doubt before you find him guilty.
[47]
In terms of her cross-examination, it is readily understandable why Ms Elder
chose not to accuse either Mr Howes or Mr Hodson directly of lying, when they said
Mr Thompson was at the Colombo Rd gathering and involved in the robbery and
wounding. To do so would have provided a platform for either or both witnesses to
confirm their evidence that Mr Thompson was there and involved, and perhaps to
add some damaging detail or recollection reinforcing their evidence.
[48]
Ms Elder was on much safer and more fertile ground in attacking the
credibility of Messrs Howes and Hodson, because each man’s credibility was wide
open to attack. When he got into the witness box at the trial, Mr Howes had without
warning changed his story in a most material respect. It is perhaps surprising that he
could previously have been mistaken in thinking that Mr Matiaha was one of the
other two robbers. Mr Hodson had initially declined to say anything, and then
claimed not to know about the events at all until he was in difficulties with the law
10
Summing up, above n 3.
himself, when he abruptly cooperated with the police with a great deal of detailed
information.
The assistance of both men was acknowledged in the sentences
imposed on each. In Mr Hodson’s case, the sentence was to come up for sentence if
called upon.
[49]
It needs to be acknowledged that Mr Thompson’s alibi defence had its
weaknesses, which the Crown exploited in closing, in the passage we have set out in
[45] above. Mr Thompson had stated to the police he was at Mr Archibald’s house
all evening. He was, of course, entitled to rely on that statement, and not expose
himself to cross-examination by giving evidence in his trial. And s 33 of the
Evidence Act prevented the prosecutor commenting on that. Nonetheless, that left
Mr Thompson’s reliance on his alibi to be seen by the jury in a weaker light.
Mr Archibald’s defence was much the same: that he was at home all that evening
and that Mr Thompson was there too. Like Mr Thompson, Mr Archibald had made a
statement to the police but he did not give evidence either. In the way she closed to
the jury, Ms Elder seems to us to have been conscious of those weaknesses, and
thought that the jury would likely have been a little unsympathetic to her hammering
Mr Thompson’s alibi defence too much.
[50]
A final point is that Ms Levy, in reply, submitted that Ms Elder was in breach
of s 92 of the Evidence Act in not putting the alibi defence to Messrs Howes and
Hodson squarely in cross-examination. There was no breach of s 92. Even if there
had been a breach, it had no repercussions, as Ms Levy readily accepted. So her
belated invocation of s 92 was incorrect, and anyway tantamount to putting up a
straw man so it could be knocked down. Briefly, s 92 had no application because:
Messrs Howes and Hughes could not squarely respond to Mr Thompson’s
claimed alibi.
They had given evidence that Mr Thompson was at the
gathering at Mr Howes’ home on Colombo Rd and they had been challenged
on that. Putting the alibi as well would not have advanced matters.
None of the sanctions set out in s 92(2)(a)–(c) could apply. All are designed
to protect the party whose witness is being cross-examined. The Crown
would not have wanted to recall Messrs Howes and Hodson in order to ask
them about Mr Thompson’s claimed alibi, nor would the Crown have wanted
the contradictory evidence of Messrs Howes and Hodson excluded.
[51]
Section 92 is the codification of what used to be the rule in Browne v Dunn.11
Section 92 aims both to achieve fairness and to prevent ambush, essentially two
sides of the same coin. As to fairness, it is difficult to improve on this succinct
statement about the rule by Harrison J in Tootell v Police:12
This is a fundamental rule of fairness. It also serves the purpose of enabling
the [jury] to make a comparative evaluation of the evidence of both
complainant and defendant when taxed with the other’s story.
Here, the Crown obviously did not see itself as ambushed by Ms Elder’s crossexamination of Messrs Howes and Hodson. It had known of Mr Thompson’s alleged
alibi since he made his statement at the police station shortly after the offending
occurred.
[52]
We are satisfied that Mr Thompson’s alibi defence was squarely before the
jury. Accordingly, there can be no question of a miscarriage of justice resulting from
that defence not being properly put.
[53]
In the result, Mr Thompson’s appeal against conviction is dismissed.
Mr Thompson’s appeal against sentence
Disparity
[54]
First, Ms Levy submitted that the disparity between the sentence of four years
imprisonment imposed on Mr Howes and the 10 years imposed on Mr Thompson
was too great to withstand the well established disparity test. We do not accept that.
It was Mr Howes’ guilty plea to the aggravated robbery and his cooperation with the
police in respect of the robbery and wounding charges that led to his sentence being
much lower.
Notwithstanding Ms Levy’s efforts to discount those factors, we
consider they adequately explain the disparity and could not lead an independent
objective observer to conclude that the administration of justice has miscarried.
11
12
Browne v Dunn (1893) 6 R 57 (HL)
Tootell v Police HC Rotorua CRI-2005-470-37, 16 November 2005 at [9].
Sentence manifestly excessive
[55]
Secondly, Ms Levy submitted the sentence imposed on Mr Thompson was
simply manifestly excessive.
[56]
The Judge’s sentencing starting point for Mr Thompson on the aggravated
robbery was nine years imprisonment. The additional year over his starting point for
Mr Namana fairly reflected the fact that Mr Thompson was armed with the rifle, and
used it to threaten and subdue both victims of the robbery.
[57]
The considerations that led us to dismiss Mr Namana’s appeal against
sentence apply equally to Mr Thompson. His appeal also must be dismissed.
Result
[58]
Mr Namana’s appeal, both against conviction and sentence, is dismissed.
[59]
Mr Thompson’s appeal, which is also against both conviction and sentence, is
also dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
APPENDIX
A review of a selection of decisions of the Court of Appeal from 2008 to 2013
involving appeals against sentences for aggravated robbery involving a home
invasion element.
Kingi v R:13 the appellant and two co-offenders went to the victim’s
address and broke into a small room at the rear of the garage in order to
find cannabis. One of the offenders then knocked on the front door of the
house and was told the victim’s flatmate, from whom the appellant had
previously purchased cannabis, was not home. The offenders left but
returned a short time later, knocked on the door and forced the victim into
the lounge and onto her back. The offenders were disguised and took
turns straddling the victim’s chest and threatening her with a knife. One
of the co-offenders retrieved the victim’s 18 month old son, held a knife
to his throat and demanded the keys to a vehicle. One offender stayed
inside while the other two went outside and smashed the window of a ute.
Two ounces of cannabis were found and stolen, along with three
cellphones, a laptop computer, a green sweatshirt and house keys. The
appellant was convicted of one count of aggravated burglary, one of
aggravated robbery, and one of possession of cannabis for sale. A starting
point of eight years imprisonment was upheld by this Court (reflecting
the totality of the three offences).14
Apiata v R:15 the lead offence in this case involved three offenders,
including the appellant, following a man home from SkyCity. Two young
children were present at the home. All the occupants of the house were
tied up (except one woman and her two young children). The offenders
had two shotguns and were wearing balaclavas. They also obtained a
knife from the kitchen. One occupant was hit with the barrel of a shotgun
in the shin, and then placed on the floor of the bathroom with his hands
13
14
15
[2013] NZCA 393.
The sentence appeal was allowed on the basis that the Judge did not adequately take into account
mitigating factors.
[2013] NZCA 227.
tied and a sock stuffed in his mouth. He was told that he would be killed
if he reported the offending. Over $16,000 worth of property was stolen.
A starting point of 10 years for that offending was upheld by this Court as
clearly within range.
Frank v R:16 three offenders, including the appellant, entered a house
wearing black balaclavas, punched the victim (who suffers from polio)
repeatedly in the face and threatened him with a large knife. They
believed the victim had been involved in the theft of one of their cars, and
were demanding to know where the car was. The victim was dragged
outside and put in his car. One offender guarded him while the other
offenders robbed the house, taking a number of items. The victim was
then driven away in his car.17 The starting point of eight years on the
aggravated robbery charge was upheld by this Court.
Carpenter v R:18 two offenders went to the victim’s home in the middle
of the night, armed with a shot gun and a knife, to recover money the
appellant believed was owing to him from a drug deal a few days earlier.
The wrong house was entered by mistake. Two children were present.
The victim’s cellphone was taken and $10,000 cash was demanded. A
shotgun was discharged twice at the ceiling and the floor. There was a
tussle between one offender and the victim as the victim tried to run for
help. The offender threatened to kidnap the victim’s children if she did
not return to the house with him.
A starting point of 10 years
imprisonment for aggravated robbery was upheld by this Court.
Wairea v R:19 the appellant and two co-offenders forced their way into a
residential house. They had with them a BB gun and pointed this at the
victim when they were told to leave. There were children in the house.
The victim was pushed and a bag containing personal items (including a
$500 digital camera) was taken. This Court agreed that a starting point of
16
17
18
19
[2013] NZCA 447.
Subsequent events were the subject of charges not relevant to this review.
[2013] NZCA 395.
[2012] NZCA 423.
eight years on the lead charge of aggravated robbery was high, and
perhaps should have been seven years, but this was offset in this case by
the overall sentence being generous.
Pomare v R:20 three disguised offenders, including the appellant, forced
entry into a farmhouse at night armed with knives. They woke the elderly
woman and her daughter who lived there, tied them up and then
ransacked the house, taking at least $23,000 worth of property: jewellery,
bank cards, a cell phone and other items. The telephone was removed
from the property. A starting point of 10 years’ imprisonment adopted in
the District Court was upheld in this Court. (In Pauu v R [2011] NZCA
313 the starting point of 10 years imprisonment for one of the cooffenders was also upheld – the Court adopted the reasoning of the Court
in Pomare.)
Pani v R:21 the appellant and a co-offender entered the victim’s home
during the day, and set upon the victim with a baseball bat, demanding
money (they were there to collect money from him on behalf of a third
party). They then dragged the victim into the back seat of his own car
and drove him to an ATM. The co-offender had a long knife with him in
the front of the car. The victim was forced to withdraw $150. He was
then returned home. The appellant stood over him while the co-offender
searched the house and took a number of items (including a watch,
wallet, laptop and computer). The Judge adopted a starting point of seven
years imprisonment for the offending, which was upheld in this Court.
Currie v R:22 the appellant was visiting the victim with his partner, and
asking him questions about his will. He left, and returned a short time
later with a shotgun. He hit the victim in the face with the barrel and butt
of the gun and drove off in the victim’s car, after threatening the victim.
20
21
22
[2011] NZCA 83.
[2011] NZCA 45.
[2010] NZCA 449.
A starting point of eight years on the aggravated robbery charge was
considered appropriate.
Walker v R [2010] NZCA 534:23 the appellant and another forced their
way into the house of the 61 year old victim at 2 am, demanding money.
They had their faces covered with scarves. They were looking for the
victim’s wallet, and told two associates outside the house to search the
victim’s car for the wallet. The wallet was eventually found on the dining
room table. The appellant was forced into his vehicle and taken to an
ATM, where he was forced to withdraw $800. The offenders took this
money. The victim drove back to his address and had his hands and feet
tied. He was threatened and told not to call the police. His telephone
wires were cut. The offenders drove off in his car, which was recovered
the next day, but with $6,000 worth of tools missing. The starting point
of ten years imprisonment adopted by the sentencing Judge was upheld
by this Court.
Manuel v R:24 the appellant and two co-offenders entered the victim’s
home in the middle of the night. All three offenders were armed with
firearms. The victim was told to get off of bed, was struck with the butt
of a gun, dragged into the lounge by two of the offenders, assaulted,
threatened and tied naked to a chair. The other offender stayed with the
victim’s girlfriend in the bedroom. A starting point of ten years three
months (also reflecting the wounding with intent to cause GBH charge)
was upheld by this Court.
R v Renata:25 the appellant, armed with a machete, and another offender
forced their way into the house of the 67 year old victim. The victim was
hit with the machete (or somehow otherwise sustained serious cuts). The
offenders forced the victim to hand over his EFTPOS card and PIN,
though attempts to use the card were unsuccessful. A starting point of
23
24
25
[2010] NZCA 534.
[2010] NZCA 285.
[2009] NZCA 526.
eleven and a half years (on both the aggravated robbery and wounding
with intent to cause GBH charges) was described as clearly within range.
R v Crawford:26 the appellants and victim all lived in a boarding house
together. The appellants were invited into the victim’s room to drink.
One found a knife in the room and held it to the victim’s throat while the
other held him down on his bed. They removed his wallet, $130 cash and
some tablets from the victim’s pockets. They also demanded the PIN
number to the victim’s EFTPOS card. One appellant left to get money
from the EFTPOS card while the other guarded the door. On failing to
get any money from the EFTPOS card, the other appellant returned to the
room and struck the victim on the head, knocked him to the ground,
kicked him and stomped his face. The victim was led to a petrol station
to access his other bank accounts, but managed to get an attendant to ring
the police. The sentencing Judge found this offending was akin to a
home invasion. Though it did not have the element of unlawful entry into
the home, there was a breach of trust in that the appellants were invited
into the room. A starting point of four years six months imprisonment
was upheld as “well within the range available to the Judge.” This Court
also noted that it was “significantly below [the] starting points” said in
Mako to be appropriate for home invasions.27
R v Royal:28 three masked intruders with two firearms and a
sledgehammer smashed their way into a residential home, dressed in
imitation police clothing and claiming to be members of the Armed
Offender’s Squad. There were teenage children present (the youngest
was 13). The six family members were bound and gagged. One offender
stood over the family with a gun while a second searched the house.
$2000 cash and a cellphone were taken. The third offender told one of
the victims to sit on a hot stove element, and punched, kicked and slashed
that victim with a knife when he refused. The appellant was not one of
26
27
28
[2009] NZCA 479.
At [11].
[2009] NZCA 65.
the offenders, but was standing guard in a vehicle parked some distance
up the road.
He called the offenders when the police arrived, and
attempted to distract the police. A starting point of about 11 years was
upheld on appeal.
R v Fenton:29 four or five offenders armed with a softball bat and a
machete entered a residential home. They had planned the raid to obtain
cash and cannabis. There were teenage children present. The father was
hit on the head with a baseball bat, and the teenage daughter was bound
to the bed with packing tape.
The mother was threatened.
Some
electronic items were taken and the family car was used as an escape
vehicle. This Court held that starting point of ten to eleven years on the
lead charge of aggravated burglary was necessary to reflect the
seriousness of the offending.
Tiori v R:30 four offenders planned to rob a tinny house at night time in
order to retaliate for an earlier assault by the owners of the house. There
had been some preparation (a second SIM card was purchased to conceal
text messages about the offending). One of the offenders went to the
house to purchase a small amount of cannabis and was invited inside.
About an hour later, the three others burst in wearing balaclavas and
brandishing weapons (a slug gun and a hammer, and possibly also a
crowbar or firearm). There were children present in the house. One of
the occupants of the house was hit on the head, and a limited amount of
property was taken. A starting point of eight years was adopted by this
Court (the District Court had adopted a starting point of ten years).
29
30
[2008] NZCA 379.
[2011] NZCA 355.