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Levi James Keil & Others v/s The Queen


Company & Directors' Information:- JAMES & CO PVT LTD [Strike Off] CIN = U63090WB1943PTC011213

Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 117 of 2017

    Decided On, 05 December 2017

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE KÓS P
    By, THE HONOURABLE MR. JUSTICE HARRISON & THE HONOURABLE MR. JUSTICE GILBERT

    For the Appellants: E.R. Fairbrother QC, G.M. Fairbrother, A.M. Simperingham, M.J. Lynch, N.P. Chisnall, Advocates. For the Respondent: J.C. Pike QC, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Harrison J)

[1] Following a trial before Judge Cathcart and a jury in the District Court at Gisborne, the appellants Levi Keil and Ivory Paul were found guilty of wounding Boyce Taumata with the intent to cause him grievous bodily harm.[1] Mr Keil was found guilty of an additional charge of injuring Dio Haronga, Mr Taumata’s son, with intent to cause him grievous bodily harm.[2] Mr Keil’s partner, Josephine Reo, the third appellant, was also found guilty on this latter charge. All three were convicted. Messrs Keil and Paul were sentenced to terms of five years’ imprisonment and four years and three months’ imprisonment respectively;[3] and Ms Reo was sentenced to seven-and-a-half months’ home detention.[4]

[2] All three appeal against conviction. Only Mr Paul appeals against sentence.

[3] The conviction appeals raise an issue about the availability of self-defence where multiple parties are charged with offending. Unreasonableness of the verdicts is also raised as a ground of appeal.

Facts

[4] On 18 August 2015 Messrs Taumata and Haronga allegedly assaulted three of the appellants’ close relatives, including Mr Keil’s father at whose farm near Nuhaka they were attending a birthday celebration. The next day the appellants and six others drove some 17 kilometres in two cars to the rural property occupied by Messrs Taumata and Haronga. One car was driven by Ms Reo. Group members were armed with two wooden baseball bats, a wheel brace, a crow bar and other implements.

[5] The group parked the two vehicles in the driveway to Mr Taumata’s property. They walked together onto the property carrying weapons. They encountered Mr Haronga who was then unarmed. They attacked him with their weapons and fists. Mr Taumata, who was sleeping in a house bus on the property, was woken by a family member. He was beaten about the head and body when he emerged to confront the group. At a later stage Mr Haronga armed himself with a slug gun and a tomahawk, and Mr Taumata armed himself with a machete and a knife. One of the group dispossessed Mr Haronga of the slug gun which was used to beat Mr Taumata on the head. Mr Haronga was struck on his body with the bat and crowbar.

[6] The group then left the property. Mr Haronga, who was seriously injured, pursued them in his motor vehicle. He attempted unsuccessfully to ram the group’s cars before his own vehicle was disabled. We shall return to his particular injuries.

[7] Mr Taumata’s injuries were life-threatening. According to an agreed statement of facts produced at trial, Mr Taumata suffered a fractured right-eye socket and facial bones; a ruptured right eye causing permanent loss of vision; small bleeding and bruising to the right side of the brain; and multiple cuts and bruises to the head.

[8] Nine people were charged with the two offences relating to the attack: wounding with intent to cause grievous bodily harm to Mr Taumata, and injuring with intent to cause grievous bodily harm to Mr Haronga. One defendant did not appear at trial and five were acquitted. Only Messrs Keil and Paul and Ms Reo were found guilty.

Availability of self-defence

Factual narrative

[9] The Crown called three eyewitnesses to the attack at trial. Two were the partners of Messrs Taumata and Haronga. The other was a niece of Mr Taumata. They were unable to identify individual participants. Messrs Haronga and Taumata did not give evidence for the Crown. Only Mr Keil among the defendants gave evidence.

[10] The Crown charged all defendants as parties to the offending. It alleged materially that they formed a common intention to prosecute the unlawful purpose of entering the property and using serious violence against Messrs Taumata and Haronga, and to assist each other therein, within the meaning of s 66(2) of the Crimes Act 1961. Each was liable as a party to any offence committed by any of them in prosecuting the common purpose if its commission was known to be a probable consequence of its prosecution. While s 66(2) has often presented problems for trial judges, this trial would not have been difficult but for what was ultimately a diversionary argument about the availability of self-defence where the Crown alleges liability on the ground of secondary participation in an unlawful common enterprise.

[11] Mr Keil’s evidence at trial purported to set the factual narrative for a defence of self-defence or justification as follows. Mr Keil was 28 years of age at the time of the offending. His family was well known in the community. He worked with his father on the family farm. His father had been chairperson of the local marae for over 36 years. Mr Keil is fluent in te reo Māori and was himself a leader in the community. He had no previous convictions. Ms Reo was directly related to Messrs Haronga and Taumata.

[12] Mr Keil was a passenger in the first of the two vehicles which Ms Reo drove to the Taumata property the next evening. He admitted to being the leader of the group of younger men. He had been present when Messrs Taumata and Haronga allegedly assaulted his relatives at the family farm. He said the agreed plan was to resolve the family differences by talking. He made the decision to stop the cars and enter the property to confront Messrs Taumata and Haronga.

[13] Mr Keil said words were exchanged between members of his group and Mr Haronga upon arrival. He later saw Mr Haronga wielding a gun. Mr Keil said that Mr Haronga 'actually pulled the trigger' but the gun did not fire. Mr Keil was then unaware that it was only a slug gun. He thought it was more powerful. Mr Keil ran back to his car parked in the driveway. He grabbed a baseball bat from the back seat because: 'I thought it was the only way I gonna stop him. He was gonna shoot me or I was gonna stop him.' Another vehicle was parked behind Mr Keil’s car, which he said prevented their preference to depart immediately when the gun appeared.

[14] Mr Keil said he hit Mr Haronga across the wrist of the arm holding the gun. He was attempting to disarm him. Mr Haronga swung a tomahawk in his other hand. Mr Keil then hit him across that arm. While these blows caused Mr Haronga to drop his weapons, they also broke the bat wielded by Mr Keil. Mr Keil and the others then retreated to their vehicles and left. After his initial sighting of Mr Taumata, Mr Keil never saw Mr Taumata again because he was focusing on Mr Haronga. Mr Keil said he did not see what happened to Mr Taumata.

[15] When interviewed by the police Mr Paul admitted that he had travelled to Mr Taumata’s property with Mr Keil and the others with the common intention of having 'one outs' - that is, one-on-one fighting. He said the situation escalated when Messrs Taumata and Haronga pulled out weapons. Mr Paul acknowledged, however, that he was armed with a stick when he arrived at the property intending to fight. Mr Taumata 'hit [him] over the head with something' first so Mr Paul 'punched him in the head'. He also said that he and Mr Haronga were hitting each other. He would not say how many times he struck Mr Haronga whom he also struck in his legs with a stick which he had removed from him.

[16] It is thus apparent that self-defence might have available to Mr Keil only on the charge of injuring Mr Haronga. On his own account, it was unavailable on the charge of causing Mr Taumata grievous bodily harm.

Judge’s ruling and directions

[17] After hearing argument from counsel, Judge Cathcart ruled that self-defence was not available to secondary parties whose liability arose under s 66(2).[5] The Judge’s starting point was the Crown’s exclusive reliance upon s 66(2) for its case against all defendants. That was based on the Crown’s professed inability to identify a principal offender for either charge. The Judge correctly recited that 'party liability under s 66(2) is based upon a statutorily-prescribed agency rule and thus is known as derivative liability'.[6] Liability was determined by membership of the unlawful common enterprise, rather than participation in the actual offence.[7] The actus reus was complete upon formation or participation in the common purpose; liability was contingent only on commission of the offence by the principal offender in prosecuting that common purpose.[8]

[18] The Judge then observed:

[15] It is fundamental that, if covered by s 48, the plea of self-defence justifies the deliberate infliction of harm. However, as noted above, the application of the agency principle in s 66(2) to this case does not rest on an allegation that a member of the unlawful common purpose inflicted the force that caused the injuries to the victims, apart from unknown principal offenders. Put another way, the manner in which the alleged offences were said to be committed under that agency principle renders the use of force by any one of the defendants legally irrelevant in this case. As a consequence, any force said to have been used by a defendant in self-defence or in defence of another - including any notion of a pre-emptive strike - was likewise legally irrelevant in this case.

[16] As noted earlier, the Crown never alleged that any defendant could be identified or linked as one of the principal offenders. The Crown never alleged that any of the defendants caused the respective injuries in whole or in part through the use of force. Therefore, at an elementary level, the manner in which the offences were said to have been committed under the agency principle in s 66(2) rendered any concept of self-defence legally irrelevant.

(Our emphasis.)

[19] Nevertheless, despite ruling that self-defence was unavailable to all defendants, the Judge directed the jury in his summing-up at some length that it should consider self-defence from the hypothetical perspective of the principal offender 'for the purpose of analysing his or her state of mind at the time'.[9] He explained carefully the constituent elements of self-defence. He repeated the Crown’s disclaimer that a particular defendant or defendants was the principal offender.[10]

[20] Earlier the Judge said:

[95] A self-defence claim by any one of these defendants would only arise if the Crown was alleging that the defendant caused the actual injuries in whole or party. Now that point I have made is perfectly illustrated with the evidence of Mr Levi Keil. Now you will recall that he said that he used the bat in striking Mr Haronga who he says was coming at him with a gun and tomahawk. Do you remember that evidence? He says that he had to protect himself from that attack and also Josephine Reo because he was concerned about her welfare as well.

[96] But that episode is not the one the Crown is claiming is the incident that caused injuries to Mr Haronga. The Crown makes no suggestion that when Mr Keil struck Mr Haronga he caused any of the injuries that are the subject of charge 2. The Crown ... does not dispute that Mr Keil acted in self protection at that point. But the Crown is not thereby saying that Mr Levi Keil has a defence of a self-defence to charge 2 because the Crown cannot because it is not available.

(Our emphasis.)

[21] It is not clear to us how these directions might have related to any of the defendants given that the Judge did not direct the jury that Mr Keil’s admission was evidence of his participation as a principal offender. There was no evidence, apart from that given by Mr Keil, that any of the participants might have acted in selfdefence. The Judge’s directions were given in a factual vacuum.

[22] The question trail reflected the artificiality of the directions relating to a hypothetical principal offender acting in self-defence. The Judge identified three questions relating to Mr Taumata:

Self Defence issue in relation to alleged principal offender/s

...

1.4 What were the circumstances as the principal offender/s believed them to be at the time he or she caused grievous bodily harm to Mr Boyce Taumata?

...

1.5 Given those circumstances, are you sure that when the principal offender/s caused Mr Boyce Taumata grievous bodily harm he or she was not acting in defence of himself or herself (as the case may be) or another?

...

1.6 Given those circumstances, are you sure that the force the principal offender/s used to defend himself or herself (as the case may be) or another was not reasonable?

There was simply no factual narrative upon which the jury could answer these questions. Identical questions were posed relating to Mr Haronga, but without being tailored to the evidence.

[23] We agree with Messrs Fairbrother QC and Chisnall that the Judge erred by adopting the Crown’s construct of the case as the premise for his decision to exclude self-defence. The Crown case required the jury to accept a fiction. Mr Keil had identified himself as a principal offender against Mr Haronga. His evidence that he inflicted some of the major injuries suffered by Mr Haronga was not challenged by the Crown. Before us Mr Pike QC accepted that Mr Keil on his own admission was responsible for two of the five injuries which the parties agreed were suffered by Mr Haronga. The Judge’s directions did not accord with the facts.

Analysis

[24] We are satisfied nonetheless that the Judge correctly ruled against the availability of self-defence to any or all of the defendants for a different reason: the argument about self-defence at trial and in this Court suffered from a failure to link the conceptual framework with the charges and the unchallenged evidence. As a result, the Judge’s ruling and directions did not relate to the essential elements of the offences.

[25] Self-defence was only possibly available to Mr Keil for his offending against Mr Haronga. It is directly material that the agreed statement of facts produced at trial recited that Mr Haronga suffered these particular injuries: (a) tender upper abdomen and bruising on both sides; (b) cuts and bruising to both legs; (c) multiple cuts to the head; (d) an undisplaced fracture of right thumb bone; and (e) a sprained left wrist. This specificity of Mr Haronga’s injuries is important, as we shall later explain.

[26] The three eyewitnesses gave a consistent and largely uncontested account at trial of three stages of injuries sustained by Mr Haronga. At the first stage, one or more of the attackers struck Mr Haronga on the back of the head with a piece of wood. He was then unarmed outside his house or on the steps of Mr Taumata’s house bus. Only words, not blows, had been exchanged previously. The blow with the wood caused Mr Haronga’s head to bleed but he remained standing. The attackers were then standing outside the kitchen area.

[27] Mr Keil’s evidence did not touch on this incident. He did not admit to any participation in the first stage. But it is plain that Mr Haronga had suffered a serious injury then, and it was open to the jury to find that the blow to his head was struck with intent to cause him grievous bodily harm. In other words, at this initial stage an essential element of the offending against Mr Haronga had been proved, giving rise to Mr Keil’s secondary liability as a participant in an unlawful purpose.

[28] The second stage was the one about which Mr Keil gave contested evidence. The Crown accepted that by then Mr Haronga, although injured, had armed himself with weapons - the slug gun and the tomahawk. In closing, the prosecutor suggested to the jury that Messrs Haronga and Taumata had armed themselves to compensate for the fact that they were outnumbered. It was during this stage that Mr Keil said he was acting in self-defence. Assuming that the jury accepted Mr Keil’s evidence, the blows he struck with the bat could only have caused, as we have noted, the last two of the five injuries which his counsel agreed Mr Haronga had suffered - an undisplaced fracture of the right thumb bone and a sprained left wrist. Mr Keil did not suggest that he was responsible for any of the other, and more serious, injuries - bruising on both sides of Mr Haronga’s upper abdomen, cuts and bruises to the legs and the multiple cuts to the head. The obvious inference is that the last injury was caused at the first stage.

[29] The third stage was described by one of the three witnesses, Mr Haronga’s partner Memory Tewhaiti. She saw Mr Haronga on the ground being attacked by two different individuals. One was wielding a bat and the other a crow bar. One was hitting Mr Haronga on the legs; Mr Haronga was blocking the other with his arm. This account is broadly consistent with Mr Paul’s account that he struck Mr Haronga on the legs with a stick, causing the cuts and bruising which his counsel agreed Mr Haronga had suffered.

[30] In his closing address, the prosecutor correctly observed in passing, but without direct reference to this issue, that self-defence could not have been available at either the first or third stages. At the first stage, the offence of injuring Mr Haronga with intent to cause grievous bodily harm had occurred, which the jury found was committed in prosecuting the unlawful common purpose. And, at both the first and third stages, self-defence could not possibly have been available on the facts including Mr Keil’s own evidence.

[31] Mr Simperingham advanced Ms Reo’s appeal on the ground that Mr Keil was arguably acting in defence of Ms Reo. He relies on Mr Keil’s answer to a leading question in re-examination which implied he was acting to protect Ms Reo. But this argument cannot succeed. We have found that Mr Keil’s defence of himself was not available on the facts, and any purported defence of Ms Reo is untenable when she was sitting in a vehicle at a distance from the fracas. In any event, the justification flowing from a successful plea of self-defence or defence of another is absolute. It thus eliminates secondary liability for others regardless of whether a particular party was the person being protected by the defensive acts.

[32] Mr Paul’s statement did not approach the threshold of providing a factual narrative for self-defence. He simply admitted to retaliating to attacks by both Messrs Taumata and Haronga. There was no suggestion that he was acting to defend himself.

[33] In summary, the Judge was correct not to allow self-defence to go to the jury even if his reasons were wrong. Neither Mr Keil nor Mr Paul provided a factual narrative sufficient to avail themselves of self-defence on the charge relating to Mr Haronga. The essential elements of the offence were complete before Mr Keil acted to defend himself - that is, at the first stage when Mr Haronga sustained his head injuries. The Judge’s erroneous hypothetical directions related to a defence which was never available to any defendant and therefore could not have materially affected the result. If anything, this error could only have operated to the defendants’ collective advantage by directing the jury to consider a defence which was unavailable in law. In short, the Judge’s error was of no consequence. This ground of appeal must fail.

[34] We add that it is unnecessary for us to examine fully the question of whether self-defence is available to a secondary participant acting in accordance with an unlawful common purpose. Much of the argument before us was directed to that conceptual question but it does not fall for decision on these facts.

Unbalanced summing-up

[35] Mr Fairbrother advanced an ancillary submission. It was to the effect that the Judge’s summary to the jury of Mr Keil’s defence was unbalanced and inadequate. The Judge referred to Mr Keil’s case largely in the context of instructing the jury that he could not avail himself of self-defence because the Crown had not identified him as a principal offender. In Mr Fairbrother’s submission, the Judge’s focus on the unidentified principal offender when directing on the availability of self-defence, combined with his express direction that self-defence was not available, could have left the jury with the understanding that Mr Keil’s evidence was not to be taken into account during its deliberation or that his entire case was illegitimate. At the very least, Mr Fairbrother submits, it would have severely undermined Mr Keil’s credibility.

[36] We reject this submission. We have found that Mr Keil’s evidence, even if accepted, could not have advanced his plea of self-defence. He remained implicated on the largely unchallenged facts. His evidence had a self-incriminatory effect and his reliance on self-defence was of no avail. Mr Fairbrother did not suggest how the Judge’s directions may otherwise have undermined his defence.

Inconsistent verdicts

Levi Keil

[37] Mr Fairbrother submits that the jury’s verdicts of guilt against Mr Keil on both charges are logically inconsistent and thus unreasonable by reference to the verdicts reached for his co-defendants.[11] Mr Keil’s verdicts could not be explained by a reasonably available line of reasoning. Here, on the Crown’s case, all defendants were alleged to be part of an unlawful common purpose to exact physical retribution upon Messrs Haronga and Taumata. A principal offender was not identified. Logically, the same verdicts would have been delivered on both charges for each defendant if they were found to be part of the criminal enterprise. Mr Fairbrother submits the inconsistent verdict are explicable only if the jury was considering liability under two separate common purposes, which was not the Crown case.

[38] We do not accept Mr Fairbrother’s submission. The verdicts against Mr Keil are discrete. On his own evidence, he directed the group. He admitted to having a baseball bat in his vehicle. It was readily open to the jury to infer that he was the guiding hand behind a decision in which one or more of the others participated to exact physical retribution on Messrs Taumata and Haronga. Mr Keil admitted to participating directly in some of the violence. It is beside the point that other defendants were acquitted of either or both charges. The decisive question is not whether another’s acquittal was reasonable but whether the relevant finding of guilt was unreasonable in the sense that it was unsafe.[12] The Crown’s discrete case against Mr Keil was strong. The verdicts against Mr Keil are readily explicable on their own.

Ivory Paul

[39] Mr Chisnall submits that the jury’s guilty verdict against Mr Paul on the charge of wounding Mr Taumata with intent to cause grievous bodily harm is inconsistent with his acquittal on the charge of injuring Mr Haronga with intent to cause him grievous bodily harm. That is so whether Mr Paul’s position is considered discretely or whether the verdicts against Mr Keil and Ms Reo are taken into account. In this case, no reasonable jury could have arrived at different verdicts on the charges. Logically speaking, if the jury was satisfied that Mr Paul was guilty on the one charge then it ought to have reached the same verdict on the other. While the two charges require the same state of mind, there was no room for different verdicts on the basis that the jury found Mr Paul guilty of the more serious charge.

[40] We reject Mr Chisnall’s submission. The guilty verdict on the charge relating to Mr Taumata is readily explicable. Mr Paul admitted to the police that the common purpose of his group was to go to the property and 'sort it out' with Messrs Taumata and Haronga. They planned to have 'one outs' with both men. He admitted he was armed with a stick. He admitted punching Mr Taumata at the property. It does not matter whether the Crown pitched its case at the level of principal offending or secondary participation. Mr Paul was implicated by his own admission.

[41] In our judgment, Mr Paul’s acquittal on the charge relating to Mr Haronga may be seen as merciful. Or the verdict may well reflect the jury’s acceptance of the Judge’s erroneous direction on the availability of self-defence. In any event, generosity by a jury on one charge does not equate with an unreasonable verdict on the other.[13] As we have noted, Mr Paul admitted that he was armed and that he participated in assaulting Mr Taumata. That the jury chose to give Mr Paul the benefit of the doubt on the separate charge relating to Mr Taumata, despite his own admissions, cannot be a ground for quashing the other verdict.

Josephine Reo

[42] Mr Simperingham advances a similar argument for Ms Reo. He emphasises that the Crown’s case was that she was the driver of one of the vehicles. There was no suggestion that she went further than standing outside the gate leading on to the property. There was, however, evidence from her own statements to the police that she knew weapons were in the car which she was driving and that her passengers intended to confront and retaliate against Messrs Taumata and Haronga. Mr Simperingham emphasises that there was nothing in the Crown evidence to suggest that the state of Ms Reo’s knowledge differed as between Messrs Taumata and Haronga. The common unlawful intention at the point of engagement applied equally to both men. The different verdicts are at odds with each other and are irreconcilable on the evidence.

[43] Additionally, Mr Simperingham submits the verdicts are inconsistent with the verdicts for other defendants. While accepting that the roles of each differed, as did the relevant evidence, Mr Simperingham submits that the overall effect of the evidence was that each of the other five defendants performed greater or more active roles than Ms Reo.

[44] We reject this submission for much the same reasons as those advanced by Messrs Fairbrother and Chisnall. Ms Reo was the driver of one of the transport vehicles. She knew she was required to convey the young men to Mr Taumata’s property to carry out a retaliatory attack. She knew her passengers were armed and intended to have 'one outs'. She admitted her participation in the offending. There was ample evidence to support findings of guilt on both charges.

[45] Like Mr Paul, Ms Reo was apparently the beneficiary of mercy on one charge. She cannot use that as leverage for her acquittal on the other charge. And the jury’s acquittal of other defendants who played different roles does not assist Ms Reo.

[46] This ground of appeal must fail for all three appellants.

Sentence appeal

[47] Only Mr Paul appeals his sentence.

[48] The Judge treated Mr Keil as the primary offender. He adopted a starting point of seven years for Mr Keil but observed that nine years would have been justified for the 'unknown principal offenders'.[14] A lesser starting point of six years’ imprisonment was adopted for Mr Paul, from which an allowance was made of 21 months or 20 per cent for mitigating factors.[15] The end result was a sentence of four years and three months’ imprisonment.

[49] Mr Chisnall accepts that the starting point of six years, while it was at the upper end of the available range, was not excessive. He suggests that the Judge may have erred by failing to identify Mr Paul’s particular culpability in isolation from that of the principal. But he did not press this point.

[50] Mr Chisnall’s primary ground is that the Judge erred in failing to provide a discount which sufficiently reflected Mr Paul’s good character, the information contained in cultural reports about the circumstances of each appellant, and the context of the offending. In particular Mr Chisnall submits that the Judge failed to take proper account of Mr Paul’s cultural report prepared pursuant to the Sentencing Act 2002:

8. Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offending the court-

...

(i) must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and

...

27. Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender

(1) If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on-

(a) the personal, family, whanau, community, and cultural background of the offender:

(b) the way in which that background may have related to the commission of the offence:

(c) any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence:

(d) how support from the family, whanau, or community may be available to help prevent further offending by the offender:

(e) how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.

(2) The court must hear a person or persons called by the offender under this section on any of the matters specified in subsection (1) unless the court is satisfied that there is some special reason that makes this unnecessary or inappropriate.

(3) If the court declines to hear a person called by the offender under this section, the court must give reasons for doing so.

(4) Without limiting any other powers of a court to adjourn, the court may adjourn the proceedings to enable arrangements to be made to hear a person or persons under this section.

(5) If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1).

[51] Extensive s 27 reports were prepared for Mr Paul and the others by Messrs Denis and Laurence O’Reilly. While much of Mr Paul’s report could be characterised as submission, it provides constructive insights into his behaviour within his whānau and wider community. The report properly emphasises Mr Paul’s sense of moral obligation to support and participate in an expedition which the authors described as an act of muru - that is, an effective form of social control, restorative justice and redistribution of wealth among relatives, which seeks to reduce the transgression with the end goal of returning the affected party back to his or her original position in society. Muru only occurs between groups of people who are linked by whakapapa or marriage as a collective response in delivering a punishment to obtain redress for the transgression.

[52] When sentencing Mr Paul, the Judge acknowledged that he was of excellent character: he is a valuable member of his whānau and local community.[16] While the Judge did not refer expressly to the s 27 report, it is clear from his notes when sentencing Mr Keil a little over a month earlier that the Judge gave special consideration to a similar report prepared for Mr Keil.[17] And it is clear from Mr Paul’s sentencing notes that they must be read alongside those of Mr Keil’s fully to understand the Judge’s approach to mitigation in this case:

[14] ... From your knowledge of Mr Levi Keil’s judgment, you will have known that I gave him a substantial discount to him for his outstanding good record, apart from the crimes, as well as for the positive features reflected in the cultural report advanced on his behalf.

[15] Also, I reduced the starting point against him to reflect what I considered to be obvious provocation from the two victims in relation to this matter. I adopt the same reasoning here ...

[53] The Judge acknowledged that the relevant cultural influences affecting Mr Keil should properly be taken into account in mitigation. In that context he referred to Mr Keil’s strong prospects of rehabilitation and reintegration into society. He allowed a discount of some 17 months (to reach an end position of 67 months) for this factor.[18] He also took account of the element of provocation arising from the attack perpetrated on Mr Keil’s whānau by Messrs Taumata and Haronga.[19] He allowed a further deduction of seven months for that factor.[20]

[54] The Judge did not repeat this exercise when sentencing Mr Paul. He did, however, note that he would allow the same mitigating discounts for the same factors including the positive features reflected in the cultural report and the provocation. On that basis he deducted periods of 15 months for personal characteristics and six months for provocation to reach the end sentence.

[55] As Mr Chisnall accepts, the Judge allowed Mr Paul a global discount of 20 per cent for mitigating personal circumstances. He realistically acknowledges that the allowance may be seen as within range, indeed generous. However, he submits that a greater discount should have been applied to recognise that a less restrictive term of imprisonment will meet the purpose underlying ss 8(i) and 27 of the Sentencing Act; and also reflect the advantages attaching to the return of Mr Paul to his community. He relies on this Court’s recognition in R v Bhaskaran that community support for rehabilitation may be very relevant to the nature or length of sentence.[21] To the same effect in R v Talataina, an offender’s willing participation in a restorative justice process between wider whānau members, with the associated amends, may be enough largely to satisfy the needs of justice.[22] There the Court endorsed a discount of 50 per cent

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for that factor. [56] We recognise the force of Mr Chisnall’s submission. Judges in all courts of this country are acutely conscious of the overrepresentation of young Māori in our prisons. Moreover, before this event Mr Paul had led a blameless life. We accept that he presents a low risk of reoffending. Imprisonment will only serve the requirement of accountability, denunciation and deterrence of others from committing the same offending. It is unlikely to provide personal deterrence. It will not serve to protect the community from Mr Paul, from whom it does not need protection. And it will not assist in Mr Paul’s rehabilitation and reintegration, who acted out of character in exceptional circumstances mitigated by a degree of cultural provocation. [57] In short, we agree this is a case which underscores the importance of accounting for a particular offender’s personal, family, whānau, community, and cultural background during sentencing.[23] That is why s 27 reports were prepared and considered. [58] However, the seriousness of Mr Paul’s offending necessarily subordinated the purposes of personal rehabilitation and reintegration to the wider societal purposes set out under s 7. The requirements of accountability, denunciation and deterrence had to predominate in an end sentence which struck a balance between these competing goals. Our sentencing regime cannot be seen to condone a particular group’s use of violent force to exact physical retribution. Similarly, cultural norms cannot excuse that conduct for some groups but not for others. While those norms may help to explain, they can never justify offending of such severity as occurred here. [59] We are satisfied that the Judge gave appropriate weight to Mr Paul’s s 27 report within the overall scheme of the Sentencing Act. His acceptance of the report’s relevant content was reflected in the generous discount of 20 per cent allowed against an appropriate starting point. We are not satisfied that the end sentence imposed was manifestly excessive or wrong in principle. Result [60] The appeals against conviction brought by Messrs Keil and Paul and Ms Reo are dismissed. [61] Mr Paul’s appeal against sentence is dismissed. ----------------------------------------------- [1] Crimes Act 1961, s 188(1). [2] Section 189(1). [3] R v Keil [2017] NZDC 2674 at [59]; and R v Paul [2017] NZDC 5943 at [21]. [4] R v Paul, above n 3, at [25]. [5] R v Keil [2016] NZDC 23095 [Ruling 18]; and R v Keil [2016] NZDC 23742 [Ruling 18 reasons]. [6] Ruling 18 reasons, above n 5, at [7]. [7] At [8] quoting R v Ma’u [2008] NZCA 117 at [68]. [8] At [11] quoting Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [117] per McGrath, Glazebrook and Tipping JJ. [9] R v Keil DC Gisborne CRI-2015-016-1840, 17 November 2016 [Summing-up] at [104]. [10] At [93]. [11] See B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261. [12] At [69] and [105]. [13] At [104]. [14] R v Keil, above n 3, at [41]. [15] R v Paul, above n 3, at [20]–[21]. [16] At [18]. [17] See R v Keil, above n 3, at [49]–[52]. [18] At [54]. [19] At [55]. [20] At [56]. [21] R v Bhaskaran CA333/02, 25 November 2002 at [13]. [22] R v Talataina (1991) 7 CRNZ 33 (CA) at 36. [23] Contrast Mika v R [2013] NZCA 648 where this Court dismissed a sentence appeal on the basis that the appellant could not establish any nexus between the social disadvantages of his Māori heritage and the conduct giving rise to criminal liability.
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