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R v Rapira [2003] 3 NZLR 794 (CA)

Case summary provided by LEXISNEXIS NZ

Name: R v Rapira
Reported: [2003] 3 NZLR 794
File number: CA 318/02, 328/02, 334/02, 340/02,341/02, 358/02, 93/03
Date: 5 September 2003
Court: Court of Appeal
Location: Wellington
Judge: Elias CJ, Gault P and McGrath J
Charge: Murder; Manslaughter; Aggravated Robbery
CYPFA:
Key Title: Evidence; Sentencing in the adult Courts - Other; Sentencing in the adult Courts - Aggravated Robbery; Sentencing in the adult Courts - application of Youth Court principles

LEXISNEXIS Summary:

Criminal law - Parties to offences - Knowledge required by party to murder - Availability of manslaughter verdict for secondary party where principal convicted of murder - Crimes Act 1961, ss 66(2) and 168.

Criminal law - Evidence - Diagnostic history - Opinion and similar fact evidence on issue of knowledge of wrongdoing.

Criminal law - Trial - Direction to jury as to knowledge of wrongdoing or contrariness to law of offender under age of 14 years - Opinion and similar fact evidence on issue of knowledge of wrongdoing - Crimes Act 1961, s 22.

Criminal law - Sentence - Whether presumption of life imprisonment for murder displaced - Approach to sentencing young offenders convicted of very serious offences - Sentencing Act 2002, s 102.

The accused, led by Phillip Kaukasi, implemented a plan to rob a Pizza Hut delivery driver of food and money. On the day of the robbery the accused arranged which positions they were to take and hid a baseball bat near the address they had selected. Rawiri rang and placed the pizza order from a public phone booth. Peihopa collected the baseball bat on the way to the address. When the order arrived, Rawiri and Kurariki, who was under 14 years of age at the time, acted as customers, while the other appellants hid. Joe Kaukasi was the lookout. Peihopa struck the driver on the side of the head with the baseball bat. The appellants left the scene with the food and drink that Phillip Kaukasi and Rapira took from the delivery car. Some time after the robbery and attack, Rawiri and Lisa Waikato observed the driver staggering past. Along with Peihopa, they cut his belt bag and took money from him. The driver was unable to get assistance and died as a result of the blow.

• The appellants appealed against their various convictions and sentences. The Court was asked to consider the following points on appeal:

• The knowledge required by s 66(2) of the Crimes Act 1961 of parties to murder and culpable homicide;

• The availability of a verdict of manslaughter for a secondary party where a principal offender was convicted of murder under s 168 of the Act;

• The admissibility of hearsay evidence under the exception for diagnostic history;

• The directions properly to be given to a jury where the Crown had to prove in accordance with s 22 of the Act that a person under the age of 14 years knew either that the act constituting the offence was wrong or that it was contrary to law;

• Displacement of the presumption of life imprisonment for murder under s 102 of the Sentencing Act 2002; and

• The approach properly adopted to the sentencing of young offenders convicted of very serious offences.

Held:

1 The essential question for establishing guilt of murder under s 168 of the Crimes Act 1961 was whether each accused had knowledge that intentional infliction of grievous bodily injury by another party to the common intention, of robbing the driver, was probable. Intention to kill or knowledge that death was likely to ensue was not necessary for the liability of the secondary party under s 168 (see paras [21], [22], [23], [24], [25], [26], [27]).

R v Tuhoro [1998] 3 NZLR 568 (CA) applied.

R v Te Moni [1998] 1 NZLR 641 (CA) discussed.

2 Where the principal was guilty of murder under s 168, secondary parties were guilty of manslaughter under s 66(2) if they knew that the infliction of physical harm, which was more than trivial or transitory, was a probable consequence of the prosecution of the common purpose of robbing the driver. It was not necessary for death to be intended or foreseen by a secondary party (see paras [31], [33]).

R v Hardiman [1995] 2 NZLR 650 (CA) referred to.

R v Tuhoro [1998] 3 NZLR 568 (CA) referred to.

3 A secondary party could be convicted of manslaughter when the principal offender was convicted of murder. Different foresight or intent as to consequences within the prosecution of the same common purpose was reflected in the hierarchy of culpability provided by the legislation, following a continuum of foreseeable harm. It was only if the principal stepped outside the common design in a way totally unforeseen that issues as to the application of s 66(2) liability arose. Lack of knowledge of the principal’s intent to inflict grievous bodily harm affected the culpability of the secondary parties for murder but not their guilt of manslaughter (see paras [37], [52]).

R v Hamilton [1985] 2 NZLR 245 (CA) applied.

4 The proposed hearsay evidence of the diagnostic history of substance abuse was rightly excluded in the circumstances. It was taken from the accused when he knew it was to his advantage to identify significant abuse. The extent of the abuse was not substantiated by earlier medical or other records and was a matter of controversy (see paras [44], [45]).

R v Rongonui [2000] 2 NZLR 385 (CA) distinguished.

5 An intention to facilitate an aggravated robbery was an intention to facilitate a robbery with the aggravating features identified by the Act. The reference to the qualifying offence of robbery in s 168(2) included aggravated robbery (see paras [50], [51]).

6 The jury had to be satisfied beyond reasonable doubt that an accused under the age of 14 knew that he was doing wrong or acting contrary to law in all the essential ingredients of the offence which the Crown was required to prove. The trial Judge had correctly directed the jury on the requirement of s 22 of the Act that it could not infer knowledge of wrongfulness from the participation itself and that it could draw on its knowledge of the understanding of 12-year-olds as long as the focus was on the particular accused. The trial Judge was not required to use any specific language in directing the jury regarding the accused child’s capacity to appreciate that the act was wrong or contrary to law. The trial Judge had correctly instructed the jury in the language of the Act (see paras [78], [79]).

R v Brooks [1945] NZLR 584 (CA) discussed.

7 The evidence that a young accused understood that he was doing wrong might include evidence of previous convictions and criminal behaviour and evidence of previous criminal behaviour was not excluded by virtue of the fact that the accused could not be prosecuted for the earlier behaviour by reason of age. The opinion evidence given by the constable who had dealt with the accused over a long period of time had not referred to specific earlier offending. The issue was whether the evidence was probative of the question of understanding and whether the probative value was outweighed by any prejudicial effect. The Judge had correctly identified these issues (see paras [88], [89], [97]).

8 The presumption of life imprisonment was not displaced in the circumstances of the case. The test was that the sentence of life imprisonment was manifestly unjust. The conclusion was an overall assessment that had to be made on the basis of the circumstances of the offence and the offender. The use of "manifestly" required the injustice to be clear. The assessment of manifest injustice fell to be undertaken against the register of sentencing purposes and principles in the Sentencing Act 2002 and in particular in the light of ss 7, 8 and 9 of that Act. The conclusion of manifestly unjust was likely to be met in exceptional circumstances only. Although youth was a factor to be properly taken into account in sentencing, where the offending was grave the scope to take account of youth might be greatly circumscribed. Youth of itself was not a sufficient reason to make life imprisonment manifestly unjust if the offender had the necessary intent or knowledge of consequences to be guilty of murder (see paras [121], [122], [123]).

9 The starting points taken by the Judge - of ten years for manslaughter in the light of the aggravating features present, of seven years for aggravated robbery of a food delivery driver who was vulnerable by reason of his occupation and half that for attempted robbery, and of two and a half years’ imprisonment for theft from someone who was semiconscious and needed urgent medical help - were appropriate (see paras [132], [133], [134], [136], [137], [138]).

10 In the case of a young offender sentenced to life imprisonment, use of the power under s 25 of the Sentencing Act 2002 for early consideration of parole might be appropriate where, through developing maturity and positive responses to correction, the ten-year non-parole period ought to be reconsidered in the interests of justice. This meant that there was no inevitability that the accused would serve inappropriately long sentences. Their youth was not a factor that could be given great weight in the case of deliberate, repetitive and organised criminal activity which was not impulsive and which called for a deterrent sentence (see paras [124], [153]).

Appeals dismissed.

Other cases mentioned in judgment

C (A Minor) v Director of Public Prosecutions [1996] AC 1; [1995] 2 All ER 43.
R v Barlow (1997) 188 CLR 1.
R v Church [1966] 1 QB 59; [1965] 2 All ER 72.
R v Creighton (1993) 105 DLR (4th) 632; 83 CCC (3d) 346.
R v Fatu [1989] 3 NZLR 419 (CA).
R v Jackson [1993] 4 SCR 573; (1993) 26 CR (4th) 178.
R v Joyce [1968] NZLR 1070 (CA).
R v Leuta [2002] 1 NZLR 215 (CA).
R v Mahoni (1998) 15 CRNZ 428 (CA).
R v Mako [2000] 2 NZLR 170 (CA).
R v Maxwell (Court of Appeal, CA 359/02, 31 March 2003).
R v Morrison [1968] NZLR 156 (CA).
R v Renata [1992] 2 NZLR 346 (CA).
R v Tomkins [1985] 2 NZLR 253 (CA).
R v Trinneer [1970] SCR 638; (1970) 10 DLR (3d) 568.

Appeal

This was an appeal by Riki Rapira, Bailey Junior Kurariki, Alexander Tokorua Peihopa, Joe Edwin Kaukasi, Whatarangi Rawiri, Casie Rawiri and Phillip Kaukasi, the appellants, against their various convictions for murder and manslaughter and against the sentences imposed by the trial Judge in relation to the robbery of and attack on a delivery driver, which subsequently led to his death.