IN THE Court of appeal OF new Zealand
	
CA886/2010
[2013] NZCA 305

BETWEEN	
QUENTIN DUANE PUKEROA
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
10 and 11 June 2013	

Court:	
O’Regan P, Miller and MacKenzie JJ	

Counsel:	
R M Lithgow QC for Appellant
M F Laracy and J E Mildenhall for Respondent	

Judgment:	
18 July 2013 at 10 am	

JUDGMENT OF THE COURT
A	The appeal against conviction is dismissed.
B	The appeal against sentence is allowed, to the extent that the minimum period of 15 years is quashed and a minimum period of 13 years is substituted.
____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)
Introduction
[1]	The appellant was convicted on one count of murder, two counts of aggravated burglary, one count of injuring with intent to injure one count of attempted murder, and one count of participating in an organised criminal group, following trial before Wylie J and a jury in the High Court at Rotorua in October and November 2010.  On 10 December 2010 he was sentenced to life imprisonment with a minimum parole period of 15 years.  He appeals against both conviction and sentence.
Facts
[2]	On 27 January 2009 several members of the Mongrel Mob gang, including the appellant, travelled from Kawerau to Murupara to attend a tangi.  Tensions developed between that group and members of the Tribesmen gang living in Murupara.  At about 8.30 that evening the appellant and another Mongrel Mob member were assaulted by a group of five or six Tribesmen members, including brothers Mahu and Jamie Herewini.  The appellant was punched, thrown to the ground, and kicked and hit a number of times on the head with the blunt side of an axe.  His Nissan truck was stolen.  Unbeknown to the appellant, it was subsequently set on fire and pushed over a cliff.  
[3]	The appellant was assisted by an associate and rejoined other Mongrel Mob members at a nearby property.  A number of Mongrel Mob members armed themselves with a variety of weapons and got into vehicles.  They travelled around Murupara in a convoy searching for the appellant’s truck and for those involved in the assault.  They saw a Tribesmen gang member, Iwi Delamere, and chased him in their vehicles back to his home at 43 Matai Street.  He escaped over the back fence leaving his partner and baby in the house.  Several Mongrel Mob members went onto the property and used their weapons to smash windows in the house and to damage vehicles.  Some entered the house where they smashed a mirror and tipped over furniture.  
[4]	The Mongrel Mob members then left 43 Matai Street and travelled to 10 Matai Street where the Herewini brothers lived.  Mahu and Jamie were present when the group arrived, armed with sticks and pieces of wood.  The appellant exchanged abuse with them.  He and other Mongrel Mob members then went onto the property and some of them smashed windows.  The Herewini brothers ran from their property as the Mongrel Mob members arrived but Jamie was caught and assaulted.  The appellant was one of the assailants.  He was hit with a tomahawk and fell to the ground, where he was kicked about the body before managing to escape. 
[5]	The appellant took Mahu Herewini’s utility.  He used it to ram another vehicle, then backed out onto the street preparing to leave.  Mahu and others had returned by that stage and the two groups exchanged abuse.  The appellant then drove the vehicle at the Herewini brothers, including the youngest Herewini brother, Jordan, aged 16.  The appellant smashed through the front fence and pursued the brothers up the side of the house.  Jordan ran to the rear of the property.  He tripped on a clothesline in the path of the vehicle driven by the appellant.  The vehicle hit him and he sustained serious multiple injuries, including a fractured skull and brain trauma, from which he died en route to Rotorua hospital.  That gave rise to the murder charge.
[6]	The appellant then smashed through the back fence and drove down a service lane, back onto Matai Street.  He met up with some of his Mongrel Mob associates and drove with them back towards 43 Matai Street.  By that stage Iwi Delamere had returned to his property and was standing on the footpath outside.  The appellant drove the utility at speed at him, crossing from the opposite side of the road and mounting the kerb, but he managed to get out of the way.  That was the basis of the attempted murder charge.
The conviction appeal
(a)	The grounds of appeal
[7]	The conviction appeal relates principally to the murder conviction.  The essence of Mr Lithgow QC’s submission is that the way in which the case was presented by the Crown, and the way in which the Judge addressed the murder charge in his summing up and question trail, failed adequately to address the possibility of a verdict of manslaughter rather than murder.  
(b) 	The Crown and defence cases
[8]	Culpable homicide is killing by an unlawful act.  The Crown case was that the unlawful act was an assault with a weapon, the vehicle.  The prosecutor, closing to the jury, put it in this way:
At 10 Matai Street that concluded with Quentin Pukeroa aiming the grey Hilux at Jordon Herewini and his brothers, aiming it like a gun, using it like a weapon, the Crown says to have the last word, to have the final say in this series of confrontations and dispute[s].  And like a weapon he discharged it, he drove at Jordon Herewini and his brothers with enough speed to ensure there was little, or no prospect, of escape.
[9]	The defence contended that the Crown could not prove the unlawful act alleged, because the appellant’s actions did not establish an intention to assault.  The defence contended in the alternative that, if the appellant’s use of the vehicle constituted an unlawful act, the unlawful use of the vehicle was not as a weapon to assault, but as an instrument to cause property damage.  Counsel referred to these defences in his address to the jury in these terms:
So the focus, in my submission to you, is relatively narrow. Did Quentin Pukeroa commit an unlawful act? If he didn’t, then that would be an acquittal.  Did Quentin Pukeroa have a murderous intent?
.…
Now the Crown case has been squarely put to you, that at the time that he reversed and he went through the fence, he had this intention to use the car as a weapon;  a weapon to run down the brothers Herewini.  You’ll recall yesterday when he was talking to you that he also mentioned that he had earlier used the car as a weapon to inflict property damage.  So bear that in mind because you need to consider whether or not the Crown has proved its unlawful act.  Consider whether or not what he did in reversing up and going through that fence was an impulsive reaction, perhaps borne out of frustration, a reaction to the cumulative things that had occurred that day.  The ATM, what happens when he first gets to 10 Matai Street.  And it’s all in a relatively short period of time.  So did he really have that intention of whether or not it was just a blind instinctive act with no forethought about what may or may not follow or whether or not he wanted to go back onto the property and cause more damage.
The distinction that my friend made yesterday about using the truck as a weapon to run at the brothers Herewini and as a weapon to cause property damage was a fairly fine distinction to draw.  He described it as the truck being used as a weapon, but the purposes at the various times were slightly different.  In those circumstances, ladies and gentlemen of the jury, can the Crown really exclude as a reasonable possibility that when he went back onto the property, did he have the same intention that he had just demonstrated moments beforehand, cause further property damage?
(emphasis added)
[10]	The nature of the unlawful act was important for the next element of the offence, murderous intent.  The Crown argued for murderous intent under three limbs in s 167, paragraphs (a), (b) and (c).  Counsel for the defence referred to that aspect in his address to the jury in these terms:
…  But you may consider that what he did was an unlawful act, that it had an element of danger about it.  That when he went onto the property, even if he wasn’t chasing down, doing so, may have imperilled those on the property.  If that is the situation and you don’t find that he had a murderous intent, then you would acquit him of murder, convict him of manslaughter.  If he had committed an unlawful act, either to run them down or had an element of danger, carried a risk of harm to those at 10 Matai Street, but didn’t have one of the three murderous intents, then that would be manslaughter.
…  You need to ask yourself, ladies and gentlemen, has the Crown proved beyond reasonable doubt its unlawful act.  Can the Crown exclude the reasonable possibility that Mr Pukeroa had no real intention, that it was a blind, impulsive act, stupid as it may be, without really thinking about what was going on, or what might happen or whether or not he wanted to do something else, which may have been unlawful, or whether or not he wanted to go back on the property and cause more property damage.  That would still be an unlawful act.  And you need to be careful because if there are equal inferences of equal weight then you must prefer the one most favourable to the accused as a matter of law.
The Crown has chosen its unlawful act, it’s not a situation where the Crown come to Mr Pukeroa and say this is the unlawful act I wish to run, he doesn’t give you any input into that.  The Crown have nominated it, they are stuck with it.  They’ve done so perhaps for tactical reasons because they could have nominated another unlawful act, perhaps dangerous driving, but that would have a flow on effect in that it would be hard for them to say that he intended to kill, it was just dangerous driving.  It might fit with acting in a reckless disregard or killing by mistake, but not an intention to kill.
[11]	The defence strategy, as encapsulated in that address, was to press for an acquittal or, as a fallback position, for a verdict of manslaughter.  The argument for an acquittal was that if the Crown could not prove the appellant intended to assault by the use of the vehicle, it might follow that it had proved no intent at all.  The homicide would then not be culpable, it would be an accident.  
[12]	Wisely, however, the defence did not put all its eggs in that basket.  The fallback position was that the manner of driving involved an unlawful act, but that the appellant did not have murderous intent.  Counsel for the defence clearly perceived a greater risk of a murder verdict if the jury found an unlawful act of driving the truck with an intention to assault, rather than of driving the truck with an intention to cause property damage.  A finding of murderous intent would be more likely if the unlawful act involved the intentional infliction of harm to a person.  
[13]	 The defence strategy was a delicate one.  It involved:  
(a)	first, not conceding the possibility of an unlawful act other than that relied on, and submitting that, if the Crown failed to establish the necessary intention to assault, the jury must acquit;  and
(b)	second, submitting that there was a possible alternative unlawful act to that relied upon by the Crown, which might more readily lead to a verdict of manslaughter rather than murder.
[14]	The question trail which the Judge prepared, with counsel’s input, reflected those respective positions of the Crown and the defence.  The relevant part of the question trail, step [b], said:
The Crown says that the unlawful act was an assault on Jordan Herewini using a motor vehicle as a weapon.  
You must be sure that:
[i]	Mr Pukeroa assaulted Jordan Herewini by driving a motor vehicle at him and/or his brothers; and
[ii]	the assault with the motor vehicle, was intentional.
If the answer to [a] is “Yes” and you are sure that Mr Pukeroa intentionally assaulted Jordan Herewini using the motor vehicle as a weapon, then you need to go on to consider [c].
If the answer to [a] is “Yes” but you are not sure that Mr Pukeroa intentionally assaulted Jordan Herewini using the motor vehicle as a weapon, then you have to consider whether Mr Pukeroa killed Jordon Herewini by another unlawful act.  
If you consider that the Crown has not excluded as a reasonable possibility that Mr Pukeroa intended to cause further property damage at 10 Matai Street when he killed Jordan Herewini, you will have to be sure that:
[i]	Mr Pukeroa intended to cause further property damage at 10 Matai Street; and
[ii]	Mr Pukeroa caused further property damage at 10 Matai Street; and
[iii]	The circumstances were such that Mr Pukeroa’s actions in causing further property damage at 10 Matai Street were likely to do harm to Jordan or to his brothers.
If the answer to [a] is “Yes”, and you are sure that Mr Pukeroa intended to cause and did cause further property damage at 10 Matai Street, and that the circumstances were such that in so doing he was likely to harm Jordan or his brothers, then Mr Pukeroa will be guilty of manslaughter but not guilty of murder.  You do not need to go on to consider [c].
If the answer to [a] is “Yes”, and you are sure that Mr Pukeroa intended to cause and did cause further property damage at 10 Matai Street, but that the circumstances were such that in so doing he was not likely to harm Jordan or his brothers, then the Crown will not have proved beyond reasonable doubt that Mr Pukeroa killed Jordan Herewini by an unlawful act.  Mr Pukeroa will be not guilty of manslaughter and not guilty of murder.
[15]	Step [a] in the question trail required the jury to decide whether the injury which caused Jordan’s death was caused by the appellant.  Step [c] required the jury to decide whether the appellant had murderous intent. 
(c) 	Submissions 
[16]	Mr Lithgow QC submits that there was an omission in the trial in that “neither counsel nor the Judge engage properly with the obvious option of a verdict of manslaughter”, and that there was “an almost total failure (putting aside provocation) to explain how and in what circumstances a verdict manslaughter could be proper[ly] made.”  He says “the most obvious alternative to murderous intent was crazy reckless driving.  Whatever the speed it was too fast around the side of the house because he had no time to react to freak occurrences here.”  He contends that the question trail was overly complicated and confusing.
[17]	Ms Laracy in her oral argument identifies the intention which counsel for the appellant now submits should have been put to the jury as an intention to chase and frighten the Herewini brothers.  She submits that the decision not to put the case that way was a considered defence strategy.  She submits that there was a risk to the defence that if the appellant’s intention in driving the vehicle was directed against the Herewini brothers, (whether to assault them or to chase and frighten them) this would make more likely a finding that the appellant’s intention was to kill, or recklessly to harm, one or more of them.  
(d) 	Discussion
[18]	Mr Lithgow’s proposition that the manner of driving was, by itself and without proof of any intent on the part of the appellant, sufficient to give rise to manslaughter is not as straightforward as he suggests.  Under s 160(2) of the Crimes Act 1961, the killing of Jordan Herewini was culpable homicide only if it was caused by one or other, or a combination, of an unlawful act or an omission without lawful excuse to perform or observe any legal duty.  The appellant, in driving the utility, was under a duty to use reasonable care to avoid danger to life, under s 156 of that Act.  The standard of care specified in s 150A applied.  However, the murder charge meant that the case could not be put as a breach of duty under s 156.  To establish murderous intent, the Crown had to prove an unlawful act, not an omission to perform a legal duty.  Having regard to the way the case had been conducted on both sides, it would have added an inappropriate complexity to have directed the jury under s 156.  Nor would it have been appropriate to direct the jury on the different offence of reckless driving causing death.
[19]	Ms Laracy’s formulation, that the appellant’s intent was to chase and frighten the Herewini brothers to get his truck back, would have carried a higher risk to the defence than the intent for which the defence contended, an intent to damage property.  As we have noted, the Judge directed the jury that, if the unlawful act was driving with intent to damage property, the appellant would be guilty only of manslaughter and murderous intent need not be considered.  That direction would not have been appropriate if the unlawful act was driving with intent to chase and frighten.
[20]	The Judge was not required, on the evidence and having regard to the respective contentions, to put to the jury the possibility that the appellant’s manner of driving, which led to Jordan’s death, was, of itself and without any specific intent on the appellant’s part, unlawful.  Nor was he required to put the possibility that his intention was to chase and frighten the Herewini brothers in an attempt to get his vehicle back.  
[21]	The Judge must put to the jury any defence available for which a proper evidential and legal foundation exists, whether or not it has been relied upon by the defence.  What is in issue here, however, is not a possible defence, but a possible alternative basis for conviction for manslaughter. 
[22]	 If the Judge had put to the jury the possibility that reckless driving without proof of any intent on the part of the appellant constituted an unlawful act, that would have potentially undermined the first proposition in the defence case that, if the Crown could not prove use of the vehicle with intent to assault, there should be an acquittal.  The prospects of success on that proposition may appear slight.  However, the defence was run on that basis, and it would not have been right for the Judge to undermine that defence.  If the Judge had put the possibility that the appellant’s intent may have been to chase and frighten, that would have potentially undermined the second defence proposition, that the intent was to cause property damage.
[23]	 In the circumstances, having regard to the way in which the defence had conducted the case, we consider that the Judge was not required to put any other possible basis of conviction for manslaughter to the jury.
[24]	The question trail was not overly complex and confusing in putting the respective cases for the Crown and the defence.  The Judge had to formulate questions to put the Crown case for an unlawful act of assault with a weapon.  He also had to formulate questions to put the defence alternative of unlawful use of the vehicle to inflict property damage.  The question trail, and the explanation of it in the summing up, did clearly put the respective cases for the parties.  
[25]	The complexity of which Mr Lithgow complains essentially arose because the cases of both parties required the jury to focus on the appellant’s intent in two ways.  It had first to address his intent in driving the vehicle, to determine whether either of the unlawful acts contended for was established.  It then had to determine whether murderous intent was established.  The two intents, that is, intent to commit the unlawful act and murderous intent, were closely related.  As defence counsel clearly recognised, the nature of the intent in driving the vehicle could have implications for the jury’s subsequent assessment of murderous intent.
[26]	We do not accept Mr Lithgow’s submission that there was an omission in the trial in that “neither counsel nor the Judge engage properly with the obvious option of a verdict of manslaughter”, and that there was “an almost total failure (putting aside provocation) to explain how and in what circumstances a verdict manslaughter could be proper[ly] made.”  Consideration of the option of a verdict of manslaughter required a focus on the issue of murderous intent.  The jury was properly directed on that issue.  Step [c] of the question trail, and the explanation given in summing up, dealt appropriately with the issue.  
[27]	The question trail required the jury to consider murderous intent only if they found the unlawful act for which the Crown contended, namely assault with a weapon.  If the jury found another unlawful act, namely further property damage, the jury was directed that the appellant would be guilty of manslaughter only.  The jury was further directed that if the unlawful act was the intended infliction of property damage, but the circumstances were not likely to harm the Herewini brothers, the appropriate verdict was an acquittal.  The Judge directed the jury on the respective cases as to intention when he explained the question trail.
(e) 	Other issues
[28]	Mr Lithgow also submits that there was insufficient attention paid to essentially two aspects of the circumstances.  First, he submits that:
… the Crown strategy was to acknowledge but downplay the original unprovoked but serious assault on Mr Pukeroa and the seriousness of just taking his truck both as serious property loss and an affront.  
[29]	We do not agree that this aspect of the case received insufficient attention from the Judge.  These events happened before the defence of provocation was repealed.  In his trial ruling 5, Wylie J considered whether provocation should be put to the jury.  He held that the defence should be put, having regard to the background.  The question trail specifically identified the matters to which Mr Lithgow refers as relevant to provocation.  They were appropriately put before the jury in that context.  Those matters go to motive rather than intent, and are accordingly of limited relevance to the prior issue of murderous intent.
[30]	Second, Mr Lithgow submits that there was insufficient focus on the fact that Jordan tripped over the clothes line and fell while he was being pursued.  He says:
All this was not satisfactorily summarised.  Mr Pukeroa did run him over.  Did he run him over on purpose or did he, Jordan, just fall in his path before he could do anything about it.  If Mr Pukeroa did run him over on purpose was that to kill.  If not to kill was it to injure, not caring etc.”  
[31]	We do not consider that the Judge’s summing up was deficient in this respect.  These were matters of fact, or of inference, which were for the jury.  Counsel had dealt with them in their addresses, and the Judge appropriately summarised the Crown and defence cases.  The Judge was not required in summing up to emphasise or refer to any aspects of the facts, or of the inferences which might be drawn from them.  The extent to which he did so was a matter for the Judge, and we see no error in the Judge’s treatment of these matters.  
[32]	Mr Lithgow also criticises the Judge’s direction on circumstantial evidence and reasoning by inferences.  We need not address that criticism in detail.  It is sufficient to observe that, in the context of this summing up, there was no misdirection on the matters to which Mr Lithgow refers.
[33]	The notice of appeal raised a number of other matters.  Those grounds contend that the Crown in its closing address referred to a number of matters not supported by the evidence and that it relied upon opinions of witnesses to support the Crown contention as to the appellant’s intentions.  Mr Lithgow did not place significant reliance on these grounds in his oral submissions.  It is unnecessary to discuss these aspects in detail.  The Crown closing invited the jury to draw inferences about the appellant’s intention from the evidence led during the trial.  The way in which evidence was used by the Crown in closing was appropriate and the Judge’s summary of the Crown case on these aspects was also appropriate.
[34]	The grounds of appeal also assert that the Crown wrongly submitted that the jury could use a conviction on the murder charge to assist in its deliberations on the attempted murder charge.  The essence of this contention is that it was inappropriate to suggest a connection between the murderous intent alleged on the murder count, which was based on ss 167(a), (b) and (c), and intention on the attempted murder count, where an intention to kill was required.  
[35]	The Crown closing on the attempted murder count focused particularly on the issue of the identity of the driver of the truck.  Counsel for the Crown dealt with intention very briefly by saying:  “His intent had not changed from what he was doing at 10 Matai Street with that truck to when he tried to drive down Iwi Delamere at number 43”.  [page 246]  That was an appropriate submission from counsel.  It did not suggest that the legal requirements as to intention on the two counts were the same.  The question trail, and the Judge’s summing up, clearly and appropriately focused the jury on the requisite intent for the attempted murder charge.  The Judge made it clear that an intention to kill was required on that charge.
(f)	Result
[36]	Mr Lithgow acknowledged in his submissions that “there are ways in an available interpretation of the available evidence permitted of the verdict of murder”.  None of the criticisms advanced in support of the appeal give any grounds for concern that the jury’s verdict was not properly reached. 
[37]	The appeal against conviction is accordingly dismissed.
Sentence appeal
[38]	In sentencing, Wylie J addressed the minimum term under s 103(2) of the Sentencing Act 2002.  He held that s 104 did not apply.  He took into account the other offending in fixing the minimum term.  He indicated starting points of eight years for the two aggravated burglaries, two years for the injuring, nine years for the attempted murder and three years for the organised criminal group.  He adopted a starting point of 15 years for the minimum term.  He made no adjustment for personal factors, as the appellant’s remorse was balanced by his prior criminal history.  The Judge therefore imposed a minimum term of 15 years.
[39]	Mr Lithgow submits that, for the murder, a minimum period of 10 years would have been appropriate under s 103 of the Sentencing Act 2002, and that no uplift to that minimum period could be imposed for the other offending.  He submits that an uplift for the other offences contravenes s 23 of that Act.  That section provides that no sentence of any kind may be imposed cumulatively on an indeterminate sentence of imprisonment.
[40]	We do not accept the submission that s 23 is engaged in this case.  Under s 85, the Court is required to consider the totality of the offending.  Concurrent sentences were required because of s 23.  They were appropriate under the guidance in s 84(2), because the offending involved a connected series of offences.  Under s 85(4), the most serious offence must receive the penalty that is appropriate for the totality of the offending.  Because the most serious offence was murder, the only way in which the offending other than the murder could be reflected in the sentence was in fixing the minimum period of imprisonment.  A minimum period of imprisonment is a penalty. 
[41]	Section 103(2) requires the Court to have regard to the purposes of, inter alia, holding the offender accountable for the harm done to the victim and the community by the offending and denouncing the conduct in which the offender was involved.  It follows from the application of s 85(4) that “the offending” and “the conduct” referred to in s 103(2) is the totality of the offending, not just the murder and the conduct directly related to it.  The Court must have regard to the totality of the offending, and the totality of the conduct in which the offender was involved.  
[42]	That interrelationship between ss 85 and 103 does not infringe the prohibition in s 23 on a sentence cumulative on an indeterminate sentence.  Fixing a minimum term taking into account other offending is not the imposition of a cumulative sentence.
[43]	The conduct directly involved in the murder, standing alone, justified the statutory minimum period of 10 years.  The other offending, particularly the attempted murder, was serious offending.  We do not differ from the Judge’s assessment that it justified an uplift of five years before any regard is had to any mitigating features of the offending.  
[44]	Mr Lithgow submits that provocation was a relevant mitigating factor on sentence, because the appellant had earlier been attacked and his vehicle had been stolen.  This incident arose out of gang tensions.  Violence and lawlessness are part of the gang culture.  It is an all-too-common response to offending within the gang environment that retribution is meted out by retaliatory offending.  That is not an acceptable response.  As this Court said in R v Taueki: 
Where the serious violence results from the actions of one or more persons taking the law into their own hands, acting out of revenge …, that will also be an aggravating feature.  
[45]	That aggravating feature offsets to some extent the mitigating effect of the provocation arising from the offending against the appellant.  However, we consider that some allowance to reflect provocation is required.  The provoking conduct was very serious.  The appellant’s conduct was entirely reactive, and not premeditated.  The entire incident all occurred in a short period while the provocation was still an operative factor.  We consider that an allowance of two years to reflect this factor would have been appropriate
[46]	As to personal mitigating factors, the Judge held that any remorse which the appellant had shown was balanced by his previous criminal history.  We do not differ from that assessment.
[47]	For these reasons, we conclude that the failure to make some allowance for provocation, has led to a minimum period which is manifestly excessive.  We fix a minimum period of 13 years.
Result
[48]	The appeal against sentence is allowed, to the extent that the minimum period of 15 years is quashed and a minimum period of 13 years is substituted.

Solicitors: 
Crown Law Office, Wellington, for Respondent