IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA228/2024
 [2024] NZCA 469

	
BETWEEN	
KAYLEB RENATA
Applicant	
	
AND	
THE KING
Respondent	

Hearing:	
1 August 2024	

Court:	
Courtney, Mander and Walker JJ	

Counsel:	
C A Gentleman for Applicant
J M Pridgeon for Respondent	

Judgment:	
20 September 2024 at 2.30 pm	

JUDGMENT OF THE COURT
A	The application for leave to adduce further evidence is declined.
B	The application for an extension of time to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)
Introduction
[1]	In February 2021 Kayleb Renata, then 16 years old, and two associates, embarked on an unprovoked, and ultimately fatal, attack on another man.  The victim, Jamaine Wharton, tried to escape several times.  Each time, he was chased, caught and the attack resumed.  Eventually, Mr Renata stabbed Mr Wharton three times and Mr Wharton died before he could reach hospital. 
[2]	Mr Renata was found guilty of murder at a jury trial before Davison J.  The Judge imposed a life sentence, with a 10-year minimum period of imprisonment (MPI).  Mr Renata wishes to appeal the sentence on the basis (relying on Dickey v R) that his age at the time of the offending and his personal circumstances mean that a life sentence is manifestly unjust.
[3]	Mr Renata is some 17 months out of time to bring an appeal.  He has applied for an extension of time to do so.  The principles relevant to granting an extension of time to appeal were summarised by this Court in Kriel v R.  The ultimate consideration is the interests of justice and, in determining whether it would be in the interests of justice to allow an appeal to be brought out of time, the Court must consider the societal interest in the finality of litigation, as well as the interests of the prospective appellant in having their sentence reviewed.  The length of the delay and the reasons for it, and the strength of the proposed appeal, will be relevant.
Application to adduce evidence 
[4]	Mr Renata seeks to adduce evidence from a psychiatrist, Dr Kumar, to support his application.  The report was obtained in July 2022, during the trial but before sentencing.  There is no explanation as to why it was not put before the Judge at sentencing.  However, the report does not contain much more information than was already before the Court in the Provision of Advice to Courts (PAC) and s 27 cultural report.  Nor, in our view, would it advance Mr Renata’s position on the present application.  We decline to accept the evidence. 
Explanation for delay
[5]	Mr Renata’s explanation for the delay in filing an appeal is given by his trial counsel, Mr Gowing.  He confirms that the potential effect of the Dickey appeal was considered at the time, but the sentencing proceeded on the basis that Mr Renata could pursue an appeal later, depending on the outcome of Dickey.  The decision in Dickey was released on 27 January 2023 but Mr Gowing did not become aware of it until some months later.  He took instructions from Mr Renata to proceed with an appeal but, due to his workload, he did not take immediate steps to do so.  He became aware in November 2023 that other applications for leave to appeal (those determined in Kriel) were due to be heard that month, but there was insufficient time to join them.  It was not until March 2024, after reviewing this Court’s judgment in Kriel, that he took steps to arrange for the application to be filed.
[6]	We are satisfied that Mr Renata’s delay has been adequately explained.  His position ought not be adversely affected by his counsel’s failure to act more quickly to file an appeal.  The application for extension will turn primarily on the likely strength of the proposed appeal.
The offending
[7]	The offending occurred at a birthday party.  Mr Renata’s two associates, Mr Tutakangahau and Mr Raina, were somewhat older than Mr Renata.  All three were Mongrel Mob associates and gang culture was a feature of the evening.
[8]	Mr Wharton, who was not associated with the Mongrel Mob, was targeted by Mr Tutakangahau in the mistaken belief that he was a Black Power member.  He was challenged to a fight but declined.  Later Mr Renata and his associates — encouraged by Mr Tutakangahau’s mother — pressed for a fight.  Mr Tutakangahau punched Mr Wharton and others joined in, including Mr Renata.  Mr Wharton got away and ran towards the kitchen.  A group began barking and chasing after him.  Mr Raina caught him as he reached the kitchen and punched him again, knocking him to the floor.  Mr Raina kicked him.
[9]	Mr Wharton got up and reached the kitchen but was caught again by either Mr Tutakangahau or Mr Renata.  The two then continued to punch him, knocking him to the ground and stomping on him.  Those who tried to intervene were, themselves, assaulted.  Mr Wharton got up again.  Mr Tutakangahau yelled at Mr Renata to “get him” and the three resumed the chase.  Mr Renata caught up to Mr Wharton, punched him and then stabbed him twice in the chest.  Mr Wharton fell to the ground.  Mr Renata stabbed him a third time, in his abdomen.  Mr Wharton tried again to run but was caught and kicked and punched by Mr Raina and Mr Tutakangahau.  
[10]	Finally other partygoers intervened and set off with Mr Wharton to hospital.  As already noted, Mr Wharton died on his way to hospital. 
Sentencing
[11]	Sentencing proceeded on the basis that the presumption under s 102 of the Sentencing Act 2002 applied.  The Crown did not contend that s 104 was engaged and it is implicit in the Judge’s comments that he did not consider that it was engaged either.
[12]	Counsel for Mr Renata and for the Crown both considered that life imprisonment would not be unjust and that a MPI of 10 years was appropriate.  The Judge agreed:
[45]	I consider that a sentence of life imprisonment would not be manifestly unjust.  Simply put, your offending involved a senseless and savage beating of an innocent man who had nothing whatsoever to provoke you, who posed no threat whatsoever to you, and who was outnumbered by you and your associates three to one.  It culminated with you stabbing him three times to the chest, inflicting the final blow while he lay vulnerable and utterly defenceless on the ground.  Your personal circumstances, including your youth, do not render a sentence of life imprisonment manifestly unjust.  Such a sentence is appropriate to meet the principles and purposes of sentencing.
…
[47]	It remains to fix an appropriate minimum period of imprisonment.  By law the minimum term may not be less than 10 years.  Again, both the Crown and your counsel are in agreement as to the appropriate outcome.  They both submit that a 10 year MPI is warranted and appropriate in your case.  I agree.  The circumstances of your offending together with your personal circumstances, and in particular your youth, are such than an MPI of 10 years is sufficient to meet the principles and purposes of sentencing.
The proposed appeal 
The effect of Dickey v R
[13]	Dickey concerned three teenage offenders, all sentenced to life imprisonment following convictions for murder.  Ms Dickey and Mr Brown were jailed for the murder of Mr McAllister, to which Ms Dickey had pleaded guilty and Mr Brown found guilty following trial.  The third appellant, Ms Epiha, pleaded guilty to the entirely separate murder of Ms Nathan.  
[14]	Ms Dickey was 16 years old at the time of the offending, Mr Brown 19 and Ms Epiha 18.  All had had unstable, violent childhoods.  There were other features as well.  Ms Dickey had taken responsibility for her offending and had good prospects of rehabilitation.  Mr Brown functioned at a low intellectual level.  Mr Brown and Ms Epiha had endured numerous changes of foster care as young children.  Ms Epiha had been sexually abused as a young child.  The appeals were advanced on the basis that it was manifestly unjust to impose a sentence of life imprisonment on them, and that long, finite sentences would be appropriate.  
[15]	The position of young offenders had been previously considered in Churchward v R, in which this Court concluded that the age of an offender could be relevant in assessing whether a 17-year MPI is manifestly unjust in a case that engaged s 104 of the Sentencing Act because of the neurological development of adolescents.  In Dickey the Court took the opportunity to review and explain more clearly the basis on which the sentencing of youth offenders for murder should be approached.  It emphasised that youth alone will not establish manifest injustice.  Rather, what is required is an assessment of the seriousness and culpability of the offending, and whether the offender had, as a result of relevant mitigating factors and personal circumstances, shown that a life sentence would be manifestly unjust:
[169]	… it is not open to us to create an exception for life imprisonment for all youth murderers.  As we have explained, the Sentencing Act contemplates that young people convicted of murder will be sentenced to life imprisonment, unless manifest injustice is established.  Creating a category exception for youth murderers would be inconsistent with the statutory scheme and could only be done by Parliament.  The Children’s Commissioner suggested and some of the appellants’ counsel submitted we should create a special category for young persons.  We must, however, not trespass upon Parliament’s domain.  As will be seen, our judgment does not have the effect of creating a special category for young persons convicted of murder.
…
[249]	… the appeals we have determined have all involved cases in which the High Court imposed sentences of life imprisonment with an MPI of 10 years.  Different considerations may be engaged where sentences of life imprisonment and MPIs of greater than 10 years are imposed by the High Court.
[16]	In relation to s 102 this Court held that manifest injustice for the purposes of s 102 should be assessed as a matter of overall impression.  Specifically:
[195]	The assessment must begin with the gravity of the offending and culpability of the offender.  Personal aggravating and mitigating factors should be taken into account.  As we have explained … each case must be assessed on its own merits, having regard to the full register of sentencing principles, purposes and factors.  We observe that manifest injustice is most likely to be found where the offender can point to both mitigating circumstances of the offending and a combination of substantial personal mitigating factors.
[196]	The Court having decided that a sentence of imprisonment would be manifestly unjust, it must then fix the type and duration of the determinate sentence that will be imposed instead.
Mr Renata’s circumstances
[17]	Ms Gentleman, for Mr Renata, accepted that the assault of Mr Wharton was unprovoked.  She did not however accept the Judge’s description of it being a vicious and sustained attack because the fatal assault by Mr Renata was over quickly.  We cannot accept that submission.  The circumstances in which Mr Wharton was killed could hardly have been a worse example of a group attack over a sustained period during which the victim tried in vain to escape repeated assaults.  By the time Mr Renata stabbed him, Mr Wharton was, in the Judge’s words “helpless on the ground … utterly defenceless and entirely vulnerable”.  The fact that the last part of the attack — three stabbings — would have taken little time is not to be viewed in isolation and the attack was unquestionably vicious. 
[18]	Ms Gentleman submitted further that, although the pack nature of the attack was properly identified as an aggravating feature, in relation to Mr Renata, it was properly viewed as an example of encouragement and influence of older associates on a young person seeking to show his loyalty to gang associates.  In sentencing Mr Tutakangahau the Judge recognised that he was the instigator of the offending who actively encouraged the participation of the other offenders.  However, the Judge did not mention the impact of Mr Tutakangahau’s encouragement of Mr Renata when considering Mr Renata’s culpability.  Instead, he identified the specific aspects of the attack such as the use of a knife and Mr Wharton’s vulnerability when Mr Renata stabbed him.
[19]	While Ms Gentleman’s submission has merit, it can only carry modest weight.  Mr Renata’s culpability is properly assessed against the background of Mr Tutakangahau’s encouragement, Mr Renata’s own, lower, status and his motivation to show loyalty to his associates.  However, the assault that was started and encouraged by the two older men involved punching, kicking and stomping the victim.  It was Mr Renata who escalated the violence by introducing a knife into the attack and stabbing Mr Wharton, not once but three times.  His culpability was high, even accepting that he was encouraged by the older men.
[20]	We turn to Mr Renata’s personal circumstances.  He had a difficult and troubled childhood.  The extensive s 27 report and the PAC report make it clear that his childhood was characterised by neglect and exposure to gang life, including violence and drug use and dealing.  Mr Renata had not only been exposed to drugs and alcohol since birth but had been using both since childhood.  He has a history of criminal offending.  
[21]	The s 27 report writer considered that Mr Renata displayed many of the characteristics and behaviours that are clinical indicators for a diagnosis of conduct disorder — a group of emotional and behavioural problems that typically begin in childhood — which is generally applied to children and adolescents until the age of 18, after which a diagnosis of antisocial personality disorder may be made.  These characteristics include aggressive and destructive behaviour, violence, violation of socially accepted rules and a high level of disregard for others, including lack of remorse and difficulty feeling empathy. 
[22]	On the one hand, we accept that potentially mitigating factors such as remorse and progress towards rehabilitation are absent, at least in part, because of Mr Renata’s probable conduct disorder.  However, even with the benefit of Dickey, the sentencing Judge would have been bound to carefully consider whether the purposes and principles of the Sentencing Act, particularly deterrence and public protection, could be achieved by a finite sentence.  Mr Renata displays very concerning characteristics, including his lack of interest in rehabilitation, poor behaviour in custody to date and an aspiration to be a patched gang member, which mean he will present a risk to the community for some time to come.  Mr Renata will need substantial rehabilitative efforts but, as Ms Gentleman acknowledged, the outcome of that is uncertain. 
[23]	In our view, Mr Renata’s level of culpability was high, even allowing for his age and personal circumstances.  We are satisfied that a different sentencing outcome would have been unlikely under Dickey.  We do not consider that it is in the interests of justice to grant the extension sought. 
Result 
[24]	The application for leave to adduce further evidence is declined.
[25]	The application for an extension of time to appeal is declined. 

Solicitors: 
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent