Appellant. THE QUEEN Respondent JUDGMENT OF THE COURT. The appeal, which is against both conviction and sentence, is dismissed. REASONS OF THE COURT

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1 IN THE COURT OF APPEAL OF NEW ZEALAND CA592/2012 [2013] NZCA 339 BETWEEN AND MARK HETERAKA Appellant THE QUEEN Respondent Hearing: 15 July 2013 Court: Counsel: Judgment: Wild, Heath and Keane JJ L L Heah for Appellant S B Edwards for Respondent 31 July 2013 at am JUDGMENT OF THE COURT The appeal, which is against both conviction and sentence, is dismissed. REASONS OF THE COURT (Given by Heath J) The appeal [1] In late March 2012, Mr Heteraka stood trial in the District Court at Christchurch, before Judge MacAskill and a jury. 1 He faced one count of aggravated robbery and two of robbery. The charges arose out of three distinct events that occurred on 28 November 2009, 9 June 2010 and 6 February [2] The jury acquitted on two of the counts but returned a verdict of guilty on one of the robbery charges. That charge related to the events of 6 February On 1 R v Heteraka DC Christchurch CRI , 29 March HETERAKA V R CA592/2012, [2013] NZCA 339 [31 July 2013].

2 22 August 2012, Judge MacAskill sentenced Mr Heteraka to a term of imprisonment of five years and four months. The Judge adopted a starting point of five years imprisonment. The Judge then applied an uplift of six months to take into account Mr Heteraka s previous offending. The end sentence resulted from a credit of two months for five months Mr Heteraka spent on electronically monitored bail. 2 Mr Heteraka appeals against both conviction and sentence. The facts in outline [3] We take our summary of relevant facts from the sentencing notes of Judge MacAskill, with which no issue was taken by counsel for Mr Heteraka on appeal. [4] On 6 February 2011, Mr Heteraka robbed a French tourist of a laptop computer, a French identity card, a driver licence, credit cards and a sum of money (about $20 $30 in cash). The robbery occurred around 12.25am when Mr Heteraka entered a backpackers hostel in Christchurch. [5] Mr Heteraka went to a room occupied by the victim. He knocked on her door. She answered. Mr Heteraka entered. He punched the complainant to the face with a closed fist. After she began to scream, Mr Heteraka told her to be quiet, indicated that he had a knife and said that he would not hesitate to kill her. He then punched her again and threw her onto the bed. The complainant was wearing a night gown with nothing underneath. She was afraid she might be raped. [6] Mr Heteraka then put bed covers over her mouth and nose, so she could not breathe. He was wearing gloves and a hoodie. He punched her again, several times. Mr Heteraka told the complainant not to look at him and to cover her eyes. Mr Heteraka repeated that he would kill her without hesitation, if he had to. [7] Mr Heteraka told the complainant that he wanted money. He made off with her property. 2 R v Heteraka DC Christchurch CRI , 22 August 2012 [the Sentencing notes]. Mr Heteraka was also ordered to pay reparation of $3,274 for financial loss and $2,000 for emotional harm, suspended until his release from prison. He does not appeal against the making of this order.

3 The conviction appeal The identification evidence [8] Mr Heteraka denied that he was the offender. At issue on appeal is whether visual identification evidence on which the Crown s case substantially (but not totally) rested was properly admitted. No objection was taken to the admission of the evidence at trial. The appeal is not advanced on grounds of counsel error. [9] The complainant was interviewed by Detective Constable Kennedy on 9 February They met at the Christchurch Central Police Station. Detective Kennedy was aware that the complainant s complaint was similar to another one made in August He had been looking through that file before she attended at the police station. [10] Detective Kennedy showed the complainant a copy of a photographic montage prepared in respect of the August 2010 incident. The montage was in black and white. The complainant s witness statement records that Detective Kennedy had asked if he could show her a montage that he had put together on an older but similar robbery. From that, we infer that the complainant must have believed the man Detective Kennedy suspected of robbing her was one of the men depicted in the 2010 montage. [11] The complainant s attention was drawn immediately to photograph six. She regarded that photograph as depicting a person whose appearance very closely [resembled] the facial features of the male who attacked and robbed her. She told Detective Kennedy that the lips of the person in photo six [were] quite distinctive and [she remembered] the lips when the male was talking to [her] and the shape of his face. [12] Detective Kennedy invited the complainant to return to the police station later that afternoon so that he could show her the coloured copy of the montage. She attended at about 3pm that day, was told to take her time in considering whether the person who attacked her was depicted in the montage and that he may or may not be present. She chose the person shown in photograph six.

4 [13] At the trial, the complainant gave evidence of the circumstances in which she saw the offender in her room. She was asked where she was when Mr Heteraka took her property. She answered: A. I was on the bed, ah, like crouched in the corner of the bed and still covering my eyes. He was asking not to look at him but I, I actually looked at him. I had to see who was doing this to me, ah, but I was standing in a corner of my bed shaking and just doing whatever he was asking me to do and leaving him taking whatever he wanted. Q. And you said that you were covered. What were you covered with? A. With, um, duvet, the blankets, the thick blankets of the bed, the duvet Q. And so A. - and he actually [inaudible] over my mouth to punch me through it and so, so I had the duvet a little bit over me but not, it was not covering my face so I only had my hands covering my eyes but I could clearly see him, ah, when I tried. Q. So now dealing with the person that you saw, are you able to give a description of the person that you saw? A. Yeah. Q. Can you please tell us A. Oh do you want me to give the description again? Q. Can you give a description now please? A. Um, of what I can remember he was not so tall, he was probably about 170, ah, he was about my height, a little bit higher, so 170 I would say. He had dark skin but like I said to the police he it was not of a tan. He was definitely a Maori person, um, he had big lips like, I can remember those lips speaking to me very close to my face, those huge lips. He had a few hair, not a proper beard but just like random hair around the chin and he had quite wide shoulders and, um, he was wearing a black hoodie with a hood on and, yeah, that s it. I couldn t see his hair, if he had long hair or short hair. He had his hoodie on the face, on the head so I couldn t see this. Q. And you ve told us that he was close to your face. So I m, so that we re clear, was anything obstructing your view of him as you were looking at him? A. No. It was his face very close to my face. He was putting his finger on my mouth and his face was this close to me.

5 Competing contentions [14] Ms Heah, for Mr Heteraka, puts forward his appeal on the grounds that the visual identification did not meet the requirements for admissibility under s 45 of the Evidence Act 2006 (the Act). She submitted that the second identification was tainted by the first, meaning that it did not meet the criteria required for a formal procedure under s 45(3) of the Act. She submits that the fact that the investigating officer, Detective Kennedy, told the complainant that the montage was compiled from another backpacker hostel robbery similar to hers, renders the subsequent identification unreliable. 3 [15] Ms Edwards, for the Crown, submitted that, when properly understood, the two identifications represented a single formal procedure for the purposes of s 45(3). On that basis, it was admissible. [16] A problematic feature of this appeal is the absence of any pre-trial or voir dire ruling on admissibility. That means that we do not have the benefit of any findings from the Judge about whether a formal procedure was or was not followed, (if not) whether there was good reason not to hold a formal procedure and (if not) whether the Crown had proved beyond reasonable doubt that the circumstances of the visual identification produced a reliable identification. 4 Analysis [17] Section 45 of the Act states: 45 Admissibility of visual identification evidence (1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable. (2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person 3 4 See, for example, R v Briggs HC Whangarei CRI , 19 March 2009 at [36], in which the potential unreliability of such an identification was discussed. Evidence Act 2006, s 45(2).

6 alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification. (3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence (a) (b) (c) (d) (e) (f) (g) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and that complies with any further requirements provided for in regulations made under section 201. (4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure: (a) (b) a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person): the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):

7 (c) (d) (e) (f) a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure: no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant: if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer's initial investigation: if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence. [18] Section 45 provides a code for the admissibility of visual identification evidence. Its character as a code was confirmed in Harney v Police. Delivering the judgment of the Supreme Court, in that case, Blanchard J said: 5 [15] Opinion evidence is generally admissible under s 24 of the Evidence Act: if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived. Identification evidence is a species of opinion evidence. The witness is offering an opinion that the alleged offender was the person the witness saw in circumstances related to the offending. Such evidence has, however, inherent and well-known dangers which the requirements of s 45 are designed to mitigate so far as possible. As defence counsel often say to juries, there have been famous miscarriages of justice arising from misidentification by an honest, and therefore apparently believable, eyewitness. Judges should therefore be astute to ensure that what s 45 requires is strictly followed and that identification evidence is not admitted except in accordance with the section.... [20] The expression that evidence in subs (1) obviously refers back to visual identification evidence earlier in the subsection and must encompass, where a formal procedure has been followed, both the circumstances of the alleged offending in relation to which the witness identifies the alleged offender and the circumstances of the formal procedure. 5 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725.

8 [21] Where there has been a formal procedure or good reason for dispensing with one, the visual identification evidence is presumed to be sufficiently reliable to be considered by the judge or jury, but it remains open to the defendant to prove on the balance of probabilities that in fact it is unreliable. If the defendant can do that, the evidence is not admissible. [22] Subsection (2) applies where there has been no formal procedure and no good reason is shown for failing to follow one. The evidence is not automatically excluded merely because the prosecution cannot point to such a procedure or a good reason. But in their absence the hurdle for the prosecution is much higher. The visual identification evidence will be inadmissible under subs (2) unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced an identification that is sufficiently reliable to be admitted as part of its case and assessed by the fact finder along with the rest of the evidence. In other words, it must be established to that standard of proof that the surrounding circumstances were conducive to an accurate identification so that, if the jury believes the evidence of the witness, they can properly rely upon it. (Footnotes omitted.) [19] In our view, this appeal can be determined on the s 45(2) question: has the Crown proved beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification? For that reason, we assume (without deciding) that neither of the two identifications from photographic montages was made during a formal procedure and that there was no good reason for failing to follow such a procedure. [20] Harney confirms that admissible evidence to determine whether the Crown has proved the threshold requirement under s 45(2) is limited to the circumstances in which the identification was made. Limiting our consideration to those factors, we conclude that the following aspects of the evidence, cumulatively, enable the Crown to pass the threshold: (a) The complainant s visual identification, from the black and white version of the photographic montage, was made only three days after she was robbed. (b) The identification conducted from the black and white version of the montage complied with the formal procedure requirements in all but one respect; namely, Detective Kennedy s failure to inform the

9 complainant that the person to be identified may or may not be among the persons in the montage. 6 (c) Although it is clear that the complainant would have realised Detective Kennedy believed the man who had robbed her was one of those shown in the black and white montage, she had eight men from whom to choose. (d) An immediate identification was made, by reference to Mr Hetaraka s distinctive lips. The complainant s confidence in making such a prompt identification is a factor to be taken into account in favour of reliability, even though the Supreme Court has cautioned against too much weight being given to it. 7 (e) The complainant s confirmation, from the colour version, of her identification from the black and white montage. At the time that she saw the colour montage, the complainant was informed that the person may or may not be among the persons depicted and to take her time. Sentence appeal [21] As to sentence, Ms Heah submits that a starting point of five years imprisonment was manifestly excessive. She contends that the Judge adopted that starting point from R v Mako, 8 a guideline decision for aggravated robbery of shops, without differentiating between that type of robbery and Mr Heteraka s offending, which was committed without a weapon. Further, counsel submits that an uplift of six months for previous relevant convictions was excessive, given that Mr Heteraka had not been convicted of any similar offence in the five years preceding the robbery Evidence Act, s 45(3)(c). Harney v Police at [33]. R v Mako [2000] 2 NZLR 170 (CA).

10 [22] Ms Edwards seeks to uphold the sentence imposed as within the available range based on an appropriately adjusted guideline, from Mako. 9 [23] The crime of robbery involves proof, beyond reasonable doubt, of theft, accompanied by violence or threats of violence to any person used to extort the property stolen. 10 Every person who commits robbery is liable to a term of imprisonment not exceeding 10 years. 11 The maximum penalty for robbery can be contrasted with that for aggravated robbery, with which Mako was concerned, of 14 years imprisonment. [24] This Court has accepted that while the Mako guidelines should not be applied strictly to cases involving robbery, they can be adapted for such use, so long as arithmetical adjustments are not made mechanically to fit the differing maximum penalties. 12 The starting point taken by Judge MacAskill, to reflect the criminality involved in the particular offending, was five years imprisonment. That was one half of the maximum penalty available. [25] In sentencing Mr Heteraka, the Judge relevantly stated: [3] The robbery was clearly a very frightening experience for the victim. You entered the backpackers and then entered her room where she was entitled to feel safe. There was an element of vulnerability. You used physical violence. You said you had a knife. You threatened to kill her to compel her submission. There was an element of premeditation. It seems to me that you were seeking out a vulnerable person after you entered the backpackers and you were wearing gloves and it may also be relevant that you were wearing a hoodie although I appreciate your counsel s comment that wearing hoodies is common. [4] I take into account the victim impact statement. I am not going to review it in any detail It is clear that the victim suffered very considerable emotional consequences as a result of your attack. She has nightmares and flashbacks. She believes that this is an experience that she will never forget. [5] You have a list of prior convictions that include seven for burglary. There is an aggravated robbery in Your counsel says that this in fact is incorrectly recorded and it should have been recorded as a conspiracy to commit aggravated robbery. That may be so. After discussion with counsel it has been decided that sentencing can proceed upon the basis of the The starting point was taken from Mako at [56], Sentencing notes at [14]. Crimes Act 1961, s 234(1). Section 234(2). R v Ha apai CA294/05, 2 May 2006 at [25].

11 indication of the uplift that I would give for your prior convictions and the credit that you would get for being on EM bail for a period of time. You also have other serious offences on your record that resulted in imprisonment. It is significant, in my opinion, that your current offences include unlawful entry of buildings at night. [6] I take into account the pre-sentence report and the supplementary report. The report writer notes that it is concerning that your pattern of offending and your propensity for violence continues to present itself which indicates that you pose high risk of harm to others and especially females. The report writer notes that your offending on this occasion involved not actually the use of a weapon but you saying that you had a weapon and that this was used to coerce a visitor to New Zealand to give up her belongings. [7] Your risk of re-offending is considered to be high and this would be more likely if you were under the influence of alcohol or drugs. The report writer notes that you continue to deny your offending and therefore rehabilitation options are limited. [26] With regard to aggravating features, the Judge identified: 13 (a) An element of premeditation. (b) An unlawful entry into private property (the backpackers hostel) and then into a private room. (c) The offending occurred at night. (d) The victim was a female, alone, who was vulnerable. (e) Actual violence was used and Mr Heteraka claimed he had a knife. (f) Mr Heteraka threatened to kill the victim. (g) The victim took this threat seriously and was very frightened. (h) The victim suffered relatively minor injuries but significant and ongoing emotional harm. [27] In those circumstances, Judge MacAskill reasoned: 13 Sentencing notes at [12] [13].

12 [14] This case is a simple robbery, not an aggravated robbery, as you did not have a weapon. However, you caused the victim to think that you did have a knife. You invaded the backpackers and her private room. Those are serious aggravating factors that make this a more serious robbery. I am of the opinion that these elements make this case [at] least as serious as the midpoint shop aggravated robberies address in paragraph 56 in Mako. [15] I take the starting point to be imprisonment for five years. This takes into account the aggravating factors of your offending already identified. There will be an uplift of six months for the aggravating factors relating to you of your previous offending. That brings the sub-total to five years and six months. You are entitled to credit of two months for your five months on EM bail. You are sentenced to imprisonment for five years and four months. [28] In our view, serious offending of this type (which only fell short of aggravated robbery because Mr Heteraka did not have the knife he told the complainant he had) warranted a starting point of five years one half the maximum penalty. [29] We are not satisfied that the sentence imposed was clearly excessive. It was well within the range available to the Judge on the facts before him. The sentence appeal also fails. Result [30] The appeal is dismissed. Solicitors: Crown Law Office, Wellington for Respondent