Attorney-General v Benna [2019] KICA 11; Criminal Appeal 3 of 2019 (21 August 2019)

IN THE KIRIBATI COURT OF APPEAL ] Criminal Appeal No. 3 of 2019
CRIMINAL JURISDICTION ]
HELD AT BETIO ]
REPUBLIC OF KIRIBATI ]

BETWEEN ATTORNEY-GENERAL APPELLANT

AND TEIBI BENNA & BENETITO KAUAUA RESPONDENTS

Before: Blanchard JA

Handley JA

Heath JA

Counsel: Pauline Beiatau for appellant

Tabibiri Tentau for First respondent

Raweita Beniata for Second Respondent

Date of Hearing: 15 August 2019
Date of Judgment: 21 August 2019

JUDGMENT OF THE COURT

Introduction

The Attorney-General appeals, on grounds of manifest inadequacy, against sentences imposed by the High Court following the convictions of Teibi Benna and Benetito Kauaua on charges of rape and throwing objects. Mr Benna was sentenced to a term of imprisonment of two years, suspended for two years.
Mr Kauaua was sentenced to a term of imprisonment of one year and eight months, suspended for a period of two years.

At the time of the offending, 2 September 2015, Mr Benna was 15 years of age, and Mr Kauaua 16 years old. By the time they came to trial, in April 2019, they were aged 18 and 19 years respectively. Mr Kauaua pleaded guilty to the rape charge, albeit on the morning that the trial was due to start. Both pleaded guilty to the charges of throwing objects. Following a trial before Lambourne J, Mr Benna was found guilty on the rape charge.

When sentencing both offenders, Lambourne J recorded that counsel for Mr Kauaua accepted the findings of disputed fact that he had made in the judgment given after Mr Benna’s trial.

The issues

The appeal raises questions of sentencing methodology in relation to offenders who were juveniles when the offending occurred but adults by the time of trial and sentence.

The Attorney-General contends that Lambourne J erred by grounding his sentences on principles taken from the Juvenile Justice Act 2015, a statute that did not apply to the offenders. For the Attorney, Ms Beiatau submits that resulted in the judge taking a starting point that was far too low. She submitted that the end sentences were both wrong in principle and manifestly inadequate.

Ms Beiatau argued that the sentences should have been fixed by reference to standards applicable to adults, albeit with some adjustment for youth. She also complains that suspended sentences ought not to have been imposed, even if it were (contrary to her argument) legitimate for the sentencing judge to reach an end sentence of two years’ imprisonment or less. Counsel for Messrs Benna and Kauaua each submit that the sentences were open to the Judge, and ought not to be disturbed.

The questions which we must decide are:

(a) First, was the sentencing Judge’s sentencing methodology correct?
(b) Second, were the sentences imposed manifestly inadequate?
(c) Third, if they were, what sentences ought to be imposed?

Extension of time to appeal

Mr Benna and Mr Kauaua both were sentenced on 15 April 2019. An appeal against sentence was not filed until 23 May 2019.

The appeal was filed about one week out of time. An extension of time to appeal is sought, on the grounds that the appeal raises points of principle in relation to the sentencing of young persons for serious crimes.

In an affidavit in support of the application for an extension of time, a lawyer from the Attorney-General’s office deposed that, after sentencing, a deliberate decision was made not to bring any sentence appeal. That view was conveyed to counsel for Mr Benna and Mr Kauaua. However, later, the Director of Public Prosecutions took the view that an important point of principle arose. An appeal was authorised at that time. That is the reason for the delay.

Counsel for Mr Benna and Mr Kauaua opposed an extension of time. Each emphasised that the offenders were juveniles at the time of offending and should not be put at risk of a custodial sentence being imposed in substitution for one that had been suspended.

We grant the application, notwithstanding the cogent submissions in opposition. The importance of the issue raised, in relation to the sentencing of young persons in Kiribati, justifies that course.

Background

On 2 September 2015, the complainant, aged 45 years, had been drinking with five others at the house of a friend in Buarika Village, on an outer island, Kuria. Between 4.00pm and 9.00pm, she consumed five cups of fermented yeast, rendering her drunk but still aware of her surroundings. After the drinking finished, the complainant went to buy some cigarettes. She intended to gift them to her drinking companions.

Around the same time, Mr Benna and Mr Kauaua were returning from a funeral they had attended. Neither was affected by alcohol. After buying the cigarettes, the complainant went to the house where the gathering had taken place. Three of her friends were there, and the cigarettes were distributed to them. Outside, but in close proximity to that house, the complainant saw Mr Benna and Mr Kauaua, both of whom she knew. It was then about 10.00pm.

The complainant began to walk towards another house, in Norauea village. The two youths followed her. Along her way, the complainant purchased a cigarette for another friend. The events that gave rise to the charges occurred while the complainant was walking along the road between Buarika and Norauea.

The complainant believed that this particular area might be haunted. She heard a noise behind her. After stopping for a moment, she continued. She heard what sounded like footsteps. She turned and saw two shadows. She called out, “Are you humans or ghosts?” There was no response. She continued towards her friend’s house, walking a bit faster.

Suddenly, the complainant was grabbed around her waist. She twisted her body and saw that it was Mr Benna. She noticed Mr Kauaua was there as well. She asked Mr Benna what he was going to do. He dragged her into the bushes, close to a babai pit, on the ocean side of a house. Mr Kauaua came with them.

After dragging the complainant into the bushes, Mr Benna and Mr Kauaua tripped her, so that she fell to the ground. At this stage, she was wearing a t-shirt and skirt, with denim shorts and underpants. The two men tried to remove her shorts; Mr Benna unzipped the fly while Mr Kauaua undid a button. The complainant resisted. She tried to hold the waistband of her shorts to prevent them from being removed. She was unsuccessful. Both her shorts and underpants were removed.

By this time, the complainant was naked from the waist down. Mr Benna unzipped his shorts and took his penis out. The complainant, lying on the ground, brought her knees up to her chest and pressed her legs together to protect herself. The two youths continued with their attack. Mr Benna lay on top of the complainant and Mr Kauaua crouched beside her.

Mna punched the complainant in the thigh as h as part of an effort to force her legs apart. He then inserted his penis and began to thrust. Eventually, he ejaculated inside her vagina. He was not wearing a condom.

After Mr Benna stood up, Mr Kauaua took his turn. He also had sexual intercourse with the complainant until he ejaculated inside her. Like Mr Benna, he did not wear a condom. When Mr Kauaua was satisfied, he stood up and put on his shorts. At this time, Mr Benna was standing nearby. The two men then ran away.

The complainant tried to find her shorts and underpants, but could not do so. She went on to her friend’s house. The complainant talked to her friend and had something to drink. She borrowed her friend’s torch and looked for her missing clothing. She could not find them.

In submissions made at sentencing, it was acknowledged that, after the rape had been committed, both offenders ran off and went for a swim in the sea. When they returned, they saw the complainant looking for her clothes. As the complainant was about to leave the scene, she felt something hit her in the right buttock. It was a stone, about the size of her fist. On shining her torch in the direction from which the stone had been thrown, she saw Mr Benna and
Mr Kauaua in the bushes, about five metres away. The complainant returned to her home. Understly, she wase was angry and in pain from her ordeal.

In the days after the incident, Mr Benna and Mr Kauaua met to discuss what they should tell the Police. They agreed to admit to throwing the stone. Everything else was to be denied.

Sentencing in the High Court

The rape charges were brought under s 12the PenalPenal Code, in the form that it stood at the time of the offending in issue. Rape is characterised as a felony for which, by s 129, thimumximum sentence is life imprisonment.^[1] A startinnt, exclusiclusive of aggravating factors relating to the offence, of five years imprisonment is ordinarily applied in such cases: Attorney-General v Tengke [2004] KICA 10, at para [13]; see also Republic v Arawaia [2013] KICA 11 at para [17] in the context of equating commission of the offence of defilement of a girl under the age of 13 years with rape. Both offences involve non-consensual sexual intercourse and carry a maximum penalty of life imprisonment.

The charges of throwing objects were brought under s 83A e PenalPenal Code. That offence carries a maximum penalty of two years imprisonment. While Mr threw the the stone, the Judge treated the two youths as having equal culpability for that offence. The Judge regarded this offending as something to be taken into account under the totality principle. We agree.

The Juvenile Justice Act (the Act) came into force on 24 December 2015. It was designed to create a new statutory regime for the trial and sentencing of children and young persons, collectively defined as “juveniles” by s 2 of the Act. A “child” is defined as someone under the age of 14 years; a “young person&# is someonemeone of the age of 14 years and under the age of 18 years. There is nothing in the Act to suggest that it was intended to apply to offending that occurred before its commencement date. As previously indicated, the attack on the complainant took place on 2 September 2015. Informations were filed on
28 January 2016.

Lambourne J was troubled by the fact that he was required to sentence, as adults, two offenders who had been juveniles at the time the crimes were committed. The underlying purpose of the Act played an influential role in the Judge’s approach to sentencing. While the Judge accepted that the statute did not apply to Mr Benna and Mr Kauaua, he endeavoured to sentence in a manner consistent with its intent.

Lambourne J started from the orthodox proposition that a starting point for sentencing in respect of a rape committed by two or more offenders (in essence, a gang rape) should be eight years imprisonment. The Judge observed that if the offences been committed while they were adults, “quite lengthy prison terms” would likely have been imposed. Nevertheless, he took the view that, in assessing an appropriate starting point for youth offending, he was entitled to take the Act into account. Lambourne J did so on the basis that it “is a well-understood principle that, where the provisions of a new law are procedural in nature (such as is the case with [the Act]), the law will apply to matters pending at the time of its entry into force”.^[2] Without deciding the point, we doubt whether the Act fell into that category.^[3]

The Judge surveyed the range of sentencing options provided by s 1the Juveniuvenile Justice Act. Section 15 provides options that are designed onr juvenile offenders. Sect Section 15 provides:

15. Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his or her guilt, the court shall take into consideration the manner in which, under the provisions of this or any other Act or law enabling the court to deal with the case, the case should be dealt with, and, subject to such provisions, may deal with the case in any of the following manners or combination thereof, namely –

(a) by dismissing the case;

(b) by discharging the juvenile on the entering into a recognisance. with or without sureties;

(c) by committing the juvenile to the care of a relative or other fit person;

(d) by ordering the juvenile to pay a fine, damages or costs;

(e) by ordering the parent or guardian of the juvenile to pay a fine, damages or costs;

(f) by ordering the parent or guardian of the juvenile to give security for his good behaviour;

(g) by directing that the juvenile be released on entering into a bond to appear and receive sentence when called upon;

(h) by committing the juvenile to custody in a place of detention;

(i) where the juvenile is a young person, by sentencing him or her to imprisonment; or

(j) by dealing with the case in any other manner in which it may be legally dealt with;

Provided that nothing in this section shall be construed as authorising the court to deal with any case in any manner in which it could not deal with the case apart from this section.

In relation to the ability to sentence juveniles to imprisonment, Lambourne J referred to s 11 of the Act. Section 11 sets out restrictions on the “punishment of children and young persons&#8221ection 11(1 11(1) provides that no child shall be sentenced to imprisonment or be committed to prison in default of payment of a fine or costs, while s 1states thas that no young person shall be sentenced to imprisonment “if he or she c suitably dbly dealt with in any other way specified in s 15&#82 A ra A rationale for s 11(2) ap inrs in s 11(3)ctes ttes that a “young person sentenced toed to imprisonment shall no farsas is practicable, be allo allowed to associate with prisoners not being children or young persons”.

Although the sentences were informed by the Act, the Judge did not purport to apply it, as such. Rather, he approached sentencing by a different route, albeit one that yielded a similar outcome to that which might have occurred had the Act been in force and applied. Lambourne J explained his approach as follows:

[11] ... It is generally accepted that children and young persons should be treated differently by the criminal justice system because they lack the maturity and sense of responsibility that we expect from adults. They are not to be held to the same standard as adults. It would be wrong then to punish an offender for what they had done as a young person as if it had been done by them when they were an adult. An adult who comes before the Court to be sentenced for an offence committed as a young person should be sentenced no more harshly than if they had come to be sentenced while still a young person. ...

(Emphasis added; footnote omitted)

The Judge considered Mr Benna and Mr Kauaua to be equally culpable. In assessing aggravating factors, he referred to:

(d) The use of violence beyond that inherent in the offence of rape
(e) The “gang” nature of the rape
(f) The punch to the complainant’s thigh, in order to weaken her resolve
(g) Throwing a stone at the complainant
(h) Neither of the offenders having used a condom, and both ejaculating inside the complainant, exposing her to the risk of pregnancy and/or sexually-transmitted infection.

In considering mitigating factors, each offender was given a credit of two months to recognise prior good character. Another credit of four months was allowed to each offender to reflect the time it had taken to prosecute the case, particularly having regard to their age. This credit reflected “a modest reduction in sentence to compensate [the offenders] for breach of their constitutional right to be afforded a fair trial within a reasonable time”.^[4] In addition, Mr Kauaueived ived a credit of four months for his late guilty plea. That resulted in a term of imprisonment of two years for Mr Benna, and one of 20 months for Mr Kauaua. Lambourne J took the view that each sentence should be suspended. For reasons that will become apparent it is unnecessary to explain the Judge’s reasons for taking that course.

Analysis

(a) Was the sentencing Judge’s methodology correct?

On a close reading of Lambourne J’s sentencing remarks, we consider that he did not purport to apply the Act when sentencing but, rather, used it to inform the basis on which a sentence should be structured.

In those circumstances, we do not need to discuss further questions of methodology. The appeal can, in our view, be addressed by reference to the question whether the sentence actually imposed was manifestly inadequate.

(b) Was the sentence manifestly inadequate?

Over recent years, much has been written about adolescent brain development, and the effect it has on juvenile decision-making. Courts throughout the common law world have drawn on the scientific literature to improve their ability to understand and respond to youth offending. Before discussing the particular sentences imposed by the Judge, we identify some important aspects of the modern research, so that it can be used as a basis for assessing the adequacy of the sentences.

Deficiencies in decision-making ability, greater vulnerability to external coercion and the relatively un-formed nature of the adolescent character are all factors relevant to an assessment of youth culpability. Poor
decision-making will often manifest itself in real-time coercive situations including a propensity for impulsive behaviour. This type of behaviour can be attributed to the fact that adolescents are less efficient than adults in processing information, and lack life experience. Youth offending will often be accompanied by other disadvantageous circumstances that may reduce culpability further; examples are intellectual disability, mental impairment and substance abuse. A useful summary of expert evidence on this topic can be found in Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

In Churchward, the Court of Appeal of New Zealand summarised its approach to youth sentencing as follows:

[77] Youth has been held to be relevant to sentencing in the following ways:

(a) There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b) The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

(c) Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

[78] Additional factors recognised by the England and Wales Sentencing Guidelines Council are: offending by a young person is frequently a phase which passes fairly rapidly and thus a well-balanced reaction is required in order to avoid alienating the young person from society and; criminal convictions at this stage of a person’s life may have a disproportionate impact on the ability of the young person to gain meaningful employment and play a worthwhile role in society.

[40] While many countries have laws which presumptively prohibit imprisonment of young persons, the need to imprison (both to denounce conduct and to protect the public from aberrant behaviour) for serious criminal offending is recognised. A sentence of imprisonment, in those circumstances, will not be regarded as a breach of any international instrument to which a particular country may have subscribed; for example, the United Nations Convention on the Rights of the Child. By way of illustration, see Powhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at paras [82] and [98].

[41] Each case of youth offending must be considered on its own facts. A critical eye must be cast over the character, personality and intellectual capacity of an individual offender. Counsel should provide as much information to the Court as possible to assist it to make an assessment of culpability. Any local customs of Kiribati (or similar considerations) should be included among that information. The sentencing Judge may then make an informed assessment of individual culpability for sentencing purposes. There can be no outer limit placed on the extent of the credit of youth when circumstances can differ so much. A callous and serious assault, reflecting a certain numbness of the soul, will attract a different response than a similar act carried out by one who is young and intellectually disabled.

[42] Ultimately, the role of the sentencing Judge is to weigh the young person’s age and characteristics, as well as the reasons for the offending, against the seriousness of the crime committed and prospects of rehabilitation. Only at that point can an appropriate credit for youth be chosen. We add that this approach will also be helpful in deciding whether, in cases to be decided under the Act, there is any “suitable” alternative to imprisonment available for the purposes of s.11(2).

[43] In the present case, we consider that the public interest justified a stern sentencing response. While it is true the offenders were young persons, their acts were callous, and no explanation for them has been forthcoming.

[44] Even under the new legislation, a court is entitled to imprison a young person for serious offending which cannot be marked in any other way. Section 11(2) of the Act, which creates the presumption, is qualified by permitting a Judge to sentence a young person to imprisonment if he or she cannot be “suitably dealt with in any other way specified in section 15”.^[5] Section 12 authorises the Court to sentence an offender to be detained for such period as may be specified in the sentence if convicted of a “serious crime”. The offence of rape is defined as a “serious crime” in the Schedule to the Act. And, finally, s 15(i) itautf authorises a Court to sentence a young person to imprisonment.

[45] The Judge accepted that in the case of multiple offenders committing a rape with the aggravating factors to which we have referred, a starting point of eight years imprisonment would be justified. We agree that such a starting point would be within the range available to a sentencing Judge. In adjusting his starting point to take account of youth offending, Lambourne J reduced that to two years’ imprisonment. Taking an appropriate starting point of eight years imprisonment for adult offending, that amounted to a credit for youth of 75 per cent.

[46] We consider that the Judge should have taken a starting point of eight years imprisonment. That represents an uplift of three years imprisonment from the starting point identified in Tengke. He should then have considered what allowance could legitimately be made for youth. In this case, the two young persons were 15 and 16 years of age. They were acting together, most likely egging each other on to do something that they knew was wrong, and a serious criminal offence. The offending was opportunistic, but can also be viewed as impulsive and callous. There are no additional factors to be taken into account in assessing youth culpability. Neither offender was influenced by alcohol or drugs at the time of the offending. No explanation has been given as to why it occurred. There is no suggestion of intellectual disability or mental infirmity. Subject to the need to avoid imposing a “crushing” sentence, those are the factors relevant to assessing a credit for youth.^[6]

[47] In Attorney-General v Tengke⁶, this Court, in response to an invitation from the then Solicitor-General, provided guidance on the starting point to be used for a single rape committed by an adult. Having reviewed the authorities to which it had been referred, the Court of Appeal said:

[13] A starting point of five years imprisonment for a contested case of rape would accord with the approach taken in England: see R v Billam [1986] 1 WLR 349 (CA), 351D. In New Zealand the starting point is eight years. We are mindful of the need to avoid imposing upon Kiribati approaches taken in other jurisdictions which may not necessarily be appropriate here. However we accept that in very broad terms the cases cited by Mr Lambourne would be consistent with a starting point of five years. We think that this can be usefully adopted as the starting point in Kiribati so long as it is not allowed to detract from the need to tailor the sentence to the particular case. Billam, supra, at 351 contains a convenient, although non-exhaustive, summary of the circumstances which may be regarded as matters of aggravation or mitigation. They will be of assistance in deciding whether and to what extent the Court departs from five years in the particular case

[48] In Bateriki v Republic, this Court upheld a sentence of 3 years’ imprisonment for a single incident of rape committed by a boy aged 16 years, in circumstances that were far less serious than the present. Lambourne J was aware of this decision but took a lower starting point because he considered the principles underpinning the Act required a different approach. With respect, we do not agree.

[49] In our view, applying orthodox youth offending principles, the Judge ought to have sentenced the two offenders to imprisonment, without suspension. We consider that the Judge erred in taking a starting point of two years imprisonment for the offending. Notwithstanding the credit to be given for youth, that resulted in a sentence that was manifestly inadequate. In our view, the appropriate sentencing methodology was to treat each of the offenders as if they were adults, and then to reduce the sentence by reference to mitigating factors, including youth. In the circumstances, a significant credit for youth was justified – but not one in the order of 75 per cent.

[50] Being generous, the most credit that could be given for youth, in this case, was 25 per cent. That would result in a period of two years being deducted from the starting point of eight years, bringing down the starting point to six years imprisonment.

[51] While we propose to adopt the Judge’s approach to credits for other mitigating factors, each will need an adjustment to take account of the higher starting point from which they have been assessed. On the basis of a starting point of 8 years’ imprisonment, we:

(i) Allow a credit of 10% to each offender for previous good character. Based on a starting point of 6 years’ imprisonment, we round that up to to 10 months.
(j) Allow a credit of 4 months’ imprisonment to reflect the Judge’s assessment of what was required to vindicate the youths’ right to a fair hearing within a reasonable time.
(k) Allow an additional credit of 10 months for Mr Kauaua’s late guilty plea.

[52] Having assessed the correct sentencing response to the offending, we need to reduce the terms of imprisonment further to recognise two important factors:

(l) The first is that this is a prosecutor’s appeal. It has long been accepted in common law countries that an appeal against sentence on grounds of manifest inadequacy will only be allowed by increasing the sentence to the lower end of the range available to a sentencing Judge. Notwithstanding our view, we consider that a sentencing Judge could have, in the exercise of a wide discretion as to sentence, chosen a starting point lower than that which we have indicated or given greater credit for particular mitigating factors.^[7]
(m) The second concern is the fact that the young offenders were, after sentencing, told that no appeal would be brought. That exacerbates the likely impact of the substitution of a custodial sentence for one that was, in substance, non-custodial. We gave the Attorney leave to appeal to recognise the importance of the sentencing issue involved, but consider some further significant allowance should be made in favour of the offenders to reflect this concern.

[53] We fix an allowance for both of those factors at one year’s imprisonment. That results in what we consider to be appropriate end sentences would be one of 3 years and 10 months’ imprisonment for Mr Benna, and one of three years’ imprisonment for Mr Kauaua. Those are the sentences we intend to impose.

Suspension of sentence

[54] Strictly speaking, it is unnecessary for us to address the question whether the sentence ought to have been suspended. That is because, in terms of s 44 of the Penal Code, on the sentence we are substituting suspension is not available.

[55] Having said that, we do not wish to endorse the approach taken by Lambourne J in imposing a suspended sentence. While we understand the Judge’s concern at the unavailability of both separate facilities for the detention or imprisonment of young persons and rehabilitative programmes, we consider that the aggravating factors relevant to the offending were such that a suspended sentence, on any view, was not justified. On the evidence available to the Judge, the rehabilitative considerations to which reference was made by this Court, in Attorney-General v Kauriri ^[8] and the Court of Appeal of New Zealand in
R v Petersen^[9] were not engaged.

[56] We share the Judge’s concerns about the unavailability of proper detention centres for young persons, particularly in light of the provisions of the Act. We direct the Acting Chief Registrar of this Court to refer this judgment and the sentencing remarks of Lambourne J to the responsible Minister, with our respectful suggestion that this issue be considered, at a political level. This is not an issue that can be addressed by a Court.

Result

[57] For those reasons, the appeal is allowed. The sentences imposed in the High Court are set aside. In substitution, we impose the following sentences:

(a) Mr Benna is sentenced to three years and 10 months’ imprisonment

(b) Mr Kauaua is sentenced to three years’ imprisonment

[58] We impose concurrent sentences of three months’ imprisonment on each of the charges of throwing objects.

[59] Both offenders are ordered to surrender themselves to the Police no later than 5.00pm on Wednesday 4 September 2019.

_______________________________

Blanchard JA

__________________________________

Handley JA

_________________________________

Heath JA

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^[1] Sections 128 and 129 were amended by s 3 of enal Cnal Code (Amendment) and the Criminal Procedure (Amendment) Act 2017. However, the new provisions do not apply to offending that occurred before it came into force.

^[2] Citing Blyth v Blyth [1966] AC 643 (HL) at 666 (Lord Denning).

^[3] We are inclined to think that the Blyth principle does not apply in the present case. Lord Denning was careful to restrict the principle “to statutes which only alter the form of procedure, or the admissibility of evidence, or the effect which the courts give to evidence”. We consider the Act went further than that.
^[4] Attorney-General v Li Jian Pei [2015] KICA 5.
^[5] Section 15 is set out at para [30] above.
^[6] Attorney-General v Tengke [2004] KICA 10
^[7] Generally, see R v Donaldson (1997) 14 CRNZ 537 (CA), at 549–550.
^[8] Attorney-General v Kauriri [ 2015] KICA 6, at para [3].
^[9] R v Petersen [1994] 2 NZLR 533 (CA) at 537.