THE QUEEN v HERBERT LEAT [2002] NZCA 339 (26 February 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA123/02

THE QUEEN

V

HERBERT LEAT

Hearing:

25 February 2003

Coram:

Gault P, Robertson J, Doogue J

Appearances:

T J Darby for Appellant

H Lawry for Crown

Judgment:

26 February 2002

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1]

The appellant was convicted by a jury of injuring with intent to injure and sentenced to five months periodic detention.An appeal against conviction was not pursued and is dismissed.The appeal against sentence has been pursued notwithstanding that the appellant has served his sentence.The thrust of the appeal against sentence is that it would have been appropriate for the appellant to have been discharged without conviction.

Background

[2]	The offending arose out of driving by the brother of the appellant (who was a co-accused) of one truck and the complainant of another truck. Both vehicles eventually stopped.The sentencing Judge, who was the trial Judge, was satisfied that the complainant, the appellant and his brother were all extremely angry and enraged by what each of them perceived to be the dangerous or erratic driving of the other vehicle.The appellant’s brother and the complainant confronted each other.The Judge found that the appellant then struck the first blow, a blow variously described as coming from behind the victim to the side of his face or to his head.The complainant fell to the ground and was then set upon in the course of which he was further kicked and punched.The Judge accepted that as a result of the assault the most serious consequence for the complainant has been permanent damage to his left eye caused by a scar on his cornea which results in the eye being permanently blurry.In addition there was bruising to the ribs and left side of the face.That bruising went away, the Judge said, after about 10 days.
[3]	The appellant’s brother was acquitted by the jury, which the Judge noted made his role in sentencing no easier.He took the view that s5 of the Criminal Justice Act 1985 applied but that there were special circumstances justifying the imposition of the non-custodial sentence that was imposed.The Judge noted that the offence was not a cold-blooded and premeditated attack and that the appellant, aged 23 years, had no previous convictions and was attending, albeit at a late stage, an anger management course.The Judge also noted the difficulty of attributing the appropriate degree of responsibility to the appellant as opposed to anyone else. It was this factor which led him to conclude that special circumstances existed which justified him in imposing what could otherwise be seen as a lenient sentence upon the appellant.
[4]	The sentencing Judge was faced with the same submission as this Court, namely that the appellant could appropriately have been discharged under s19 of the Criminal Justice Act.He took the view that it was inappropriate.He said that on any account it was a serious matter and that the nature of the offending was such as to militate against the exercise of the discretion.He noted there was a need for deterrence and that he had to take that into account also.

The Appeal

[5]	The appeal proceeds upon the basis that it was not open to the Judge to accept that all the injuries upon which he relied were caused by the appellant.It is submitted that if they had been so caused his brother must also have been found guilty by the jury.It is further submitted that it was open to the Judge to grant a discharge under s19 of the Criminal Justice Act.
[6]	The reasoning for the appellant in support of these submissions is that the injuries to the complainant can only have been caused by one of two types of violence traversed in the trial.The first was the appellant’s blow to the complainant’s head.The second type of violence was the subsequent kicking of the complainant and the dragging of him to another place.The appellant submits that it is clear that the punch to the head did not by itself cause the complainant’s injuries.It is submitted that it had to be the later series of acts of violence which caused the complainant’s injuries. If the jury had intended to convict the appellant in respect of that series of injuries, then it is said they must also have convicted his brother who was also alleged to be involved in respect of them.It is submitted that the only basis upon which the Judge was entitled to sentence the appellant was for the relatively minor punch to the complainant’s head, and that the appropriate course in respect of that would have been to discharge the appellant without conviction.It is submitted that any other outcome was too serious given what the jury must have accepted as the proven facts.
[7]	The Crown answers these submissions by submitting that there was clear independent evidence that the appellant both held down and kicked the complainant and dragged him from where he was.The verdict of the jury was only consistent with the jury accepting such evidence as there was no suggestion that the injuries upon which either the Crown or the Judge relied were as a result of the initial blow by the appellant.The Crown answers the argument reliant upon the acquittal of the brother by submitting that the acquittal is consistent with the jury being unable to discount the possibility of the brother attempting to pull the appellant away from the complainant.That latter submission is made because there was clear evidence, which was traversed in the summing up, of the brother pulling the appellant away although there was argument as to the timing of that.
[8]	In addition the Crown submits that there were insufficient grounds to make out special circumstances in terms of s5 of the Criminal Justice Act. It is submitted that it is open to this Court to substitute a term of imprisonment given that the appellant was found guilty of a serious offence leaving significant injuries following an incident of road rage.
[9]	With all respect to the arguments for the appellant they are artificial.They rely upon an attempt to persuade the Court that the appellant’s brother would have had to have been convicted if the jury were relying on the more serious injuries to the complainant for their verdict of guilty against the appellant.That does not follow.It was plainly open on the case which was put to the jury that the appellant was the principal offender in respect of the injuries inflicted upon the complainant and that there was uncertainty as to the role, if any, of his brother in the infliction of those injuries.The acquittal of the brother merely indicates the jury were left in a reasonable doubt as to his guilt and nothing more.The sentencing Judge, who had heard all the evidence, was fully entitled to reach the conclusions that he did that the appellant was guilty of inflicting the injuries incurred by the complainant.His findings have not been shown to be inconsistent with the jury verdicts.
[10]	Once that point is reached the only real question which arises is whether this Court should increase the sentence imposed upon the appellant.The Crown has not actively pursued such a course which is understandable given that the appellant has carried out the sentence imposed upon him, rather than take advantage of its automatic suspension under the law pending the outcome of his appeal.In those circumstances, while the appellant can think himself fortunate as to the extremely merciful way in which he was treated by the sentencing Judge resulting from theacquittal of his brother, we are not disposed to vary the sentence imposed.
[11]	We would add that, even if the appellant had been able to satisfy us that his offending was limited to a single blow, we would not have contemplated granting him a discharge without conviction.There could have been no justification for such a course where there was deliberate violence arising out of what is commonly known as road rage.

Decision

[12]	The sentence appeal, like the conviction appeal, is dismissed.As the appellant has served his sentence there is no need for the usual consequential orders in respect of a non-custodial sentence.

Solicitors

T J Darby, Auckland

Crown Solicitors, Auckland