The Queen v Thomas [2003] NZCA 272; (2003) 20 CRNZ 538 (26 November 2003)

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The Queen v Thomas [2003] NZCA 272 (26 November 2003); (2003) 20 CRNZ 538

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA282/03THE QUEEN

v

CHARLIE LEO THOMAS

Hearing: 25 November 2003

Coram: Gault P Goddard J Rodney Hansen J

Appearances: F Hogan for Appellant
A Markham for Crown

Judgment: 26 November 2003

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

[1] The appellant pleaded guilty on arraignment to one count of driving whilst disqualified (third or subsequent occasion – s32 Land Transport Act 1998) and one count of injuring with intent to avoid the arrest of himself upon the commission of the crime of disqualified driving (s191(2) Crimes Act 1961). The charge of driving whilst disqualified carries a maximum penalty of two years imprisonment, or a $6,000 fine, and has a mandatory minimum period of disqualification of one year. The charge of aggravated injuring with intent to avoid arrest under s191(2) carries a maximum penalty of seven years imprisonment.
[2] Following the appellant’s guilty plea a disputed facts hearing was held into whether the evidence established beyond reasonable doubt that the appellant had used a weapon in inflicting the aggravated injury. At the conclusion of the hearing, the sentencing Judge determined that a weapon had been used by him and sentencing proceeded on that basis. The appellant was sentenced to 4½ years imprisonment on the aggravated assault charge and to a cumulative term of nine months imprisonment on the charge of driving whilst disqualified. In addition, a minimum non parole period of 50% of the 4½ year sentence for aggravated assault was imposed.

Brief facts

[3] The appellant was disqualified from driving indefinitely on 28 February 1994. On 24 June 1998 and 25 August 1998 he again appeared on charges of driving whilst disqualified and was convicted on each occasion. The events that gave rise to the subject charges took place at about 2.30am on Friday 25 October 2002. The appellant who had been drinking (he admitted to having consumed eight Steinlager stubbies) was observed by a police constable on lone patrol to be driving erratically on Great South Road, Takanini. The complainant, Constable McGrogan, stopped the appellant’s vehicle on the northbound on-ramp to the Southern Motorway and administered a roadside breath screening test, which the appellant failed. In accordance with usual procedures Constable McGrogan then required the appellant to accompany him to a police station. However the appellant refused to do so and became aggressive. He then refused to be handcuffed and Constable McGrogan became apprehensive about the situation and decided he should call for backup help. To buy time, he instructed the appellant to get a document out of his vehicle and while the appellant went to his vehicle and rummaged around in it for the document, Constable McGrogan radioed for backup assistance. At that point, Constable McGrogan heard a female passenger in the appellant’s car saying “don’t” twice, followed by a man’s name.
[4] The appellant then walked back towards Constable McGrogan holding his right hand slightly behind his back and confronted him in what the constable described as an “aggressive manner”. His attitude was such that Constable McGrogan felt compelled to reach for his oleoresin capsicum spray but before he could use the spray the appellant struck him violently in the face. Constable McGrogan has no recollection of being so struck and the next recollection he has is of waking up at the side of the motorway on-ramp feeling dazed and disoriented. He was bleeding heavily from his face. Although he cannot recollect doing so, he got into his patrol car and started to drive to Middlemore Hospital. When his supervisor made contact with him he was instructed to pull over and was then taken to hospital by another patrol.
[5] At hospital Constable McGrogan was examined by a specialist reconstructive surgeon and found to have a significant wound to his right cheek, which extended from the right side of his nose to his top lip. This wound had penetrated the soft tissue of his face right through to the underlying bone. The right cheek bone was shattered and had been pushed inwards giving a concave appearance and the right sinus cavity was filled with blood. This compound fracture of the cheek bone was continuous with the wound, suggesting that all of these injuries had resulted from a single blow. Constable McGrogan had also suffered a laceration to his lip and bruising and swelling of the right side of his face and eye.
[6] Two reconstructive operations were required, one to close the wound and the second to reconstruct the cheekbone using five titanium plates, which Constable McGrogan will have in place for life. His right cheekbone remains more prominent than his left and he has residual nerve damage resulting in permanent lack of sensation in the area. He also has a 5cm scar, which serves as a permanent reminder of the attack.
[7] Predictably, the permanent features of the physical injury are not the only features of the attack that will remain with Constable McGrogan. Although he has clearly dealt with the emotional trauma of this event with considerable equanimity and fortitude, he is now naturally more cautious and circumspect in his dealings with the public and describes feelings of apprehension not previously experienced. The attack on him has also had a significant effect on the members of his family.

Grounds of appeal

[8] The appeal was advanced on two bases:

• first, against the adverse finding made by the sentencing Judge at the disputed fact hearing;
• secondly, against the sentence of 4½ years imprisonment imposed on the charge of injuring Constable McGrogan with intent to avoid arrest for disqualified driving.

The disputed fact hearing

[9] Evidence was called from the reconstructive surgeon, Mr De Chalain, at the disputed fact hearing. The appellant also gave evidence.
[10] Mr De Chalain’s evidence was given both in his capacity as the reconstructive surgeon who had examined and operated on Constable McGrogan, and as an expert able to give opinion evidence about the likely cause of the injury sustained by Constable McGrogan.
[11] The Crown contended that a weapon had been used by the appellant when he struck Constable McGrogan in the face. The defence contended that no weapon had been used, but that a “king hit” type blow had been struck by the appellant – “that is a roundhouse, full strength, bare knuckle fist blow with a ring on the ring finger of the right hand connecting with Constable McGrogan’s cheek”. Part of the defence case was that in the course of delivering this blow a flap of skin had been torn from the appellant’s right hand middle finger knuckle bone, and blood from that laceration had been splattered along the side of the appellant’s vehicle, which was parked some three metres away.
[12] However Dr De Chalain’s unequivocal evidence was that the significant compound fracture involving the bones of the right side of Constable McGrogan’s face and the significant open wound on his right cheek, made it extremely improbable that the injury had been caused by a bare knuckle fist in that location on the face. He said that never in his experience had he seen such an injury caused by means of a bare fisted blow. His experience in this regard had encompassed examining hundreds of assault victims exhibiting such injuries. Additionally he had discussed the issue of causation in Constable McGrogan’s case with colleagues in the field of reconstructive surgery. Their consensus view was that Constable McGrogan’s injury was “most unlikely to be caused by a bare knuckle fist”. Their expert view was that such a punch would cause bruising, swelling, possibly an abrasion of the skin, or even a slight tear or split of the skin and could certainly cause fractures of the underlying bones, but was most unlikely to lacerate the soft tissue right through to the underlying bones as per the injury to Constable McGrogan. On that basis Dr De Chalain remained firm that the injury sustained was a single blow injury, describing it as a “single continuous plane of injury”. When asked what sort of implement would cause such a wound, Dr De Chalain said he would imagine it would be something weighty with an edge to it, such as a piece of timber or a tyre iron.
[13] In cross-examination Mr Hogan put a number of propositions to Dr De Chalain for his consideration and comment. The first concerned the possibility that the deep laceration to the cheek had been caused by a ring that the appellant claimed to have been wearing on the ring finger of his right hand at the time. When asked to estimate the possibilities of the injury being caused by a bare fist with a ring on it, Dr De Chalain quoted a less than 10% probability and in fact thought the probability well below 10%. Dr De Chalain had not observed the ring but offered the opinion that, whilst it was a possible scenario if the ring had a significant edge to it, it was “highly improbable” that a ring could have caused the injury.
[14] Mr Hogan also put to Dr De Chalain that the bruising and lacerated flap of skin noted as missing from the appellant’s right middle finger when he was arrested two days later, was consistent with his assertion that he had punched Constable McGrogan using only his bare fist. Dr De Chalain’s response to this was that he would only expect to find that type of laceration injury on the knuckle if a victim’s teeth had made contact with the knuckle, but not as the result of a punch to the soft tissue of the face as had occurred in this case.
[15] When the appellant gave evidence he said that he was wearing a ring on the ring finger of his right hand when he hit Constable McGrogan, and that he had struck only one blow with his right fist and not used any weapon. He was adamant that he had injured his knuckle in the course of administering the blow and denied that his hand had been damaged before the assault. He also denied that he had been concealing a weapon behind his back when he walked back from his car and confronted Constable McGrogan.
[16] At the conclusion of the hearing, the Judge asked for the ring that the appellant had been wearing at the time of his arrest to be made available to him. On examining the ring the Judge made the following findings and observations:

It is a small ring with a smooth outer surface, not much different to a wedding ring. It seems inconceivable to me that it could have caused the injury to the Constable. I note too, that the description on the envelope containing the ring says that it was taken from Mr Thomas’ left hand, but whichever hand it was on, I do not believe having seen the ring and considered the evidence of Mr De Chelain, that the injury was caused as a result of the blow from the fist wearing that ring.

[17] On the basis of Dr De Chalain’s evidence, and his own observations of the properties of the ring worn by the appellant, coupled with the fact that it had been worn on his left hand, the Judge was satisfied beyond reasonable doubt that a weapon had been used in the attack upon Constable McGrogan and the sentencing accordingly proceeded on that basis.

The sentence imposed for aggravated injury

[18] From a maximum sentence of seven years imprisonment, the Judge determined that a starting point of 5½ years imprisonment was appropriate in the appellant’s case because his offending fell into the category of “near to the most serious” in terms of s8(d) of the Sentencing Act 2002. The aggravating factors that he found to be serious included leaving Constable McGrogan bleeding on the side of the road; the use of a weapon; and the serious nature of the injuries. The Judge also referred to the importance of sending a strong message that deterrent sentences will be imposed for attacks on police officers. He noted also the appellant’s criminal record, reflecting his disregard for authority and for court orders, and his propensity to resort to violence. He further noted that the pre-sentence report assessed the appellant as being at a high risk of re-offending with low motivation to change.
[19] The Judge then deducted a discount of one year for the appellant’s plea of guilty to reach an end sentence of 4½ years imprisonment.

Argument on appeal

[20] For the appellant, Mr Hogan argued that the reduction in charge from that originally laid under s191(1)(c) Crimes Act 1961 (wounding with intent to avoid detection in the commission of a crime) carrying a maximum penalty of 14 years imprisonment to that of injuring to avoid arrest upon the commission of a crime (carrying a maximum penalty of seven years imprisonment) reflected acceptance on the part of the Crown that the offending was not as serious as originally understood. To illustrate, Mr Hogan referred to the summary of facts in which it had been alleged that the appellant repeatedly struck Constable McGrogan about the head with a heavy blunt instrument, and the Crown’s now acceptance that only one blow had been struck. In relation to that blow struck, Mr Hogan submitted that it was an open inference that no weapon had been used and that the sentencing Judge had erred in finding beyond reasonable doubt that a weapon had been used.
[21] The second limb of argument Mr Hogan advanced under this head was that the Judge had also erred in apparently discounting the appellant’s evidence that he had sustained the laceration to his right middle knuckle when delivering one bare fisted blow to Constable McGrogan. Mr Hogan submitted that if it were reasonably possible that one bare fisted blow had been struck by the appellant while wearing a ring and that he had sustained the laceration to his right middle knuckle in delivering that blow, this lent force to the inference that no weapon was involved in the assault. In addition, Mr Hogan pointed to the splatters of blood along the side of the appellant’s vehicle, which had been identified as coming from the appellant, as supporting this argument. Mr Hogan’s submission was that if the proposition were accepted that a weapon caused the injury to Constable McGrogan, that did not explain either the injury to the appellant’s hand or the presence of blood splatters along the side of his vehicle.
[22] Mr Hogan also referred to two alternative scenarios that he had put to Dr De Chalain as possible causes of Constable McGrogan’s injuries: a fall to the ground by the constable after he was hit; or the possibility of impact with his car door as Constable McGrogan got back into his patrol vehicle. In answer to those propositions Dr De Chalain opined that the likelihood of the laceration and underlying compound fracture of Constable McGrogan’s cheek having been caused by either of those separate events was “vanishingly small”. Furthermore, he said, the absence of any clinical note about the presence of road dirt or gravel in the wound when cleaned confirmed that view.
[23] In relation to the length of sentence imposed. Mr Hogan’s essential submission was that the starting point of 5½ years was too high and the reduction allowed for the guilty plea too small. He submitted that the injury, serious though it was, could not be regarded as being in the most serious category of the kind of offending envisaged by the charge. He further submitted that the preliminary discussions and negotiations he had with the Crown, and which had resulted in the inclusion of the lesser s191(2) charge in the indictment, meant that the guilty plea should be regarded as an early plea for the purposes of sentencing.

Discussion

[24] In relation to the two issues of disputed fact, the sentencing Judge’s finding that a weapon was used found ample support in the evidence. The significant open wound on Constable McGrogan’s right cheek and the compound nature of the underlying fracture led Dr De Chalain to a firm conclusion that some heavy duty instrument with an edge to it had been used in the assault. This was indicated by the injury pattern (an incised crushing wound rather than a tearing wound as might have been expected were a ring involved) and the single continuous plane of the injury. Both of these indicators supported the theory of a single blow with a weapon.
[25] Dr De Chalain’s opinion was based not only on his clinical findings, but also on his extensive experience and discussions with other colleagues. He discounted the defence theory that a dress ring could have caused the injury and this was also discounted by the Judge, once he observed the ring that had been worn. Furthermore, when the appellant was arrested and processed for fingerprinting two days the event, the ring he was wearing was on the ring finger of his left hand, not on his right hand. Dr De Chalain further discounted as “vanishingly small” the likelihood that a subsequent fall or an impact with part of a vehicle had caused the injury.
[26] Against Dr De Chalain’s firm and unequivocal expert evidence, the Judge had to weigh the appellant’s evidence that he had not used any weapon in the assault and had simply hit Constable McGrogan with his hand on a “sort of angle” while side on to the constable. In light of the evidence given by Dr De Chalain, there is no reason to doubt the soundness of the Judge’s finding and the issue was clearly established beyond reasonable doubt.
[27] The appellant’s assertion that he had suffered the lacerated flap of skin to his right middle knuckle at the time he assaulted Constable McGrogan was of no real consequence to that finding. The Crown did not concede that the knuckle injury was caused in the assault. Crown counsel put to the appellant that he had sustained the injury earlier in the night but had not been aware of it because he had been drinking. However, whether the injury was sustained before, during or after the assault makes no difference. It could have been caused at some earlier time when the appellant was carrying out maintenance work on heavy vehicles; it could have occurred earlier in the evening while he was drinking; it could have happened during the assault; or it could have occurred at some time during the two day period after the assault and before the appellant was arrested. None of those possibilities detract from Dr De Chalain’s firm and expert opinion that the injury was inflicted by a weighty and hard-edged instrument, or render unsafe the Judge’s finding based on that opinion.
[28] The only blood identified at the scene of the assault was that of Constable McGrogan. No blood splatters from the appellant were found at the scene. The blood splatters along the side of his vehicle could have occurred at any time and no evidence was adduced to establish a timeframe in relation to those. It is also inherently improbable that blood from a laceration to a knuckle sustained during the course of a single blow would splatter along the side of a vehicle parked three metres away.
[29] We are therefore unpersuaded that the sentencing Judge erred in any respect in his finding of fact.
[30] Turning to the sentence imposed we are not disposed to accept the argument advanced under this head either. While the appellant ultimately pleaded guilty to a charge carrying a maximum of seven years imprisonment, as opposed to a maximum of 14 years imprisonment, the degree of culpability is the same. Either of the alternative charges was appropriate and the end sentence likewise appropriate. Mr Hogan criticised the Judge’s view that the offending came within the category of “near to the most serious of cases” for which seven years imprisonment is prescribed under s191(2) but we cannot agree.
[31] The aggravating factors identified by the Judge and described by him as serious included leaving Constable McGrogan bleeding and unconscious on the side of the road at 2.30am; the use of a weapon; the seriousness of the injuries caused; the fact that the assault was on a police officer acting in the course of his duty; and the appellant’s record of disregard for authority and for court orders. The aggravating nature of each of these factors is undeniable and Mr Hogan did not attempt to dispute that. In particular, the fact that the assault was carried out on a police officer acting in the lawful execution of his duty is particularly aggravating. That it is an element of the charge does not detract from that and the seriousness with which the Legislature regards that particular factor is reflected in s104(a) and (f) of the Sentencing Act 2002. This principle is not new, as prior to enactment of the Sentencing Act the Courts took a similar approach to sentencing under s191 of the Crimes Act 1961. This Court in R v Williams (CA177/96, 20 August 1996) referred to the particularly aggravating nature of attacks on police officers acting in the execution of their duty. At p4 the Court said:

... Law enforcement officers, by the very nature of their duty requiring them to investigate suspicious circumstances, are particularly vulnerable to attack. This has consistently been recognised by the Courts. In R v Walker (CA39/90, 22 May 1990) this Court referred to the earlier case of R v McKay (CA307/84, 3 April 1985) where this Court said:

"This Court has on a number of occasions taken into account the special position of police officers who in this country are unarmed. In R v Simon, Barbarich, Roberts and White (CA 70-73/68, 22 October 1968) this Court said:

"... in New Zealand ... we take pride in the fact that our police officers, in the performance of their ordinary duties, are unarmed ... but it must be understood that because our police officers are unarmed when on ordinary duties, the Courts will take a very serious view indeed of an attack made by anyone - whether he be an escaped prisoner or not - on a police officer, particularly so when the attack is a brutal one as was the position here.

In our opinion it would be harmful to the maintenance of that principle if we took any step in the way of reducing the sentences in this case ..."

More recently in R v Bryant [1980] 1 NZLR 264, a case involving very severe assaults on two police officers, this Court said:

"No community can or will permit the use of such a weapon (a hammer) upon an unarmed constable doing his conscientious best to discharge his responsibilities.""

We agree with these observations. Where an attack is made on a police officer, what may otherwise have been considered to be an appropriate sentence should be increased to take into account this feature. Only in this way can the Courts do what it can to protect police officers acting in the course of their duty.

[32] Apart from appellant’s plea of guilty there is little to be said in mitigation. Certainly there are no circumstances that render consideration of a penalty near to the maximum prescribed inappropriate. As Ms Markham pointed out, when regard is had to the totality of the appellant’s offending, the end sentence cannot be described as out of range. The disqualified driving offence from which the appellant was seeking to escape arrest was the ninth such offence on record. It was also the second occasion that evening on which the appellant had been stopped by an enforcement officer whilst driving. On the first occasion he had given false particulars and thus his disqualified status had not been realised. In addition he had been drinking during the evening and had refused to accompany Constable McGrogan when requested to do so. His conviction record shows that he has numerous convictions for excess breath and blood alcohol offending and a conviction for refusing to accompany an enforcement officer. Less than a year before these offences were committed, the appellant was convicted of resisting the Police.
[33] The addition of a further nine months imprisonment for this ninth offence of driving whilst disqualified, to make a total sentence of five years and three months, is, on a totality basis, relatively moderate when regard is had to the extent of the appellant’s disregard for authority and court orders.
[34] We are also satisfied that the seriousness of the appellant’s offending justified the imposition of a minimum non parole period.

Result

[35] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington