R v DAVID MOUTRAY [2003] NZCA 273 (26 November 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA283/03

THE QUEEN

v

DAVID MOUTRAY

Hearing: 25 November 2003

Coram: Gault P

Goddard J

Rodney HansenJ

Appearances: FP Hogan for the Appellant

A Markham for the Crown

Judgment: 26 November 2003

JUDGMENT OF THE COURT DELIVERED BY RODNEY HANSEN J

[1] The appellant appeals against his conviction and sentence on a charge of causing grievous bodily harm with intent to cause grievous bodily harm under s 188(1) of the Crimes Act 1961.He was sentenced to six years imprisonment.

Background facts

[2] The charge, and a second charge of threatening to kill of which the appellant was acquitted, arose out of a violent altercation in Titirangi on the night of 21 December 2002.The appellant went to the house of a woman, Lisa Ogle, with whom he previously had had a relationship.The relationship had come to an end in December 2001.The appellant had difficulty accepting this and had continued to pursue Ms Ogle to the point where, in late 2002, she obtained trespass and protection orders against him.The appellant’s attitude worsened when he discovered that Ms Ogle had commenced a relationship with Brian Hook with whom the appellant had previously worked at Glenbrook Steel Mill.

[3] On several earlier occasions in late 2002, the appellant had gone to Ms Ogle’s home.On one visit he confronted Mr Hook.In the course of another, the window of Mr Hook’s car, which was parked outside, was smashed.Mr Hook complained to the police and also spoke to the appellant’s parents about his conduct.This seems to have annoyed the appellant.He made a threatening phone call and, on 13 December, the tyres on Mr Hook’s car were slashed, again while it was parked outside Ms Ogle’s home.

[4] On the night of the assault, Mr Hook was again staying at Ms Ogle’s house.Also present were Ms Ogle’s 12-year-old daughter and her 14-year-old friend.A rock was thrown through the window of the bedroom occupied by Ms Ogle and Mr Hook, who got up to phone the police.He then decided to retrieve his camera from his car to photograph the evidence.As he opened the front door, the appellant pushed his way in.He punched and kicked Mr Hook and also stomped on his fingers, which were fractured and dislocated as a result.

[5] The appellant then left the house, taking Ms Ogle with him.When Mr Hook realised Ms Ogle was missing, he went outside to look for her.He met the two of them, accompanied by a woman, Maria Snook, who had travelled with the appellant to the house.A second altercation took place.The appellant punched Mr Hook in the head until he fell to the ground and then kicked him repeatedly in the head.Estimates of the number of kicks varied from six to twenty.

[6] As a result of the assaults, Mr Hook suffered bilateral fractures of both eye sockets.His face and eyes were extensively swollen.His vision has been permanently impaired; he now needs to wear glasses.He has numbness around the eyes as a result of nerve damage.He has had to have surgery to correct a deviated nasal passage.His teeth were broken and he now has to wear a dental plate.As a result of the fractures and dislocation of his fingers, he has recovered only 50% use of his left hand, which is his master hand.He has suffered post-concussion and post-traumatic stress symptoms, including personality changes and problems with memory and concentration.His personal life suffered as a result of his injuries.He was unable to work for six months and has suffered significant financial losses.

Appeal against conviction

[7] The appeal against conviction is brought on two grounds:

a) There was insufficient evidence to prove the charge of causing grievous bodily harm with intent to cause grievous bodily harm.

b) Evidence of previous incidents of aggressive conduct by the appellant towards Mr Hook and Ms Ogle was wrongly admitted.

[8] The Crown case was put to the jury on the basis that the most serious injuries suffered by the appellant were inflicted as a result of the blows struck outside the house.Ms Markham explained that, as the defence had raised a defence of self-defence in relation to what happened outside, it was decided that the Crown would rely on that part of the incident to prove the charge.Mr Hogan advanced this part of the appeal on the basis that the evidence does not support a finding that grievous bodily harm was caused to the victim as a result of the renewed attack which took place outside.He argued that the most serious injuries sustained by Mr Hook were inflicted inside the house and the Crown had failed to show that any injuries suffered in the second altercation resulted in grievous bodily harm.

[9] Evidence of what occurred inside the house was given by Mr Hook himself and Ms Ogle who was present throughout.They agreed that Mr Hook was punched and kicked but there were significant differences as to the number of blows and where Mr Hook was struck.Mr Hook said he was kicked in the head “dozens of times”.Ms Ogle said that the appellant punched him approximately six times and kicked him “a couple of times” in what appeared to be the upper leg area.It is agreed that in the course of the altercation, the appellant stomped on Mr Hook’s fingers, causing the fractures and dislocations to his left hand.

[10] Mr Hook and Ms Ogle also gave evidence of what occurred outside, as did the appellant’s companion, Maria Snook, who was present.A neighbour, awoken by the noise, also spoke of what she saw and heard and the two girls staying in the house gave evidence of what they heard.

[11] Again, Mr Hook and Ms Ogle were in agreement on the general course of events but differed on important matters of detail.They agreed that Mr Hook was punched in the head until he fell to the ground and that he was kicked repeatedly in the head as he lay in a foetal position.Ms Ogle estimated 6-8 kicks were administered.Mr Hook thought he was kicked twenty times.The other witnesses confirmed that the kicks were administered with considerable force.One referred to a drumlike sound, another to a slapping sound like a belt hitting something.

[12] The composite account of those who saw or heard the incident establishes clearly that after being knocked to the ground by the appellant, Mr Hook was repeatedly kicked in the head with considerable force.We agree with Ms Markham that this evidence left it open to the jury to find either that the most serious head injuries were caused by what happened outside the house or that injuries sufficient to amount to grievous bodily harm were sustained as a result of the appellant repeatedly kicking an already seriously injured man in the head.The evidence of the eye witnesses provides a sufficient foundation to support either conclusion.There is supporting evidence from one of the girls present in the house who saw Mr Hook before he went outside.Her description of his appearance then indicates injuries of less severity than those ultimately inflicted.For example, she reported seeing an injury to one eye only.There were serious injuries to both eyes as a result of the two incidents.

[13] Mr Hogan further submitted that the jury could not have excluded the possibility that Maria Snook was the author of any serious injuries sustained by Mr Hook in the course of the second attack.This was based on a statement made by Mr Hook to the police in which he said that she may have kicked him once or twice.In evidence, however, Mr Hook denied the accuracy of that part of his statement.Neither Ms Ogle nor Ms Snook gave evidence that Ms Snook in any way contributed to the assault on Mr Hook and it was not put to them in cross-examination that she did.There was therefore no evidence to support the claim that the injuries sustained in the second incident were caused by Ms Snook.

[14] We are satisfied there was ample evidence to support a finding that the attack by the appellant on Mr Hook outside the house caused and was intended to cause him grievous bodily harm.

[15] The second ground of the appeal against conviction was based on the admission of the evidence of previous visits to Ms Ogle’s house by the appellant.Mr Hogan submitted that references to criminal behaviour which occurred in the course of the visits were unfairly prejudicial and should not have been admitted.

[16] It was known that the Crown intended to lead this evidence.It was in Mr Hook’s brief of evidence.No objection was taken to it either before or during the trial.Indeed, some use appears to have been made of it by the defence to explain the reason for the later visit to Ms Ogle’s house.Regardless, we are satisfied that it was properly admitted as providing context to the events in issue and as having particular relevance to the appellant’s state of mind at the time of the assault.

[17] The appeal against conviction accordingly fails.

Appeal against sentence

[18] Mr Hogan submitted that the sentence of six years imprisonment was excessive, having regard to the principles laid down by this Court in R v Hereora [1986] 2 NZLR 164.He argued that the Judge was wrong to sentence the appellant on the basis that the more significant injuries were inflicted outside the house.He also suggested that the Judge should have disregarded or placed less weight, for sentencing purposes, on what happened inside which he described, euphemistically in our view, as two men trading blows; that characterisation was based on evidence that Mr Hook was able to land one or two retaliatory blows while trying to defend himself against the first attack.

[19] We see no reason why the Judge should not have had regard to the totality of the incident for the purpose of sentence.Whatever may be said about the Crown’s decision to present its case to the jury on the basis of what happened outside, it would be wrong in principle to disregard anything that happened in the course of the incident for the purpose of sentence.

[20] There were many aggravating features.The attack was premeditated; the appellant drove one hundred kilometres late at night for the purpose of giving Mr Hook a “hiding”.The visit to the house was in breach of a protection order and followed earlier threatening visits.There was an element of home invasion; the appellant “barged” his way into the house.It was a terrifying experience for all occupants, including the two young girls who the appellant was told were in the home.Mr Hook received severe injuries which will have long term, if not permanent, effects on the quality of his life.

[21] The appellant has previous convictions.Although the sentences suggest relatively minor offending, ominously as matters turned out, they included convictions for assault, wilful damage and breach of a non-molestation order.The appellant’s criminal history confirmed he has been unable to come to terms with a propensity to violence and other personal problems.

[22] The aggravating features we have referred to bring the offending within the second category identified in Hereora (supra) at p 170 which attracts a sentence in the range of 5-8 years.In our view, the sentence of six years imprisonment was one the Judge was fully entitled to impose.

[23] The appeal against sentence is also dismissed.

Solicitors: Crown Law Office