The Queen v McGregor [2007] NZCA 435 (10 October 2007)

Last Updated: 20 October 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA320/07

[2007] NZCA 435

THE QUEEN

v

WAYNE DARREN MCGREGOR

Hearing: 18 September 2007

Court: Ellen France, John Hansen and Wild JJ

Counsel: G Mason for Appellant
T Smith for Crown

Judgment: 10 October 2007 at 3 pm

JUDGMENT OF THE COURT

The appeal, which is against sentence, is dismissed.

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] Mr McGregor appeals against a sentence of five and a half years imprisonment imposed on him by Judge Atkins QC in the District Court at Palmerston North on 26 June. Mr McGregor was convicted following trial, the jury having found him guilty both of assault with a weapon and wounding with intent to cause grievous bodily harm.
[2] Mr Mason took four points in support of the appeal:

• The Judge wrongly classified the victim as vulnerable, and thus wrongly treated the vulnerability of the victim as an aggravating factor in terms of R v Taueki [2005] 3 NZLR 372 at [31(i)] (CA).
• The Judge wrongly classified the case as coming within band two of Taueki.
• The sentence failed to make proper allowance for the mitigating features.
• The sentence was manifestly excessive.

The facts

[3] Mr McGregor was working on a building site in Pahiatua. He was employed by Mr Jane. Together with a third worker (Mr McGregor’s son), they were digging holes for foundations. Mr Jane suggested that Mr McGregor and his son dig separate holes, rather than the same one together. Mr McGregor reacted to this suggestion by walking over to where Mr Jane was digging a hole and swinging his shovel at Mr Jane striking him on the upper arm and felling him to the ground. That was the assault with a weapon. While Mr Jane was lying on the ground, covering his head with his arms for protection, Mr McGregor struck him a second blow on the back of the head. This was the offence of wounding with intent to cause grievous bodily harm.
[4] When passing sentence, Judge Atkins noted Crown counsel’s description of the second blow at [11] as:

[A]dministered by your holding the shovel in both hands across your body with the blade downwards, you then driving the tip of the shovel into the back of the head of the victim ... [O]ne of the two medical specialists treating the victim considered [his] injuries would have required significant direct force to be applied to the victim’s skull.

[5] The first blow caused only grazing to Mr Jane’s arm, but the second required seven stitches in Mr Jane’s head. That blow also caused subdural bleeding which, at the date of sentence, was continuing to cause Mr Jane problems, because it burst a blood vessel on the surface of Mr Jane’s brain.
[6] The physical and mental consequences of the head wound eventually caused Mr Jane to close down his contracting company, and he left New Zealand with his family to take up an office job in the building industry in Dubai.

Victim vulnerability

[7] The Judge considered three aggravating factors placed Mr McGregor’s offending in Taueki band two:

• The use of a weapon.
• The fact that the blow was struck to the head.
• The degree of vulnerability on the part of the victim when it came to the striking of the second blow, this vulnerability being caused by the striking of the first blow.

[8] Mr Mason submitted that Taueki and s 9(1)(g) of the Sentencing Act 2002 both confined vulnerability to a pre-existing condition resulting from age, health or the like. He sought to garner support for this submission from the decision of this Court in R v Finn [2007] NZCA 257, and from sentencing remarks made by Rodney Hansen J in Lauaki v Police HC AK CRI 2005-404-429 2 March 2006. The complainant in Finn had fallen over during a fight, hitting his head on a concrete step. While on the ground he had been punched and kicked in the head, suffering resulting fractures to the bones around his left eye socket and cheek bones. After referring to Taueki, Ronald Young J assembled what he referred to as “the potentially relevant factors in this case” (at [10]). The last of these was at [10]:

• (v) Vulnerability. We do not consider the complainant was an especially vulnerable victim. Any vulnerability arising from injury is covered by (iii) and (iv) above.

Point (iii) was the serious injuries we have mentioned, (iv) attacking the head.

[9] Finn does not support Mr Mason’s submission. This Court in Finn was merely saying that, in the circumstances there, the aggravating nature of the conduct was adequately reflected under the heads of serious injury and attacking the head. Finn does provide support for an approach which does not separate out each of the Taueki factors, treating each as independently aggravating, but that is fact dependent and it does not go beyond that.
[10] In Lauaki Rodney Hansen J said at [22]:

However, it is clear that both Taueki and the Act are referring to pre-existing characteristics of the victim which render him or her particularly vulnerable. This is made explicit in s9(1)(g) by the reference to the victim’s “age or health or because of any other factor known to the offender”.

[11] Mr Mason conceded that a view, contrary to that he submitted had been taken in Finn, was expressed by this Court in R v Griffiths CA77/06 18 September 2006. Delivering the judgment of the Court, of which the other two members were William Young P and Ronald Young J, Panckhurst J said:

[21] In our view this case clearly falls in band 2 of Taueki and justified a starting point towards the middle of the available 5-10 year range. A weapon was used to inflict a serious injury. An artery was severed, occasioning considerable blood loss, but fortunately not permanent consequences. As the Judge observed, the attack was prolonged and frenzied. When the victim was already defenceless, and therefore vulnerable, there were blows struck to his head, as well as his body.

[12] Thus, we consider this Court has consistently followed the view about victim vulnerability stated in Taueki. That Court described the factor of vulnerability of the victim in these terms:

[31](i) Vulnerability of victim: Where the victim is particularly vulnerable (for example a child or where there is a disparity in size or strength between the attacker and the victim), that will also be a significant factor in the assessment of culpability. Section 9(1)(g) of the Sentencing Act applies. Breach of a protection order in favour of the victim will also be an aggravating factor. Where the victim is a child in the offender’s care, there will be the additional factor of breach of trust. Section 9(1)(g) of the Sentencing Act applies. Similar considerations arise with victims who are disabled in some way or otherwise defenceless.

(Our emphasis.)

[13] The words we have emphasised exactly describe Mr Jane when Mr McGregor attacked him for the second time with his shovel.
[14] In addition, we read s 9(1)(g) as encompassing a victim who has been disabled by his attacker and is lying defenceless on the ground. The wording of the provision is:

• (g) that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender.

(Our emphasis.)

[15] Mr McGregor knew he had just knocked Mr Jane to the ground. He could see Mr Jane lying there defenceless, and therefore vulnerable. Is that not squarely within the words we have emphasised?
[16] We record Mr Mason’s concession in the course of argument that Judge Atkins needed to take into account, when sentencing Mr McGregor, that he had attacked Mr Jane for the second time when he was lying defenceless and thus vulnerable on the ground. When pressed, he accepted that the Judge could only do that by treating that as an aggravating factor.

Not in band two of Taueki

[17] Mr Mason accepted that this case has two of the aggravating factors listed at [31] in Taueki. For the reasons just given, we agree with the Judge that it had three such aggravating factors. But even two were sufficient to bring the case within Taueki band two.
[18] Mr Mason sought to develop this second ground in two ways. First, he contended that use of a weapon and attacking the head should be rolled together and treated as a single aggravating factor. We do not accept that. They are listed separately in Taueki, recognising that a weapon can be used to attack a victim’s head (Taueki instances blows to the head with a baseball bat or similar weapon) or any other part of the body (for instance, use of a knife to stab a person in the chest or abdomen). Conversely, an attack to the head can feature a weapon, but it often does not (for example, kicking or stomping).
[19] Second, Mr Mason referred to the fact situations in several band two Taueki cases, to demonstrate that all of them involved significantly more serious injuries. He referred to R v Wright CA43/06 12 September 2006; R v Keoghan [2007] NZCA 109; R v Goyen CA285/05 1 May 2006; R v Finn [2007] NZCA 257; and R v Watkins CA169/06 23 November 2006. Mr Mason maintained that he was not attempting to place a gloss on Taueki, but rather emphasising the importance of properly weighting the significance of any [31] factor(s) present, as Taueki requires at [30].
[20] Mr Mason’s review of the examples given and cases referred to in Taueki was essentially a “results based” one, in the sense that it focused on the seriousness of the injuries inflicted, and the consequences of those injuries. Here, those aspects are encompassed by the “wounding” ingredient of the offence. What Mr Mason’s analysis rather overlooks is the intent Mr McGregor had to do really serious bodily harm to Mr Jane. Mr Mason’s review does not persuade us that the Judge was wrong to place this case in Taueki band two, because of the combination of Mr McGregor using a weapon (the blade of his shovel) and striking Mr Jane in the back of the head as he lay vulnerable and defenceless on the ground.

Failure to take account of mitigating features

[21] This third submission focused on this part of the Judge’s sentencing:

[57] I therefore come to the view that the appropriate starting point would be a sentence of five and a half years imprisonment. I must then consider whether there are any mitigating factors personal to you. In this regard I note that you have made attempts to lead a law-abiding life in recent years. To a significant degree you were successful except when it came to the commission of these offences. The fact that you have made this attempt seems to me to be significant and when it is combined with your perception of provocation and your frustration and disappointment with the way work in the North Island had developed, it should cancel the giving of further weight to your previous offending, this leaving the appropriate sentence as being a sentence of five and half years imprisonment.

[22] Mr Mason’s submission was that the Judge had placed too much emphasis on Mr McGregor’s past offences for violence, and not enough on his more recent attempts to leave crime behind and rehabilitate himself. Mr Mason characterised Mr McGregor as:

A person who had a significant problem with violence but who had, until this offending at least, substantially addressed it in his own life.

[23] We do not accept any error by the Judge here. In the passage we have set out, the Judge at [57] uses language very similar indeed to that of Mr Mason’s submission:

I note that you have made attempts to lead a law-abiding life in recent years. To a significant degree you were successful except when it came to the commission of these offences.

[24] Nor do we accept that the Judge overlooked that Mr McGregor’s past convictions for violence were some years in the past, spanning the period 1982-1996. Earlier in the sentencing (recorded in paragraph [6] in the Judge’s sentencing notes, which we need not set out), Judge Atkins detailed the nature and the dates of Mr McGregor’s previous convictions for violence, and other less relevant offending.
[25] Mr Mason submitted that a net reduction in sentence of six months to reflect the extent to which mitigating factors outweighed aggravating factors would have been the appropriate one. While that would have been a legitimate sentencing response, it hardly establishes that the Judge’s view was erroneous in principle and resulted in a manifestly excessive sentence.

Manifestly excessive

[26] This final ground essentially drew together the three previous grounds, and added little to them. It placed particular reliance on a sentence imposed by Ellen France J in R v Kerr HC HAM CRI 2004-019-7319 21 September 2005. Although the sentence was imposed post-Taueki, the offending occurred before it, and the Judge explained that she had used Taueki only “because of the helpful framework it provides” (at [17]). That case involved a compulsive knife attack by a drunken man at a party, fortunately resulting in no serious injuries to the victim. Indeed, the victim was discharged from hospital the same day. The prisoner, a 36 year old family man, was immediately remorseful for what he had done.
[27] The sentencing Judge placed that case in Taueki band one, taking a starting point of four years imprisonment. Accepting real remorse by a basically decent man whose offending was as much impulsive and stupid as criminal, the Judge imposed a sentence of three years and three months imprisonment.
[28] Comparison with such a factually different case does not advance this final ground of appeal.

Result

[29] Neither singly, nor in combination, do the four grounds of appeal persuade us that this was a manifestly excessive sentence – one outside the permissible sentencing range.
[30] The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington