The Queen v Donnan [2009] NZCA 171 (6 May 2009)

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The Queen v Donnan [2009] NZCA 171 (6 May 2009)

Last Updated: 25 August 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA532/2008 [2009] NZCA 171THE QUEEN

v

JAMES NICHOLAS DONNAN

Hearing: 29 April 2009

Court: Robertson, Chisholm and Gendall JJ

Counsel: J W Clearwater for Appellant
F E Guy Kidd for Crown

Judgment: 6 May 2009 at 9.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] Mr Donnan was found guilty, after trial by jury, of wounding with intent to cause grievous bodily harm. He was sentenced by Courtney J to four years’ imprisonment: HC AK CRI 2006-044-008749 22 August 2008. He appeals against conviction on the basis of alleged misdirections on the elements of the count, party liability and intoxication, and against sentence on the basis that it was manifestly excessive and unjustifiably disparate with a co-accused.

Background

[2] In her sentencing notes, Courtney J said:

[2] ... early in the morning of 16 December 2006. You were both in Mr Maddock’s car driving up Chartwell Avenue in Glenfield. Mr Maddock was driving. You drove past a straggling group of young people. There were about 11 of them. They had all been to a dance party for underage teenagers in Glenfield and were walking home. Some were drunk, some were not. Mr Maddock, you pulled up just ahead of the group. It was never clear to me from the evidence why that was. There was a suggestion that you believed something had been thrown at the car though I am not at all satisfied, having heard the evidence, that this was so. In any event the two of you got out of the car and within a short time an altercation started a little way down the street which eventually involved both of you and several of the teenagers.

[3] At about that stage during the altercation one of the teenagers did throw something at the car and he said that he did in his evidence. That caused you to return to the car. I am satisfied on the evidence, as obviously the jury was, that Mr Maddock at that stage you retrieved your chef’s knife from the car, which you had brought home from work with you, and at the sight of the knife the teenagers scattered. It was after that that the events that have given rise to these charges unfolded.

[4] Mr Maddock, you proceeded up Chartwell Ave where some of the teenagers had gone. The youngest of the group was Dayne Maxwell. He was then 15 years old and quite drunk. He had not been involved in the earlier altercation. The evidence, which the jury clearly accepted, was that you chased Dayne Maxwell across the road and when you caught up with him on the other side you stabbed him with your knife. He fell to the ground and you continued to stab at him. Fortunately most of the approximately dozen blows that you attempted to inflict did not connect with Dayne’s body. However, three or four of them did and caused deep cuts to the back of his head.

...

[6] The attack on Dayne Maxwell seemed to have ended only because friends of his returned to the scene too help him. The two of you then returned to the car. But instead of simply driving off you stopped when you saw another of the group, Vaughan Conlon, near the intersection of Diana Drive and Rosalind Road. You went into Rosalind Road in the car and got out. One of you was armed with a wheel brace. It is not clear from the evidence which it was. But in any event, there is no doubt as to what happened next because it was the subject of an eye-witness account from an occupant who viewed the scene from his bedroom window. One of you held Mr Conlon in a headlock and the other hit him many times with the wheel brace. Mr Conlon pleaded for you to stop. However, whoever was wielding the wheel brace inflicted more than ten blows, six or seven of which connected and caused lacerations to his scalp.

[7] Mr Maddock, you gave evidence that this attack was an attempt by you to protect Mr Donnan from Mr Conlan. Your evidence on this point was implausible and rightly rejected by the jury.

[3] The offenders were both charged jointly with assault using a knife as a weapon, attempted murder, causing grievous bodily harm with intent to cause grievous bodily harm, assault using a motor vehicle as a weapon and wounding with intent to cause grievous bodily harm.
[4] Mr Maddock was convicted of attempted murder and wounding with intent to cause grievous bodily harm. Mr Donnan was convicted of wounding with intent to cause grievous bodily harm.
[5] The Crown case in respect of the attack on Mr Conlon was that the jury need not concern itself with which of the accused wielded the wheel brace, as long as they were satisfied that one of them did and the other knowingly assisted.
[6] At trial, Mr Donnan’s case had been that he was not involved in the initial attack on Mr Maxwell, and that he only exited the car with Mr Maddock the second time. His version of events was that he wrestled with Mr Conlon, but was unaware Mr Conlon was being hit with the wheel brace by Mr Maddock, that he was not assisting Mr Maddock, and was unaware that Mr Maddock intended to cause Mr Conlon grievous bodily harm.

Grounds of appeal against conviction

[7] Mr Donnan appeals against his conviction on four grounds. The first and second grounds allege that the Judge erred at two points in her summing up on the elements of s 66(1). The third is that there was an error of law in one of the jury handouts, and the fourth is that the Judge misdirected the jury on the relevance of intoxication.

Grounds 1 and 2: the summing up on s 66(1)

[8] In respect of the general application of s 66(1) to the accused, Courtney J said, in her direction to the jury:

[13] The first way the Crown alleges that either of the accused might be guilty as a party is that he aided or abetted the other in committing the offence. Aiding and abetting just means helping or encouraging... But the person who helps or encourages must do so intentionally and must know what is going to happen. He must know what he is encouraging the other person to do. Sometimes though, it is not possible to be certain which of one or more accused was actually the principal and which was the party helping or encouraging and you heard Mr Davies talk about the assault in Rosalind Road on Vaughan Conlon and that is a situation where the Crown says well it is really hard to tell who was the principal and who was the party. In that sort of situation it is sufficient and the Crown will have done its job if you are satisfied that each accused must have been involved as either a principal or a party. That is to say, you do not have to be sure in your own mind which one had the wheel brace so long as you are satisfied that one of them did and the other was helping or encouraging.

[Emphasis added.]

[9] In reference to Mr Donnan specifically, the Judge later said:

[60] As I have talked about, the Crown says that both of the accused attacked Mr Conlon and one of them was using a wheel brace. It is for you to decide whether you can satisfy yourselves on the evidence as to which one it was or whether it is a situation where you do not know who was doing what but you are satisfied that one of them was hitting with the wheel brace, the other was helping or encouraging. If you are satisfied of that then that will be enough and you do not need to go on and resolve those differences between Mr Conlon’s evidence and Mr Kumar’s evidence. But you do need to be sure that whatever part Mr Donnan played it was either as a main offender with the wheel brace, or as someone helping or encouraging. And you need to think about whether Mr Donnan’s account where he just got into a scuffle or a fight or a wrestling sort of thing, and that it was not an actual attack, it was a mutual fight with Mr Conlon... You be careful that you are distinguishing between Mr Donnan just being involved in a fight of fairly minor proportions or whether he was involved either as a main offender or an aider or abettor in something more serious along with Mr Maddock.

[Emphasis added.]

[10] In respect of [13] of the summing up, Mr Clearwater submitted that the Judge gave an incomplete direction on the knowledge required of a secondary party as to the intention of the principal. He submitted the Judge should have directed that for Mr Donnan to be liable he had to know not only of the act Mr Maddock was going to perform, but the intention with which it was to be performed.
[11] In respect of [60], which made specific reference to Mr Donnan’s role in the assault, Mr Clearwater argued that the Judge did not make plain the elements required for secondary party liability. He submitted Courtney J wrongly said it was sufficient for liability under s 66(1) that Mr Donnan actually helped or encouraged Mr Maddock, even though liability under s 66(1) also required that Mr Donnan knew of the acts performed by the principal offender, intended to help those acts to be carried out, and knew that the principal offender intended to cause Mr Conlon grievous bodily harm. He argued that by combining the Judge’s summing up of the elements of s 66(1) with Mr Donnan’s own contention of having “wrestled” with Mr Conlon, a jury would reasonably conclude that Mr Donnan’s actions amounted to “help”, and were adequate for liability under s 66(1).
[12] Mr Clearwater submitted that the Judge’s omission to mention the knowledge or intention required for secondary liability was a material misdirection and was likely to result in a miscarriage of justice.
[13] Ms Guy Kidd noted that on the Crown case at trial, according to which it was unclear whom of Mr Maddock or Mr Donnan committed the assault on Mr Conlon and who aided its commission, Mr Donnan was potentially liable under s 66(1) in one of three ways. Either he was the principal offender who wielded the wheel brace with the necessary intent, or he was the party who aided by holding Mr Conlon in a headlock, or, if the jury could not decide who performed which role but were satisfied that both accused contributed and had the requisite intention, he was simply a party.
[14] Ms Guy Kidd acknowledged that, in a standard party liability situation where the identities of the principal and ancillary parties are clear, the mens rea in respect of the secondary party includes both knowledge of the principal’s actual commission of grievous bodily harm (and an intention to assist in it) and knowledge of the intention to cause that harm. But, she submitted, this was a different kind of case in which the roles played by each accused were not clear. She referred to R v Chignall [1991] 2 NZLR 257 as support for her argument that, where the respective roles of the principal and secondary parties are unclear, the mental element of which the jury must be satisfied is that both of the accused had the necessary intention to cause grievous bodily harm.
[15] As held in R v Giannetto [1997] 1 Cr App R 1, 8 – 9 (CA), and approved by this Court in R v Peters [2007] NZCA 180, where the Crown puts the case to the jury on the basis that a defendant was either the principal or the secondary party:

... the jury must be agreed upon the basis on which they find a defendant guilty... a defendant must know what case he has to meet. When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law.

[16] If the Crown had put the case against Mr Donnan on the unqualified basis that Mr Donnan was a secondary party to an assault on Mr Conlon by Mr Maddock, then it would have been necessary for the Crown to prove Mr Donnan had knowledge of Mr Maddock’s intention to cause Mr Conlon grievous bodily harm. But since the case was put on an “either/or” basis, the Crown not committing itself to prove the precise roles played by the two accused, the jury had to be satisfied that Mr Donnan (and Mr Maddock) intended to cause grievous bodily harm, by “whatever means”.
[17] It was not crucial for the jury to find that Mr Donnan had knowledge of Mr Maddock’s intention. They may have reached a guilty verdict having been satisfied simply that Mr Donnan was involved in the assault in some way, but unsure as to exactly what it was. Were that so, they had to be sure that Mr Donnan intended to cause Mr Conlon grievous bodily harm.
[18] The passages that Mr Clearwater complains about were, in terms of a direction to the jury, arguably imperfect. In [13] the Judge did not make explicit that if the jury could not decide which accused played which role they must be satisfied that both accused intended to cause Mr Conlon grievous bodily harm. In [60], while the Judge emphasised the necessary actus reus for liability under s 66(1), she did not mention the required intention.
[19] Ms Guy Kidd says, however, that those small imperfections are unimportant, because in another passage of her summing up the Judge said, in respect of Mr Maddock:

[49] The second issue is that of intent and the Crown must prove that there was an intention on Mr Maddock’s part that whatever he was doing, whether he was using a wheel brace or whether he was helping or encouraging, there had to have been an intention that Mr Conlon would sustain grievous bodily harm even though he was only wounded. It is the intention that you are looking at at this point... So if you find that Mr Maddock did wound Mr Conlon, either because he had the wheel brace, or because he was helping or encouraging Mr Donnan to do so, that he intended that there would be grievous bodily harm down to Mr Conlon.

[20] Although Ms Guy Kidd is correct that [49] is a more comprehensive direction, it was made in respect of Mr Maddock, not Mr Donnan. The Judge did not, in her summing up, expressly state that if the jury could not decide how Mr Donnan was involved, but was satisfied he was involved in some way, it must be satisfied he intended to cause Mr Conlon grievous bodily harm.
[21] The pith of Mr Clearwater’s complaint is that the Judge did not make plain the different kinds of mens rea required of Mr Donnan depending on the manner in which the jury concluded he was involved in the assault. He says the Judge ought to have said to the jury that if they concluded from the evidence that Mr Donnan assisted, as a secondary party, to Mr Maddock’s principal assault, then they had to be satisfied he knew of Mr Maddock’s intention to cause serious harm. But if they could not be sure who did what, but were satisfied each was involved, then they had to be satisfied each intended serious harm.
[22] The probable reason the Judge in effect only covered the second alternative is that the Crown premised its case on the basis that each accused was involved, but it was unclear how. That was reinforced by the evidence of a witness (sober at the time of the attack, and observing from his own house), Mr Kumar, who said he saw the man without the shirt (accepted at trial that this was not Mr Donnan) using the weapon.
[23] The Judge’s direction was appropriate in terms of how the Crown ran its case, even though it was perhaps not as responsive as it might have been to how the evidence actually emerged during the trial. Mr Maddock said in evidence he hit Mr Conlon with the brace, but that it was in defence of Mr Donnan. That probably left the jury with a picture of Mr Donnan as a secondary party to Mr Maddock’s actual assault.
[24] There could be seen to be technical substance in Mr Clearwater’s complaint that, given the way the evidence panned out at trial, and the likely role the jury would ascribe to Mr Donnan, the Judge might have directed on the mental elements of pure secondary or ancillary liability under s 66(1). This includes knowledge of the principal actor’s intention since an assister does not himself intend to cause serious harm, but rather to help it be caused.
[25] But the jury knew that Mr Donnan had to have intended Mr Conlon to be seriously hurt, and acted so as to bring that about. On the Crown’s theory of the case, that was sufficient for a guilty verdict. As Mr Clearwater himself noted, it was perhaps surprising that, even after Mr Maddock had said in evidence that he hit Mr Conlon with the brace (and was never challenged on that by the Crown), the Crown closed its case on the basis that it could have been either accused with the wheel brace and all the jury had to be satisfied of was that one of them was hitting and the other assisting. Mr Clearwater submits this may have been because the Crown case against Mr Maddock on the other charges was “very strong indeed” and it was therefore unnecessary to hammer home to the jury the precise nature of Mr Maddock’s offending on the charges relating to Mr Conlon. In any event, if the jury was satisfied that Mr Donnan intended to cause Mr Conlon serious harm and acted to bring that about, then the Crown had discharged its burden in its own terms.
[26] Finally, the jury was provided with a handout (which we discuss below) that led them through the criteria to be met to enter a guilty verdict. We are satisfied that the handout, which expressly directed the jury that both accused must have had the necessary intent to cause grievous bodily harm to Mr Conlon, was complete. It canvassed both the physical action and the mental ingredient required for a finding of guilt against Mr Donnan. With that hard-copy aid, to which the jury would have had reference during their deliberations, there could have been no confusion over the intention required of Mr Donnan on the Crown’s theory of the case, which had it that both Mr Maddock and Mr Donnan were involved in the assault, their precise roles being unclear.

Ground 3: the jury handout

[27] The jury was provided with several handouts that outlined the elements of the counts against each accused, and the questions to be answered for the jury to arrive at guilty verdicts.
[28] The appellant argues that the handout for his liability on Count 5 incorrectly set out the requisite elements of liability. The handout read as follows:

James Donnan

Count 5 – Wounding with Intent to Cause Grievous Bodily Harm (as either a principal or a party)

NB: Crown to prove all elements beyond a reasonable doubt.

Liability as a principal

1. Did Mr Donnan wound Vaughan Conlon by assaulting him with the wheel brace in Rosalind Road? If Yes, proceed to Step 2. If No, proceed to Step 3.

2. When he wounded Vaughan Conlon, did Mr Donnan intend to cause grievous bodily harm? If No, proceed to Step 3, if Yes, find Guilty.

Liability as a party

3. Were Mr Maddock and Mr Donnan both involved in the assault on Vaughan Conlon either by using the wheel brace or by helping or encouraging the other to do so? If Yes, proceed to Step 4. If No, find Not Guilty.

4. Did each intend that as a result of his involvement grievous bodily harm would be caused to Vaughan Conlon? If Yes, find Guilty. If No, find not guilty.

* Grievous bodily harm means really serious harm.

* Wound means to break the skin.

[29] Mr Clearwater submits that question (2) of the handout should have read “If No, find Not Guilty”, as Mr Maddock’s sheet did.
[30] He also argues that questions (3) and (4) are incomplete and/or wrong. He makes the following points:

(a) There is no note or direction on the handout that the Crown must prove beyond reasonable doubt that the secondary party knew that the principal party intended to cause grievous bodily harm;

(b) Question (4) is wrong in two respects:

(i) First, to be liable as a secondary party Mr Donnan did not have to intend to cause grievous bodily harm to Mr Conlon. Rather, what is required is that Mr Maddock intended to cause grievous bodily harm and Mr Donnan intentionally helped him, knowing of Mr Maddock’s intention; and

(ii) Second, it is not an element of liability under s 66(1) that the secondary party intended that “as a result of his involvement grievous bodily harm would be caused to Mr Conlon”. Rather, what is essential is the secondary party’s knowledge of the principal party’s intention.

[31] Ms Guy Kidd disagreed, submitting that the jury handout in respect of Count 5 for Mr Donnan read correctly, acting as it did as a flow chart, leading the jurors through the alternatives for Mr Donnan’s liability. She accepted Mr Maddock’s sheet was arguably wrong, but wrong in Mr Maddock’s favour.
[32] The handout in respect of Count 5 for Mr Donnan is structured such that if the answer to question 2 is “no”, then Mr Donnan is not guilty as a principal offender under s 66(1)(a), but he could still be guilty as a secondary party. When the sheet says “if No, proceed to Step 3”, it means “having ruled out liability as a principal, go on to consider liability as a secondary party.” Given Mr Maddock’s evidence that he hit Mr Conlon but in defence of Mr Donnan, in real terms Mr Donnan was likely to be found guilty either as a secondary party or not at all. But the handout canvasses all formally available conclusions capable of being drawn from the Crown case.
[33] Mr Maddock accepted that he hit Mr Conlon, but he said he did it in Mr Donnan’s defence and did not intend to hurt Mr Conlon or hurt him badly (at [29] and [49] – [50] of the summing up). That is perhaps why the handout says at 2 “if No, find Not Guilty”, even though it does, like the handout prepared for Mr Donnan, provide comprehensive guidance as to how Mr Maddock could theoretically be liable under s 66(1). Accounting for the complete theoretical gamut of Mr Maddock’s liability, the handout prepared in respect of him should have said at 2 “if No, proceed to Step 5”.
[34] The handouts provided a flow chart from which the jury could conclude either that Mr Donnan was liable as a principal (by answering “yes” to 1 and 2), or that he was liable as a party to an assault, his precise role being unclear (by answering “yes” to 3 and 4). The handout did not strictly provide for Mr Donnan’s liability as a secondary party to an assault by Mr Maddock, since it is possible Mr Donnan was involved in the assault (such that the jury would answer “yes” to 3) but did not intend grievous bodily harm, although he knew that Mr Maddock did intend it (such that the jury would answer “no” to 4 and, on the handout, conclude “not guilty”).
[35] However, as in the case of the Judge’s summing up, the handout was correct in terms of the Crown’s burden of proof. Further, it was favourable to Mr Donnan because it required the jury to find he himself intended to cause serious harm to Mr Conlon.

Ground 4: the direction on intoxication

[36] At the end of her summing up, Courtney J made an additional comment on the relevance of alcohol to Mr Donnan’s knowledge and intention. She said:

[66] Being drunk does not prevent somebody from forming an intent. So a drunken intent is still an intent. But if someone is so drunk that they are not capable of forming an intent then of course they will not have the necessary intent that you are looking at. So when you are thinking about intention and knowledge, particularly in relation to that common intention that the Crown asserts in this case, you will take into account what Mr Donnan said about being drunk and decide whether even if he was drunk, was he still capable of forming an intention even if it was a drunken intention? Or was he so drunk that he was not capable of forming any intention at all?

[37] Mr Clearwater submits that this direction, like the handout, was missing the appropriate emphasis on the knowledge required of Mr Donnan. He says that the Judge should have given even treatment to the possible effect of intoxication on the knowledge requirement.
[38] Ms Guy Kidd submitted the Judge’s reference in [66] to knowledge was sufficient, and that no further elaboration was required.
[39] In the course of the hearing, Mr Clearwater acknowledged that the Judge had adequately noted the possible effect of intoxication on knowledge, and that her direction in that respect was not lacking any vital aspect.

Conclusion on appeal against conviction

[40] Throughout the summing up, and in the jury handout, the Judge proceeded on the basis of Mr Donnan being liable – if at all – as a party whose precise role was unclear. That was the Crown’s case, and that is why there was a lack of direction on the precise mental elements required for pure secondary party liability, about which Mr Clearwater complains.
[41] The jury was required to be unanimous on the basis upon which they found Mr Donnan guilty, whether because he was involved in some way and possessed the requisite intention, because he committed the assault, or because he assisted Mr Maddock and had knowledge of Mr Maddock’s actions and intention (R v Giannetto; R v Peters). Courtney J directed her summing up to the way the Crown had run its case. Following the Judge’s directions, the jury was obliged to hold the Crown to the burden of proof it had set up for itself. None of the grounds are sustained.

Grounds of appeal against sentence

[42] Mr Clearwater submits the sentence was manifestly excessive and incorrectly calculated. He raises three points.

Lack of serious injury

[43] He argues that, although the Crown was entitled to charge with wounding under s 188(1) of the Crimes Act (under which it is a requirement that the offender intends to cause grievous bodily harm), cases charged under s 188(2) are relevant in this case because the actual harm caused to the victim was relatively slight. He cites R v Taueki [2005] 3 NZLR 372 in which this Court said that:

[27] Almost all GBH offences will involve a high degree of criminality (and significant injury to the victim) which will require the imposition of a term of imprisonment. It will only be in exceptional cases that a starting point of less than three years imprisonment will be appropriate: for example where the sentencing Judge considers the offending, while technically falling within s 188(1), involves culpability at a level which may have been better reflected in a lesser charge.

...

[42] ... sentencing Judges will also need to exercise discretion in assessing the gravity of each aggravating feature. The features of the offending in each case must be carefully assessed in order to establish a starting point which properly reflects the culpability inherent in the offending. Where there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed. However, there is no requirement to draw fine distinctions: Solicitor-General v Lam (1997) 15 CRNZ 18 at 25.

Premeditation

[44] In her sentencing notes, Courtney J said of the nature of the attack on Mr Conlon:

[15] Although the injuries that Mr Conlon sustained were not as serious as those of Mr Maxwell I regard this attack as also being a serious one. First, there was a relatively high degree of premeditation involved in this attack. Mr Conlon was on foot in Rosalind Road and you and Mr Donnan were in your vehicle. You deliberately drove into Rosalind Road and got out of your vehicle, one of you carrying a wheel brace. This would only have been for attacking Mr Conlon with. There is simply no basis on which you could assert that you were acting to protect Mr Donnan. The easiest thing in the world would have been for you to have kept driving that night and not have stopped.

[45] Mr Clearwater submits that, although it might be plausible that Mr Maddock had a high degree of premeditation, there was no basis upon which to conclude Mr Donnan approached the attack with premeditation since he had not initially been an aggressor, and was himself struck with a weapon before the incident involving Mr Conlon.

Starting point

[46] Courtney J applied the same starting point to both Mr Donnan and Mr Maddock. Mr Clearwater submits that ignored Mr Donnan’s secondary role, his much more positive pre-sentence report, and his expressions of remorse and willingness to change. These factors, Mr Clearwater submits, justified a differentiated starting point. He submits a starting point of 4 years’ imprisonment would be appropriate, with an end sentence of 3 years’ imprisonment.

Crown submissions on sentence

[47] Ms Guy Kidd submitted that the starting point was wholly in line with the bands outlined in R v Taueki, whether characterised as falling within Band 1 (3 – 6 years for offending where no, one, or more aggravating features are present but not for offences of extreme violence) or Band 2 (5 – 10 years for offending which features two or three aggravating features). The aggravating features identified in R v Taueki that are relevant to Mr Donnan are use of a weapon, attack to the victim’s head and the presence of multiple attackers. Ms Guy Kidd noted the street-attack examples given in R v Taueki and submitted that five years, falling as it does at the upper end of Band 1 and the lower end of Band 2, is an appropriate starting point. She submitted, in respect of the same starting point having been applied to Mr Maddock and Mr Donnan, that the assault was a joint enterprise in which the precise involvement of each man was not established, leaving the jury to conclude for themselves what role each played.

Our conclusions on sentence

[48] Ms Guy Kidd’s argument on the sentence appeal is sound. The starting point adopted by the Judge was within range, and her disinclination to distinguish between Mr Maddock and Mr Donnan cannot be impugned, in light of the murky nature of each offender’s role. The pre-sentence materials and references she received, which were, in respect of both men, positive in different ways (Mr Maddock’s pre-sentence report, unlike Mr Donnan’s, was negative, but his personal references were positive). The assault was a joint attack, in which each man played a material role. The Judge did not impose a sentence outside of the available range.

Result

[49] The appeals against conviction and sentence are dismissed.

Solicitors:
Clearwater & Associates, Auckland, for Appellant
Crown Law Office, Wellington