MacDonald v R [2011] NZCA 446 (8 September 2011)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

MacDonald v R [2011] NZCA 446 (8 September 2011)

Last Updated: 14 September 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA263/2011 [2011] NZCA 446

BETWEEN GILLIES TANGATAKINA MACDONALD Appellant

AND THE QUEEN Respondent

Hearing: 10 August 2011

Court: Harrison, Rodney Hansen and Andrews JJ

Counsel: B Webby for Appellant R J Collins for Respondent

Judgment: 8 September 2011 at 12.30 pm

JUDGMENT OF THE COURT

1. The appeal against conviction is dismissed.
2. The appeal against sentence is allowed. The sentence of three years imprisonment is quashed. In its place Mr MacDonald is sentenced to one year nine months imprisonment, subject to the release condition that he attend for an assessment and further treatment with the departmental psychologist.
   

REASONS OF THE COURT
(Given by Rodney Hansen J)

Introduction

[1] After trial before Judge Adeane and a jury in the Napier District Court, Mr MacDonald was found guilty on one count of wounding with intent to injure. He was convicted and sentenced to three years imprisonment.[1]
[2] Mr MacDonald appeals against conviction and sentence. He contends that a miscarriage of justice occurred as a result of the way in which the trial Judge answered two questions asked by the jury in the course of deliberations. Mr MacDonald’s sentence is said to be manifestly excessive.

Factual background

[3] The incident giving rise to the charge took place at a private house in Hastings on 20 July 2010. At about 1.30 pm Mr MacDonald, who lived about 50 metres away, went to the house to speak to one of the occupants who owed him money. There was a short discussion. The Crown case was that Mr MacDonald then went back to his home before returning to the address a short time later. The complainant was on the porch. He said in evidence that Mr MacDonald told him to leave. While he was bending over to pick up a carton of beer to take with him, he was struck several times on the back of the head by Mr MacDonald using a sock containing heavy objects. On the Crown case, they were the size and weight of billiard balls.
[4] Mr MacDonald’s evidence was that he only went to the address once. He was carrying his walking stick. He said the complainant advanced on him in a threatening manner. He said he struck the complainant with his walking stick to protect himself.
[5] The key issue at trial was self-defence. That could arise only if the jury accepted Mr MacDonald’s evidence. Plainly, self-defence was not available on the Crown case.

Conviction appeal

[6] The jury retired to consider their verdict at 3.52 pm on 10 March 2011. Before retiring for the evening, they formulated four questions. A further question was asked the following morning. All five were answered at 9.37 am The jury retired to consider its verdict at 9.42 am and returned a unanimous verdict at 10.10 am
[7] The two questions in issue were the second and fifth of those dealt with by the Judge. They read as follows:

2 Description of walking stick - weight? Sharp edges or points.

5 What is the age of the defendant?

[8] The Judge answered the question about the age of Mr MacDonald first. He said:

[2] Well, now, there is no evidence about the age of the defendant, Mr Foreman, but I have got the advantage of having here the whole of the Court file from day one. In laying the information, the police have to state the date of birth of the defendant and although it is not sworn – or no, it probably is sworn testimony in the case, in as much as the information was sworn to be true by the officer laying it – nevertheless, it states the defendant’s date of birth as 3.11.62. He is, accordingly rising 49 years of age and many of us would resent the description of him as being an old man, for personal reasons.

[9] His response to the second question was as follows:

[4] The second question, “Description of walking stick – weight? Sharp edges or point?” Answer, we have no evidence about the nature of the walking stick. The item was apparently not taken into evidence. We have no particular description of it in evidence. Presumably that was so because all the eyewitnesses for the Crown describe a weighted sock as having been the weapon in question and having found such an item at the defendant’s house, the police have exhibited that and the primary, though not the vital thrust of the Crown case, the primary thrust is that the loaded sock is what did the damage. We have no description of the walking stick.

[10] Mr Webby (who was counsel for Mr MacDonald at trial) said that the Judge answered the question regarding the age of Mr MacDonald without discussion with counsel. The written question was passed to the Judge after the jury came into Court and the Judge answered it with the other questions that had been the subject of prior discussion.
[11] Mr Webby submitted that the Judge’s answer was unfairly prejudicial to the defence in two respects. It provided information to the jury which was not in evidence and the information was associated with a gratuitous comment which tended to erode Mr MacDonald’s credibility and undermine his claim of self-defence.
[12] Mr Webby explained that some emphasis was placed in the defence case on the appearance of Mr MacDonald who, because of health issues, looked older than his years. So it was that there were references in cross-examination to Mr MacDonald as an old or older man, to his grey beard and to his walking with the assistance of a walking stick. Mr MacDonald himself gave evidence about his vulnerability. Mr MacDonald’s apparent frailty was seen as an important element of his defence, in particular the use of a pre-emptive strike when the victim allegedly advanced towards him.
[13] Mr Webby submitted that the introduction by the Judge of factual evidence of Mr MacDonald’s age, coupled with a comment that could have been understood to suggest that he did not appear to be an old man, “went straight to the heart of the defence”. He argued that the jury should have been instructed to make their own assessment of Mr MacDonald’s age on the basis of the evidence they had heard and of their own observations. He said the Judge’s failure to do so led to a miscarriage of justice.
[14] Mr Webby submitted that the Judge also went too far in his answer to the question about the walking stick. He said the comment about having “no evidence about the nature of the walking stick” tended to advance the Crown case and should have been associated with a direction that the Crown had the obligation to negate the reasonable possibility of self-defence.
[15] The information given by the Judge about Mr MacDonald’s age was an uncontroverted fact in terms of s 128 of the Evidence Act 2006 which provides:

128 Notice of uncontroverted facts

(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.

(2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter.

[16] As Mr Collins submitted, the fact of Mr MacDonald’s age was capable of accurate and ready determination by reference to sources whose accuracy could not reasonably be questioned. The Judge was able to refer to the information.
[17] In our view, there was no reason why the Judge should not have exercised his discretion to disclose that additional fact to the jury. It is drawing a long bow to say it was unfair to the defence for the jury to receive factual information which, at worst, might have corrected a misleading impression created by Mr MacDonald’s appearance and other aspects of the evidence.
[18] That said, it is regrettable that the Judge answered the question at all without first conferring with counsel. The invariable practice of trial Judges to invite comment from counsel on the way jury questions should be answered is more than a simple courtesy. Questions from the jury call for particular care as they focus on issues which self-evidently have assumed particular importance during the deliberative process. The input of counsel can promote accuracy and balance and provide a further layer of protection against judicial error.
[19] In this case, consultation with counsel may also have avoided the perception of unfairness arising from the Judge’s concluding comment. Answers to jury questions are best kept factual and to the point. Gratuitous remarks, at best, provide an unnecessary gloss. At worst, they risk qualifying or detracting from the essential message.
[20] In the context of the trial, we see no risk that the Judge’s remark could have led the jury astray. It conveyed a hint that the jury should resist any attempt by the defence to characterise Mr MacDonald as an old man. But, in our view, it would have done nothing to undermine the defence case that Mr MacDonald’s undisputed health and mobility problems made self-defence a credible explanation for his actions.
[21] We take the same view of the Judge’s response to the question about the walking stick. Again, Judge Adeane went beyond the factual to engage in comment that could be taken to convey a certain scepticism with the defence case. But what he said was not inaccurate. His answer redirected the jury to the nub of the case. The other questions he went on to answer required a reiteration of the factual and legal issues bearing on self-defence. There is no criticism of the way they were dealt with. The answers read as a whole leave us no cause for concern with the way in which the jury was directed on the key issues.
[22] We are satisfied that the Judge’s comments, though better left unsaid, would not have caused a fair-minded and objective observer to conclude that there was any risk that Mr MacDonald did not have a fair trial.

Sentence appeal

[23] In sentencing Mr MacDonald, Judge Adeane made no specific finding on whether the victim was struck with the weighted sock or the walking stick. He said that a conviction was available on either view of the facts. He observed that it was “curious” that the distinctive cosh weapon, much as described by the victim, was found at Mr MacDonald’s home when it was searched after the incident. That suggests that he preferred the Crown’s version of events. However, he did not include premeditation as an aggravating feature of the offending and, in the absence of any clear indication of his view of the facts, we proceed on the basis that Mr MacDonald was sentenced for hitting the victim with his walking stick.
[24] The Judge referred to the aggravating features of the offending as entry into private property; the use of a weapon; the targeting of the head of an unresisting victim; and the ongoing effects of the injuries. The victim suffered a head gash which bled profusely and required surgical gluing to repair. He also reported suffering from migraines which he did not get before the assault.
[25] Judge Adeane determined the starting point for the offending as three years imprisonment, reached by reference both to R v Taueki[2] and R v Harris.[3] As there were no mitigating factors, an end sentence of three years imprisonment was imposed.
[26] Mr Webby submitted that Harris provided more helpful guidance than Taueki and should have led to a starting point of 18 months to two years. The Crown’s position was that the facts of the case had much in common with those in Harris and, as in that case, a sentence of three years could not be seen as manifestly excessive.
[27] Neither Taueki nor Harris have direct application. Taueki is, of course, concerned with the offence under s 188(1) of the Crimes Act 1961 of wounding, maiming, disfiguring or causing grievous bodily harm with intent to cause grievous bodily harm. The maximum sentence is 14 years. The guidelines in Harris are adapted from Taueki for application to offending under s 189(2) of injuring with intent to injure which carries a maximum sentence of five years. Mr MacDonald was charged under s 188(2) of the Act with wounding with intent to injure. That carries a maximum sentence of seven years imprisonment.
[28] Offending under ss 188(2) and 189(2) require the same mens rea – an intent to injure or a reckless disregard for the safety of others. The distinction between the two is in the actus reus which, under s 189(2), is injuring the victim whereas, under s 188(2), may be wounding, maiming, disfiguring or causing grievous bodily harm. While it would not be incorrect to apply Taueki principles when sentencing under s 188(2),[4] Harris can be more readily applied with appropriate allowance for the nature of the injury inflicted. That was the approach taken by this Court in Grimshaw-Jones v R in a case of wounding with reckless disregard under s 188(2).[5]
[29] The bands and starting point sentences specified in Harris[6] are as follows:

Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];

Band two: where the injuries are moderate, sentences of up to two years’ imprisonment can be justified;

Band three: for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act 2002).

[30] In this case, we think the injuries can fairly be described as moderate. Certainly they were not as serious as the injuries sustained in Harris which were caused by a prolonged beating and led to the loss of consciousness on two occasions. On that basis, a starting point of two and a half years imprisonment was described as “easily justified”.[7] In this case, the use of a weapon (albeit, if the walking stick, not of a lethal nature) and an attack to the head from behind are aggravating features which were appropriately taken into account by the Judge. Not so, however, the fact that the attack took place on private property. We were told that the incident occurred on the terrace of a flat served by a common right-of-way. Mr MacDonald did not enter the house and there is no indication that he was trespassing at the time.
[31] In our view, the starting point of three years was clearly excessive having regard to the bands in Harris and the sentence imposed in that case and Grimshaw-Jones. In Grimshaw-Jones, a starting point of two years eight months was described by this Court as by no means excessive[8] for an attack with a knife on two victims, one of whom suffered a cut to her jugular vein and a ten centimetre cut across her neck and the other a cut to the jaw requiring 24 stitches. We consider the appropriate starting point is two years three months.
[32] Judge Adeane made no allowance for Mr MacDonald’s acknowledged disability. Indeed, he seems to have been sceptical of its role in the incident. He said:[9]

Insofar as your personal circumstances are concerned, you are 48 years of age, a long-term invalid’s beneficiary since a motor cycle accident when you were 21 years of age. The present state of your health is not easily established, but certainly you choose the outward appearance of a much limited physique. Quite how all this fits with your decision to behave aggressively towards the young male complainant and his associates, for that matter, is not easily understood if, in fact, you are as physically impaired as you choose to present yourself at this stage.

[33] The pre-sentence report makes it clear, however, that Mr MacDonald has quite serious physical and mental disabilities. They are described in the following passages from the pre-sentence report:

Mr MacDonald reports that he was born in Hastings and grew up in the Hawkes Bay area. Of note is the motorcycle accident suffered by Mr MacDonald at the age of 21, which left him with mental and physical difficulties. He reports that he has been unable to work since this time and prior to his remand in custody, was in receipt of an Invalid’s Benefit.

In terms of Mr MacDonald’s health he reports to suffering mental and physical difficulties due to the motorcycle accident that occurred when he was 21. He reports that he suffers from “chronic pain” and that he is prescribed numerous medications to address his difficulties. Dr Blaine Stride from Te Mata Peak practice was contacted and confirmed that Mr MacDonald had suffered spinal and head injuries as a result of his motorcycle accident. He further stated that Mr MacDonald was prescribed a number of medications to increase his mental and physical well-being including Methadone for pain control. Dr Stride stated that this medication had been stable for more than 12 months.

...

Mr MacDonald reports that since his motorcycle accident at the age of 21 he has experienced memory difficulties and slow thought processes. Dr Stride confirmed this and stated that Mr MacDonald’s head injury affects “his functioning, he cannot process cognitively”. Given this, any programme or intervention attempted with Mr MacDonald would need to be on a one to one basis, such as sessions with a departmental psychologist.

[34] We have no reason to question the accuracy of the probation officer’s summary of the medical evidence of Mr MacDonald’s mental disability. The manner of Mr MacDonald’s offending is consistent with it. A mental disability, falling short of exculpating insanity, may be capable of mitigating sentence either because, if causative of the offending, it moderates culpability or because it renders less appropriate or more subjectively punitive a sentence of imprisonment.[10] We do not have sufficient information to enable us to determine precisely how Mr MacDonald’s disabilities might have contributed to his offending. His criminal history was described in the pre-sentence report as “lengthy and varied, with the majority of his convictions being related to driving offences”. Significantly, there was no offending between 1998 and 2008 but since then he has had ten convictions, including two for assaults. Although the recent trend in his offending is concerning, previous sentences do not indicate a propensity to serious violence. None have resulted in a custodial sentence. However, his unpredictability and a tendency to react aggressively are noted in the pre-sentence report and, together with a poor history of complying with community-based sanctions, makes a custodial sentence inevitable.
[35] That said, it is clear that Mr MacDonald’s capacity to control and moderate his behaviour has been diminished as a result of his health issues. His medical diagnosis is of significantly decreased cognitive functioning. His culpability must be regarded as correspondingly reduced and it is reasonable to infer that his disabilities will mean that a prison sentence will weigh more heavily on him.
[36] We consider a reduction of six months is warranted to take proper account of Mr MacDonald’s disabilities. That would lead to a sentence of one year nine months imprisonment. We endorse the probation officer’s recommendation that Mr MacDonald’s sentence should be subject to a release condition that he attend for an assessment and further treatment with the departmental psychologist.

Result

[37] The appeal against conviction is dismissed.
[38] The appeal against sentence is allowed. The sentence of three years imprisonment is quashed. In its place Mr MacDonald is sentenced to one year nine months imprisonment, subject to the release condition that he attend for an assessment and further treatment with the departmental psychologist.

Solicitors:
Crown Law Office, Wellington, for Respondent

---

[1] R v MacDonald DC Napier CRI-2010-020-2885, 13 April 2011.

[2] R v Taueki [2005] 3 NZLR 372.
[3] R v Harris [2008] NZCA 528.

[4] The Court anticipated that the guidelines would be applied by analogy to other offences involving serious violence: Taueki, at [9].
[5] Grimshaw-Jones v R [2010] NZCA 490.
[6] Harris, at [10].
[7] At [17].
[8] Grimshaw-Jones, at [13].
[9] At [7].
[10] E (CA69/2010) v R [2010] NZCA 13 at [68].