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Court of Appeal of New Zealand |
Last Updated: 30 October 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
26 September 2013 |
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Court: |
Ellen France, Priestley and MacKenzie JJ |
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Counsel: |
C W Stevenson for Appellant
M F Laracy for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley
J)
Introduction
[1] The appellant faced trial in the Manukau District Court in August 2011 presided over by Judge Andrée Wiltens. The jury convicted him on the one count he faced of causing his victim grievous bodily harm with intent to cause grievous bodily harm, laid under s 188(1) of the Crimes Act 1961. He was subsequently sentenced to a term of three years imprisonment.[1]
[2] The offending took place in May 2010 in the home of the appellant’s mother and her then partner, the victim. The appellant, then aged 19, was also there. The three had been consuming alcohol. An argument developed between the victim and his partner. There was an altercation in the kitchen between the victim and the appellant. On one version of the evidence the victim armed himself with a kitchen knife.
[3] The appellant went into his bedroom and returned with his gas-operated air pistol. Approximately five shots were fired at the victim, all of which struck him in the head area. One pellet damaged the victim’s right eye. Blindness in that eye resulted.
[4] The defence raised by the appellant at his trial was self-defence. He did not give evidence before the jury but the jury nonetheless had the advantage of a DVD of his interview with a police officer. By convicting him the jury was clearly satisfied beyond reasonable doubt that self-defence had been excluded.
[5] This appeal challenges both the appellant’s conviction and sentence. The appeal was first called before another panel of this Court in August 2012. Since then a number of appeal points, including one of counsel competency, have fallen away or been resolved. It is unnecessary for us to detail these points.
Remaining appeal issues
[6] The following appeal points were advanced:
- (a) There was no evidence to support a conviction under s 188(1). The Judge had erred by not directing the jury on the option of returning a verdict on the lesser included charge under s 188(2) of the Crimes Act, being causing grievous bodily harm with intent to injure.
- (b) Judge Andrée Wiltens failed to direct the jury adequately on selfdefence being available to the appellant, not only in respect of himself but also in defence of his mother and two young siblings who were in the house at the time.
- (c) The Judge’s directions on “propensity”, by which counsel meant the victim’s previous convictions for violence, were inadequate.
- (d) The sentence imposed was manifestly excessive. Certainly if there were to be a conviction on the lesser charge, the lower maximum penalty under s 188(2),[2] would require re-assessment of the appellant’s sentence.
Discussion
Section 188(1) or s 188(2)?
[7] Mr Stevenson’s submission, with which he invited Ms Laracy to agree, was that a conviction under s 188(1) was unsustainable. In the event of this court agreeing, we were invited to substitute a conviction flowing from a guilty verdict under s 188(2) if other appeal points were not upheld.
[8] Ms Laracy for her part accepted that a s 188(1) conviction was unsustainable. She observed the Crown had not articulated at any stage during the appellant’s trial an intention on his part to cause grievous bodily harm. Nor was the jury asked to draw an inference from the available evidence about the type of damage an air pistol pellet could cause.
[9] Having given careful consideration to the factual matrix, we are satisfied both counsel are correct. We need not review the evidence in any detail. The appellant’s DVD interview suggested he had shot himself “a couple of times” with small plastic bullets from the air pistol which had not hurt very much. There was evidence the appellant had used the air pistol on another occasion which had caused insignificant injury, only bruising. There was evidence from an armourer that the pellets would cause serious bodily injury only if the pellet entered an eye or an ear canal.
[10] We note that defence counsel, in her closing address to the jury, discussed with them the issue of the appellant’s knowledge of the type of injury the air pistol might inflict and pointed out the appellant had to know it was possible to inflict grievous bodily harm with that weapon.
[11] The Judge’s summing up dealt with the issue of intention. He discussed the problematic evidence of the distance between the appellant and the victim when the shots were fired. He correctly directed the jury to focus on the appellant’s “true intention” when shooting. There was, understandably perhaps, no direction on the distinction between whether the appellant intended to cause his victim grievous bodily harm or to cause injury to him. The issue of a possible verdict on a lesser charge was overlooked by both counsel and the Judge.
[12] Materials which the Judge prepared for the jury identified two elements of s 188(1) intention which the Crown had to prove beyond reasonable doubt. The first was that the Crown had to prove that the appellant caused grievous bodily harm to the victim being bodily harm which was “really serious hurt or really serious harm”. The second element was that the appellant intended to cause his victim that bodily harm. These materials were correct so far as s 188(1) was concerned. But certainly, intention in the context of a lesser charge was not before the jury.
[13] Our conclusion is that the conviction under s 188(1) was unsafe. There is, however, ample evidence to justify a conviction under s 188(2).
Self-defence directions
[14] Mr Stevenson submitted that the Judge’s directions to the jury on self-defence were inadequate. They wrongly suggested that the appellant was under some duty to retreat. Furthermore there was insufficient emphasis given to defence of another being available in respect of the appellant’s mother (with whom the victim was arguing) who had previously been the subject of attacks by her partner.
[15] The jury materials which the Judge gave to the jury on the self-defence issue stated:
(i) What were the circumstances as Mr Karawana believed them to be?
(ii) In those circumstances was he acting in the defence of himself or another?
(iii) Was the force used reasonable as against the circumstances as he believed them to be?
There can be no criticism of the content of that summary.
[16] The Judge’s summing up, however, towards its conclusion, spent some time on whether the appellant had alternatives other than returning to the kitchen with the air pistol. He stated:
[69] Was it reasonable to return to the kitchen or the laundry with the pistol and to shoot? Were there other alternatives which were reasonable? Could he have made his way out of the living room, over the balcony and just escaped? Could he, on the way to Te Wha’s room, have turned right and gone out the front door of the house and just run away? Could he have gone into Te Wha’s room, locked the door and hidden under the bed? Could he have gone further down the corridor into one of the other rooms? After he’d picked up the pistol from Te Wha’s bedroom, again going back to the kitchen, could he have gone left out the front door? Could he have gone right through the sliding door, over the balcony and out? Was he acting with reasonable force when he returned to the kitchen and shot? That’s the issue for you to decide.
[17] Those comments about options open to the appellant would clearly not help the jury if, in the circumstances as the appellant believed them to be, he considered his mother was being threatened. This problem was clearly pointed out to the Judge by counsel because he called the jury back and gave them a supplementary direction in the following terms:
[1] It has been quite rightly pointed out that when I was running through the issue of self-defence and going through the options that were available, those options as I went through them to you applied only to Johnathon. If, in fact, he was concerned about other members of the family who were still there then those options need to be considered in the light of what would happen to them. It is all very well for him to run out of the living room and over the balcony, and take himself out of the picture, but that still leaves other younger children in the house with Shane in the mood that he is in, and from Johnathon’s perspective with a knife in his hand.
[2] So you need to have regard to that as well when you are looking at the options that were available to him when he formed the necessary intent and whether or not the conduct was reasonable in all the circumstances. With that addition that is the summing up complete, thank you.
[18] Mr Stevenson submitted this supplement to the Judge’s summing up was inadequate. It might well have left the jury with the continuing impression that, even in a situation where he was endeavouring to defend his mother, the appellant had a duty to retreat.
[19] Ms Laracy submitted that the Judge’s directions were appropriate. There was no adequate basis for defence of another to be engaged. The appellant’s statement to the police made no such suggestion. Nor indeed did defence counsel refer to defence of another in her closing address. There is force in these submissions.
[20] We do not consider this appeal point can be upheld. Although the Judge’s hypothetical examples of options open to the appellant[3] were probably of little assistance, the jury materials with which the jury retired were focused and sufficient to make clear to the jury that the Crown had to exclude self-defence. Additionally, the supplement to the Judge’s summing up sufficiently alerted the jury to defence of another.
The victim’s propensity
[21] Mr Stevenson submitted that the Judge had erred by not giving the jury specific directions on the victim’s propensity for violence. Such directions, he submitted, were necessary to focus the jury on who was the aggressor.
[22] We do not consider there is any need for a specific direction of the type counsel urges. The victim was cross-examined on his previous convictions which included a previous serious assault on his partner. Furthermore the appellant in his police interview made reference to previous attacks by the victim. There were comments in defence counsel’s closing address to the jury about the victim’s anger and holes in the walls of the house. The victim’s arguably relevant history was thus before the jury. There is nothing to this appeal point and we dismiss it.
The appellant’s conviction
[23] As previously discussed[4] we consider that a conviction under s 188(1) was not reasonable or safe. We consider that a guilty verdict under s 188(2) was properly open to the jury on the lesser charge. We reject the submissions that there were inadequacies in the Judge’s directions to the jury on self-defence. Nor was there any material failure so far as the relevance of the victim’s record of violence was concerned.
[24] We thus intend to allow the appeal against conviction. The conviction under s 188(1) will be quashed, but a conviction under s 188(2) will be substituted.
Appeal against sentence
[25] The Judge, dealing as he was with a conviction which attracted a maximum penalty of 14 years imprisonment, fixed on a start point of five years. The Judge correctly pointed out he could not ignore the fact that the victim had been permanently blinded in one eye.
[26] The Judge also factored in, this being part of his overall assessment of culpability, what he saw as “an appreciable degree of provocation” and “an element of excessive self-defence”.[5] Weighing these factors the Judge reduced his start point from five years down to four years.
[27] Materials before the Judge suggested that the appellant had a background of alcohol and drug consumption and was being treated for psychotic illnesses and paranoid schizophrenia. There was thus an element of ongoing risk.
[28] The Judge did not consider that the appellant’s previous convictions warranted an uplift. He noted the appellant was 19 at the time of the offending. He was concerned by the absence of any expression of remorse and what was described in the pre-sentence report as a tendency to blame others. The appellant was entitled to some credit for having complied for 18 months with strict bail conditions.
[29] The Judge, although not attributing precise figures to the mitigating features he had identified, considered that the least restrictive outcome was a term of three years imprisonment. He suggested that the Parole Board would set release conditions to take into account the appellant’s personal requirements and the need to prevent further offending.
[30] We are required to adopt a similar sentencing methodology but, given the conviction on the lesser charge, from a lower start point.
[31] We note that the Judge imposed an end sentence which was three-fifths (60 per cent) of his five year start point. We consider the adjustments made by the Judge were appropriate and we do not intend to interfere with them. Given, however, the lesser charge involved (s 188(2)), we consider that, in the circumstances, an appropriate start point is one of three years imprisonment.[6] The same fraction or reduction would lead to an end sentence (rounding down) of 21 months imprisonment. Accordingly the sentence of three years imprisonment imposed on the appellant is quashed. A sentence of 21 months imprisonment is substituted.
Release conditions
[32] Counsel have conferred and assisted the Court with a memorandum relating to appropriate release conditions. The sentence expiry date for the sentence imposed in the District Court was 30 November 2014. The sentence expiry date for the substituted sentences has already passed, being 30 August 2013.
[33] Standard conditions and special conditions imposed cannot, unless a Court specifies a different expiry date, extend beyond six months from the sentence expiry date.[7] That six month period, on the substituted sentence, would run to 28 February 2014.
[34] Regrettably the relevant time periods, so counsel inform us, mean the appellant will not be able to complete standard rehabilitative programmes.[8] We are thus invited to impose the following generic special condition which will enable the Department for Corrections to tailor any counselling or treatment in the time available. Clearly some form of oversight and care is necessary given the appellant’s psychiatric condition.
[35] The special condition we impose is thus:
The appellant is directed to attend and complete any other counselling/treatment or programmes as directed by his Probation Officer.
Result
[36] The appeal against conviction under s 188(1) of the Crimes Act 1961 is allowed.
[37] The conviction is quashed. A conviction under s 188(2) of the Crimes Act 1961 is substituted.
[38] The appeal against sentence is allowed.
[39] The sentence of three years imprisonment is quashed. A sentence of one year and nine months imprisonment is substituted.
[40] A post-release condition that the appellant attend and complete any other counselling/treatment or programmes as directed by his Probation Officer is imposed.
Solicitors:
Crown Law Office,
Wellington for Respondent
[1] R v Karawana DC Manukau CRI-2010-092-8033, 30 November 2011.
[2] A maximum of seven years imprisonment as opposed to 14 years.
[3] Above at [16].
[4] Above at [13].
[5] At [15].
[6] See Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[7] Sentencing Act 2002, s 93(2A)(c).
[8] We were told the appellant had partly completed one programme.
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