Lane v R [2014] NZCA 54 (7 March 2014)

Last Updated: 13 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA382/2013 [2014] NZCA 54
BETWEEN	GARY LANE Applicant
AND	THE QUEEN Respondent

Hearing:	4 March 2014
Court:	Randerson, Venning and Cooper JJ
Counsel:	Applicant in person via AVL R Coombridge as McKenzie Friend J M Jelas for Crown
Judgment:	7 March 2014 at 10:00am

JUDGMENT OF THE COURT

The application to extend the time to appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] Following a District Court jury trial the applicant was convicted on four counts arising out of a violent incident in Waihi on 13 April 2009. The principal victim was a 50 year old man who we will refer to as Mr H. The trial Judge, Judge I B Thomas, sentenced the applicant on 2 November 2010 to nine years and six months imprisonment.^[1]
[2] The applicant did not file an appeal until 10 June 2013. An extension of time to appeal under s 388(2) of the Crimes Act 1961 is therefore necessary. Although there was some initial doubt as to whether the appeals were against both conviction and sentence, the applicant confirms that his appeal is solely against sentence on the grounds it was manifestly excessive.

Background

[3] The Judge found that the applicant, his mother (Ms Dalhousie) and another family member (Mr Bridge) went to Mr H’s residence to confront him about alleged defects in his parenting abilities.^[2] The applicant took a tomahawk with him, concealed in his pants. The Judge found that the unlawful common purpose was to attack Mr H in some violent way.^[3]
[4] On arrival at Mr H’s home, the applicant pushed Mr H’s daughter W aside and entered the house with his mother. Mr Bridge remained as a lookout at the doorway. There was a brief argument with Mr H. Ms Dalhousie then pushed or punched him. The applicant also punched Mr H and then struck him at least once with the flat end of the tomahawk, rendering him unconscious. The applicant then kicked Mr H in the ribs or trunk area of his body. Mr H was rendered unconscious. He suffered a fracture of his cheekbone which required surgery and he had sore ribs as a result of the kicks.
[5] The applicant was found guilty of aggravated burglary, wounding with intent to cause grievous bodily harm, injuring with intent to injure and a separate count of assaulting W. Ms Dalhousie and Mr Bridge were also convicted of aggravated burglary and wounding with intent to cause grievous bodily harm and Ms Dalhousie was convicted of assaulting Mr H. Ms Dalhousie’s convictions were later set aside on appeal and a re-trial ordered.^[4]

The Judge’s approach to sentencing

[6] The Judge observed that the jury’s verdict reflected a finding in respect of the wounding charge that a wounding with the tomahawk could well happen during the confrontation. Knowledge that the applicant had the tomahawk in his possession was also a necessary element in the guilty verdict on the aggravated burglary charge. The Judge regarded the aggravated burglary and wounding charges as the lead offences, each carrying a maximum of 14 years imprisonment. The applicant’s counsel submitted at sentencing that a nine to ten year starting point under Band 3 of this Court’s decision in R v Taueki was appropriate.^[5] The Judge found that the level of culpability lay at the lower end of Band 3 or at the top of Band 2. The aggravating factors identified by the Judge were premeditation; serious but not extreme violence; the use of the tomahawk as a weapon; blows to the head; a “totally unwarranted” home invasion; and the presence of multiple offenders. While the confrontation was initiated by Ms Dalhousie, the Judge noted that the applicant and Mr Bridge had gone along with her intention to confront Mr H.
[7] There were no mitigating factors regarding the offending and little to be said by way of personal mitigating factors. The applicant was aged 25 years at the time. He had some previous convictions for dishonesty and driving offences but there had been no previous history of violent offending. The pre-sentence report indicated that the applicant was not considered to be remorseful and had not fully accepted responsibility. He was assessed as having a medium risk of re-offending.
[8] The Judge adopted a start (and end) point of nine years imprisonment on the aggravated burglary and wounding charges. He added a further six months imprisonment on the charge of injuring with intent to injure (arising from the kicking of Mr H). A concurrent term of three months imprisonment was imposed in respect of the assault on W. The end result was an overall sentence of nine and a half years imprisonment.

The applicant’s submissions

Reasons for delay

[9] In view of the lengthy delay in filing the appeal, we invited the applicant to address us first on that issue. His response was to say that his counsel informed him after his sentencing that there were no grounds for an appeal. He did not take any steps thereafter, believing it was too late to do so. However, after this Court’s decision on his mother’s appeal, he received advice that it might still be possible for him to appeal.
[10] Ms Jelas for the Crown opposed the grant of an extension of time. She pointed out that this Court’s decision in his mother’s case was issued on 23 September 2011 and the notice of appeal was not filed until 10 June 2013. We accept her submission that the delay in filing the appeal is inordinate and that no reasonable explanation has been put forward for the delay.

Merits

[11] We turn to consider the merits of the appeal. Written submissions, prepared with the assistance of Mr Coombridge, were filed. The first point raised was that the Court should consider the Crown evidence regarding the injuries suffered. As well, it was submitted that we should take into account the applicant’s denial that he kicked Mr H while he was on the ground.
[12] For sentencing purposes, the Judge accepted that the injuries sustained by Mr H were in the less serious category.^[6] It was also accepted that Mr H’s physical injuries were not permanent but the Judge referred to lasting emotional and psychological effects on the family, particularly Mr H and another daughter C.^[7]
[13] The submission that the Judge ought to have taken into account the applicant’s denial of kicking Mr H is not sustainable in light of the jury’s verdict. The conviction for injuring with intent to injure was directed to the applicant kicking Mr H while he was on the ground. Plainly, the jury accepted this occurred.
[14] The next point raised in the written submissions related to the definitions of wounding and causing grievous bodily harm. We are satisfied this submission has no merit. The nature of the injury clearly involved a wounding through the use of the tomahawk with intent to cause grievous bodily harm. A broken cheekbone resulted and clearly falls within the definition of grievous bodily harm as the jury must have accepted.
[15] Next, we were referred to the decision of this Court in Nuku v R.^[8] However, that decision has no relevance to charges laid under s 188(1) and s 232(1)(a) of the Crimes Act.
[16] The final point raised by the applicant is that the quashing of his mother’s convictions meant that the aggravating factor of the involvement of multiple offenders was thereby removed. There is no merit in this point since Ms Dalhousie admitted going into the house and being present at the time the assault took place. She denied any prior knowledge of the tomahawk. The reason her conviction was set aside was due to counsel error in calling a witness who gave evidence that implied that Ms Dalhousie was aware of the tomahawk, a fact that the Crown would otherwise have been unable to prove. As earlier noted, although her convictions were quashed, a re-trial was ordered.
[17] It follows that although the precise extent of involvement and prior knowledge on the part of the applicant’s mother was not established, there was no doubt she was present at the time of the assault. The Crown’s evidence also demonstrated that she was an active participant in the assault on Mr H.
[18] For the reasons carefully set out by the Judge, we are satisfied that the sentence was within the available range for this very serious assault involving an unwarranted intrusion into a private home and the use of a weapon.

Result

[19] Given the lengthy and unexplained delay and the lack of merit in the appeal, the application for an extension of time to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Dalhousie DC Tauranga CRI 2009-079-650, 2 November 2010.

^[2] At [5].

^[3] At [5].

^[4] Dalhousie v R [2011] NZCA 486.

^[5] R v Taueki [2005] 3 NZLR 372 (CA).

^[6] At [21].

^[7] At [10].

^[8] Nuku v R [2013] 2 NZLR 39 (CA).